 
 

 

Gornell Law School Library
Cornell University Library
KF 9219.M46 1905

wn
3 1924 020 159 467 law

9

 

 

 
THE LAW OF CRIMES
THE

LAW OF CRIMES.

BY

JOHN WILDER MAY,
—

CHIEF JUSTICE OF THE MUNICIPAL COURT, AND LATE PROSECUTING
OFFICER FOR BOSTON.

Tuirp Eprtion

EDITED BY

HARRY AUGUSTUS BIGELOW,

ASSISTANT PROFESSOR OF LAW IN THE LAW SCHOOL OF
THE UNIVERSITY OF CHICAGO.

BOSTON:
LITTLE, BROWN, AND COMPANY.
1905.
Lh bad,

By Joun WILDER May.

Copyright, 1893, 1905,
By Henry F. May.

 

All rights reserved

THE UNIVERSITY PRESS, CAMBRIDGE, U.S, A.
PREFACE TO THE THIRD EDITION.

In the preparation of the present edition the aim
has been the same as with the first and second
editions, namely, to make a book that might be of
service both to the student and to the profession at
large. With these ends in view, the additional space
made available by the enlarged size of the present
edition has been utilized in two ways: first, the gen-
eral principles of the criminal law underlying all
applications of it have been stated somewhat more in
detail, and more fully illustrated by examples, and the
same course has been followed, wherever it seemed
advisable, in’ dealing with the specific offences ; sec-
ond, the citations have been increased, the aim being
particularly to add recent cases showing the present
application and condition of the common law of crimes.
As a matter of convenience to both practitioner and
student, in citing cases, references have been made,
not only to the official reports but to the national re-
porter series and to collections of criminal cases. It
being recognized, however, that this is an elementary
treatise, no attempt has been made, either in discus-
sion of principles or citation of cases, to be exhaustive.

ge
vi PREFACE TO THE THIRD EDITION.

The text and arrangement of paragraphs of the
second edition have, with a few unimportant excep-
tions, been preserved intact, and the table of corre-
sponding sections prepared by Professor Beale, the
editor of the second edition, has been retained as being
equally applicable to the present edition. The para-
graphs and sections added by the present editor have
been indicated in the list following the table of corre-
sponding sections.

The editor has derived assistance from the collec-
tions of cases of Professor Beale and Professor Mikell.
As a second edition of Professor Beale’s work will
probably before long supersede the present edition,
it was not considered advisable to insert references
thereto.

In addition to the usual abbreviations the following
have been used:

C.=Chaplin’s Cases on Criminal Law.
K. = Kenny’s Cases on Criminal Law.
M. = Mikell’s Cases on Criminal Law.
PREFACE TO THE SECOND EDITION.

In preparing a second edition of May’s Criminal
Law, it seemed best for the sake of completeness to
treat certain subjects which had not been considered
by the author. The original plan of the work in-
cluded no discussion of the subjects of Criminal
Pleading and Practice; but it was found that it
would be better adapted for the use of students if
those subjects were briefly considered, and this has
accordingly been done. Much has also been added
to the first chapter, which contains the general prin-
ciples underlying the criminal law.

No attempt has been made by the editor to treat
the subjects he has introduced in an exhaustive man-
ner, or to make a complete collection of authorities.
He has endeavored, in adding to the text, to imitate
the clearness and conciseness of the author; and in
citing new cases, he has intended to include only such
as illustrate principles not before stated.

The alphabetical arrangement of crimes, adopted
by the author after some misgivings, has proved in-
convenient, and is now abandoned; and the second
part of the work has been rearranged according to
viii PREFACE TO THE SECOND EDITION.

what is hoped to be a more satisfactory method.
The arrangement is in the main that of Blackstone
and of Bishop.

The numbering of the sections is of course entirely
changed. For the purpose of comparison, a table is
given by which the section of this edition may be
found which corresponds with each section of the
first edition. It was impracticable to note the ad-
ditions of the editor in the text itself; but a list
of the chief additions has been prepared, so that it
is easy to discover which of the statements of law
are supported by the authority of Judge May.

Thanks are due to Professor Robinson of the Yale
Law School for kind suggestions. Much assistance
has been obtained from Mr. H. W. Chaplin’s excel-
lent collection of Cases on Criminal Law.
PREFACE TO THE FIRST EDITION.

In the following pages the author has endeavored
to state briefly the general principles underlying the
Criminal Law, and to define the several common law
crimes, and such statutory crimes — mala in se, and
not merely mala prohibita or police regulations ! — as
may be said to be common statute crimes. _

The brevity of this treatise did not admit of a his-
tory of what the law has been, nor a discussion of
what it ought to be; but only a statement of what
it is. In the cases cited will be found ample learn-
ing upon the first of these points. Digressions upon
the second would be out of place in a book designed
as a lawyer’s and student’s hand-book.

The alphabetical arrangement has been adopted in
the second chapter, as on the whole more convenient
for the practising lawyer. The student, however, will
perhaps find it to his advantage, on first perusal, in-
stead of reading consecutively, to pursue the more

1 On the question of the limitation of this power of police regu-

lation, see 2 Kent’s Com. 340; Com. v. Alger, 7 Cush. (Mass.) 53;
Thorp v. R. & B. Railroad Co., 27 Vt. 149; Slaughter-House Cases, 16

Wall. (U. S.) 36.
x PREFACE TO THE FIRST EDITION.

scientific method of grouping the titles; taking first,
for instance, crimes against the person, — as Assault,
Homicide, and the other crimes where force applied
to the person is a leading characteristic ; then crimes
against property, — as Larceny, Embezzlement, Cheat-
ing, False Pretences, and the like, where fraud is a
leading characteristic ; to be followed by Robbery,
Burglary, Arson, and Malicious Mischief ; and con-
cluding with such crimes as militate against the pub-
lic peace, safety, morals, good order, and policy, —
as Nuisances generally, Treason, Blasphemy, Libel,
Adultery, and the like.

If the author has succeeded in his design, the prac-
tising lawyer may readily find within the compass of
these few pages the law which he seeks, and the
authorities in its support.

J. W. M.
CONTENTS.

PacEs
TaBLE OF CASES . . . «ee ew ee ew ew we ww KVR EMG

CHAPTER I.

Or tHE DEFINITION OF CRIME, AND OF CERTAIN GENERAL
PRINCIPLES APPLICABLE THERETO.

§§ 1-5. Crime Defined. . . . . ........ #=+41-6
6-25. TheCriminal Act. . . . . . . 2... . 625:
26-34. The Criminal Intent. . . . . . . . . . . 25-40
35-52. Criminal Capacity . . . . . .... . . 40-57
53-57. Intent in Statutory Crimes ..... . . . 57-60
58-68. Justification forCrime . . . . .. . . . . 60-69!
69-76. Classification of Criminals. . . . . . . . « 70-79
77-86. Locality and Jurisdiction . . . . . «. . . « 79-87

CHAPTER II.

Or CriminaL PRocEDURE.

§§ 87-97. Process of a Criminal Prosecution . . . . . . 90-95

98-110. Criminal Pleading. — The Indictment. . . . . 95-103

111-116. Joinder of Counts and Offences . . . . . . 108-105

117-123. Double Jeopardy . . . . . 1... se 106-112

124-1382. Evidence in Criminal Cases . . . . . . . 112-118
_

CHAPTER III.

OFFENCES AGAINST THE GOVERNMENT.

§§ 184-189. Treason. . . . .~ - + e - ee e + « 119-128
140. Bribery . . oon ew ee ew we 6128-125
141-142. Extortion and Oppression vier . . + 125-127
143-145. Barratry. — Champerty. — Maintenance .. « 127-181

146. Embracery . .... . ee cake ce a
xii CONTENTS.

PAGES

§§ 147-158. Perjury . . . . 2... 1. we ee «181-188
154-158. Contempt . . . 2 . « 188-148
159-162. Resctie. — Escape. — Prison Breach . . oe « « 144-145

CHAPTER IV.

OFFENCES AGAINST THE PusLic TRANQUILLITY, HEALTH, AND

Economy.
$164 Affray « « «© © @ «© # @ » © @ 2 » » 146-147
165-166. Riot. —Rout.— Unlawful Assembly . . . . 147-150
167-170. Forcible Entry and Detainer . . . . . . . 150-152
171. Eavesdropping. . . ......... . «158
172-176. Libel and Slander . . . . 158-159
177, Engrossing. sass coc) — Regrating . - + 159-160
178-182. Nuisance . . - . . 160-164
183-185. Attempt»... ....... =... 165-1707
186-191. Conspiracy . . . . . . 1. 1... 190-177
CHAPTER V.

Crimes acarnst Renicion, Morariry, anp DEcENcy.

§ 1938. Apostasy. . . 2... 2... we . 178-179
194. Blasphemy . . . . ~~... . . . . . «179-181
195. Adultery. . . 2. 2. 2... 1... 181-182
196. Bigamy . . . . . . . . we ee 182-185
197. Seduction . . . ..... . . «185-188
198. Abduction . . ....... =... . 188-190
199. Kidnapping . . . ........ . . 4190
200. Abortion . . .. .. . ee. . 190-192
201. Lasciviousness. . . . . ... . . . . 192-193
202. Fornication-W. 2. 2. 2... ee 198
208. Sodomy... ....... 4. =. . +. 193-195

CHAPTER VI.

OFFENCES AGAINST THE PERSON.

* §§ 205-216. Assault” 2. 2 2 2... 196-208
217. “Mayhom Yon ¢ ¢ s en ww es ps eo BOEBIG
218-289. Homicide %. - Sodas a eo Ge ay ee DIOEDST.
240. False Imprisonment . fi Ge) ae oe ea wwe BST
241-244. Rape Y. . . . . 281-933

245. Robbery MV. . 2... 234-238
§§ 250-255.
256-268.

§§ 270-297.
298-304.
305-317.
318-320.
321-328.
324-398,

829-335.

336.

§ 338.
339.

INDEX

CONTENTS.

5

CHAPTER VII.

OFFENCES AGAINST A DweE.iinc-Houvuse.

Arson . oa
Burglary. . .

CHAPTER VIII.
OFFENCES AGAINST PROPERTY.

Larceny .. ;
Embezzlement .

False Pretences
Cheating .

Malicious Mischief
Receiving Stolen Goods .
Forgery :
Counterfeiting .

CHAPTER IX.
Maritime OFFENCES.

Piracy
Barratry .

xiii

PAGES
239-243 »
244-251

253-291
291-299
299-312
313-315
315-318
319-321
321-328
328-329

830-331
3381-332

835-366
TABLE OF CASES.

[REFERENCES ARE TO PAGES.]

 

Abbott, P. v. 279 | Amory v. Delamirie, 271
Reg. v. 809, 310 | Amy, U.S. v. 85, 108, 109
Rex v. 212 | Anderson v. C. 178, 193

Abington, Rex r. 159 v. Comptois, 141

Abley, S. v. 18 P. wv. 270

Abrams v. P. 275, 278 Reg. v. 81

Adams v. Barratt, 209 v8. 47, 67, 232
Cv. 29 8. v. 61, 278, 327
Hunt v. 323 | Andrews v. Andrews, 185
v. P. 75, 82 .U. 320
Pv. 82} Ar gell v. S. 213
Reg. v. 155, 321 | A’ gelo ev. P. 40
Rex v. v12| A gley, Priester v. 230
v8. 280 | Anglo-Am. Co., U.S. Cable Co. v. 80
S. vo. 17, 187 | Ann, Brig, 54
U.S. v. 18] Ann v. S. 224

Adey, Rex v. ~ 220] Anone, S. ». 16, 79.

Affleck, Child v. 158] Anonymous, 10, 12,29, 42, 60, 162, 223,

Agnee, Rex v. 2 235, 256, 260, 278, 282

Ah Fat, P. v. 23, 222 Reg. v. 24

Ailey, S. v. 209 Rex v. 98

Albany, Hart v. 164| Antelope, The, 331
P. v. 43 Anthony, U.S. v. 25, 58

Albertz v. U.S. 65 | Appling, S. v. 11, 192

Alcorn, S. »v. 191} Archer, S. v. 206, 296

Alderman, C. v. 108 | Arden v. S. 134

Alexander %. S. 16, 79, 246 | Ardley, Reg. v. 301, 303
8. v. 45, 149, 261} Arkle, S. v. 270, 284

Alford, 8. ». 197 | Armington, S. v. 185

Alger, P. v. 187 | Armour v. S. 249

Allen, C. v. 161, '75 | Armstrong, Reg. v. 80, 82
Pv. 294 S.v. 181, 182
Reg. v. 184, 194, 220} Arnold v. 8. 827
v. 8. 245 S. v. 40
S. v. 66, 78, 76, 185, 287 | Ash, S. v. 22
Woodham »v. 21 Wenman v. 157

Allyn v. S. 71| Ashbrook wv. C. 164

imon, Rex »v. 72| Ashburn v. S. 182

slonzo v. S. 182] Asher, S. v. 5, 16, 301

Alvia v. 8. 249, 259 | Ashton, U. S. v. 70

Ambrose ». S. 109 | Ashwell, Reg. v. 272

Ambrose Light, The 831] Askew v. S. 68

Ames, P. v. 118] Astley, Rex v. 236
S. v. 822 | Aston, Reg. v. 297

Amherst Bank, Lathrop v. 129 | Atchison, 8. v. 44

Ammon, P. v. 819! Atherton v. Atherton, 185
Xvi TABLE OF CASES.
[References are to pages. ]

Atkins, Rex v. 14 | Barclay Coal Co., Morris Run Coal
S. v. 155| Co. v 178, 175
U.S. »v. 135 | Barefoot, S. v. 188
Atkinson, Rex ». 312 | Barge v. C 112
v. 8. 214 | Barker v. C. 11, 163
Aviorney: General v. Kwok-a-Sing, 330 | Barlow, C. v. 8, 9, 114
v. Sillem, 167 | Barnard, Blake v. 205
v Steward, 162 Rex v. 302, 804
v. Williams, 161 v. 8. 187
Aukey, McGoon v. 254 S. v. 32
Aultman v. Waddle, 130 | Barnes, Reg. v. 297
Austin, P. v. _ 218 v. 8. 58, 59
‘Austine v. P. 232 S. v. 95
Aveline, Hartman v. 88 | Barnett v. S. 65
Avery, S. v. 12, 154, 157, 169, 317] Barney, C. »v. 240, 241
v. Ward, 134 | Barratt, Adams v. 209
Ayres, Rex v. 218] Barrett, P. v. 108, 143
S. v. 76 Reg. v. 33, 233
S. v. 30
B. Barretry, Case of, 128
Barric, P. v. 79
Baalam v. S. 25 | Barronet, Lx parte, 54, 58
Babb, Rex v. 142 | Barrow, Reg. v. 233
Babcock, P.v. 814] Barry, C. v. 85, 198, 261, 262,
U.S. 182, 134 277, 292
Bachman, “Hougtiian v 91 P. v. 136
Bagan, S. v. 169 | Bartell v. S. 201
Bagley, C. c. 126 | Barthelmy v. P. 155, 157
Bailey, Reg. v. 284 | Bartlett, S. v. 84, 115
Rex v. 39, 58, 247 | Barton v. P. 804
v. 8. 272 8. v. 295
Bain, S. v. 21] Bass v. S 79
Baines, Rex v. 125 S. v. 82
Bakeman, C. v. 182] Bates v. S. 102
Baker v. Hall, 188 | Bathhurst, Empson v. 126
Hitchcock v. 144 | Battle, S. v. 108
v. P. 184} Bayard v. McLean, 129
P.v. 36, 185] Bazeley, Rex v. 278, 290
Reg. v. 136, 250 | Beacall, Rex v. 24, 298
v. S. 269, 270| Beacham, U.S. v. 35
8. v. 201 | Beal, S. v. 167, 248
Balbo v. P. 116| Beale, Rex v. 124
Baldry, Reg. v. 115 | Beainan, C. v. 256
Baldwin, C. v. 824, 326 Reg, v. 279
Balkum r. 8S. 201, 204 | Bean, C. v. 102, 819
Ball v. White, 256 | Beard »v. S. 84
Ballentine v. Webb, 165 v. U.S. 65
Ballou, S. v. 69 | Beasley v. P. 101, 104
Bamber, Reg. v. 70 v.S. 62, 281
Bancroft, S. ». 250 Beatty v, Gilbanks, iL.
Bank of London, Brittain v. 824 v. S. 270, 285
Banks, Reg. v. 200 Benty, U.S. v. 60
Rex v. 274, 275, 284 a ee v. Morris, 152
_ Sw 280 . 8. 219
Bankus v. 8. 148 Beak, S.c. 199
Bannen, Reg. ov. 71 Beckham v. S. 282
Bantley, S. v. 24, 27 | Beecham, Reg. v. 283
Barber »v. S. 231 | Beecher v. P. 161
Welch »v. 141, 143 | Beechey, Reg. v. 298

 

 
TABLE OF CASES.

 

XVi1l
[References are to pages. ]

Beckman, S. v. 315 | Bishop, Reg. v. 59
Beeley v. Wingfield, 22 S. v. 261
Beene v. 8. * 142 v. 8. 71
Bee Publishing Co., S. v. 140 | Bismarck v. S. 273
Beggs v. S. 183 | Bjornaas, S. v. 327
Begley v. C. 55 | Black, S. v. 311
Behimer, S. c. 110 | Blackburn, C. v. 175
Behn, S$. v. 32 v. 8. 45, 46, 71, 170, on 231
Belden, S. v. 110 | Blackham, Rex v. 0, 238
Belding, C. vo. 26 | Blackwell v. S. 447
Belk v. P. 23 | Blades v. Higgs, 259
Bell, C. v. 124 | Blaikie v. Linton, 19
v. Mallory, 149 | Blair v. S. 281

P. v. 46 | Blake v. Barnard, 205
v8. 11, 258, 291 P. . 18, 51

8. v. 50, 51, 251 Reg. v. 173
U.S. 185 Rex v. 150
Bemmerly, P. v. 49 | Blanchard, Hamaker v. 271
Benedict v. Cowden, 825 P. v. 301
v. Hart, 150 | Blanding, C. v. 157, 158, 159
Siw. 205 | Bledsoe v. C. 68
Benge, Reg. v. 38, 226 | Bliss v. U. S. 74
Bennett, P. v. 287 | Blodgett, C. v. 62
Reg. v. 19, 31, 199, 202, 221 | Bloom, S. v. 117

v. 8. 112 | Bloomer ». 8. 231, 237
Benson v. McMahon, 86 | Bloss v. Tobey, 240
Bentinck v. Franklin, 129 | Blythe, Bowman v. 126
Bentz, S. v. 42 | Board v. Sellew, 142
Bergeron v. Peyton, 272 | Boatwright v. S. 193
Bergman »v. P. 263 | Bob v. 8. 80
Berkley, S. v. 66 | Bodiford v. 8. 182
Berkowitz v. U.S. 175) Bodwell v, Osgood, 158
Berry, C. v. 2738, 291, 292 | Boggus v. S. 185
Reg. v. 281) Bohan, S. v. 207

v. 8. 284 | Bohannon »v. C. 207, 229

8. v. 45 | Boies, S. v. 149, 318
Berryman, S. v. 258 | Bolland, Rex v. 824
Best, P. v. 49 | Bollman, Ex parte, 121
Reg. v. 174 | Bonfanti v. S. 49
Bevans v. U. 8. 87 | Bonner, C. v. 157
Beverley’s Case, 49 | Boody, S. v. 296
Bias v. U.S. 37 | Booker v. 8. 51
Bice v. S. 70 | Boon, S. v. 244
Bierce, S. v. 21, 186| B. & O. R. R., Robinson v. 161
Bigelow, C. v. 152 | Bork ». P. 296
Bigley, Rex. v. 246 | Boston, C. v. 162
Biles v. C. 825 | Boswell v. C. 49
Bingley, Reg. v. 259 | Bosworth C. v. 118
Rex v. 72 | Botkin, P. v. 82
Robertson v, 143 | Bott, U.S. v. 26
Binney, Clark v. 159 | Bowden, Reg. v. 290
Birchall, Reg. v. 23 | Bowen, C. v. 212
Bird v. Jones, 203, 231 v. Sullivan, 271
P. v. 308 | Bowers, Reg. v. 294
Reg. v. 1045108, 110, 112, 287 v. 8. 209
Birdsong v. 8. ‘ 820 Bowles v. 8. 221
Birney v. 8. 58, 60 | Bowlin v. 8. 234
Birt, Rex v. 148 | Bowman ». Blythe, 126
Biscoe v. 8. 116 Reg. v. 108
Xviii

TABLE OF CASES.

{References are to pages.]

 

Boyce v. P. 187|Brown, S.v. 108, 137, 216, 257, 269,

te v. 35 287, 295, os
Boyett, S. v. 57 v. Union Ins. Co. 62
Boyle, P. v. 194 v. Weaver, 14
Boynton, C. v. 58, 59, 79, 818, 314 Brown’s Case, 99
Boysen, S. v. 247 | Bruce, Reg. e. 5
Bradford, C. v. 55, 66, 116 v. 8.

v. 8. 259 | Bruley eee ee
Bradlaugh v. Reg. 100 | Brunson, S. v. ;
Bradley, Ez atte 142 | Bryan, Reg. v. 301, 208, 310
Bradshaw, Reg. v. 19, 20, 230] Bryans v. 8. 106
Brady, Chittenden v. 140 | Bryant, S. v. 62

C. v. 135 Walker v. 184

S. v. 154 | Bubb, Reg. v. 33

v. S. 297 | Buchanan, 5. v. 174, 175
Brain, Rex v. 211] Buck, Keith v. 21
Braisted, P. v. 19 S. v. 141
Bramley, Rex v. 280 | Buckland v. C. 324
Branch v. 8. 816 | Buckman, S. v. 18, 162
Brandenburg, S. v. 186 | Buckmaster, Reg. v. 264, 266, 312
Brandon, Clifford v. 149, 174 | Buckner, Protector v. 219

S.v. 45, 47, 67 | Buell, Cheadle v. 276
Bransby, P. v. 199 | Buffum’s Case, 142
Brawn, Reg. v. 184 | Bugg, S. v. 249
Brazier, Rex v. 275, 276 | Bull, Calder v. 3
Brazil v. S. 326 C. v. 26

S.v. 148, 149 Reg. v. 304
Breese v. S. 78, 78, 245 Rex v. 274
Brewer, C. v. 823 | Bunce, Reg. v. 264, 302

P.v. 187 | Bundy, S. v. 49

v8. 64| Bunfil v. P. 189
Brewester, Walker v. 161) Bunn, Reg. ». 171, 178
Brewington, S. v. 11 | Bunting, Reg. v. 10
Brick, Rex v. 245 | Burden, P. v. 138
Bridges v. Hawksworth, 271 | Burdett, Reg. v. 82
Bright, Gill v 273 Rex v. 114, 125, 126, 157
Briley, S. v. 209 | Burgdorf, S. v. 2382
Brinkerhoff, Thallhimer v. 129) Burge v. 8. 289
Britain v. S. 11) Burgess, Reg. v. 22
Britt v. 8. 286 | Burget v. Greenfield, 161
Brittain v. Bank of London, 824 | Burgiss, Rex v. 91
Britton, U.S. v. 4| Burgo v. 8. 46, 48
Brock, S. v. 157 | Burke, C. v. 200, 233
Broderick, Isham v. 164) - Swe. 64

S.t. 236, 287 | Burkhardt, P. v. 818
Brooke, Reg. v. 157 | Burlington, Lumber Co. v. 162
Brooker v. C. 189 | Burnard, Shearm v. $6
Brooks v. C. 213| Burnett, Rex v. 10

C.v. 70) Burnhan, S. v. 10, 20, 155, 171

Rex v. 256 | Burr, U.S. v. 121, 122

v8. 269} Burrel, Lott v. 140

S.v. 148, 149, 168, 295 | Burroughs, S. v. 14
Broughton, Rex v. 125 | Burrow v. S. 3800
Brow, S. v. 189 | Burrows, S. v. 811
Brown v. C. 45, 46, 249 | Burt v. 8. 49

C. v. 276, 277 S. v. 258

Po us 115, 185, 184, 282 | Burton, C. v. 805

Reg. v. 167, 168, 194 v8. 166

v8. 186, 220 8. v. 125, 204, 205, 206, 246
Burwell, P. v.
Bush v. 8.

S. v.
Buster v. Newkirk,
Butcher, Reg. v.
Butler, C. v

P. v.

v. 8.

8S. v.
Butterfield, Reg. v.
Button, P. v.

Reg. v.
Butts, P. v.

S.0

Buxton, ‘Sv.
Buzzo, U. S. v.
Bykerdyke, Rex v.
Byrum, 8S. v.

GC,

Cabbage, Rex v.
Cabe, Codd »v.
Cady v.S.
Cagle, S. v.
Cahill v. P.

Cain v. S.

S. v.
Calder v. Bull,
8. v.
Caldwell, Resp. v.
v. 8.

Calef, C. v.
Calhoun, P. v.

v. s.
California, Sexton wv.
Call, vw

Catlnetan: C. a.
Calye’s Case,
Cameron, Jn re,
Camp, P. v.
Campbell v. C.

v Jones,

Peo

Rex v.

v. 8.
Canada v. C.
Candle v. S.
Canister v. S.
Cannon, In re,

S. v.
Cantieny, S. v
Capps, 8. »
Carabin, Pk
Cardelli, 8. v,
Carey, C. v.

Reg. v.
Cargill, S. v.

TABLE OF CASES,

[References are to pages.]

233
39

124, 169, 257

74

66

175, 202, 300, 310
298, 299

283
59

8

149

11, 26, 164
18

198

126

301

85

109, 181
277, 278
9, 12, 124
255

305

268

74

129
254, 257, 268
267, 289
293

209

71

217

89

133

66

212

281

114

219

219

150

 

Carlile, Rex v.
Carlisle v. U.S.
Carll, U.S. v.
Carlton, P. v.
Carmichael v. S.
Carpenter v. P.

v. 8.

Carr v. Hood,

Reg. vc.

Rex v.

Severance v.

v8.
Carrier’s Case,
Carroll, Rex v.

v. 8.

S. v.
Carron, S. v.
Carrotti, v. S.
Carter, Estes v.

P. v.

S. v.
Seay v. Green,

v. S.
Cartwright’s Case,
Carver v. Pierce,
S.o. |
Carwile v. S.
Caryl, P. v.
Casat v. 8.
Case, Reg. v.
v§.

6 Casey, C. v.

Cash v. S.
Caspar, Reg. o.
Cassida, S. v.
Cassidy, C. v.
Castello, S. o.
Castro v. Reg.
Caswell, P. v.
Catlin, C. v.

v. Henton,
Caton, Reg. v.

v. Stewart,
Caulkins v. Whisler,
Caverly, S. v.
Caywood v. C.

Central Ry. Co. v. Sheftall,

Chace, C. v.

S. c.
Chamberlain v. P.

Reg. v.

8. v.
Chambers v. S.

S. v.
Chambless v. S.
Champer v. S.
Champlin, Reg. v.
Chance, C. wv.
Chandler, S. v.

xix

159, 161
122

38, 101
2138

184

189, 210
134
158
83
294
281
202
276
51
220
182
189
182
195
296
84
270
50
142
256
22
147
198
48
201
262
118
147
319
193
11
23
105
819
192
22
76
124
825
99
35
158
256
156
135
226
135
281
260
201
199
233

37
1, 184, 180

62,
262}

68, 208,
187,
2, 4,
 

78 Conner, U.S. 2.

XX TABLE OF CASES.

(References are to pages. ]
Chapin, C. v. 11| Clement v. Chivis, 154
S. v, 75, 82 Rex v. 141
Chapman, C. v. 1, 2, 8| Clements v. S. 61
Reg. v. 166 | Clew, U.S. v. 292
Resp. v. 120 | Cleveland, Larney ». 96
v. 8. 206, 259 | Click w. S. 190
Chapple, Reg. v. 78 | Clifford v. Brandon, 149, 174
Charlton’s Case, 140 Reg. v. 71
Chase, C. v. 104 S. v. 269
v. P. 48 | Clinton, Reg. «. 255
Gheadie v. Buell, 276 | Clive, Vertue v. 173
Cheafor, Reg. v. 257 | Closs, Reg. v. 313, 321
Cheeseman, Jn re, 140, 148} Clough, P. v. 3805
Reg. v. 166, 167 | Clyncard’s Case, 92
Cheney, C. v. 54 | Coats v. P. 294
Chenoweth, S. v. 85 | Cobel v. P. 191
-Cherry v. S. 188 | Cochran, Leahan v. 161, 164
Cherry’s Case, 260 | Cockayne v. Hodgkisson, 158
Chesley, C. v. 109 | Cockran, S. v. 135
Cheyney, C. v. 42 | Codd v. Cabe, 90
Chick v. S. 209 | Codd’s Case, 157
Child v. Affleck, 158 | Codrington, Rex v. 3809
Trist v. 125 | Cody, S. v. 210
Chism ». S, 232 | Coe, C. v. 805, 822
Chissers, Rex v. 278 | Coffman v. C. 227, 228
Chittenden v. Brady, 140 | Cogdell, P. o. 270
Chitty, S. v. 128 | Cohen v. New York, 161
Chivis, Clement v. 154 Reg. v. 265
Choice v. S. 47, 53 | Cohn ». P. 321
Chopin, S. v. 228 | Colbert v. S. 308
Christopher, Reg. v. 269 | Colby v. S. 234
Chrystal v. C. 34 | Cole, P. v. 227, 308
P. v. 188 S. v. 108
Chunn, S. v. ; 309 U.S. v. 174
Church, S. v. 11] Coleman, Rex v. 812
Churchill, C. v. 3 S. v. '25, 49, 77
Guy v. 128 | Colhoun, Reg. v. 276
Claasen v. U.S. 104 | Colip v. S. 296
Clair, C. v. 111 | Collberg, C. v. 20, 199
Clancy, Terr. v. 141 } Collins v. C. 118
Clap, C. v. 154, 155, 157 Civ. 102, 264, 267
Clarence, Reg. v. 19, 199, 202 v. P. 118
Clarissa, S. v. 166 P. v. 18
Clark, In re, 88 v. Ralli, 312
v. Binney, 159 Reg. v. 167
C. v. 67 v. 8. 71, 188, 182, 265
P. v. 187, 214 | Colly, S. ». 301
Pitman v. 141 | Combe ». Pitt, 124
v. 167, 232, 251 | Combes’s Case, 323
Rex v. 281 | Comptois, Anderson v. 141
S. v. 175, 246, 817, 818 | Conally, S. v. 207
U.S. 0. | 62] Conant, U.S. v. 112
Clarke, Martin v. 129, 130) Conde, Reg. v. 82, 226
v. 8. 280 | Cone, Newkirk v. 129
Clarke’s Case, 148 S. v. 183
Clason, Lyle v. 157 | Coney, Reg. v. 20
Cleaveland v. 8. 127 | Congdon, Remington v. 158
Cleaves, S. v. 42) Conklin, Wickham v. 128

Clem »v. S.

56, 1385
Connolly, Reg. v. 201 | Cowell, S. v. 193
Robb »v. 88 | Cowen ». P. 308
Connolly’s Case 42| Cox, McPherson v. 131
Connors »v. P. 18, 115 v P. 15, 169
8. v. 244 v8. 228
Considine v. U. S. 8 S. v. 5, 198
Converse, Stow v. 155 | Coy, In re, 84
Cony, C. v. 126 | Craige, S. v. " 260
Cook, C. v. 135, 189 | Crawford v. S. 185, 308
P. v. 67, 78, 132, 302 8. v. 48, 186, 248
v.P. 187 | Crayton v. 8. 323
v. 8. 114, 182, 193, 801 | Creevey, Rex v. 159
U.S. uv. 101 | Creighton v. C. 66
Cooke, Tez: v. 387 | Crews v. S. 237
Coolidge, U.S. v. 4 | Crissie, P. v. 302
Coombes, Rex »v. 82] Crocheron v. S. 273
Coombs, S. v. 285 | Crocker v. S. 5
Coon, P. v. 10, 126 | Croghan ». 8. 186, 283
Cooper v. C. 272 | Cross, Rex v. 164
C. v. 118 | Crosswell v. P. 233
v. Greeley, 158, 154 P. v. 154
v. P. 141 | Croswell, Thomas v. 155, 159
Reg. v. 304 Crothersville, Pittsburgh Ry. Co. v. ie
Rex v. 68, 77 | Crotty, C. v.
v. Slade, 125 | Crouse v. S. “D
S.v. 5, 12, 15, 111, 168, 191, 198, | Crow, S. v. 204
199, 251 | Crowell v. P. 387
v. Stone, 155 P.v. 158
Copeland, Reg. v. 302 | Crowley, S. v. 24
Coppenburg, 8. v. 319 | Crown Bank, Jn re, _ Mi
Coppersmith, U. S. ». 8 | Crowner, S. v * 182
Cordy, Rex v. 321 | Crozier v. P. 186,
Cornell, P. v. 8 Terr. v. 317
Cornish, C. v. 135 | Cruikshank, S. v. 136, 268
Reg. v. 276 | Crum v. 8. 28, 24, 221, 263
Cornwell v. S. 52 | Crump v. C. 173
Corporation, 8. v. 26 Rex v. 283
Corrington, Work, v. 89 v. S. 296
Corson, Roscow v. 882 | Cruse, S. v. 42
vd. 103 | Crutchley, Rex v. 42, 70
Costello, P. v. 118 | Cuffee, C. »v. 115
Costin, 8. v. 293 | Cullins, C. v. 83
Costley, C. v. 221 | Cullum, Reg. v. 297
Cote v. Murphy, 173 | Culver, C. v. 155
Cothran v. 8. 134 | Cummings, P. v. 311
Cotteral, P. v. 87, 241, 242 | Cummins »v. C. 261
Coulson, Reg. v. 808, 327 Re 24
Coulter, Patapsco Ins. Co. v. 882 | Cunningham v. P. 823
Sv. 139 P.v. 161, 164
Countee »v. 8. -20 Reg. »v. 80
Courier, P. v. 200 v. 8. 24, 45, 48
Court, P. v. 141 8. »v. 238, 295, 298
Sia | 142 | Cupps v. 8. 214
Tomsky v. 143 | Curkendall v. P. 240
Courtney, P. v. 185 | Curley, U.S. a 172
Covington, S »v. 17 | Currier v. S. 282, 283
Coward ». Wellington, 158 | Curry v. Walter, 159
Cowden, Benedict v. 825 | Curtis v. S. 36
Cowdery, S. v. 298 8. 2 152

TABLE OF CASES.

Xxi

[References are to pages.]

 
Xxii

Custos v. Gwynn,

2a
OD

Cutshall, S. v. 182
Cutter v. S. 55, 56, 126
Czizek, 8. v. 296
D.
Dacey v. P. 46, 48
Dadson, Reg. v. 62
Daley, S. v. 3,117
Dalton, P. v. 274, 302
v. 8. 17
Dalloway, Reg. v. 23
Dalrymple, P. uv. 22
Danion’s Case, 97
Danforth, S. v. 1
v. Streeter 129
Danger, Reg. v. 3806
Dant, Reg. v. 33
Danville, &c. R. R. Co. v. C. 162
Darby, Matter of, 140
Reg. v. 10
Darling v. Williams, 228
Dascom, C. v. 108
Daum, Emig v. 240
Daunt, Rex v. 61
Davidson v. C. 168, 232
v. 8. 138
8. v. 114
Reg. v. 272
Davies, Rex v. 819
v. Stowell, 128
Davies’s Case, 235
Davis, C. v. 95, 128, 292
P. v. 41, 191, 324
Reg. v. 24, 52, 302
Rex v. 248
v.S. 45, 48, 52, 82, 195, 200, 214
8. v. 51, 76, 197, 202, 203, 287
Tennessee v. 85
v. U.S. 48
U.S. v. 82, 255
v. Whitridge, 150
Dawell, P. v. 185
Dawley v. S. 118
Dawson, Rex v. 330
Day, Reg. v. 107
Dayton, S. v. 134, 135
Dean, C. v. 175
: v. S. 281
8. e. 269
Deane, Reg. v. 107
Deaton, In re, 139
Debardeleben v. S. 55
Te Bare, U.S. v. 820
De Beauvoir, Rex v. 138
De Beranger, Rex v. 1738
Decklotts, S. v. 37
Dee, Reg. v. 232

 

TABLE OF CASES.
[References are to pages. ]

Deeley, Rex v. 97
Deeneeld, C. v. 164
De Fore, P. v. 188
Defrese v. S. 265, 269
De Hart, S. v. 307
Dejarnette v. C. 46

271

Delamirie, Amory v.
Delaney, Fx parte, 1
Delano, Re,

Delany v. P. 12

v. S. 242
Delaval, Rex v. 12
Delaware Canal Co. v. C. 43
De Lay, S. v. 301
De Longchamps, Resp. v. 1
Delyon, S. v. 314
Demain, C. v. 191
Dennie, C. v. 126

Resp. v. 153
Dennis, C. v. 170
Dennison, Kentucky v. 87
Denniston, R. v. 155
Dent, v. 8. 74
Denton, S. v. 296
D’Eon, Rex v. 154
De Rancé, S. v. 49
.De Rutzen, Sherras v. 53
Desmartean, C. v. 98
Despard, Rex v. 79
Detroit White Lead Works, P.v. 164
Dewey, Gibbs v. 131
De Witt, S. v. 172
De Wolfe, S. v. 8, 84
Dickens, 8. v. 57
Dickenson v. S. 208
Dickie, P. tv. 326
Dickinson, Rex v. 283
Dickson, Pascagoula Boom Co. c. 161
Dierberger, S. v. 61
Di Guglielmo, 8. v. 61
Dilger v. C. -213
Dill v. S. 174
Dillard v. 8. 192
Dillon P. v. 49

S.v. 66
Dimond, C. v. 288, 290
Dingley, Rex v. 274
Dinkey v. C. 186
Dishon v. Smith, 124
Dixon, Gearhart v. 10

Rex v. 11, 27

U.S. v. 12
Doan v. 8. 718
Doane, C. v. 281
Dobb’s Case 36
Dobree v. Napier, 80
Doepke, S. ». 254
Doherty, Reg. v. 50

8. ». 40, 73
Dohring, P. v.
Doig, Re,
Dolan, Reg. v.
Donahue, C. v.
Yonaldson, S. v.
Don Moran v. P.
Donnally’s Case,
Donnelly, S. v.
Donovan, C. v.
8. v.
Doody, P. v.
Reg. v.
Dooley, S. v.
Dorr, S. »v.
Dorsey, U. 8. v.
Doss v. P.
Doty, §. v.
Doud, §. v.
Dougherty, C. v.
Douglas, Rex v.
Douglass, C. v.
v. 8.
8. v.
Dove v. S.
Dowe, S. v.
Dowers, 8. v.
Downes, Reg. v.
Downs, 8. v.
Downing, C. v.
S.e.

Doyle, C. v.
S. v.

Dozier v. S.
Drennan v. P.
Dresser, S. v.
Drew, C. v.
U.S. 2.
Drewer, S. v.
Driggs, U.S. v.
Driscoll, Reg. v.
Drum, C. v.
Drury, Reg. v.
Druxinman, S. v.
Dubois, Moses v.
Powers v.
Duacker, S. v.
Dudash, C. v.
Duley, C. v.
Reg. v.
Duffin, Rex v.
Dugdale v. Reg.
Duhammel, 8. v.
Dukes ». S.
Duncan »v. C.

Ce .
Dunn ». P.

Perine, v.

Vv.

Rex v.

TABLE OF CASES.

[References are to pages. ]

232, 233

34

820

_ 67

173

232

"235, 236, 237
65

98
825
136

51, 170

67
309

18
265
140
144
198
301

112
800, 304, 307
52

8
126

207
214, 228
107

320

231

155

272

51

151

@9

35, 194
5

22
290
199
64, 316, 817, 318
192

129
284
325

 

Dunston, Rex v.
Dupee, Rex v.
Dupre, P. v.
Durfee v. Jones,
Durham ». P.
Dye wv. C.

Dyer, S. v.
Dykes, Reg. v.
Dyson, Rex v.

Eagan, C. v.
Eagleton, Reg. v.
Earl, 8. v.

Eaton v. West Virginia,
Eckels v. 8.

Eckert, C. v.
Eckler, S. v.
Edgecombe v. Rodd,
Edgerton, Loomis v.
Edmonds v. 8.
Edwards, C. v.

Reg. v.

Rex v.
Edyvean, Rex v. »
Egerton, Rex v.
Fggington, Rex v
Eichar, C. v.
Fisenhr wer, C. v.
Eldersnaw, Rex v.
Eldr‘ige, Matter of,
Elli xe, S. v.

Elhot v. McClelland,
Ehiott, Reg. v.
Filis v. 8. ,

v.

Elmore v. 8.
Elsmore v. St. Briavels,
Elwes v. Gas Co.
Elwood, Wylie v.
Emig v. Daum,
Emmett v. Lyne,
Empey, S. v.
Empson v. Bathurst,
Engeman, S. v.
England, P. v.
Ennis v. 8.
Errington’s Case,
Erwin v. S
Esop, Rex v.
Este, C. v.
Fstell v. 8.
Estes v. Carter,

S. v.
Evans v. P.

P. v

Reg. v.
Evanston v. Myers,

32, 235, 254
236, 313
142

235

17, 18
20

24

41

142

218

128
xxiv TABLE OF CASES.
(References are to pages. ]
Everett, Rex v. 124 | Finn, C. v,
Evers v. P. 207 | Finnegan, C. v.
8. v. 800 | Finnerty, Rex v.
Eversole v. C. 65 | Finney, Reg. v.
Everson, C. v. 55 | Firth, Reg. v.
Eyre, C. v. 204 | Fish, P. v.
Eyres, Rex v. 126 | Fisher v. C.
v. McDaniel,
F. P. v.
v. S.
Fahey, S. v. 138 S. v.
Fair, Re, 62, 85| Fisherman’s Case,
Fairclough, S.v. 275, 276, 277 | Fitch, P. v.
Fairie, Reg. v. 164 Reg. v.
Fairman v. Ives, 158 | Fitchburg R. R., C. v
Fann, S. ». 273, 275 | Fitzgerald v. 8.
Fanning, S. v. 147 S. v.
Farez, In re, 86 | Fitzpatrick, S. v.
Farr, Rex v. 245 | Fizell v. 8.
Farral, Rex v. 260 | Flack, P. v.
Farrell v. P. 277, 282 | Flagg, C. v.
v8. 233 | Flanary, Powell v.
Farren, C. v. 59 | Flanagan v P.
Farrer v. S. 47, 190 v. S.
Farrier, S. v. 169 | Flanigan v. P.
Farris v. C. 213 | Flattery, Reg. v.
Farrow, S. »v. 271 | Fleener v. S.
Faulkner, Reg. v. 88, 243 | Fletcher v. P.
8. »v. 136 Reg. v.
v. Terr, 48 Rex v.
Henslow v. 124 S.v.
Fawcett, Rex v. 813 | Flowers, Reg. v.
Fay v. C. 809 | Floyd v. S.
Fayerweather v. Phenix Ins. Co. 332] Flynn, C. v.
Featherstone, Reg. v. 281 v. 8.
Felix v. 8. 218 S. v.
Felker, Stearns v. 130 | Foley, Reg. v.
Felter, S. v. 46, 49 | Fonville v. McNease,
Felton v. U.S. 817 | Fooks, S. v.
Fenn, 8. v. 284, 285 | Foote, S. v.
Fennell v. 8. 194 | Forbes, Reg. v.
Fenton’s Case, 83 | Ford, C. v.
Ferens v. O’Brien, 254 Rex v.
Ferguson v. Kinnoull, . 87} . U.S.»
v. S. 176, 187, 219] Fort v. S.
S. v. 227 | Foster v. C.
Ferris v. P. 106 C. v.
Field v. C. 64 Kirby v.
P. v. 151, 152 2B:
Fields v. 8. 284 Reg. v.
Fifty Associates v. Howland, 150 .v.
Filkins v. P. 67 | Fowler, P. v.
Finch v. C. 244 v8.
Findlay, 8. v. 186 | Fox, C. v.
Findley, S. v. 296 v. Ohio,
Fink v. Milwaukee, 96 U.S.
Finkelstein, Reg. v. 82, 263, 328 | Foye, U.S. v.
Finlay, U.S. «. 8 | Fralich x. P.

Finley, P. v. 48

 

Francis, Rex v.

287

59

62

34

262

313

112

141

178

149, 249
149, 268, 281
238, 282
326

281

104

263

280

231
201, 238
276, 277

4

272

66

263

288

318

258

157

309

318

30

207

213

21

283

168, 232
295, 324
298

209

8038

56, 111, 245
29

192
224

85, 829
6

287

217
234, 290
TABLE OF CASES,

[References are to pages.]

France »v. S. 824
Franco », 8. 248
Frank v. S. 176, 320
Franklin, Bentinck v. 129
Reg. v. 28
d v.S. 24
Franklin Falls Co., S. v. 162
Fraser v. S. 55
Frates, C. v. 99
Frazer v. P. 192
Frazier v. S. 263
Freeman v. P. 48
8. v. 146
U.S. ec. 224
Freer, P. v. 140
Fribly v. 8. 22
Frisch, 8. v. 20
Fritz, 8. v. 147
Fulgham v. S. 198
Fuller, Goodspeed v. 128
Rex v. 166, 237
Funderburk v. S. + 318
Furlong, S. v. 188, 287
Furney, S. v. 176
Fuse Co., Kleebaur v. 10
G.
Gaige, P. v. 182, 133
Gallagher v. P. 172
v. S. 207
Gallears, Reg. v. 257
Galvin v. S. 220
Gamble v. S. 147
Gamlen, Reg. v. 61
Gann v. 8. 216
Gannon, In re, 143
Garbutt, P. v. 48, 49
Gardiner v. S. 268
Gardner v. P. 143
P. v. 167
Reg. v. 281, 284, 310
Rex v.
v. S. 197
S. v. 66, 219
Garland, S. v. 140
Rex v. 249
Garnett, C. v. 74
Garrett, Kirk v. 282
S. v. 61, 116
Garris, S. v. 5
Garvey, S. v. 50
Gas Co., Elwes v. 271
Gates, P. v. 12, 239, 241
S. v. 134, 136, 182
Gathercole’s Case, 156
Gaylor, Reg. v. 77

Gazell, S. v. 260

 

Gearhardt, C. x.
Gearhart v. Dixon,
Geier v. Shade,
Genz v. S.
George, S. uv.
German, S. v.
Gessert, S. c.
Getchell, P. v.
Gherkin, S. v.
Gibbs v. le

P. ov.

Reg.
Gibert, b. *s. o
Gibson v. C.

v. 8.

S. v.
Gilbanks, Beatty v,
ns Rex v.

Giles, Rex: G
v. 8.
Gill » v. Bright,

Rex v.
Gilligan, S. v.
Gillon, C. v,
Gillow, Rex v.
Gilman, P. v.

S. v.
Gilmore v. P.

Girard’s Exrs, Vidal v.

Girkin, S. v.
Gisev. C. ~
Glassie, Reg. v.
Glidden, S. v.
Glover v. C.

C. e.

Pov
Gnosil, Rex v.
Goddard, C. v.
Godfrey v. P.

Reg. v.

v. 8.

S. v.

235 | Godwin, S. v.

Goforth v. S.
Goin, S. v.
Golden v. S.
Goldman, S. e.
Goldsberry »v. S.
Golonbieskiv S.
Gompertz, Reg. vu.
Goodall v. S.
Goodbody, Reg. v.
Goode, Reg. v.
S.v.
Goodenough, C. v.
Goodenow., S. vr.
Goodhall, Rex v.
Goodrich, P. v.

187
273, 296
106, 108, 331
32

65, 138

189, 207

11

268

261

302

154, 157

273

174, 208

318

98

37

174

214

24

1

209, 210
184
280, 281
173

169

79, 251
66

234

112
209, 210
286

40

206.

56

56, 316, 818
40

198
321
319
259
175

64
2738
279

76
827

27, 58, 182, 185
301

142
XXvi

TABLE OF CASES.

[References are to pages. ]

Goodrich, S. v. 183
Goodspeed v. Fuller, 128
Goodwin, C. v. 101
v. 8. 46
Goodwyn ». §. 298
Goold, 8. v 156, 198
Gordon v. C. 326
P. v. 19
Reg. v. 301
v8. 252
Gore v. S. 233
Gore’s Case, 80, 88, 214
Goree v. S. ll

Gorham, S. v. 202, 234
Gorman v. S. 198
S.e. 287, 285, 287
Gosha ». S. 233
Gosler v. S. 270
Gosnell, S. v. 61
Goss, Reg. v. 301, 303
Gould, P. v. 20
Reg. v. 110
Rex v. 290
v8. 188
Goulette, P. v. 233
Gowen v. Nowell, 128
Rex v. 241
Grady, C. v. 3807
S. v. 75
Graff v. P. 175
Graham, S. v. 21, 163
Granice, P. v. 80
Grant, C. v. 136
Grantham, Rex v. 3it
Gravely v. 8. 69
Gray v.C. 114, 117
Rex v. 172
Stevenson v. 184
Grear, S. ». 52
Greathead, Reg. v. 3810
Greathouse, U.S. v. 121
Great Works S. v. 43
Greeley, Cooper v. 158, 154
Green, Cartwright » 270
v. C. 215
C. v. 41,107, 108, 168, 232
Merry v. 270
Reg. v. 255
vd, 82, 149, 244, 290
Greenacre, Rex. v. 74, 77
Greene, C. v 279, eee
Guardians v.
Re, 4
cS. 46
Greenfield, Burget v. 161
Greenleaf, S. v. 213, 216
Greenough, Jn re, 808
Greenwall, P. v. 117
Greenwood, Reg. v. 76, 218

 

Gregory v. Hill, 150
v. S 71

Geer, Cv. 95
Reg. v. 12
Grey’s Case, 213
Griffeth, P. v. 249
Reg. v. 3
Griffin, P. v 246
v. S. 166, 187, 188
S.c. 204
Griggs v. S. 269
Grimes v. S. 251
Grisham v. S. 12
Grossheim, S. v. 200
Grugin, 8S. v. 218, 219
Grunson ». 8. 278
Guardians v. Greene, 2
Guedel v. P. 109
Guenther v. P. 108, 112
Guernsey, Reg. ce. 387
Guffee v. S. 67
Guiteau, U. S. v. 45, 82
Gunter v. S. 48
Gunther, U.S. v. 210
Gurnesy, Reg. v. 282, 287
Gut, 8. v. 211
Guy v. Churchill, 158
Gwinn, Custodes v. 183

H.

Haab, S. v. 52
Haase v. S. 157
Habersham v. S. 144, 145
Hackett, C. v, 24, 27, 221
Hackney v. S. 2
Hadden v. P. 190
Hadley, C. v. 43,71
vS. 213
Haggerty, P. v. 243
Hahn »v. P. 246
Haigh, Reg. v. 285
Haile v. S. 52
Haines, C. v. i
Reg. v. 23, 83, 226
Rex x. 244
Hair, S. v. 210
Hale rv. §. 141
Halford, Reg. v. 281
Hall, Baker v. 188
Reg. a 263
Rex vu. 55

v. 8. 12, 281

S. v. 10, 89, 184, 258, 263, 268, 277
Soe 84, 137, 138
Hallett, Reg. o. 200
Halliday, Reg. v. 222
Halloway, Rex v. 212
Hall’s Case,
Halstead v. S.
Haly, Rex v.
Ham v. 8.
Hamaker v. Blanchard,
Hamby v. Sampson,
Hamilton v. P.

v. Reg.

Rex v.

v. S.

8. v.
Hammond, Rex v.

1. Ue
Hampton »v. &.
Hancock, Reg. v.
Hand, U.S. v.
Handley, P. c.

Reg. v.

v. 8.

Hands, Reg. v.
Hanks v. S,
Hanley, 8S. v.
Hanlon, 8. v.
Hannum, Resp. v.
Hanselman, P. v.
Hanson, Pike v.

Reg. v.

Rex v.

S.v.
Hanway, U.S. »v.
Hardcastle v. 8S.
Hardeman v. 8.
Hardie, &. v.
Hardiman, C. v,
Hardin v. Silvari,

v. S.
Harding’s Case,
Hardister, S. v.
Hardwicke, Re,
Hardy v. S.
Hargrave, 8. uv.
Harkins, C. v.
Harland »v. Terr.
Harley, C. v.
Harlot’s Case,
Harman’s Case,
Harmon, Rex v.
U.S. v.
Harrington, C. v.
Harris, Layton v.
Reg. v.

TABLE OF CASES.

{References are to pages.]

161
55

132

89

271

257

118

302

289, 290
187, 286, 287
8 73, 133
173

20

184

245, 246
197

241

92

62, 176
261

84

49

289

125, 126
16

203
202
315

21
121
218
261

34
11
139
200
150

34, 226
142

26
231
311

89

35
223
234
288

26

12, 96, 102
156

240, 297

Rex v-————-- ~~ 166, 249, 827

v. S.
S.v.
Harrison v. P.

Reg. v.
Rex v.
v. 8.
S. v.

263, 275, 312
224, 228
162, 260

281
125
40, 308
45, 57

 

Harrison v. U.S.
Harrison’s Case,

Harrodsburg, Mercer Co. v.

Hart v. Albany,
S. v,

U.S. ev.
Hartford St. Ry. Co, 8. v.
Hartman v. Aveline,

P. v.

Hartigan, S. v.
Hartnett, C. v.
Hartung v. P.
Harvey, Reg. v.

v. Terr.
Harvick v. S.
Haskell, S. v.
Haskins, 8. v.

Hass, White v.
Hatfield, C. v.
Hattaway, S. v.
Hause, S. v.
Havander, Lancy v.
Hawkins, C. v.

Hawksworth, Bridges v.
Hawtin, Reg. v.
Hayes v. P.
S. v.
Haygood v. S.
Haynes, P. v.
Reg. v.
Haynes’s Case,
Hays, C. v.
v. P

Hay ward, Reg. v.

Rex v.

S. v.
Haywood », S.
Hazard, S. v.
Hazen v. C.

Head v. Martin,
Heard v. 8.
Heath, Reg. v.

Rex v.
Hecker, P. v.
Heckman v. Swartz,
Hedley, Ex parte, —
Heed, S. v.
Heffron, C. v.
Heflin, S. v.
Hehier, Reg. v.
Heilman v. C.
Helle, S. v.
Helmes, S. v.
Helms, S. v.

291, 297

274
219
132
257
319

174, 175

62

240
273
5

65
22
oot
yi
100
147
272
40, 41
133
316
244
XXVili

Helvenston, S. v.
Hemingway v. 8.
Hemmings, Reg. vu.
Hench, Rex v.
Henderson v. C.

McDonnell v.

#. Ps

v8.

S. v.
Hendrickson v. C.
Hendrix v. 8.
Hennah, Reg. v.
Hennessey, P. v.

S. ve
Henning v. S.
Henry, C. v.

Sampson v.

; 2S,
' S. v.

Wilcox v.
Hensler, Reg. v.
Henslow v. Fawcett,
Henson, Reg. ».
Henton, Catlin v.
Herbert, S. v.
Hernandez, Underhill v.
Herrell, 8. v.
Herring v. S.
Hershberger, C. v.
Hescott’s Case,
Hess, 8. v.
Hetherington, Rex v.
Hewlett, Reg. v.
Hewson, U.S. v.
Hey, Reg. v.
Heywood, Reg. v.

Hibernia Ins. Co., Kane v.

Hichins, Young v.
Hicklin, Reg. v.
Hickman, Rex v.
Hicks v, 8.
8. v,
Higdon, S. o.
Higginbotham v. 8.
Higgins, Reg. v.
Rex v.
HE ne v

v. 8.
Hildebrand »v. P.
Hildreth, 8. v.
Hill, Gregory v.
v. S.
S. v.
Hilton, S. v.
Hines v. 8.
Hinkle v. 8.
Hinton, S. v.
Hitchcock v. Baker
Hitchins, Young v.

TABLE OF CASES.

[Refercnces are to pages. ]

140
296
282
263
13
139
189
298, 324, 326
154

223
208

5

292

291

218

300, 306, 326
150

280, 289
| BAB
162

166, 305, 307
124

10

22

244

80

65

194

148

126

73

180

39, 66
46, 211
263, 273
328

113

257

26

223

241, 288
218

187

198, 282

160, 204, 318
52, 227

144

+108

187

181

144

257

 

Hite v. S.
Hjeronymus v. 8.
Hoagland, P. v.
Hoare, Reg. v.

v. Silverlock,
Hobson ». §.
Hockett, 8. v.
Hodges v. S.

U.S. 2.
Hodgkins, P. v.
Hodgkisson, Cockayne v.
Hodgson, Reg. v.
Hoin, P. v.

Hoit, S. v.
Holbrook v. S.
Holden, Reg. v.
Holder, C. v.

S. v.
Holland, C. v.

Reg. v.

Rex v.

v. 8.

S.v.
Holloway, Reg. v.

Rex v.

Holly v. 8.
Holmes »v. C.

C. v.

U.S. v.
Holmes’s Case,
Holt, Rex v.
Homes, S. v.
Honselman v. P.
Hood, Carr v.

v. 8.

S. v.
Hook, Reg. v.
Hooker v. C.
Hooper, C. v.
Hoover v. 8.

.d.

Hopkins x. C.
Wemyss v.

Hopps v. P.

9 | Hopt v. P.

Hornby, Reg. v.
Horne, 8. v.
Horsey, Reg. v.
Horton, S. v.
Hoshor, S. v.
Hoskins rv. Tarrence,
Hough, P. v.
Houghton v. Bachman,
U.S. v.
House, S. v.
Honsh v. P.
Howard »v. C.
Pu.
S. v.

264

156
TABLE OF CASES,

[References are to pages. ]

Howard, U.S. v. 132 | Ins. Co., Swope v.
Howe, C. v. ' 116] Ion, Reg. v.

Py 296 | Irwin, C. ve.
Howell, Te v. 276 | Isaacs, C. v.
Howerton, S. v. 235 Rex. v.
Howland, Fifty Ass. v. 150 | Isham v. Broderick,
Hoxey, C. v. 10 v. 8.

Hoxie, U.S. v. 121 | Ives, Fairman v,
Huber, S. v. 278
Hudson, C. v. 25 J.

Reg. v. 24

U.S. v 4| Jackson v. P.
Huegin, S. v 173 P.v.

Huff, S. v. 25 Rex v.
Hugget’s Case, 220 v. 8. 62, 112,
Huggins ». P. 820 8. 0.

Rex v. 82, 71 U.S. ov.
Hughes, Reg. v. 82, 188, 231, 293, 319 Jackson’s Case,

Rex v. 41, 149, 248, 278 | Jacobs, P. v.

Rothermal v, 22 Reg. v.

S. v. 188 Rex v.
Hughes’s Case, 236 | Jailer, U.S. o.
Hall, Rex v. 226 | James v. C.

S. v. 198 C. v.

Hull’s Case, 32 Reg. v
Humphreys v. S. 47, 53 v. 8.
Humphries, C. v. 234, 287 | James Wells, Brig,

111
256

Hunckeller, P. v.
Hundson, Rex »v.

Hunt v. Adams, 323
C. v. 171, 178, 176
Rex v. 29
S. v. 136, 206, 214, 261, 282

Hunter, Reg. v. 3804
Ross v. 332
v. S. 805, 311

Huntley, S. v. 1

Hurd ». P. 228
S.v. 240

Hurley ». S. 257

Hurst, P. v. 298
S. v. 805

Hutchinson, C. v. 169, 279
Pratt v. 160
Reg. v. 62
S. v. 181

Hutchison v. C. 254

Huting, S. v. 45, 49

Hyams, Rex v. 244

Hyatt v. Wood, 150
Hyer, S. v. 79, 118
I.

Illinois, Ker v. 87

Moore v. 85, 109, 329
Innes, S. v. 107, 111
Innis, Ross v. 298
Instan, Reg. v. 33

 

Jansen, S.v
Jarvis, ee vu
Rex v.

v. 8.
S.v.

Jefferson vu. Pe

0 Jetftice,, C.v.
Rex v.
Jellico Coal Co. v. C.

Jellyman, Reg. v.
Jenkins, Reg. v.

v. 8.

S. v.
Jennings, S. v.
Jennison, Reg. v.
Jenny, Taber v.
Jesse v. S.
Jessop, Reg. v.
Joaquin, S. v.
John, S. v.

Johns v. S.
Johnson v. C,

v. Ogilby,

v. P.

P. vo.

Reg. v.

Rex v.

v8.

8. uv.

17, 34, 175,
45, 46, 48, 50, 76, 218, 245

303, 304
12, 299, 812
266, 314
182, 234, 258, 259
124; 149

12

138

303

272

194

61

2

116, 275, 276
98, 205
281

70

18

115

17

219
273

ll

138
101
87, 108
312

72

55

194

118, 276, 277
241

133, 249

298

302

256

135

307, 308, 327
138

235

82

183

22

260, 263

302, 811, 312, 319
278

28, 172
241, 261, 281, 300
TABLE OF CASES.

[References are to pages. ]

Xxx
Johnson v. Tompkins, 202, 203
v, Wideman, 140, 143
Johnston v. C. 245
Reg. v. 301
S. v. 200
Jolliffe, Rex v. 141
Jolly v. U.S. 256
Jones, Bird v. 203, 281
Campbell v. 129
v. C. 60, 214, 234
Durfee v. 270
v. Leonard, 88
v. P. 217
Pv, 167
Reg. v. 261, 278, 284, 286, 299,
800, 805, 307
Rex v. 276
v. 8. 2, 66, 272, 307, 314
S.v. 386, 41, 46, 48, 73, 163, 210,

232, 241, 260, 282, 313

Jones, U.S. v. 62, 78, 237, 290, 3380
Jones’s Case, 12
Jordan P. v, 3803

Reg. v. 40, 72
Journeyman Tailors, Rex v. 173
Juarez, P. v. 286, 287
Judd, C. v. 178, 174
Judge, Montgomery v. 141

Rockwell v. 257

S. v. 142
Justice, Mahon v. 89
Justices v. P. 279

K.

Kanavan’s Case, 12
Kane v. Hibernia Ins. Co. 118
Karnes, Williams v. 155
Karr v. S. 64
Kaster, S. v. 164
Kattlemann, S. v. 110
Kavanaugh, S. v. 45, 52
Kay, Reg. v. 263
Keady ». P. 220
Kearny, P. v. 187
Kee v. 8. 24, 221
Keefe v. S. 204
Keen, US. v. 26
Keenan v. C. 52

S. v. 134, 155, 158
Keene, 8. v. 182, 185, 140
Keeper, C. v. 150, 152
Keerl, S. v. 48
Keir v. Leeman, 22
Keith v. Buck, 21

Keller v. S. 38

S. v. 55
Kelley v. P.

241
Simmons v. 126

 

Kelley v. S. 87
Kellog v. S. 3138
Kelly v. C. 165
v, P. 116

P. v, 48, 211, 216

v. Pittsburgh R. R. 163
Rex v. 385

S. v. 84
Kelso Co., U.S. v. 44
Kemp ». S. 261
Kendall, C. »v. 117
Keneval v. S. 183
Kennard, C. v. 67
Kennedy v. C. 64
C. v. 20, 165

v. 8. 287

S. uv. 184, 237
Kenny, Reg. v. 280, 320
Kenrick, Reg. v. 7, 172, 310
Kent, S. v. 3
Kentucky v. Dennison, 87
Kenyon v. P. 186
Ker v. Hlinois, 87
Kern, S. v. 127
Kessler, U. S. v. 118
Kew, Reg. v. 23, 82
Key v. Vatter, 129, 130
Keyes v, P. 308
Terr. v. 168, 200
Keyn, Reg. v. 79
Kilbourn, Woodman »v. 161
Kilham, Reg. v. 811
Kilpatrick v. P. 14
Kilrow vr. C. 118
Kimball v. S. 36
S. ». 324
King, C. v. 274, 292, 319
v. Lake, 154

v. McKissick, 155
exXv 78

Root v 156

v. 8. 326

S. v. 27, 258, 296
Kingsbury, C. v. 175
Kingsbury’s Case, 88
Kinkhead, S, v. 59
Kinnoull, Ferguson v. 387
Kinney v. C. 184
S. v. 118
Kinsey, Rex v. 91
Kiphart v. 8. 149
Kipper v. 8. 172
Kirby v. Foster, 298
P. v. 27
Kirk v. Garrett. 282
Kirkpatrick, S. v. 182
Kirkwood, Rex v. 72
Kirland v. S. 202
Kleebaur v. Fuse Co. 10
 

TABLE OF CASES. XxXxi

{References are to pages. ]
Klein v. S. 206 | Langley, Reg. v. 159
Klintock, U.S. v. 831} Langmead, Reg. v. 821
Klug v. McPhee, 133 | Lanier ». 8. 248
Klum ». S. 147 | Lanigan, C. v. 41
Knapp, C. v 78, 115 | Lannan, C. v. 278
Pov. 76 | Lapier, Rex v. 235, 260
Kneeland, C. v. 158, 180, 181, 317 | Larner, Reg. v. 310
Knewland, Rex v. 236 | Larney v. Cleveland, 96
Knight, C. o. 135 | Lash, S, v. 182
Rex v. 5, 42, 281 | Lathrop v. Amherst Bank, 129
8. v. 45 | Latimer, Reg. v. 39
Knight’s Case, 10, 32} Lavalley, S. v. 134
Knock, Reg. v. 64, 65 | Lavender, Rex v. 273
Knowles, U.S. v. 34 | Law »v. C. 40
Knowlton, C. v. 1, 2, 186, 188 | Lawless, C. v. 101, 255, 266
Knox v. New York City, 161 vo. 8. 325
8. v. 135 | Lawrence v. C. 58
Knoxville, Mayor of, 8. v. 63 Reg. v. 808
Koplan, 8. v. 264 v. 8S. 271
Kortz, Van Steenbergh v. 134 S. v. 47, 49, 168, 307
Kossakowski v. 8. | 296 | Lawson, Lay v. 159
Kroeger, 8. v. 825 v. 8. 193
Krummer, P. v: 824 | Lawton v. Sun Mut. Ins. Co. 332
Kunckle v. Kunckle, 142] Lay v. Lawson, 159
v. S. 167 | Layton v. Harris, 156
Kubrecht v. S. 156 | Lea, S. v. 135
Kwok-a-Sing, Atty.-Gen. v. 830 | Leach, C. v. 2
S. v. 144
Leache v. 8. 45
L. Leahan v. Cochran, 161, 164
Learnard, S. v. 41, 71
Lacefield v. S. 89 | Learned, S. v. 102
Lacey, Lee v. 61 | Leary, S. v. 151, 152
Ladd, C. v. 826 | Leathers, U.S. v. 59
Norton v. 257 | Leavitt, S. v.° 316
Lafferty, C. v. 182 | Ledford, S. v. 281, 284
LaForrest, S. v. 4 | Lee v. Lacey, 61
Lake, King v. 154 Reg. v. 300
S. v. 82 Rex »v. 209
Lamb ». P. 75 v. §. 82, 49, 68, 114
P. v. 228 | Leeds, S. v. 21
v. 8. 73, 191 | Leeman, Keir v. 22
Lambert v. P. 182, 172 v. S. 56
Rex v. 156 | Leeser’s Case, 213
Lambertson v. P, 194 | Lefler v. S. 308
Lamphere, Re, 2 | Lehre, S. v. 156, 157:
Lamphier v. 8S. 280 | Leigh’s Case, 275
Lancaster, C. v. 306 | Leighton v. P. 214
Reg. v. 124 | Le Mott’s Case, 245
Lancy v. Havender, 1380 | Leonard, C. v. 117, 3821
Landers v. S. 2389 Jones v. 88
Landgraf, S. v. 24 P. v. 152
Landreth, S. v. 317 | Leslie, Reg. v. 62
Lane, C. v. 188, 184 vS. 78
v. P. 269 | Lester, C. v. 289
v, 8. 69, 183 | Leuhrsman, S. v 204
Lange, Ex parte, 106, 108 | Levar v. S. 55, 125
Langford, Reg. v. 818 | Levelle, S. v. 38
S.v. 257 | Levet’s Case, 53
XXxii

Levi v. Levi,
Levy, S. v.
Lewer v. C.
Lewis v. C.

Libbey, C. v.
Lightsey, 8. v.
Lince, Reg. v.
Lincoln, C. v.
Lindenthal, S. v.
Lindsay v. P.
Lindsey v. S.

S. v.
Linney, S. v.
Linton, Blaikie v.
Liphardt, P. v.
Liscomb, P. v.
Lister, Reg. v.
Litchfield, S. v.
Little, Re,

Reg. v.

v. S.
Littlefield, S. v.
Livermore v. White,
Livingston «. C.
Llewellyn, 8. v.
Lloyd, Weaver v.
Loader, Marsh v.
Lock, Reg. v.
Lockerby, S. v.
Loeffner v. 8.
Logan, U. S. v.
Loggen, Rex v.
Lombard, P. v.
Long, P. v.

v. Rogers,

v8.
Longbottom, Reg. v.
Longley v. C.
Longstreath, Rex v.
Lonon, §. wv.
Loomis v. Edgerton,

v. P,

P. v.
Loose v. S.

TABLE OF CASES.
[References are to pages. ]

178, 174
269
277, 312
813

23, 4
20
1738, 199
134
83, 165, 169
49, 73, 188, 202
159

295
206
809

200, 201
187

49

12, 85
126

228

201

28
235, 236, 237, 261
2

50
267
199
315
277
265
283

Lopez, Reg. v. 81

v8. 118
Lott v. Burrel, 140

v. 8. 167
Loud, C. v. 106
Louisville, City of, v. Roupe, 160
Lowney, Whiteside v. 280
Love v. P. 18

 

Lovett, C. v.
Reg. v.

Loving »v. S.

Low, Reg. v.

Lowe, Reg. vo.
v

Lowenthal v. 8.

Lowney, Whiteside v.

Lowrey, S. v.
Loyd v. S.
Lucas, C. v.

Uv.
8. v.
Luckey v. 8.
Luckis, C., v.
Luke v. S.
Lundy v. S.
Lyle v. Clason,
Lyman v. P.
Lymus, S. v.
Lynch v. C.

Reg. v.
Lyne, Emmet v.
Lynn, Rex v.

v. P

Lyon, S. ».
Lyons v. 8.

Maas v. Terr.
Mabbett, Reg. v.
McAdams v. 8.
McAdden, S. v.
McAfee, C. v.
McAllister v. S.
McArthur v. 8.
McAtee, C. v.
McAvoy v. Medina,
McCall, S. v.
McCance, S. v.

0 | McCann, P. v.

S. v.
3! McCants, S. v.

McCarney v. P.
eta Resp. v.
v8.

S. v.
McCarty’s Case,
McCaughey ». 8.
McClean »v. S.
McClelland, Flliot »v.
McClory v. Wright,
McCone, S. v.
McConnell v. S.
McCord »v. P.

P. v.
McCormick v. S.
McCulloch, C. v.

153

297
279

32, 227
45, 46, 291
292

280

108

78, 319

283

21, 241
186, 189

48
227
17

152
63, 198, 216
24

158

76

271
248

72

48

271
219

78

70

75, 269
268
121, 128
192
163
129
117
133
141

24, 306
- T
236
128
McCullough ». C.
McCune, 8. v.
McCutcheon ». P.
McDaniel, Fisher v.

Rex v.

v. 8.

S. v.
McDaniels, P. v.
McDermott, S. »v.
McDonald, C. v.

P.v

Reg. v.

Rex v.

8. u.
McDonell, P. v.
McDonnell v. Henderson,
McDuify, C. v.
Mace, S. v.
McElroy, P. v.
McFarlin, P. v.
McGahey, C. v.
McGarry, P. v.
McGary »v. P.
McGavaran, Reg. v.
McGee v. 8.
McGehee v. 8.
McGlue, U. S. ».
McGonigal, 8. v.
McGoon v. Aukey,
McGowan, P. v.
McGrath, C. v.

Reg. v.

Ss

v. 8S.
McGrowther, Rex v.
McGruder, 8. e.
McGuire v. 8.

Wood v.
McHale, C. v.
Macino, P. v.
McIntosh v. Matherly,
McIntyre ». P.
McKay, P. v.

v. 8.
McKean, S. v. .
McKearney, Rex v.
McKie, C. v.
Mackin »v. P.
CEE P.u.

v§.

McKissick, King v.

McLaughlin, C. v.

McLean, Bayard v.
8.

0.

McLeod, P. v.

Macloon, C. v.

McMahon, Benson v.
v. S.

McMurray, P. v.

McNaghten’s Case,

TABLE OF CASES.
[References are to pages.]

93 ) McNair v. §,
234 | McNeal v. Woods,
58, 59 | McNease, Fonville v.
141 | McNeil v. §
17, 220, 237 | Macomber, Payson v.
236 8. u.
248 | Maconnehey ». S.
235 | McPhane, Reg. v.
318 | McPhee, Klug v.
167, 232 | McPherson v. Cox,
200, 283, 268 S.v.
35 | MacRae, S. v.
12 | McQuaid, P. v.
54 | McReynolds v. 8.
47 | McShane, C. v.
139 | Maddocke, Rex v.
305 | Maddox v. 8.
102 | Maddy, Rex v.
290 | Madge, Reg. v.
173 | Madison, S. v.
90 | Madox, Rex v.
124 | Magee, S. v.
241 | Magnell, S. v.
201 | Maher ». P.
18 | Mahon ». Justice,
214 | Mahoney v. P.
8

v. 8.
52| Maid, U. S. ».
254 | Main, S. v.
110, 241 | Mairs v. B. & O. R. R.
183 S. ce.
263 | Makely, C. v.
245 | Malek Adhel, The, U. S. v.
70| Malin, Resp. v.
194 | Mallett. S. v.
67 | Mallison, Rex v.
129 | Mallory, Bell v.
10 P. v.
262 | Malloy, S. v.
157 | Malone ». S.
50} Maloney, C. v.
P

5 Us
206 | Maloy, S. v.
79 | Manchester, C. »
247 v. Mass.
201 | Mangum v. S.
135 | Mankins v. S.
135, 296 | Manley, Reg. v.
168 | Manning, Reg. v.
155 v. Sprague,
32 v8.
129 | Mansfield, Reg. v.
25, 55 | Manton, Terr. v.
62} Manuel, S. v.
81, 84, 831 | March, Reg. v.
86 Rex v.
66 v. 8.
201 | Marcus »v. S.
45 | Maria v. 8.

 

 

276,

218,
235,

78,
XXXIV TABLE OF CASES.
[References are to pages. ]
Marianna, Flora, The, 81, 331 | Medina, McAvoy v. 271
Marigold, U. S. v. 828, 329 | Medlor, Rex v. 12
Markey v. 8. 133 | Medway v. Needham, 184
Marks, Stansbury v. 140 | Meek, Reg. v. 1387
Markuss, Reg. v. 385 Wright v. 129
Marley v. 8. 168 | Meeres, Rex v. 275
Marmont v. 8S. 26 | Meldrum, S. v. 262
Marmouget, S. v. 82 | Mellish, Rex v. 294
Marriott, Rex v. 185 | Melsing, Tornanses v. 142
Marriott, Reg. v. 83 | Mercer, Reg. v. 125
Marrow, Reg. v. 152 | Mercer County v. Harrodsburg, 164
Marsh v. Loader, 41 | Mercersmith v. S 76
S. v. 56, 152 | Meredith, Reg. v. 15, 199
Marshall, C. v. 8 | Merrill, S. o. 67, 291
Rex v. 108, 324 | Merrit, S. v. 161
v. 8. 51, 58, 59| Merry v. Green, 270
Marshall’s Case, 51 | Mesca, Resp. v. 2
Martin v. Clark, 129, 130 | Meyer, P. v. 260
v.C, 66 | Meyers, Ex parte, 3
Head v. 62 | Mezzara’s Case, 155
P. v. 24, 134 | Michael, Reg. v. 71
Reg. v. 83, 310 | Micheaux v. S. 284
eS. 85, 829 | Middleham, S. v. 68
S.v. 68, 297, 229| Middleton, Reg. v. 264, 266, 272, 312
v. Terr. 265 v8. 14
Martinez v. S. 289 | Miers v. S. 66
Marvin, S. ce. 182, 193! Mifflin v. C. 174
Mary v. 8. 243 | Milburne’s Case, 269
Mash, C. v. 58, 60, 185 | Milgate, P. v. 69
Mason v. P. 250 | Millard, 8S. v. 192
Rex v. 234 | Miller v. C. 265
v. 8. 282 C. uv. 145, 165
Mason, Town of, v. O. R. R. C. 11 Master v. 128
Massage, S. v. 216 P. v. 175, 318
Master v. Miller, 128 v. 8. 42, 74, 220
Masters, Reg. vu. 278, 274 8. v. 66, 186, 193, 233
Mather, P. v. 171, 175, 176 | Milliman, C. v. 161
Matherly, McIntosh v. 157 } Mills v. C. 187, 191
Matthews, Reg. v. 270 Robinson v. 161
v. 8. 116 Reg. v. 3807, 309
8. v. 148 S. v. 151, 808
v. Terry, 198 | Milton ev. 8. 6
Maury ¢. S. 68 | Milwaukee, Fink v. 96
Mawbey, Rex v. 172 | Miner v. P. 181, 182
Mawgridge, Reg. v. 216] Ming v. Truett, 125
Maxwell, C. v. 101] Mingo, U.S. wv. 215, 218, 227, 228
8. v. 135 | Mink, C. v. 29, 38, 170
May, Reg. v. 294 | Minter v. S. 244
Mayberry, S. v. : 171, 175 | Mitchell v. C. 191
Maybin v. Raymond, 130, 131 C. v. 126
Mayers, Reg. v. 201, 233 v. 8. 4
Maynard ». P. 137 S. v. 87, 242
Mayor, etc., Patchin v. 142 v. Terr. 283
v. Pinch, 142 v. Tibbetts, 84
Reg. v. 58 U.S. v. 121, 122
Maysv. 8. 217 | Mitchum v. S. 262
Mazagora, Rex v. ‘ 827] Moah, Reg. v. 322
Mead, C. v. 40, 41] Moan, P. v, 23
v. Young, 824 | Mobley v. 8. 278

 
TABLE OF CASES.

[References are to pages. ]

Mohr, In re,
Molette v. S.

88
210

Molier, S. v. 135, 137
Molton v. 8. 261
Monroe, S. ». 202, 223
Monson v. Tusseaud’s Ltd. 156
Montgomery v. C. 67
v Judge, 141

v. 8. 185
Moody v. P. 190
P. v. 816

v. 8. 198
Moor, Rex v. 185
Moore. C. v. 300
v. Illinois, 85, 109, 829

P. v. 202
Re, 140
Reg. v. 269
Rex v. 168, 265, 266

S. uv. 6, 12, 162, 193, 219, 230, 247,
264, 311

U~S. ». 389
Moran v. P. 232
P. ce. 167

S. v. 118
Mordecai, S. v. 245
Morehouse, P. v. 206
Moreland, C. v. 320
Morfit, Rex v. 286
Morford »v. Terr. 133
Morgan, S. v. 67, 197, 204, 255
Morley’s Case, 216
Morphin, S. v. 291
Morphy, P. ». 3803
Morrill, C. ». 24, 806
8S. «. 140
Morris, Beauchamp v. 152
C. v. 98, 157
Reg. v. 112
Rex v. 41, 78

v. 8. 11
Morris Canal Co., S. v. 160

Morris Run Coal Co. v. Barclay

Coal Co. 178, 175
Morrison’s Case, 205
Morrow, U.S. v. 828
Morse, C. v. 100

v. 8. 6
Mortimer, P. v. 3
Mortin v. Shoppee, 208
Morton, P. v. 17
Mosely v. S. 317
Moses v. Dubois, 231
Mosher, P. v. 183
Mosler, C. v. 46, 219
Mott, Rex v. 24
Mow v. P. 73
Mowrey, S. v. 45
Moye v. 8. 290

 

XXXKV
Mucklow, Rex v. 270, 272
Muir ». S. 182
Mulford v. P. 295
Mulholland, C. v. 828
Mullaly v. P. 257
Mullen, C. v. 105
8. v. 51, 287
Mullens »v. S. 27
Mulligan v. 8. 239
Mulliken, S. v. 12
Mulrey, C. v. 807, 811
Munden ». 8. 228
Munkers v. 8. 186
Munsey, C. v. 42
Munslow, Reg. v. 156
Murphreesboro, S. v. 11
Murphy, C. v. 39, 101
Cote v. 173
v. P. 279
Pv. 286
Reg. v. 62, 804
v. 8. 200
S. v. 8, 174, 175, 191, 216, 256, 266
U.S. v. 285
Murray, P. v. 165, 166, 167
Rex. v. 274, 292
S. v. 45, 49, 143, 175
Musfelt v. 8. 193
Musgrave, Nelson v. 155
Musgrove v. 8. 311
Masitk, S. v. 212
Mutchler, Re, 283
Myeall, C. 826
Myers, Evanston v, 19
P. v. 131
v. 8. 298
Stephens v. 203
Lu. 204

N.
Nall v. S. 144
Napier, Dobree v. 80
Napper, Rex v. 100
Nash v. 8. 248
S.v. 53
National Ins. Co., Stone v. 332
Nations, Wilson v. 136
Naylor, Reg. v. 805
Nayson, Winslow v. 142
Neagle, Jn re, - 85
Neal, C. v. 42
Neale, Reg. v. 127
Needham, Medway v. 184
Neff, S. v. 63
Neeley, S. v. 204, 227
Negus, Reg. v. 2103
Nelms v. S. 184
Nelson v. Musgrave, 155
XXXVI

Nelson v. S.
Neville, S. v.
Newberry, P. v.
Newby, S. v.
Newell, C. v.

S. v.
Newkirk, Buster v.

v. Cone,

S. v.
Newman, Reg. v.
Newton, S. v.

New York, Cohen v.

Knox v.
New York Gas Co.,
Niblo v. 8.
Nichol, Reg. ».
Nicholls, Reg. v.

v. 8.
Nichols v. C.

C. v.

v. P.
Nicholson, Rex v.
Nickerson, C. v.

Sav,
Nightengale v. S.
Noakes, Reg. v.
Noble, S. v.
Noles v. S.
Nolze, Wilcox v.
Noonan, Wilson v.
Norden, Rex v.
Norman »v. U. 8.
Norris, 8. v.
Northcot v. S.
Northrup, S. v.
Norton, C. v.

v. Ladd,

v. P.

P. v.

Rex v.

Sulston v.
Norval, Reg. c.
Note,

Nott, C. v.
Nowell, Gowen v.
Noyes v. §.

S. v.
Nutt, S. v.

Oaks, C. v.
Reg. v.
O’Bannon, S. v.
Obershaw, S. v.

O’Brien, C. v.
Ferens v.
P.v,
Reg. v.

TABLE OF CASES.
[References are to pages. ]

217 | O’Brien, S. v. 32, 68, 141, 222,227, 244

 

218 | O’Bryan v. S 34

74, 77 | O’Connell, C. v. 105

317 | Oddy, Reg. v. 821

2, 5, 9, 209, 251 | Odell, C. rv. 155

310 | O’Dogherty, Reg. v. 141, 143

257 | O’Donnell, P. v. 172

129 Reg. v. 282, 283

318 Rex v. . 91

157 | Ogilby, Johnson v. 22

59 | Ogletree v. S. 86

161) O’Halloran v. 8. 16, 17

161 | O’Hara, C. v. 287

P. v. 162 | O’Hare, S. v. 187

88 | Ohio, Fox v. 85, 329

200 | O’Kean, S. v. 298

838, 84 Okey, Rex v. 126

245 | Oliver v. C. 187

291 S. v. 68, 198

115 | Olsen, Terr. v. "317

275, 276 | O'Malley, C. v. 277, 278

266 | O’Neil v. 8. 114

188, 190, 231 | O’Neill x. S. 147

110 | Onslow, Reg. v. 140

286 | (pie, Rex v. 1381

34| Orcutt, P. v. 37

97 | Ordway, C. v. 202

220] O. R. R. Co., Mason v. 11

88 | Ortner v. P. 132

155 | Osborn, Rex v. 18, 299, 318, he

17, 237 | Oswald’s Case,

222 | Oteiza, In re, 136

136 | Otis, S. v. 20

817 | Outlaw, S. rv. 249, 250

117 Overton, Reg. v. 136

307 v. 8. 281

257 Giren. Rex v. 41, 78, 289

78 v8. 287

127 | Owens, P. v. 45

98 v. U.S. 66

124 | Oxx v. 8. 808
z

289 P.

128

275 | Packard, C. v. 162

174, 175 | Packers’ Ass’n, U. S. v. 44

111] Pahia, Ex parte, 143

Palmer v. P. 280

P. v. 114

v. S. 318

11, 12 8. v. 49, 287

201 U.S. v. 831

186 | Pankey v. P. 182

35 | Paradice, Rex », 273

24,117! Parcnt, P. v. 134

254 | Pargeter, Rex v. 32

26 | Parish, Reg. v. 327

248 | Parker, C. v, 15, 191, 199, 300
 

TABLE OF CASES. Xxxvii

[References are to pages. ]
Parker, Reg. v. 243 | Perkin’s Case, 82
Rex v. 304 | Perry, C. v. 163, 164
v. 8. 65 Reg. v. 255, 273
8. v. 4 S.z. 147
Tumalty v. 280 | Petch, Reg. v. 259
Parks, Rex v. 266 | Peter, P. v. 21
Parnell, Rex v. 184 | Peters, C. v. 108
Parris v. P. 316 Reg. v. 283
Parshall, P. v. 189, 190 S. v. 133, 137
Parsons v. 8. 46, 47, 117, 221 | Petit, S. v. 261
S. v. 296 | Pettit v. Walshe, 86
Pascagoula Boom Co. v. Dickson, 161} Peyton, Bergeron v. 272
Pasnau, S. v. 51) Phenix Ins. Co., Fayerweather v. 322
Pat v. S. : 821 | Phetheon, Reg. v. 284
Patapsco Ins. Co. v. Coulter, 332 | Philley, S. o. 201
Patch, Rex v. 265 | Philips, P. ce. 198
Patchin v. Mayor of Brooklyn, 142 Reg. ». 40
Patrick v. Smoke, 136 | Phillips, C. v. 74
Patten v. P. 67, 230 v. P. 85, 108
Patterson, S.v. 68, 69, 207, 208, 220, Rex v. 169, 283
229, 289, 298 v. 8. 25
Patton, S. v. 4, 36 Wood v. 150
Paul, S. v. 803 | Phillpotts, Reg. v. 187
U.S. 2. 4|Philpot, S. v. 140
Pauli v. C. 827 | Pickering, C. vu. 132
Payne v. P. 255, 259 | Pickett, 8. v. 200
v8. 232 | Pierce, Carver v. 256
Payson v. Macomber, 190 Cru. 35
S.c. 163 Reg. v. 271
Peacock, P. v. 324 S. v. 817, 318, 3824
Pearce, Rex v. 35, 267 | Pierson, P. v. 85
8. 2. 181 | Pike v. Hanson, 203
v. Terr. 74 Boy. 380, 45, 47
Pearne, P. v. 82 | Pinkard v. S. 5
Pearson v. C. 823 | Piper, C. v. 4, 116
S. v. 150, 152 | Pirates, U.S. v. 109, 331
Pearson’s Case, 63, 217 | Pisar v. 8. 26
Pease, C. v. 22, 126 | Pistorius v. C. 228
v. 8. 265 | Pitman v. Clark, 141
Peaslee, C. v. 165 Rex v. 254, 261
Peat’s Case, 237 | Pitt, Combe v. 124
Peck v. 8. 262 | Pitts, Reg. c. 222
Pedley, Rex wv. 29, 186, 240 ve 8. 813
Peelle v. 8. 161 S. v. 111
Peltier’s Case, 154 | Pittsburgh Ry. Co. v. Crothersville, 164
Pelts v. S. 819 Kelly »v. 163
Pembilton, Reg. v. 88, 818 | Pitwood, Rex v. 33
Pence v. 8. 287 | Plake v. 8. 46, 48
Pender, Williamson v. 142] Plant, Rex v. 109
Pennegar v. 8. 184 | Pleasant v. S. 233
Pennington, S. v. 158 | Plummer, Rex v. 175, 218
Pennsylvania Canal Co., C. v. 3 8. v 132
Penny, S. v. 5 | Pocock, Reg. v 221
Penton v. S. 1938 | Polk v. 8. 48
Percival v. Yousling, 162 | Pollard, C. v. 181, 187
Perine v. Dunn, 129 Reg v. 42
Perini, P. v. 273 | Pollet v. S. 818
Perkins, C. v. 98 | Pollman, Rex v. 124
S. v. 55: Pomeroy, C. v. 46, 48
XXXVili

TABLE OF CASES.

[References are to pages. ]

   

Pond v. P. 207, 229, 230 Pyland v. S. 271
Poole, Reg. v. 283 Pywell, Rex v. 171
Porter, P. v. 180 é

Reg. v. 213 Q.

v. 8.

8.0. 69, 215 Quail, Reg. v. 169
Potter v. S. 31 / Quattlebaum v. 8, 46
Potts, S. v. 49, 249 Quin, P. ¢ 200
Poulton, Rex v. 211 Quinn, v. P. 246, 287
Powder Co. v. Tearney, 162
Powell v. C. 825 R.

C.v. 14

v. Flanary, 22 Radford, Reg. v. 328

Reg. v. 255 Rafferty v. P. 49, 219, 220

Resp. v 14, 313 | Ragland v. 8. 248

v. S. 273 | Raher, P. v. 39

S. v. 11, 163, 180, 244 | Rahl, S. v. 193
Power, S. v. 35 | Ralli, Collins v. 812
Powers v. Dubois, 155 | Ramsey, C. v. 96
Poynier, S. v. 78 | Randall, C. e. 27, 68, 198
Poyser, Reg. v. 277 Reg. v. 11
Prater, S. v. 67 | Randell, Reg. v. 304
Pratley, Rex v. 276 | Rand Lumber Co. v. Burlington, 162
Pratt v. Hutchinson, 160 | Randolph, C. v , 169

v. Price, 134 P. v. 41, 168, 232

Reg. v. 2765 | Rankin, 8. v. . 162

Rex v. 265, 268 | Ranney v. P. 800
Presby, C. v. 64/ Ransom v. 8. 270
Presnell, S_ v. 26 | Rasche, P. ». 265
Pressley v. S. 244 | Rathbun, P. v. 82
Preston v. P. 109 | Ratz, P. v. 29

Reg. v. 270 | Rauck v. S. 204

v. 8. 216, 217 | Rauscher, U. S. v. 86, 87
Price v. P. 64 | Raven, Rex v. 274, 275

Pratt v. 134 | Ray, C. o. 76, 821, 324

Reg. v. 12 8. v. 152

vw. 8. 218 | Raymond, Maybin vw. 180, 131

v. U.S. 18 8. v. 137
Pridgen, S. v. 152 | Read v. C. 215, 216
Priester v. Angley, 230 Reg. v. 200,297
Prince, Reg. c. 29, 58, 60, 190, 264, 266, | Reading wv. C. 11

812 Rex v. 27

Prindle v. S. 194 | Reagan v. U.S. 8
Pritchett v. S. 271 | Reanes’s Case, 286, 237-
Privett, Reg. v. 286 | Rector, P. v. 68
Probasco, S. v. 59 | Reddick v. C. 29
Proprietors, &¢., C. v. 43 | Redfield v. S. 231
Protector v. Buckner, 219 | Reed v. P. 103
Prowes, Rex v. 83, 320 Reg. v. 11, 55, 168, 274
Prudhomme, §. v. 118 v8. 218, 270, 297
Pruner v. C. 193 8. v. 117
Pryor, S. v. 802 | Reekspear, Rex v. 194
Pugh, S. ». 232 | Reese v. Wyman, 301
Pulle, S. v, 2| Reeve, Reg. v. 115
Pullen, S. v. 281 pees Reg. v. 211, 263, 275
Purdy, S. v. 124 Ss. 296
Purse, S. v. 163 8. v. 187
Putnam, C. v. 184 | Regan, Reg. v. 87, 242, 243
v. Putnam, 183 | Regent v. P. 169

 

 
Reggel, Ex parte,
Reid, S. 2.
Reilly, Rex v.
Roberts v.
Reinitz, P. v.
Remington v. Congdon,
Reneau v. S.
Renew v. S.
Renshaw, Reg. v.
Renton, S. v
Revoir v. S.
Rew, Rex vw.
Reynolds, C. v.
v. P.

fen, v

S. v.

v. U.S.
Rhoades, S. v.
Rhoads, C. v.
Rice v. 8.

U.S. v.
Richards v. ©.

P. v.

Rex v.

S. v.
Richardson, Rex v.

v. Rowland,

v. §.
Richels v. S.
Richie, 8. v.
Ricker v. Shaler,

2,

Rickert, P. v.

Rickey, 8. v.

Riddle, U.S. v.

Ridgway, C. v.

Riggs v. Denniston,
ee v.

Riematdon’ 's Case,
Riley, seg. vu
v. 8.

Rinaldi, Reg. vu.
Rinehart, S. v.
Ring, Reg. vw
Riordan, P. v.
Ripley, 8. v.
Ritson, Reg. vo.
Roan, S. v.
Roane, S v.
Robb v. Connolly,
Robbins v. S.
Roberts v. P.

Reg. v.

v. Reilly,

Resp. v.

Rex v.

v. S.

S. uv.

 

TABLE OF CASES. XXx1x
[References are to pages.]

88 | Roberts’s Case, 121, 123

244 | Robertson v. Bingley, 143

276 | Robeson, Archbishop v. 154

88 | Robins, Reg. v. 268

826 | Robinson, £z parte, 189, 142

158 v. C. 184

62 v. Mills, 161

133 v. P. 161

206 P. v. 25, 50

149 Reg. v. 311

48 v. 8. 17, 270, 276

22 8. v. 51, 317, 328, 825

90, 101, 116 | Robson, Rex v. 265, 277

109 Roby, . v 104, 108, 112

279 72

296 Rooke». Judge, 257

26 31, 221

188 Roda, “Fapoconbe vw 22

61 | Roderick, Rex v. 15

85, 226, 819 | Rodriquez v. S. 261

61 | Rodway, Reg. v. 278

279 | Roebuck, Reg. v. 803

175, 251 | Roeder v. S. 2738

288 | Rogers v. C. 185

45 C. v. 46, 174

5, 72, 319 Long vw 201

129, 130 Reg. 319

182 Adbrite v. Winters, 22

205 | Rolland v. C. 246, 247

19 | Rollins, S. v. 2, 190

162 | Rooswell, C. v. 233

75 8. v. 200

151 | Root v. King, 156

171 | Roper, S. v. 12

5| Rosebeck, S. v. 189

174 | Roscow »v. Corson, 332

155 | Rose, Bruley v. 280

129 Reg. v. 67

286 v. 8. 318

32 8.2. 11, 192

266, 285 | Rosen v. U. S. . 18

29, 144, 157 | Rosenberg, Reg. v. 281

825 | Rosinski, Reg. v. 201

182 | Ross v. Hunter, 332

167 v. Innis, 298

69 v8. 112

174 S. v. 198

825 | Rothermal v. Hughes, 22

50 | Rothstein, P. v. 301, 309

62 | Rothweu, Reg. v. 218

88 | Roupe, Louisville v. 160

35 | Rowe, Reg. vu. 270

86, 50, 51 8. v. 245

166 | Rowell, S. v. 137

88 | Rowland, Richardson v. 129, 180

2, 182, 193 Reg. v. 172

125 v. 8. 217, 321

111, 220 | Rowley, S. v. 171, 300

3] Rowsey v. C. 64
xl

TABLE OF CASES.

{References are to pages. ]

R. RB. Co. v. P. 43
P.v. 44

S. v. 43
Rubin, C. v. 267
Rudd, Rex v. 21
Rue, S. v. 298
Ruggles, P. v. 1, 11, 153, 180
Ruhl, S. v. 29, 60, 189, 190
Ruloff v. P. 76, 117
Runnels, C. v. 149
Runyan v. 8. 227
Rusby, Rex v. 160
Rush, C. v. 161
Rushing, S. v. 319
-Russell, Rex v. 243
Rex v. 161, 244

S. v. 148
Yates v. 142
Russet, Reg. v. 312
Rust, Rex v. 248
Ruthven, S. v. 22
Ryan C. v. 274
P.v. 187
Reg. v. 389
v8. 800

S. v. 287

Ry. Co. v. C. 43,
Reg. v. 43, 44

S. v. 43
Winslow v. ‘180

S.

St. Briavels, Elsmore v. 241
St. Clair, S. v. 819
St. George, Reg. v. 197, 205
St. John, C. v. 21
St. Louis v. S. 244
St. Valaire, P. v. 268
Saels, 8. v. 181, 169
Salisbury, Rex v. 298
Salmon, Reg. v. 32
Salvi, Reg. v. 112
Sam, S. v. 41
Sammons, Williamson v. 128
Sampson, C. v. 255
Hamby ». 257

v. Henry, 150
Reg. v. 804
Sanders v. P. 134
v. 8. 71
Sanderson C. v. 156
Sands, P. v. 10
Sandy, S. v. 248
Sankey, C. v. 825
Sarony, S. v. 300
Sasser v. S. 324
Sattler v. P. 318

Saunders, Reg. v. 12, 200, 232

 

Saunders’s Case,

80, 38, 75, 214
Savage, Tuberville v. 204

Savannah Pirates, The, 880
Savin, Lx parte, 189, 141
Savoye, 8. v. 173
Saward, Reg. v. 275, 278
Sawyer, Rex v. 19

v. 8. 218
Saylor v. C. 67
Sayre, C. v. AT
Sayward, Wonson v. 254
Scaife, Reg. v. 118
Scanlan, S. v. 255
Scates, S. v. 28, 221
Schenck v. Schenck, 157

Schomp v. 129
Schingen, S. v.. 273
Schlagel, S. v. 79
Schlencher v. S. 50
Schlit, S. v. 298
Schlottman, S$. v. 160
Schmidt, Reg. v. 320
Schomp v. Schenck, 129
Schulz, S. v. 35
Schuyler, P. v. 281
Schwartz v. C. 138

C. v. 805
Scofield, Rex v. 36
Scott v. C. 46

v. P. 301

v. 8. 39

S. v. 8, 45, 65

v. U.S. 111
Scovel, S. v. 319
Scripture, S. v. 246
Scully, Rex v. 67
Seacord v. P. 163, 164
Searing, Rex v. 267
Searls v. Viets, 231
Sears, S. v. 204
Sedgwick, Stanton v. 129
Sedley’s Case, 11
Seiler v. P. 42
Self, Rex v. 82
Sellew, Board, etc. v. 142
Sellis, Rex v. 211
Selway, Reg. vu. 237, 288, 290
Semple, Rex v. 263
Senior, Reg. v. 26, 35
Serlested’s Case, 318
Serné, Reg. v. 29, 213
8. E. Ry., Whitfield v. 157
Setter, 8S. v. 175
Severance v. Carr, 281
Sexton v. California, 85
Shade, Geier v. 22
Shafer v. S. 263
Shafher v. 8. 183
Shaler, Ricker v. 162
Shall, P. v. 323
Sharman, Reg. v. 822, 327
Water Co. v. 271
Sharpe, Reg. v. 25
Sharpless, C. v. 12, 158
Shattuck, C. v. 150
Shaughnessy, P. v. 265
Shaw, C. v. 96, 167, 254, 262
Be 118, 265

S. v. 257
Shed, C. v. 56
Shearm v. Burnard, 96
Sheffill v. Van Deusen, 157
Sheftall, Ry. Co. v. 158
Sheldon, P. v. 178
Shelledy, S. v. 227
Shellmire, U. S. v. 185, 136
Shepherd v. P. 240
Reg. vu. 84, 225
S.v. 206, 211
Shepherd’s Case, 317
Sheppard, Rex v. 37, 268
Sheriff, C. v. 144
Sherley v. Riggs, 129
Shermer, S. v. 284
Sherras v. De Rutzen, 53
Shertzer, C. v. 280
Shickle, Reg. v. 257
Shields, S. v. 232
Shindell, C. v. 151
Shippey, S. v. 45
Shippley v. P. 268
Shipworth, Reg. v. 140
Shoemaker v. 8. 214
Sholes, C. v. 107
Shoppee, Mortin v. 203
Shortall, C. v. 62
Shorter v. P. 66
Shupe, S. v. 184
Shurtliff, S. v. 71, 325
Sienkiewicz, S. v. 298
Sikes v. S. 254
Sillem, Atty.-Gen. v. 167
Silsbee, C. v. 10
Silvari, Hardin v. 189
Silver v. 8. 133
Silverlock, Hoare v. 156
Simmons v. Kelley, 126
v. 8. 74, 236, 289

S. v. 210

v. U.S. 108
Simons, Rex v. 238
8. v. 181, 182
Simpson, Reg. v. 260, 267
v 8. 146
_Simpson’s Case, 226-
Sims, S. v. 203, 206
Sinclair, Reg. v. 19, 202
Skilbrick, 8. v. 265

TABLE OF CASES.

xl

[References are to pages.]

 

Slack, C. v. 102
P.v. 183
Slade, Cooper v. 125
Slagle v. S. 191
Slattery, C. v. 20
v. P. 191
v. §. 209
Slaughter v. S. 18, 110
Slingerland, S. v. 287
Sloane, S. v. 228
Slowley, Reg. v. 278
Small v. C. 219
Reg. v. 267
Smiley, S. v. 184
U.S. »v. 80, 254
Smith v. C. 15, 46, 169
C. v. 75, 77, 132, 289, 295
Dishon v. 124
v P. 2, 171, 173, 279
P.v. 285, 315

Reg. v. 31, 32, 84, 39, 41, 224, 279,
319, 821, 325

Rex v. 83, 244, 250, 293
v. 8S. 2, 12, 61, 117, 118, 156, 182
191, 196, 199, 200, 203, 215, 241,

8. v. 2, 88, 58, 59, 66, 162, 186,
206, 212, 227, 296, 323

Stotesbury v. 126

U.S. v. 1, 296
Smyth, Rex v. 152
Smoke, Patrick v. 186
Snap v, P. 316
Sneed, C. v. 63
Sneff, S. v. 17
Snelling, C. v. 156, 235, 236
Snow, C. v. 194

S. v. 51, 148
Snowley, Rex v. 297
Snyder v. C. 235

In Re, 302, 309

v. P. 240
Soares, Rex v. 73
Soley, Reg. v. 148
Sollers v. Sollers, 257
Solomons, Reg. v. 262, 265
Sommerville, S. v. 143
South, S. v. 281
So. Ry. Co., S. v. 25
Southerton, Rex v. 7
Spalding, Rex v. 240
Spann v. S. 45
Speer, C. v. 313
Speiden ». S. 18
Spencer, Reg. v. 225, 226, 293

Rex v. 801

v. 8. 45, 234
Spenser, S. v. 49
Spiegel, S. v. 243
Spiller, Rex v. 159, 226
xlii TABLE OF CASES.
[References are to pages. ]

Sprague, Manning v. 131
Springer, C. v. 311
Springfield, C. o. 101
v. 8. dl
Spurgeon, Reg. v. 283
Spyring, Toogood v. 158
Squire, C. v. 111
Rex v. 294, 296
v8. 60, 185
Squires, C. v. 193
Staats, U. S. vo. 8
Stabler v. C. 169
Stainer, Reg. v. 298
Stalcup, S. v. 127, 148
Stambaugh, C. v. 172
Stanley, P. v. 116
v8. 83
S. v. 302, 303
U.S. 0. 185
Stansbury v. Marks, 5 140
Stanton v. Sedgwick, 129
S. v. 29, 59
Stapleton, Rex v. 42
Starin v. P. 74
Stark, S. v. Zl
Starr, S. v. 217
Stearns, C. v. 295
v. Felker, 130
Stebbins, C. v. 55, 282, 283
Stedman, Reg. v. 217
Steele v. Southwick, 155
Steimling, C. v. 259,
Stein v. S. 11
Stentz, S. v. 6
Stephens v. C. 61
v. Myers, 203
Reg. v. 72, 161
v8. 200
U.S. v. 165, 166
Stephenson, C. v. 244, 327
8. v 134

Stern v. 's. 58, 59
Stevens, P. v. 255
Rex v. 95

x S. 270
Stevenson v. Gray, 184
Steventon, Rex v. 172
Stevick v. C. 104
Steward, Atty.-Gen. v. 162
Stewart, Caton v. 124
P. v. 169, 200
Reg. v. 267

v. S. 138, 228

8. v. 89, 172, 178, 255
Stice, Lx parte, 140
Stickney, S. v. 17
Stillwell v. S. 275
Stinson, P. v. 265

Stites, P. v. 166

 

Stock, Rex v.
Stocktord, S. v.
Stocking, P. v.

wv. 8.
Stockley, C. v.
Stoffer v. 8.
Stokes v. P.
Stone, C. v,

v. Nat. Ins. Co.

Pie

Reg. v.

Rex v.

v. 8.
Stopford, Reg. v.
Storey v. S.
Storr, Rex v.
Stotesbury v. Smith,
Stotts, S. v.
Stover v.
Stow v. Converse, *
Stowe, Reg. v.
Stowell, Davies v.
Stoyell, S. v.
Strat, S. v.
Stratton, C. v.

Rex v.

S. v.
Strauder, S. v.
Strauss, Re
Straw, S. v.
Streeter, Danforth v

Reg. v.
Streety v. Wood,
Stripling v. S.
Stroll, S. v.
Strong, U.S. v.
Strupney, C. v.
Stuart v. Stuart,
Stupp, Jn re,
Sturock, In re,
Suesser, P. v.
Sullens, Rex v.
Sullivan, Bowen v.

Sulston 2 v. Norton,
Summers, Rex v.
Sumner, 8. v.

Sun Ins. Co., Lawton v.

Sutton, Neg. v.

Rex rt.
Swartz, Heckman v.
Swift Run ete., C. v.
Swindall, Reg. v.
Swope v. Ins. Co.
Sylva, P. v.

263
TABLE OF CASES.

[References are to pages. ]

Taber v. Jenny, 256

Taintor, U.S. v. 27, 35
Taplin, Rex v. 235
Tarrango v. S. 261
Tarrence, Hoskins v. 254
Tarver v. S. 205
Taugher, P, v. 275
Taylor, C. v. 13, 82, 150
v. P. 164

P. v. 240
Reg. v. 77, 78, 82, 328
Rex v. 10, 110, 289, 290

v. 8. 3, 147, 228, 282

8. v. 162, 256, 260
U.S. ». 226
Teague v. S. 59
Tearney, Powder Co. v. 162
Teischer, Resp. v. 10
Telegram Co. »v. C. 44
Tennessee v. Davis, 85
Tenney, C. v. 109
Terrell v. S. 210
Terry, Ex parte, 189, 140
Matthews v. 198
U.S. ov. 42
Thalheim v. S. 20
Thallhimer v. Brinkerhoff, 129
Thallman, Reg. v. 12
Thatcher, S. v. 805, 309
Thiele, S. v. 49
Thomas, C. v. 194, 231
v. Croswell, 155, 159

Ex parte, 12

v. Py 302

P. v. 805
Reg. v. 279
Rex v. \ 50

v. 8. 24, 78, 234

v. Thomas, 280
Thompson, C. v. 35, 135, 226
P.v. 279, 280
Reg. v. 277
Rex v. 219, 260

v. 8. 17, 63, 137, 184, 197, 236,
246, 260, 272

8. ». 64, 66, 67, 152, 209
Thomson, S. v. 66, 295
U.S. »v. 39
Thorn, Rex v. 314
Thornton, S. ». 109, 187
Thorp, Rex v. 175
Thristle, Reg. v. 274
Thurborn, Reg. v. 269
Thurmond ». S. 328
Thurston, S. v. 263
Tibbetts, Mitchell v. 84
Tice, S. v. 40

 

Tidwell, S. v. 23, 186
Timmens, S. v. 187
Timmons ». S. 245
Tindall v. Westcott, 142
Tinkler, Reg, v. 60
Tipton v. S. 12

8. v. 141
Titus, C. v. 270
Tiveran, Re, 86
Tobey, Bloss v. 240
Tobin, C. v. 6, 187

Pi. 48
Todd v. Hawkins, 158

Reg. v. 37
Tollett, Reg. v. 281
Tolliver, C. v. 99, 115
Tolson, Reg. v. 59, 60, 185
Tom, S. v. 175
Tomlin, S. v. 301, 302
Tomlinson, P. v. 324
Tompkins »v, C. 64

Johnson v. 202, 203
Tomsky v. Court, 143
Tomson, Rex v. 213
Toogood v. Spyring, 158
Toole, S, v. 11, 168, 241
Tooley, Reg. v. 220
Toozer v. S. 139
Torbett, Treadwell v. 21
Tores v. S. 188
Tornances v. Melsing, 142
Toshack, Reg. v. 822, 327

Totman, S. v. 67

Towers, Reg. v. 80, 222
Townley, Reg. v. 257, 258, 259
Townsend, S. v. 149
Towse, Reg. v. 56
Trask, S. v. 132
Travis, P. vu. 182
Tread well v. Torbert, 21
Trebilcock, Reg. v. 284
Treble, Rex v. 323
Trist v. Childs, 125
Truett, Ming v. 125
Truslow v. §. 20, 284
Tryon, C, v. 41

Tuam, Archbishop of, v. Robeson, 154

Tubbs, C. v. 128

v. Tukey, 91
Tuberville v. Savage, 204
Tuck, C. v. 103, 106
Tucker, C. v. 4 243

U.S. 2. 84
Tuckerman, C. v. 296
Tuckwell, Reg. v. 72
Tukey, Tubbs v. 91
Tull, S. v. 20
Tully v. C. 74

U.S. a. 330
xliv

TABLE OF CASES.

[References are to pages.]

 

Tumalty v. Parker, 280 ; Vidalla, S. v. 21
Tumey, S. v. 298 | Viets, Searles v. 231
Turlington, S. v. 62 | Vigel, U.S. x. 8
Turner, P. v. 140, 142 | Vincent, Ex parte 249
Rex v, 7,171 Reg. v. : 148
Turnipseed v. 8. 323 | Voight, S. v. 26
Turns v. C. 99 | Vowels, S. v. 3
Tussaud’s Ltd., Monson v. 156
Tuttle v. P. 135
Tyler, P. v. 80, 115 WwW.
Reg. v. 70
v. 8. 281 | Waddington, Rex v. 160, 180
Tyson, Reg. v. 136 | Wade, C. v. 109
Reg. v. 282
Wadsworth, P. v. 295, 298
U. Waghalter, S. v. 18
Wagner v. P. 48
Uhl v. C. 42 8. v. 118
Ulrich v. C. 58 | Wagoner v. S. 232
Underhill v. Hernandez, 80| Waggerstaff, Reg. vu. 34, 35
Underwood, S. v. 20, 83, 199, 218, 229] Wait v. C. 175
Union Ins. Co., Brown v. 832 | Waite, C. v. 57
Updegraph v. C. 1, 180 Reg. v. 232
Uprichard, C. v. 84! Wakefield, Rex v. 174
Upton, C. v. 164 | Wakeling, Rex v. 805
U.S. Cable Co. v. Anglo-Am. Co. 80] Wakely, P. v. 306
Walbrun, P. v. 282
Walden, C. v. 36, 37, 316
Vv. Walker v. Brewster, 161
2. O 300
Vaiden v. C. 66, 227 P. v. 61
Vallejo v. Wheeler, 332 Reg. v. 118
Van Alstyne, P. v. 187 Rex v. 255
Van Blarcum, P. v. 240 v. S. 238, 74, 78, 245, 248
Van Butchell, Rex v. 226 S. v. 278
Vance, S. v. 224, 229) Wall, Ex parte, 142
Vanderbilt, P. v. 161 Rex v. 323
Vandercomb, Rex v. 111 S. v. 181, 134
Van Deusen, Sheffill v. 157 | Wallace, P. v. 187
Van Houten ». S. 192 1d, 181
S.v. 191 v. U.S. 68
Vann v. S. 220 | Waller v. S. 231
Van Sickle, C. v. 164 | Wallis, Reg. v. 261
Van Steenbergh v. Kortz, 134 | Walls, Reg. v. 288, 290
Vantandillo, Rex v. 10 v. 8. 39, 261
Vanvalkenburg v. S. 2| Walne, Reg. v. 804
Varley, Rex v. 328 | Walsh v. P. 15, 128, 169
Varner v. S. 17 Py v. 68
Varney, C. v. 99 Rex v. 260
Vasel, S. v. 126 | Walshe, Pettit v. 86
Vattier, Key v. 129, 130 | Walter, Lewis ». 159
Vaughan, Rex v- 124 Psb. 49
S. v. 108, 815] Walton wv. S. 186
Vaux’s Case, 71 S. v. 296
Verberg v. S. 263 | Waltz, S. v. 281
Vertue v. Clive, 173 | Warburton, Reg. v. 171, 174
Vickery, S. v. 811] Ward, Avery v. 184
Vicknair, S. v. 194 x. P. 76, 254, 287
Vidal v. Girard’s Ex. 1 Rex v, 826
TABLE OF CASES.

xlv

[References are to pages. ]

 

Ward v. S. 257 | Weston v. C. 76
U.S. v. 84 8. v. 319
Wardell, C. v. 192] West Virginia, Eaton v. 88
Warden ». S. 287 | Weyman ». P. 265
Warickshall’s Case, 115 | Whaley, P. v. 55, 56, 125, 126
Warren, C. v. 2, 14, 299, 314 | Wheat, S. v. 200
P. v. 111, 299 | Wheatley v. C. 218

v. S. 241, 257 Rex. v. 1, 6, 14, 15, 58, 167, 318
Warren and Johnson, C. v. 2| Wheeler, P. v. 301, 3802
Washington v, S. 240, 262 8. v. : 824
S. v. 198 Vallejo v. 832
Wasservogle, P. v. 804 | Whisler, Caulkins ». 825
Water Co. v. Sharman, 271 | Whitcomb, C. v. 306
Waterford v. P. 11 , Terr, v. 193
Waterman, C. v. 172 | White, Ball v. 256
vu. P. 822 v. C. 194
v8. 89 C. v. 83, 204, 205, 285
Waters, Reg. v. 145 v. Hass, 323
Rex v. 23 Livermore v 254
S.v 824 Reg. v. 262, 286, 320
Watson, Reg. v. 11 Rex v. 184, 163
Rex v. 154, 278 v8, 134, 247

S. v. 278 8. v. 157, 296
Watts, Reg. v. 255, 274, 292 | Whitehead, C. vu. “169
Rex v. 164 Rex v. 175
‘v8. : 75 | Whiteside v. Lowney, 280
Weatherby, S. v. 181 | Whitfield v. 8. E. Ry. 157
Weaver, Brown v. 62} Whitney v. S. | 21
v. Lloyd, 155 | Whitridge, Davis v. 150

v. 8. 285 | Whittaker, C. v. 187
Webb, Ballentine v. 165 | Whitten v. S. 143
Reg. v. 11, 267 | Whittemore, S. v. 188
Rex v. 160, 283, 824 | Whitten v. S. 50, 52
Weber, S. v. ‘249 | Whittier, U. S. v, 114
Webster, C. v. 27, 87, 117, 212, 214, | Whorley v. S. 74
216, 217, 223 | Whyte, S. v, 261

Reg. v. 280 | Wickham »v. Conklin, 128
Weekly, S. v. 147 | Wideman, Johnson v. 142, 148
Weiss, C. v. 59 | Widenhouse, S. v. 152
Welch vw. Barber, 141, 143 | Wier’s Appeal, 162
P. v. 59 | Wight, U.S. v. 18
Reg. v. 7 296 | Wilcox v. Henry, 162

v. 8. 185 v. Nolze, 88

8. v. 56 v. P. 19
Wellington, C. v. 97 v. S. 45
Wellman, S. v, 254, 287 S. v. 317
Welsh, v. P. 279 | Wildenhus’s Case, 81
Reg. v. 217 | Wild’s Case, 68
Rex v. 828 | Wiley, P. v. 259, 319, 320

S. v. 69 Reg. v. 319
Wesley v. S. 66 | Wilgus, C. v. 802
Wemyss v. Hopkins, 107 | Wilkins, Rex v. 267, 278
Wenman ». Ash, 157 | Wilkinson, C. v. 11
West, Reg. v. 191, 211, 271 Rex v. 280
v. 8. 322 | Wilkinson’s Case, 260
Westbeer, Rex »v. 256 | Willard v. S. 114
Westcott, Tindall v. 142 | Willey »v. S. 191
Westfall, S. v. 67 | William Arthur, U. S. v. 37
Westlake, S. v. 64 | William v. S. 2

e
xlvi

TABLE OF CASES.

[References are to pages. ]

Williams, Att’y-Gen’l v. 161
v. C. 234
C. v. 316, 250
Darling v. 228
v. Karnes, 155
P. v. 50, 52, 214, 258
Reg. v. 16, 42, 166, 168, 200, 265
Rex v. 10, 37, 39, 126, 305

v8. 18, 20, 41, 58, 59, 76, 151,
187, 232, 236, 287, 289, 312

Wood ». S.
Streety v.
Woodfall, Rex v.

Woodgate, Wright v.

Woodham v. Allen,
Woodhurst, Reg. v.

186, 187
158

27

158

21

200, 201, 233

Woodman »v. Kilbourn Mfg. Co. | 161
263

Woodruff, P. v.
Woods, MeNeal v.
v. P

8. v. 11, 133, 188, 158, 282, | Woodward, P. v.
249, 269, 285, 287 Reg. v.

U.S. v. 115 v. 8.
Williamson v. Pender, 142 S. v.

Reg. v. 23, 801 | Woody, P. v.

v. Sammons, 128 | Woolley, Reg. v.

8. v. 817 | Woolridge, S. v.
Willis v. P. 46 | Woolsey, v. S.

Rex. v. 280 | Woolston’s Case,

v. 8. 289 | Work v. Corrington,

S. v. 245 | Worrall, U.S. v.
Wills v. S. 84| Wortley, Reg. v.
Willspaugh, S. v. 189 | Wray, S. v.
Wilmot, P. v. 233 | Wright, C. v.
Wilson v. Nations, - 136 McClory v.

v. Noonan, 155 v. Meek,

v. P. 284 v. P.

Pie. 140 P, v.

Reg. v. 98, 264, 298 Rex v

Rex v. 151 v. 8.

v.S. 61, 111, 146, 147, 187, 201, S.v

216, 291, 329

v. Woodgate,

S.v. 108, 167, 176, 181, 246, 255 | Wright’s Case,

Wiltberger, U.S. v.
Windsor, S. v.
Wing, C. v.

Wingfield, Beeley v.

Winkworth, Rex v.
Winslow v. Nayson,
v. R’y,
Winter v. 8.
Winters, P. v.
Rohrheimer v.
Winthrop, S. v.
Wisdom, S. v.
Wise, 8. v.
Wodston, Rex v.
Wody, Rex »v.
Wolcott, 8. v.
Wolf, S. v.
Wolfstein v. P.

Wonson v. Say ward,

Wood, C. v.
Hyatt v.
uv. McGuire,
vr.
P. v.
v. Phillips,
Rex v.

210 | Wyatt v. 8.

46 8. v.

13 | Wyckoff, 8. v.

22 | Wylie v. Elwood,
236 | Wyman, C. v.
142 Reese v.

130 | Wymberley, S. v.

71| Wynegar »v. S.

63 ae Reg. vo.
. S.

211 Wynne. Rex v.

118} Yancey, S. v.
74, 78| Yanz, S. v.
272 | Yates v. P.
254 Reg. ov.
191 v. Russell,
150 | Ye Wan, Terr. v.
129 | Yoes v. S.
186 | Yong’s Case,
278 | York, C. v.
160 Reg. v.
236 Rex v.

 

241
117

287

321

318

123

72, 215
303, 308
133

243

179

89

82, 169
257

63, 70

154

117

129

296

42, 48, 103
19, 284
12, 182, 233, 318
233

158
826
232
132

75
163
296
301
1382
293
286

30
271

67
217
228
137
142

213
214, 224
284

41
York, S. v.
Young, C. v.
v. Hichins,
Mead v.
Reg. v.
vu Rex,
v8.
S. v.
U.S. v.
Younger, S. v.
Young’s Case,

TABLE OF CASES. xlvii

(References are to pages. ]

283
294

257

324

199

302, 313

11, 21, 282

2, 241, 808, 807, 826

174
174

Youngstown, Youngstown Trus-

tees v. 162
Yousling, Percival v. 162
Yslas, P. v. 196, 204

Z.
Zellars, S. v. 67
Zes Cloya, U.S. v. 189
Zichfield, S. v. 26, 185

Zink v. P. 265, 312
TABLE OF CORRESPONDING SECTIONS IN
THE FIRST AND THIRD EDITIONS.

SEcTIon.
1st ed.

SCOMIMAPRHONE

ee
noe

DD ee ee eee
KH OWOMNAD UP w

wWOwWwwwwowwonnnndbv WY Wt
aQmrraON KH OO DAIS OP & tO

37
38

39a

SEcTION
3d ed.

SECTION
Ist ed.

40
41
42
43

SECTION
3d ed.

117, 118, 119, 122
77, 78-80, 82, 83
95

2

198

200

195
164

193

250

251

252

253

254

255

205

207, 208, 209

210

211

212

213

209

214

215

216

339

143, 144, 145

196

194

140

208

256

257

258

259”

260, 261

262

263

264

265
I CORRESPONDING SECTIONS.

SECTION SEcTION SEcTION SEcTION
Ist ed. 3d ed. Ast ed. 3d ed.

80 266 130 221

81 267 131 222

82 318 132 224

83 319 133 225

84 320 134 226

85 186 135 227

86 187 136 228

87 188 187 299

88 189 138 230

89 190 139 231

90 191 140 232

91 154 141 233

92 155 142 234

93 158 143 235

94 336 144 236

95 171 145 237

96 298 146 239

97 299 147 199

98 300 148 270

99 301 149 a

100 302 150 280

101 803 151 281, 282
102 304 152 283

103 146 153 284
104 177 154 278, 285
105 141 155 286

106 240 156 288, 289
107 305 157 289, 291
108 306 158 288
109 307 159 290
110 310 160 271, 272, 278, 275
111 311 161 274
112 312 162 276

113 313 163 292

114 314 164 293

115 316 165 « 294

116 317 166 295

117 167 167 296

118 168 168 297
119 169 169 201
120 170 170 172

121 329 171 173
122 330 172 174
123 331 173 175

124 332 174 176

125 334 175 143

126 202 176 144, 145
127 218 177 321

128 219 178 322

129 220 179 823
CORRESPONDING SECTIONS.

SEcTION SEcTION SEcTION SECTION
Ist ed. 3d ed. Ist ed. 8d ed.
180 217 198 328
181 178 199 159
182 179, 180, 181 200 160
183 182 201 161
184 147 202 162
185 148 203 165
186 149 204 166
187 150 205 245
188 151 206 246
189 152 207 247
190 153 208 248
191 338 209 197
192 241 210 203
193 242 211 143
194 243 212 135
195 244 213 136
196 324 214 1388

197 325 215 139
SECTIONS ADDED BY THE EDITOR OF
THE SECOND EDITION.

Tue following sections and parts of sections were added ty Professor J. H.
Beale, Jz., of Harvard University Law School, the Editor of the second edition.

SECTION SECTION
3 (1st par.) S 120, 121
5, 6 122 (2d par.)
12-17 126-133
19-25 137

28-31 142

32 (2d and 3d par.) 156, 157

34 163

44 182 (3d par.)
50 184 (2d par.)
54-67 192

68 (2d par.) 204

80 (Ist and 2d par.) 205 (2d par.)
81 206

82 (2d par.) 208 (2d par.)
84-94 223

96-111 238

113-116 249

THE FOLLOWING

SECTIONS AND PARTS

SECTION

268, 269

272 (1st and 2d par.)
275 (3d and 4th par.)
278 (2d par.)

279

282 (end)

283 (2d and 3d par.)
287

289 (Ist and 2d par.)
291 (2d par.)

308, 309

315

317 (2d par.)

326, 327

333

335

337

OF SECTIONS

HAVE BEEN ADDED BY THE EDITOR OF THE THIRD

EDITION.

SECTION
2 (2d, 3d, and 4th pars.)
3 (4th par., last part)
5 (1st par., last half 2d par).
10 (middle)
14 (last part)
15 (middle)
19 (2d par.)
21 (last half)
22 (Ist par. first and last parts, 2d par.
last half)
22a
23 (1st par. last half)
23 a (1st par. first half, 2d par.)
23 b
23¢
24 (Ist par. all but end)
25 (last part)
27 (1st part)

SECTION
28 (2d par. last half, 3d par. all but
first sen., 4th par. last half, 6th par.)

30 (2d par., 3d par. last half, 4th par.
first half, 5th and 6th pars.)

31 (2d par.)

32 (1st par. last part, 3d par. last half,
4th and 5th pars.)

34 (1st par. last half, 2d and 3d pars.)

.36 (1st par. middle)

37 (1st par. first and last parts)

38 (3d and 4th pars.)

43 (2d par.)

47 (Ist par. last part, 2d par. first half,
3d par.)

47a

47b

48 (2d par.)

50 (last part)
liv
SEcrion
51 (middle)
52 (2d par.,3d par. first part, 4th par.)
58 (first part)
59 (last half)
60 (2d par.)
62 (last half) '
64 (1st par. last half, 2d and 3d pars.,
5th par. last part)
65 (last half)
67 (1st par. last part)
67a
68 (2d par. last part, 3d par.)
69 (3d par., 4th par. except first sen.)
77 (2d par.)
W7a
79 (Ist par. middle, 2d par.)
1424
148 (2d par. first half)
150 (4th par. last part)
153 a
155 a
156 (2d par.)
176 (last part)
180 (1st par. last part)
184 (1st par. middle, 3d par.)
184a -
186 (2d par.)
187 (3d par. end, 4th par. first part,
last part)
188 (3d par.)
196 (2d par. last half)
197 (1st par. last part)
208 (2d par., 4th par.)
209 (last part)
212 (3d par.)
218 (2d par.)
221 (2d par. end)
225 (2d par.)
227 (2d par.)
228 (3d par. last half)
229 (2d par. middle)
230 (2d par. last part, 4th par. first
part)

SECTIONS ADDED.

SECTION

243 (1st par. middle, 2d par. first part)

244 (2d par, last part)

247 (1st par. last part)

263 (last part)

271 (1st par. last part)

272 (2d par. last part, 4th par.)

273 (2d par.)

275 (4th par )

277 (1st par. last part, 2d and 8d pars.,
5th par.)

277 a

278 (2d par.)

278 a (lst to 5th pars.)

280 (1st par. middle, 2d par.)

281 (last part) :

282 (Ist par. last part, 2d par. last part)

283 (1st par. last half, 3d par. last part)

284 (1st par. middle, 3d, 4th, and 5th
pars.)

285 (2d par. middle, 3d par.)

285 a

286 (Ist par. last half)

287 (2d and 3d pars.)

288 (Ist par. last part, 2d par.)

290 a

295 (2d par. last part)

800 (1st par. middle)

301 (2d pai. last part)

302 (Ist par. middle)

303 (last part)

304 (last part)

306 (Ist. par. last part, 2d par. last half)

308 (Ist par. last part, 2d par. middle)

310 (2d par.)

313 (1st par. last part, 2d par. last part)

314 (middle)

815 (2d par. last half)

817 (2d par.)

822 (5th par.)

327 (2d par.)

334 (1st par. middle)

338 (5th par. last half)
CRIMINAL LAW.

CHAPTER I,

OF THE DEFINITION OF CRIME, AND OF CERTAIN GENERAL
PRINCIPLES APPLICABLE THERETO.

§ 1. Crime defined. § 53. Intent in Statutory Crimes.
6. The Criminal Act. 58. Justification for Crime.

26. The Criminal Intent. 69. Classification of Criminals.

35. Criminal Capacity. 77. Locality and Jurisdiction.

CRIME DEFINED.

§ 1. Crime is a violation or neglect of legal duty, of so
much public importance that the law, either common or
statute, takes notice of and punishes it.

§ 2. By What Law Defined. — Urimes are defined both by the
common and by the statute laws, — the common law prevail-
ing, so far as it is applicable and not abrogated-by statute, in
most of the States of the Union.2 The general maxims and
precepts of Christianity constitute a part of the common law.3
The law of nations, also, is part of the common law.

1 See 4 Bl. Com., p.-4, and ncte by Christian (Sharswood’s ed., 1860) ,
Rex v. Wheatly, 2 Burr. 1125, 1 Lead. Cr. Cas. 1-34, 1 Bish. Cr. Law,
§ 32.

2 §. v. Danforth, 3 Conn. 112; C. v. Knowlton, 2 Mass. 580, C.1; C.
v. Chapman, 13 Met. (Mass.) 68.

8 Rex v. Wodston, 2 Stra. 834; Ex parte Delaney, 48 Cal. 478; S. v.
Chandler, 2 Har. (Del.) 553; P. v. Ruggles, 8 Johns. (N. Y.) 290;
Updegraph v. C., 11 S. & R. (Pa.) 394; Vidal v. Girard’s Executors, 2
How. (U. S.) 127.

4 U.S. v. Smith, 5 Wheat. (U. S.) 153; Resp. v. De Longchamps, 1

Dall. (Pa.) 111, M. 33.
1
2 CRIMINAL LAW. [Secr. 2.

When the older States were settled the colonists brought
with them the English criminal law as it was then! in force:
this embraced the English common law of crimes and its then
existing statutory modiieutions 2

This “general body of law was modified and discarded where
not applicable to local conditions: thus the common law of
Pennsylvania does not recognize the punishment of crimes by
the ducking stool. On the other hand, local customs were
added to it. by receiving judicial recognition: thus the exemp-
tion, not only of clergymen of the Established church, as in
England, but of all denominations, from being obliged to per-
form certain public duties. It was also further changed by
acts of the local provincial legislatures and by acts of Parlia-
ment specifically extending to the colonies.

Similarly with the later settled States; they being settled
by those who carried the common law with them are governed
by its principles. In Louisiana where the original body of
law was the civil and not the common law, the latter has been
adopted by statute as to the definition of certain enumerated
offences and as to procedure. In several States the common
law of crimes has been done away with by express repeal
or by implication from the enactment of complete codes of
criminal law.’

1 Compare C. v. Warren, 6 Mass. 72, C. 11, and C. v. Warren and
Johuson, 6 Mass. 73, C. 12.

2 C. v. Leach, 1 Mass. 59, C. 9; C. ». Knowlton, ante; C. v. Newell,
7 Mass. 245; C. v. Chapman, ante; S. v. Rollins, 8 N. H. 550; Resp. v.
Mesea, 1 Dall. (Pa.) 73, M. 10.

3 James v. C., 12 S. & R. (Pa.) 220, M. 7. °

4 Guardians v. Greene, 5 Binney (Pa.), 554, M. 5; see also, Resp. sg
Roberts, 1 Yeates (Pa.), 6, M. 13.

5 Smith v. P., 25 Ill. 17; Re Lamphere, 61 Mich. 105, 27 N. W. a.
S. v. Pulle, 12 Minn, 164, M. 16 ; Terr. ». Ye Wan, 2 Mont. 478; contra,
Estes v. Carter, 10 Ia. 400; Vanvalkenberg v. S., 11 O. 404; Smith ». S.,
12 O. St. 466. :

6S. v. Smith, 30 La. Ann. 846. In Hawaii the common law is in
force only in so far as it is applicable to local conditions and adopted by
the courts: King v. Agnee, 3 Haw. 106.

7 William v. S., 18 Ga. 356; Hackney v. S., 8 Ind. 494; Jones v. S.,
59 Ind. 229; S. v. Young, 55 Kan. 349, 40 P. 659; He Lamphere, 61 Mich.
Sect, 3.] GENERAL PRINCIPLES. 3

§ 3. Statutory Crimes. — A large part of the criminal law
of the jurisdictions in this country consists of statutes, Every
‘statute relating to crime must be interpreted in the light of
the common law.of crime ;1 and the repeal of a statute, not
substituting other provisions in the place of those repealed,
revives the pre-existing law.?

Statutes, in general, can have no retroactive efficacy ; and,

‘especially in the United States, all ex post facto laws, or laws
which make criminally punishable an act which was not so
punishable at the time it was committed, or punish an offence
by a different kind of punishment, or in a different manner,
not diminishing the punishment, from that by which it was
punishable before the statutes were passed, are prohibited by
the Constitution of the United States.8

On the other hand, when the common Jaw or a statute cre-
ating an offence is repealed, or expires before judgment in a
criminal case, judgment cannot be entered against the prison-
er, unless by a saving clause in the statute excepting pending
cases ; and in such cases, if the statute expires after judgment
and before execution, the judgment will be reversed or exe-
cution stayed. But laws changing the rules of evidence or of
procedure® do not come under the category of ex post facto
laws.

If a statute define a new offence, or prohibit a particular
act, without providing any mode of prosecution or punishment,
the common law steps in and supplies the mode, by indict-
ment; and the punishment, by fine and imprisonment. Thus

105, 27 N. W. 882 ; Ex parte Meyers, 44 Mo. 279 ; S. v. De Wolfe (Neb.),
%93 N. W. 746; S. v. Vowels, 4 Or. 324; S. v. Gaunt, 13 Or. 115, 9 P. 55,

1 U.S. v. Carll, 105 U. S. 611.

2 C, v. Churchill, 2 Met. (Mass.) 118, C. 2.

3 Hartung v. P., 26 N. Y. 167, 28 N. Y. 400; S.v. Kent, 65 N.C. 311;
Calder v. Bull, 8 Dall. (U. 8.) 386. te

4 §. v. Daley, 29 Conn. 272; Taylor v. S., 7 Blackf. (Ind.) 93; C. v.
Marshall, 11 Pick. (Mass.) 350; Hartung v. P., 22 N. Y. 95; C. v. Pa.
Canal Co., 66 Pa. 41; U.S. v, Finlay, 1 Abb. (C. Ct. U. S.) 364, Fed.
Cas. No. 15, 099.

5 Stokes v. P., 53 N. x 164; P. v. Mortimer, 46 Cal. 114.

8 Keller v. S., 11.Ma. 525 ; C. v. Chapman, 13 Met. (Mass.) 68; 8. v.
4 CRIMINAL LAW. [Sects. 4, 5.

where a statute in separate sections forbade liquor selling in
various districts; and provided that a person violating sec-
tions four, five, or six should be guilty of a misdemeanor, it
was held that the common law supplied the punishment for
the violation of section seven.}

§ 4. Criminal Law of the United States. — Under the govern-
ment of the United States there are, strictly speaking, no
common law crimes. That government has never adopted
the common law.? Its criminal jurisdiction depends entirely
upon statutory provision authorized by the Constitution ; and
where the statute makes punishable a crime known to and
defined by the common law, but does not itself define the
crime, the common law is resorted to for the definition.®

Crimes committed within its exclusive jurisdiction within
the States are by statute to be punished in the same manner
as such crimes are punished by the laws of the particular
States where they are committed.*

§ 5. Act and Intent Must Coexist. — Every common law crime
consists of two elements: first, the voluntary commission of
an act which is declared by law to be criminal; second, the
existence in the offender of a state of mind which is declared
by law to be consistent with criminality. This principle is
more briefly expressed in the rule that for the commission of
a crime a criminal act must be done with criminal intent.
Thus, if the defendant does an act that the law forbids but
there is no accompanying criminal state of mind there is no
crime, such as an act by an infant under seven, or by an in-

Fletcher, 5 N. H. 257; S. v. Patton, 4 Ired. (N. C.) 16; C. v. Piper, 9
Leigh (Va.), 657.

1S. v. Parker, 91 N. C. 650, M. 15; S. v. La Forrest, 71 Vt. 311, 45
Atl. 225.

2 U.S. v. Hudson, 7 Cranch (U. S.), 82; U. S. ». Coolidge, 1 Wheat.
(U. 8.) 415; Re Greene, 52 Fed. 104; U. S. v. Britton, 108 U. 8. 199;
Manchester v. Mass., 139 U. S. 240. Im Ohio and Iowa the same theory
prevails: Mitchell v. S., 42 O. St. 883; Estes ». Carter, 10 Ia. 400.’ In
Indiana, the common law, so far as it creates crimes, is abolished by
statute.

8 U.S. v. Hudson, 7 Cranch (U. S.), 82; 1 Bish. Cr. Law, § 194.

4 U.S. v. Paul, 6 Pet. (U. S.) 141.
Sect. 5.] GENERAL PRINCIPLES, 5
Pe,
sane person.! So where a person is indicted for entering with
intent to steal, or with intent to commit a felony, if his intent
‘is not to steal or is to do an act not amounting toa felony
the indictment cannot be sustained.2 On the other hand, a
mere intent, no matter how evil, is not punishable: thus go-
ing to A’s house with the intent to beat him and insulting
him in order to provoke a quarrel does not justify a conviction
for assault and battery; so having counterfeiting dies in
one’s possession, even though with an intent to counterfeit, is
not punishable at common law, there being no act by the de-
fendant ;+ so an intent to defraud the revenue where nothing
is actually done is not punishable ;> nor an intent to cheat by
false pretences if the representations are in fact true ;& nor to
administer noxious drugs if the drug in fact administered is
not noxious.’ So a fortiori, if A, having agreed to engage in
a criminal act, withdraws before the commission thereof, so
that at the time he neither has a criminal state of mind nor
performs a criminal act.
These two elements of act and intent must coexist. So, if
‘the defendant docs an act in a non-criminal state of mind, a
later-arising criminal intent cannot be referred back to that
act so as to make it criminal; thus where an officer enters a
house to serve a warrant and while in the house engages in a
criminal act his original entry does not thereby become crimi-

1 Post, §§ 36, 44.

2 Rex v. Knight, 2 East P. C. 510, C. 111; C. v. Newell, 7 Mass, 245,
C. 109; S. v. Cooper, 16 Vt. 551.

3 Yoes v. S., 9 Ark. 42, M. 20.

* Rex v. Heath, R. & R. 184;, Dugdale v, Reg. 1 E. & B. 435; S.
Penny, 1 Car. Law Rep. 517; conira, and overruled, Rex v. Sutton, 2
Stra. 1074. :

5 U.S. v. Riddle, 5 Cranch, 311.

6 §, v. Asher, 50 Ark. 427,8S. W. 177; S. v. Garris, 98 N. C. 733, 4
S. EF. 633. See also: Croker v. S., 49 Ark. 60,4 S. W. 197; Bruce v. S.,
87 Ind. 450; S. v. Cox, 65 Mo. 29; S. v. Schaffer, 31 Wash. 305, 71 P.
1088.

7 Reg. v. Hennah, 13 Cox C. C. 547, C. 111.

8 Rex. v. Richardson, Leach, 4th ed. 887; Pinkard v. S., 30 Ga. 757,
M. 3835.
6 CRIMINAL LAW. [Secrs. 6, 7.

nal;1 so with a guest who enters the hotel with the consent
of the landlord;? the doctrine of trespass ab initio has no
place in the criminal law. Soa master cannot, by adopting
the criminal act of his servant, thereby make himself indictable
therefor. Similarly, a former intent and act, colorless in
.. themselves, cannot be made criminal by the occurrence of a
subsequent event not necessarily connected therewith or
caused thereby.! But if the intent exists at the time of the
criminal act, it is immaterial that it no longer exists when
the results of that act, which settle the nature of the offence,
are finally determined. Thus where A, in a criminal state of
mind, stabs B, he is none the less criminally responsible for
the latter’s death if he repents of his act between the time of
the blow and the death.6 And it would seem that if A, instead
of stabbing B, had, with the same intent, set in motion a chain
of events that (without the intervention of any criminally re-
sponsible third person) produced this same result as their
natural and proximate consequence, a change of intent after
the setting in motion of the chain of causation would be
immaterial.é

THE CRIMINAL ACT.

§ 6. Difference between Wrong and Crime. — Not every act
which is legally wrong is a crime. Private wrongs are re-
dressed by suits inter partes. In a criminal prosecution the
government itself is a party ; and the government moyes only
when the interest of the public is involved. The basis of
criminality is therefore the effect of the act complained of
upon the public.”

§ 7. Moral Obliquity not Essential. — It follows from this

1 Milton v. S., 40 Fla. 251, 24 So. 60, M. 884; C. o. Tobin, 108 Mass.
426.

2 §. v. Moore, 12 N. TI. 42, M. 918.

8 Morse v. S., 6 Conn. 9. See also post, § 280.

4U.S. v. Fox, 95 U. S. 670.

5 Compare Reg. v. Sutton, 2 Moo. C. C. 29, M. 835.

§ Compare S. v. Stentz, 33 Wash. 444, 74 P. 588; 1 Bish. New. Cr. L.,

207.

; 7 Rex. v. Wheatly, 2 Burr. 1125.
Sxcrs. 8, 9.] GENERAL PRINCIPLES. 7

that moral obliquity is not an essential element of crime, except
so far as it may be involved in the very fact of the violation of
law. What, therefore, is criminal in one jurisdiction may not be
criminal in another; and what may be criminal at a particular
period is often found not to have been criminal at a different
period in the same jurisdiction. The general opinion of
societ yy fmding expression through the common law or through
special statutes, makes an act to be criminal or not according
to the view which it takes of the proper means of preserving
order and promoting justice. Adultery is a crime in some
jurisdictions; while in others it is left within the domain of
morals. Embezzlement, which was till within a comparatively
recent period a mere breach of trust, cognizable only by the
civil courts, has been nearly, if not quite, universally brought
by statute into the category of crimes as a modified larceny.
The sale of intoxicating liquors is or is not a crime, according
to the differing views of public policy entertained by different
communities.

§ 8. Trifling Offences not Indictable.— Some violations of
legal duty are said to be so trifling in their character, or of
such exclusive private interest, that the law does not notice
them at all, or leaves them to be dealt with by the civil
tribunals. ?

§ 9. Three Classes. — Crimes are classified as treasons,
felonies, and misdemeanors, the former being regarded as the
highest of crimes, and punished in the most barbarous man-
ner, as it is a direct attack upon the government, and disturbs
the foundations of society itself. It is primarily a breach of
the allegiance due from the governed to the government. It
is active disloyalty against the State ; and because it is against
the State, it is sometimes called Aigh treason, in contradis-
tinction to petit treason, which, under the early English law,
was the killing of a superior toward. whom some duty of
allegiance is due from an inferior, — as where a servant killed
his master, or an ecclesiastic his lord or ordinary. Now,
however, this distinction is done away with both in this

1 Rex v. Southerton, 6 East, 126; see Reg. v. Kenrick, per Ld.
Denman, 5 Q. B. 62, in commenting upon Rex v. Turner, 13 East, 228.
8 CRIMINAL LAW. [Secr. 10.

country and in England, and such offences belong to the
category of homicide.!

§ 10. Felonies at common law were such crimes as upon
conviction involved the forfeiture of the convict’s estate.
They were also generally, but not always, punishable with
death. These tests have long since been abolished in
England, and what constitutes felony is now, to a great
extent, both there and in this country, determined by statutory
regulation. If the statute either expressly ® or by clear impli-
cation,t as by punishing accessories, a distinction applicable
only to felonies,’ or by using a word that has asettled common
law meaning, as robbery,® fixes the degree of crime, that of
course is conclusive. Whenever this is not the case, the
courts look to the history of the particular offence under
consideration, and ascertain whether it was or was not re-
garded by the common law as a felony.’ The more usual
statutory test in this country is that the offence is punishable
with death, or imprisonment in the state prison. The term
is now significant only as indicating the “degree or class”
of the crime committed® What was felony at common law,
unless the statute has interposed and provided otherwise, is
still regarded as felony in all the States of the Union, with
the possible exception of Vermont,” without regard to the
ancient test or to the mode of punishment.

14 Bl. Com. 75, 92.

x 4 Bl. Com. 94.

5 Reagan v. U. S., 157 U. S. 301; compare U. S. v. Staats, 8 How. 41.

4S. v. Mallett, 125 N. C. 718, 34 8. E. 651.

5 C, v. Barlow, 4 Mass. 439.

® Harrison v. U. S., 163 U. S. 140. See also on the U. S. criminal law
U. 8. v. Coppersmith, 4 Fed. 198; Considine v. U. S., 112 Fed. 342; U.S.
v. Vigil, 7 N. M. 269, 34 P. 530.

* Drennan v. P., 10 Mich. 169; S. v. Drewer, 65 N. C. 572; S.v.
Murphy, 17 R. I. 698, 24 Atl. 473.

8 1 Bish. Cr. Law, § 618. And it is none the lessa felony because a
milder punishment may be imposed; 1 Bish. Cr. Law, § 619, and cases.
See also: Mairs v. B, & O. R. R., 73 App. Div. (N. Y.) 265, 76 N. Y. S.
838; S. v. Hamilton, 2 O. C. D. 6.’ Compare P. v. Cornell, 16 Cal. 187.

* 1 Russ. on Crimes, 40.

10S. v. Scott, 24 Vt. 127,
Sxots. 11-13.] GENERAL PRINCIPLES. 9

§ 11. Misdemeanors ‘include all other crimes, of whatever
degree or character, not classed as treasons or felonies, and
however otherwise punishable! It is for the most part
descriptive of a less criminal class of acts. But there are
undoubtedly some misdemeanors which involve more turpitude
than some felonies, and may, for this reason, be visited with
greater severity of punishment, though not of the same kind.
What was not felony by the common law, or is not declared
to be by statute, or does not come within the general statutory
definitions, is but a misdemeanor, though, in point of crimi-
nality, it may be of a more aggravated character than other
acts which the law has declared to be felony.2 When a
question arises whether a given crime is a felony or a misde-
meanor, and the question is at all doubtful, the doubt ought
to be resolved in favor of the lighter offence® in conformity
to the rule of interpretation in criminal matters, that the
defendant shall-have the benefit of a doubt,

§ 12. What Acts Are Criminal.— For reasons that we have
already stated, it is*impossible to draw an exact line between
offences that are criminal and those which are mere civil
wrongs ; nor is an exact classification of all criminal acts pos-
sible. The more important crimes, including felonies, are
clearly defined; but the lesser offences can neither be ex-
haustively described nor even named. Only the general prin-
ciples can be stated, and it must be left to the court to apply
thes. ‘inciples to the facts of each particular case as it arises.4
Much of the difficulty is removed by statutes, which commonly
define such minor offences as are likely to arise. Many of
the smaller common law offences are comprised under the
crimes of nuisance, malicious mischief, and conspiracy.

§ 18. Offences against the Government. — Offences of a sort
to affect the public collectively, that is to interfere with the
proper maintenance of the different departments of the gov-
ernment, are criminal acts. Thus the embezzlement of

1 1 Russ. on Crimes, 43.

2 C. v. Newell, 7 Mass. 245.

8 C. v. Barlow, 4 Mass. 439.

4 C. uv. Callaghan, 2 Va. Cas. 460, C. 6.
10 CRIMINAL LAW. [Secr. 14.

public moneys! and the destruction of trees upon public
land? are indictable offences; as are the disturbance of a
town meeting,? and fraudulent voting at a town election; *
so also the stirring up of disaffection against the government,®
or slanderous ® or libellous’ attacks upon its officers. Corrup-
tion in public office is criminal, whether the office be execu-
tive® or judicial ;° and it is equally a criminal act to interfere,
as by bribery,”° or subornation of perjury," with the execu-
tion of the duties of any department of government. And an
Tndictment will lie for a failure by a public officer to dis-
charge the duties devolved upon him by law.

§ 14. Offences against Public Security and Tranquillity. — The
government protects not only itself, but the health, security,
and tranquillity of the public a¥large ; and an act which en-
dangers either of these is a criminal act. Thus, knowingly
exposing a small-pox patient in the public street, so as to en-
danger the public,!* driving a carriage through a crowded street
at a dangerous rate, keeping explosive substances in a town,
so as to create danger of an explosion,» openly carrying about
a dangerous weapon, so as to alarm the public,"* spreading false

1 Resp. v. Teischer, 1 Dall. (Pa.) 335.

2 C. v. Eckert, 2 Browne (Pa.), 249.

3 C. v, Hoxey, 16 Mass. 385.

4 C. v. Silsbee, 9 Mass. 417; C.v. McHale, 97 Pa. 407, M. 27.

5 Anon., 3 Mod. 52, M. 21; C. v. Morrisson, Addison (Pa.), 274, M. 22.

6 Anon., Comberbach, 46; Rex. v. Darby, 3 Mod. 139, M. 21.

7 Reg. v. Lovett, 9 C. & P. 462; S. v. Burnham, 9 N. H. 34.

~8 C. v. Callaghan, 2 Va. Cas. 460, C. 6.

, 2 Rex v. Williams, 3 Burr. 1317, M. 23; P. v. Coon, 15 Wend. (N. Y.)
277.

10 Reg. v. Bunting, 7 Ont. 524; S. v. Ellis, 33 N. J. L. 102, M. 23,
11 Hawk. P. C., c. 69, § 10.

12 Gearhart v. Dixon, 1 Pa. St. 224 (semble); S. v. Hall, 97 N. C. 474,
158. E. 683.

18 Rex v. Vantandillo, 4 M. & S. 738, M. 538; Rex v. Burnett, 4 M. & S.
272; Reg. v. Henson, Dears. 21.

4 U.S. v. Hart, 1 Pet. C. C. 390, Fed. Cas. No. 15,316.

15 Reg. v. Lister, D. & B. 209; Rex v. Taylor, 2 Str. 1167, M. 52;
contra, Kleebaur v. Fuse Co., 1388 Cal. 497, 71 P. 617; P. v. Sands, 1 Johns.
{N. Y.) 78.

16 Knight’s Case, 3 Mod. 117; S. v. Huntly, 8 Ived. (N. C.) 418.

_
Secor. 15.] GENERAL PRINCIPLES. 11

reports that children are being kidnapped,! making outcrics
on the public street, in such a way as to annoy passers,? ob-
structing a navigable stream 3 or a public highway,‘ or failing
to keep the same in repair,® displaying an effigy with the in-
tent of causing a riot,® are all indictable acts.’

§ 15. Offences against Religion, Morality, and Decency. —
Offences against religion, morality, and decency are criminal
if they are committed publicly, or in such a way as to affect
the public. Thus, disturbing public worship is a criminal
act;® so is blasphemy or profane swearing in public.? Public
obscenity in word” or action! is criminal. But since it is
only affronts to the public sense of decency that the criminal
law attempts to guard against and not the injury to the indi-
vidual as such, an indecent exposure to one person is not a
crime ; 2 but on the other hand, it is not necessary that the ex-
posure should have been seen by more than one person ‘if it

1 C. v. Cassidy, 6 Phila. 82, M. 54.

2 C. v. Oaks, 118 Mass. 8.

3 Reg. v. Randall, C. & M. 496; Resp. v. Caldwell, 1 Dall. (Pa.) 150; 8.
v. Church, 1 Pa, St. 103.

# C. v: Wilkinson, 16 Pick. (Mass.) 175; Reading v. C.,11 Pa. St. 196 ;
Town of Mason v. O. R. R. C., 51 W. Va. 183, 41S. E. 418.

5 Waterford .v. P., 9 Barb. (N. Y.) 161; S. v. Murphreesboro, 11
Humph. (Tenn.) 217.

® C ov. Haines, 4 Clark (Pa.), 17, M. 41; compare Beatty v. Gilbanks,
15 Cox C. C. 138.

7 For other instances of acts which are indictable as injuring the
public security and tranquillity see: Rex v. Dixon, 3 M. & 8S. 11;
Stein v. S., 87 Ala, 123; S. v. Hart, 34 Me. 86; C. v. Chapin, 5 Pick.
(Mass.) 192; S. v. Williams, 2 Overt. (Tenn.) 108, M. 68; post, §§ 178-
183.

8 §. v. Jasper, 4 Dev. (N. C.) 323.

9 Goree v. S., 71 Ala. 7; P. v. Ruggles, 8 Johns. (N. Y.) 290, M. 36;
S. v. Powell, 70 N. C. 67; S. v. Brewington, 84 N. C. 783 ; Young v.
S., 10 Lea (Tenn.), 165.

10 §, v. Appling, 25 Mo. 815; S. v. Toole, 106 N. C, 736, 11 S. E. 168;
Barker v. C., 19 Pa. 412; Bell v. S., 1 Swan (Tenn.), 42, M. 59.

1 Sedley’s.Case, 1 Keb. 620; Reg. v. Reed, 12 Cox C. C. 1; S. v. Rose,
82 Mo. 560; Britain v. S., 8 Humph. (Tenn.) 203.

12 Reg. v. Watson, 2 Gox C. C. 876; Reg. v. Webb, 2 C. & K. 933;
Morris v. S., 109 Ga. 351, 84 8. E. 577.
12 CRIMINAL LAW. [Secr. 16.

was so publicly done that it might well have been.1 An in-
dictment will lie for maintaining an indecent public exhibi-
tion? or for knowingly leasing premises to be used for immoral
purposes, or conducting a disorderly house.t Open public
cohabitation of a man and woman without marriage is crim-
inal though a secret cohabitation is not.6 Common public
drunkenness is indictable,’ and so, it has been held, is public
cruelty to animals.6 And casting a human corpse into a river
is criminal, being an outrage on the public feeling of decency.®
So the exhuming of a body for purposes of dissection. In
short, whatever tends to the corruption of the public morals
is acriminal act; for the court, in administering the criminal
law, is custos morum popult.”

§ 16. Offences against Individuals. — The greatest difficulty
arises in connection with offences against the persons or
property of individuals. So far as the party injured is con-

1 Reg. v. Thallman, L. & C. 326; S.v. Roper, 1 Dev. & Batt. (N. C.)
208. Compare C. ¢. Oaks, 113 Mass. 8.

2 Reg. v. Grey, 4 F. & F. 78; Reg. v. Saunders, 1 Q. B. D. 15; Pike
v. C., 2 Duv. (Ky.) 89; C. v. Sharpless, 28. & R. (Pa.) 91.

8 Smith v. 8.,6 Gill (Md.), 425; C. ce. Harrington, 3 Pick. (Mass.) 26.

+ Rex v. Medlor, 2 Show. 86; U.S. v. Dixon, 4 Cranch C. C. 107, Fed.
Cas. No. 14,970; accord, Hall v. S., 4 Harr. (Del.) 182; S. v. Mulliken, 8
Blackf. (Ind.) 260. Compare Rex ce. M’Donald, 3 Burr. 1645; P. »v.
Jackson, 3 Den. (N. Y.) 101.

5 Rex v. Delaval, 3 Burr. 1434; 5. v. Cagle, 2 Humph. (Tenn.) 414.

§ Crouse v. S.,16 Ark. 566; P. v. Gates, 46 Cal. 52; Ex parte Thomas,
108 Cal. 497, 387 P. 514; Wright v.8.,5 Blackf. (Ind.) 858; Delany v. P.,
10 Mich. 241; S. v. Moore, 1 Swan (Tenn.), 136; S. v. Cooper, 16 Vt. 551.
Compare S. v. Brunson, 2 Bail. (S. C.) 149; C. v. Isaacs, 5 Rand. (Va.)
634 ; Jones’ Case, 2 Grat. (Va.) 555; contra, S. v. Avery, 7 Conn. 266,
(semble); Grisham v. §.,2 Yerg. (Tenn.) 589.

7 Tipton v. S., 2 Yerg. (Tenun.) 542.

8 U. S. » Logan, 2 Cr. C. C. (D. C.) 259, Fed. Cas. No. 15,623;
U.S. v. Jackson, 4 Cr. C. C. (D. C.) 483, Fed. Cas. No. 15,453. See
Anon., 7 Dane Abr. 261.

9 Kanavan’s Case, 1 Me. 226.

10 Rex v. Lynn, Leach, 4th ed. 497. Compare Reg. v. Price, L. R. 12 Q.
B. D. 247.

11 C, v. Sharpless, 2S. & R. (Pa.) 91.

2 Rex v. Delaval, 3 Burr. 1484. See also S. v. Dowers, 45 N. H. 543.
Secr. 17.] GENERAL PRINCIPLES. 13

cerned, his wrong is righted by a civil action. The public is
not called upon to interfere, so long as an injury is private;
nor can a plaintiff be allowed to turn a declaration into an
indictment. The question to be settled in all cases of the
sort, therefore, is this: Has the public security been endan-
gered by the offence? In all cases where the public peace
has been endangered there is clearly a criminal offence; and
this principle covers all cases of violence to the person. It
covers also all cases where the personal safety of an indi-
vidual is threatened; for the public is bound to protect the
personal safety of its individual members. So an act, though
it fall short of personal violence, is criminal if its natural
effect is to cause scrious personal injury. Infecting drinking-
water by throwing the carcass of an animal into a well is
criminal for this reason; as is putting cow-itch on a towel
in order to communicate the disease to a person using the
towel.2 Entering a house at night and disturbing the inmates
so that a woman therein was made ill has been held indict-
able.t It was also held a criminal act to come into the porch
of a house where only women were, and shoot dogs lying in
the yard, so as to cause great fright to the women.? And
where the defendant was shooting wild fowl near a house,
and a girl in the house was thrown into fits at the sound of a
gun, but the defendant, though warned of this fact, wantonly
discharged the gun and injured the girl, he was held guilty of
a criminal act.®

§ 17. Offences against Property. — The public is not, generally
speaking, concerned with transactions between individuals,
or interested in protecting private property from spoliation.
Forcible acts of depredation are violations of the public
peace; therefore forcible entry on land, and robbery of chat-
tels, are crimjnal. It is also the duty of the public to protect

1 Rex rv. Osborn, 3 Burr. 1697.

2S. v. Buckman, 8 N. H. 203.

8 P. vy. Blake, 1 Wheel. (N. Y.) 490.
4 C. v. Taylor, 5 Binn. (Pa.) 277.

5 Henderson v. C., 8 Grat. (Va.) 708.
6 C. y. Wing, 9 Pick. (Mass.) 1.
14 CRIMINAL LAW. [Secr. 18,

individuals when they cannot protect themsclves, as during
sleep. In the performance of this duty, the criminal law for-
bids breach of a man’s dwelling in the night-time, or burning it
at any time, and the taking of his chattels from his possession
against his will; these acts constituting the crime of bur-
glary, arson, and larceny. But where aman is in condition to
protect himself, he is not generally afforded the additional
protection of the criminal law. Accordingly, cheating is not
generally criminal, but it becomes so if accomplished by
means of false weights, measures, or tokens, against which a
man cannot protect himself, or by a corrupt combination of
two or more persons, by which the most careful man might
be deceived.! For a similar reason, it is not criminal at com-
mon law to convert to one’s own use goods of another, of
which one has the possession; for it is merely a breach of
the trust imposed by the owner, who has thus had an opportu-
nity to protect himself. These acts have, however, been
made criminal by statutes, and now constitute respectively
the crimes of obtaining by false pretences, and embezzlement.
Real property is at common law accorded even less pro-
tection by the public than chattels; probably because the
danger of depredation is less, and the public interest is there-
fore involved to a less degree. No trespass on real property
which falls short of forcible entry is criminal.2— Many injuries
to real property have been made criminal by statute.
M4 § 18. Attempts.— An attempt is an act done in part ex-

1 Rex v. Wheatly, 2 Burr. 1125, 1 W. BI. 273; C. v. Warren, 6 Mass. 72.
The reason for the distinction is perhaps rather in the fact that the
cheating by means of a false token is an act more directly affecting the
public since it may be used against all its members indifferently. A cheat-
ing by a forged letter directed to a single individual may be as effective in
deceiving him as would be a false weight, yet it would not be punishable
as a cheating by false tokens: P. v. Stone, 9 Wend. (N. Y.) 182; Middle-
ton v. 8., Dudley (S. C.), 275, M. 57. Compare Resp. v. Powell, 1 Dall.
(Pa.) 47, M. 56; and ante, § 13.

2 Rex v. Storr, 3 Burr. 1698; Rex », Atkins, 3 Burr. 1706 ; Brown’s
Case, 8 Me. 177; S. v. Burroughs, 7 N. J. L. 426; Kilpatrick », P., 5
Denio (N. Y.), 277; C. v, Edwards, 1 Ashm. (Pa.) 46; C. v. Powell, 8
Leigh (Va.), 719.
Sects. 19, 20.] GENERAL PRINCIPLES. 15

ecution of a design to commit a crime.! There must be an
intent that a crime shall be committed, and an act done, not
in full execution, but in pursuance, of the intent.2 An attempt
to commit a crime, whether common law or statutory, is in
itself a crime,—usually a misdemeanor, unless expressly
made a felony by statute.2 But if the act, when accom-
plished, would be a violation of neither statute nor common
law, —as, for instance, the procuring an abortion with the
consent of the mother, she not being then quick with child, —
the attempt is no crime.*

§ 19, Solicitations and Misprisions. — A solicitation to com-
mita crime is not an attempt, being a mere act of preparation ;
and a solicitation to commit a small crime is not regarded as
of enough public importance to be punished as a crime.® But
solicitation to commit a felony or other aggravated crime is
a criminal act;® and for this purpose any act which tends
to a breach of the peace, or a corruption of public justice or, .
duty, is a sufficiently aggravated crime.’

Misprision of felony, that is, the concealment of the com-
mission of a felony, is a criminal act.2 A similar neglect to
prevent or disclose the commission of a treason is misprision
of treason.® All misprisions are misdemeanors, and a mis-
prision of a misdemeanor is too trifling an offence for the
criminal law to take cognizance of.

§ 20. Failure of the Criminal Act. — It is evident that, how-
ever criminal the intent of a party, if his act failed to become
a criminal one, he cannot be convicted of crime. Thus, if

1 Smith v. C., 54 Pa. 209.

2 Rex v. Wheatly, 2 Burr. 1125, 1 B. & H. Lead. Cr. Cas. 1, and note.

8 Reg. v. Meredith, 8 C. & P. 589; Rex v. Roderick, 7 C. &. P. 795 ;
Smith v. C., ante.

4C.v. Parker, 9 Met. (Mass.) 263; S. v. Cooper, 2 Zab. (N. J.) 52.
See post, §§ 183-185.

5 Cox v. P., 82 Ill. 191; Smith v. C., ante.

6 Rex v. Higgins, 2 East, 5; C.v. Flagg, 185 Mass. 545; C. v. Ran-
dolph, 146 Pa. 83, 33 Atl. 388.

7 Whart. Cr. Law, § 179; Walsh v. P., 65 Ill, 58.

8 1 Hawkins P. C., ch. vii.

® Hale P. C. 484; 1 East P. C. 139,
16 CRIMINAL LAW. [Sxcts. 21, 22.

one takes his own watch animo furandi, thinking it to be
another’s, he cannot be convicted of larceny. And where
A. obtained property by the conveyance of land, which’ he
represented as unencumbered, though he believed there was
an encumbrance on it, yet if the encumbrance was invalid he
is not guilty of obtaining by false pretences.?

§ 21. Effect of Individual Action. — In certain classes of crim-
inal acts, — offences, namely, against the persons or property
of individuals, — the injury is done primarily to the individ-
ual; and the act is a criminal one only because it is for the
public interest to protect individuals against such offences.
In crimes of this kind the consent of the individual injured
becomes a factor in determining the criminality of the de-
fendant’s act, not because the individual can authorize the
defendant to commit a crime, but because, if the act is one
that is criminal only if done without the consent of the individ-
ual, as battery, which is unpermitted bodily contact, or larceny,
which is taking of property without the consent of the owner,
the existence of the consent takes away one of the elements
necessary to make out the crime.

§ 22. Effect of Acquiescence for Detection. — It is necessary,
however, to distinguish between a consent by the individual
that a certain thing might be done to him or his property,
which, if it had been done without his consent, would have
been criminal, and mere knowledge by him that a wrong doer
intended to commit such an act. In the latter case where the
injured individual afforded an opportunity for the commission
of a criminal act for the sake of detecting the criminal, the
acquiescence of the individual, such as it is, does not prevent
the act from being punishable.? Thus, where a thief proposed
to A’s servant to steal A’s property, and the servant, having
informed A, was ordered to proceed in the act proposed, and
thereupon the act was committed and the thief apprehended

1 §. v. Asher, 50 Ark. 427, 8 S. W. 177.

2 Reg. v. Williams, 1 C. & K. 195; P. v. Hanselman, 76 Cal. 460, 18
P. 425; O'Halloran v. §., 31 Ga. 203; S. v. Anone, 2 N. & McC. (S. C.)
27; Alexander v. §., 12 Tex. 540.
SEcr. 22.] GENERAL PRINCIPLES. 17

upon the spot, he was held to be guilty of larceny.1 So where
A proposed to sell liquor to B’s slaves, contrary to the
statute, knowledge thereof and acquiescence therein by B
constituted no defence;? so with putting an obstruction on
arailroad track, acquiesced in by the company for the purpose
of detecting the criminal. And so long as the injured person
gives no consent to the act proposed, the fact that he hopes
that the criminal may make the attempt in order that he may
be caught does not lessen the criminality of the act. -Nor is
it the less a crime because the person to be robbed makes full
preparation therefor, and has officers or detectives stationed
to apprehend the criminals.*| But it must be plain that the
act was in no sense induced by the injured party; for if he
was active in the commission of the offence, it is his own act,
and no injury to him. If the individual is not harmed, there
is no public injury.®

The distinction is brought out clearly in two cases stated in
Foster’s Crown Law. In the first case, one procured himself
to be robbed by strangers, that he might apprehend them and
gain the reward; and this was held no crime.® In the sec-
ond, one went out on the highway and put himself in the
way of being robbed, with the intention of capturing the
highwayman ; and here the robbery was held to be a crime.’
And this distinction is the same whether the procuring of the ‘
act and consequent consent thereto is done personally, or by
those who represent the owner of the property. Thus where

1 Rex v. Eggington, 2 East P. C. 494, 666, 2 B. & P. 508, C. 326,
K. 260; Varner v. S., 72 Ga. 745; Thompson v. §., 18 Ind. 386; S. v.
Sneff, 22 Neb. 481, 35 N. W. 219; S. v. Covington, 2 Bailey (S. C.), 569,
M. 77; McAdams ». S., 76 Tenn. 456; Robinson v. 8., 34 Tex. Cr. R.
71, 29 S. W. 40.

2 Q’Halloran v. S., 31 Ga. 206.

3 Dalton v. S., 118 Ga. 1087, 39 S. E. 468.

4 S. v. Stickney, 53 Kan. 208, 36 P. 714; Johnson v. S., 3 Tex. App.
590; P.v. Morton, 4 Utah, 407, 11 P. 512.

5 Rex v. Eggington, 2 East P. C. 666, C. 326, K. 260; S. v. Douglass,
44 Kan. 618; P. v. McCord, 76 Mich. 200, 42 N. W. 1106; S. v. Adams,
115 N. C. 775, 20 8. E. 722.

6 McDaniel’s Case, Fost. C. L. 121, K. 259.

7 Norden’s Case, Fost. C. L. 129.

2
18 CRIMINAL LAW. [Secr. 22a,

A employs a detective to discover a wrong doer and the de-
tective with the consent of A urges the person suspected to
steal again in order to get a conviction, the consent of the
owner through his agent will prevent the act done from being
a crime The same principle of course applies where the
physical act of taking is done by the detective.?

A somewhat common case is where the servant of the per-
son whose house it is designed to enter is approached, and, by
advice of the master, consents to assist the burglars, his pur-
pose being to secure their arrest and conviction. If in such
a case the servant himself opens the door for the thieves, the
latter cannot be held guilty of burglary ; at most their offence
is larceny?

§ 22a. Acts Induced by Third Persons. — It is clear that the
criminality of crimes of the kind discussed in the last section
can be taken away only by the consent of a person injured or
those who represent him, Hence where a third person in-
duces the defendant to rob for the purpose of apprehending
him in his crime, no consent by him, express or implied, can
excuse the defendant. A fortiort is this the case where the
act is criminal because it directly injures the public at large
or the government. Thus, in an indictment for sending ob-
scene matter through the mails, it is no defence that it was
sent in answer to a request so to do made to the defendant by
a post-office inspector, who did it for the purpose of getting
evidence to convict himS If, however, the act is eriminal
only when done in a certain way, as liquor selling without the

2 Connor v. P., 18 Col. 373, 33 P. 159; S. ». Waghalter, 177 Mo. 676,
76 S. W. 1028; Spieden v. S., 3 Tex. App. 156, M. 80; McGee v. S.,
Tex. , 66 S. W. 562.

2 P.v. Collins, 53 Cal. 185; Williams v. 8., 55 Ga. 391; Love v. P., 160
Ml. 501, 43 N. E. 710.

3 Rex v. Eggington, 2 East P. C. 666, C. 326, K. 260; S. v. Jansen, 22
Kan. 498; S. v. Hayes, 105 Mo. 76, 16S. W. 514.

4S. v. Abley, 109 Ta. 61, 80 N. W. 225, M. 83; P. v. Liphardt, 105
Mich. 80, 62 N. W. 1022. The person so instigating may himself be
also criminally liable: Slaughter v. S., 1138 Ga. 284, 38 S. E. 834.

5 Price v. U. S., 165 U. S. 811; Rosen v. U. S., 161 U.S. 29; U.S,
v. Wight, 88 Fed. 106; U. S. v. Dorsey, 40 Fed. 752; -contra, U. S. v
Adams, 59 Fed. 674.
Srcr. 23.] GENERAL PRINCIPLES. 19

license of the municipality, the effect of consent given indi-
rectly by the solicitation of a detective employed by the city,
would be sufficient to render the act non-criminal.! But
here, too, the distinction between solicitation and acquiescence
for detection must be kept‘in mind? =~ -

§ 23. Effect of Consent.— Consent on the part of the indi-
vidual to the act complained of will generally prevent the act
from being a crime, provided the consent is not exceeded. If,
however, the act exceeds the consent, the defendant is clearly
liable. Thus in cases of assault and battery, if consent is
given to one act and the defendant does another, or if the
act consented to is done maliciously and with a degree of force
exceeding that consented to, the crime is completed.?

There are, moreover, certain cases where the law forbids,
or rather makes void, consent; and in such cases the consent °
will not avail the offender. <A young girl, for instance, cannot
give a valid consent to carnal connection.*| The age at which
she becomes capable of consenting is generally fixed by
statute.

If the consent is to an act which may cause serious bodily
harm, it is clearly void;® for such harm is of itself a public
injury. Thus in an indictment for mayhem ® or homicide‘
the consent of the injured party is no defence. On the other
hand, innocent, manly sports are to be encouraged, and injury
which results in the course of such sports, fairly and honestly
carried on, cannot be the basis of a criminal prosecution.
But sports which are likely to cause serious injury or breach
of the peace are not regarded as lawful ; and where a criminal

1 Wilcox v. P., 17 Col. App. 109, 67 P. 343; P. v. Braisted, 13 Col.
App. 532, 58 P. 796; Evanston v. Myers, 172 Ill. 266, 50 N. E. 204, M. 88;
Blaikie v. Linton, 18 Scot. Law Rep. 583.

2 Evanston v. Myers, ante.

8 Reg. v. Sinclair, 18 Cox C. C. 28; Reg. v. Bennett, 4 F. & F. 1105;
Reg. v. Clarence, 16 Cox C.C. 511, M. 514; S. v. Richie, 58 Ind. 355.

4 P. v. Gordon, 70 Cal. 467, 11 P. 762; and see cases under Assault
with Intent.

5 Reg. v. Bradshaw, 14 Cox C. C. 83, K. 181.

8 Wright’s Case, Co. Litt. 127 a.

7 Rex v. Sawyer, 1 Russ. Cr. & Mis., 5th ed. 645.
20 CRIMINAL LAW. [Secr. 28a.

prosecution is founded upon an injury inflicted in the course
of such sports, the consent of the injured party is no defence.?

§ 23a. Condonation.— While, as pointed out above,? the
consent of the individual may, under certain circumstances,
prevent the act done from being a crime, if the defendant once
does an act that the law forbids, a later condonation by the
individual injured can have no effect on the criminal liability
of the wrong doer. In the criminal prosecution the public is
concerned, and not the injured individual; consequently, if
the elements of crime are present, the public cannot be affected
by any act of the individual. Thus, no forgiveness by the
injured party? or restitution by the offender, can affect the
public right to punish the offence ;* nor can any act of the in-
jured individual before the offence is consummated prevent a
conviction, provided the elements of crime are present.

The statutory offence of seduction under promise of mar-
riage illustrates this distinction. By the weight of decision
the gravamen of the offence is the breach of the promise to
marry when accompanied by seduction: on this view, if the
parties marry after the seduction, the defendant is not crim-
inally liable, because one of the elements of the crime is lack-
ing. On the other hand, the statute has been construed as
being aimed against seduction accomplished under such a
promise; on this view the crime is completed when the seduc-
tion takes place and subsequent marriage is no defence.®

1 Foster’s C. L. (3d ed.) 259; Reg. v. Bradshaw, ante ; Reg. v. Coney,
8 Q B. D. 534, M. 70; C. v. Collberg, 119: Mass. 350, C. 160; S. v Un-
derwood, 57 Mo. 40; S. v. Burnham, 56 Vt. 445.

2 §§ 21, 23.

8 C. v. Slattery, 147 Mass. 423.18 N. E. 399; 8. v. Hammond, 77 Mo. 157.

4 Thus in embezzlement: Fleener v. §., 58 Ark. 98, 23 S. W. 1;
Thalheim v. S., 88 Fla. 169, 20 So. 938; S. v. Frisch, 45 La. Ann. 1283, 14
So. 132; Truslow v. &., 95 Tenn. 189, 31 S. W. 987; false pretences:
Williams v. S., 105 Ga, 606, 31 S. E. 516, M. 100; forgery: S. v. Tull,
119 Mo. 421, 24 S. W. 1010; Countee «.S, Tex. ,33 S. W. 127.
See also C. v. Kennedy, 160 Mass. 812, 35 N. E. 1131.

5S. v. Otis, 135 Ind. 267, 34 N. E. 954; P. v. Gould, 70 Mich. 240,
88 N. W. 232; C. v. Eichar, 4 Pa. Law J. 326. Compare S. v. Horton,
100 N. C. 443, 6S, E. 238.

® Re Lewis, 67 Kan. 562,78 P.77. Compare P. v. Hough, 120 Cal.
Sects. 23), 28¢.] GENERAL PRINCIPLES.: 21

§ 230. Condonation by Public Officers, — A somewhat similar
question arises where the prosecuting attorney or other officer
of the State attempts to release a defendant from his criminal
responsibility if he will give evidence against his co-defendants
or confederates. Here too the attempted condonation cannot
excuse the crime; it is still the same and the State still has
the right to punish therefor. If, however, the defendant
faithfully performs his side of the agreement and the pro-
ceeding takes place with the approval of the judge before
whom the matter is pending, this is recognized as giving him
a moral right to consideration by the State,! and he is given
time to apply for a pardon, or a nol. pros. is entered, or other
similar steps taken.2 In some jurisdictions such agreement
may, by statute, be set up as a plea in bar.?

§ 23c. Compounding Crimes. — Not only can the condonation
by the individual injured have no effect upon the wrong doer’s
criminal liability, as has been already pointed out, but if the
former enters into an agreement with the wrong doer not to
prosecute, he thereby commits a separate criminal offence,
viz. compounding. The offence compounded must have been
itself a crime; otherwise it is simply a settlement of private
claims® The gist of the offence lies in the agreement not to

538, 52 P. 846; S. v. Bierce, 27 Conn. 319; S. v. Wise, 32 Or. 280, 50 P.
800.

1 Rex v. Rudd, Cowp. 331; C. v. St. John, 173 Mass. 586, 54 N. E.
251, M. 105; Whitney v. S., 53 Neb. 287,73 N. W. 696; S. v. Graham,
41 N. J. L. 15; S. v. Lyon, 81 N.C. 600; U.S. . Ford, 99 U.S. 594,
See S. v. Bain, 112 Ind. 335, 14 N. E. 232.

2 For the various methods of procedure see I Bish. New Cr. Pr.,
§§ 1164-1168.

8 Pv. Peter, 48 Cal. 250; Young v.S., Tex, 758. W. 23.

4 A particular form of compounding which consists in receiving hack
stolen goods under an agreement not to prosecute was called thef bote in
the older law, and the person so taking back his goods was punished as
an accessory after the fact to the robbery. It is now regarded as a
separate misdemeanor: 4 Bl. Com. 133; and see S. v. Vidalla, 24 R. I.
186, 52 Atl. 889.

5 Treadwell v. Torbert, 122 Ala. 297, 25 So. 216; Woodham v. Allen,
130 Cal. 194, 62 P. 398; Keith v. Buck, 16 Ill. App. 121; S. v. Leeds, 68
N. J. L. 210, 52 Atl. 288; S. v. Hanson, 69 N. J. L. 42, 54 Atl. S41;
22 CRIMINAL LAW. [Secr. 24.

prosecute, and once the agreement has thus been made the
crime is completed ;! hence it is no defence that the com-
pounder later instituted criminal proceedings against the
original wrong doer.2- On the other hand, if the injured per-
son merely accepts restitution from the wrong doer, but
makes no agreement as to criminal proceedings, there is no
compounding?

Since the criminality of the act lies in the fact that it is
done for the purpose of settling by individual action a matter in
which the State is the party primarily interested, it follows
that the offence is none the less committed, whether the crime
compounded be a treason, or a felony,’ or a misdemeanor such
as disturbing public worship,® or a riot,® or illegal liquor sell-
ing.’ Where, however, the crime is at most a slight one, and
where, in addition to that, the criminality of it lies principally
in the injury to some individual, the law will allow the party
thus directly injured to settle the matter by agreement. Thus
a charge of obtaining money by false pretences,® or of assault:
and battery,® or of fornication, may be thus settled. In
jmany States statutes have been passed defining this right.

. § 24. Effect of Contributory Negligence. — Though the neg-
ligence of the injured party contributed to the injury, the
defendant is none the less punishable; for the injury was

Swope r. Ins. Co., 93 Pa. 251; Heckman v. Swartz, 50 Wis. 267, 6 N. W.
891; contra, Fribly v. §., 42 O. St. 205.

1 Reg. v. Burgess, 15 Cox C. C. 779; S. v. Duhammel, 2 Harr. (Del.)
532.
? S. e. Ash, 83 Or. 86, 5f P. 184; contra, Rex v. Stone, 4 C. & P.
379.

8 Beeley v. Wingfield, 11 East, 46; Powell v. Flanary, 22 Ky. Law.
Rep. 908, 59S. W. 5; Catlin v. Menton, 9 Wis. 476.

4 8. v. Ruthven, 58 Ja. 121,12 N. W. 235; C. v. Pease, 16 Mass. 91.

5 Edgecombe “. Rodd, 5 East, 294.

® Keir +. Leeman, 6 Q. B. N. S. 308.

7S. v, Carver, 69 N. H. 216, 89 Atl. 973.

8 Johnson v. Ogilby, 8 P. Williams, 278; Geier v. Shade, 109 Pa. 180;
Rothermal v. Hughes, 134 Pa. 510, 19 Atl. 677.

® Keir v, Leeman, supra.

10 Rohrheimer v. Winters, 126 Pa. 253, 17 Atl. 606, M. 103.

11 See P. v. Dalrymple, 55 Mich. 519, 22 N. W. 20, M. 102.
Szcr. 24.] GENERAL PRINCIPLES. 23

nevertheless caused by his criminal act;! thus where the de-
ceased, who was deaf, negligently walked in the middle of the
road on a dark night, and the defendant acting ina criminally
negligent manner ran him down 32/80 where the defendant
overloaded his boat in a criminally negligent way and being
so overloaded it was upset by the carelessness of a passenger
who was drowned? So the fact that the person killed was so
weakened by his own dissipation that he died from a blow
that would not have killed a reasonably well mian is no de-
fence.4 On the same principle it has been held to be no defence
that a second wound also contributed to bring about the death.
That fact would merely render the person inflicting it also
liable ;® and it would be the same even though the second
wound was inflicted by the deceased himself. So where the
negligence of several combine to bring about the fatal result.’
On the other hand, the mere fact that the defendant’s blow
might have caused the death of the deceased cannot render
him criminally liable for it if in fact death came from in-
dependent causes, as where A inflicts on X a wound of mortal
nature and B, either contemporaneously § or later,® kills him
outright; the actual death is due solely to B. So where the
negligence of the injured party might fairly be regarded as the
sole active cause of the injury, the defendant is to be acquitted,
because he has not in fact done the act charged ;? but such
negligence is not properly described as contributory.

1 Reg. v. Kew, 12 Cox C. C. 355, C. 150, K. 185 (but see Reg. v.
Birchall, 4 F. & F. 1087, C. 149); Belk v. P., 125 Ill. 584, 17 N. E. 744;
Crum v. S., 64 Miss. 1, 1 So. 1.

2 Reg. v. Swindall, 2 C. & K. 230; Reg. ». Longbottom, 3 Cox C. C.
439, M. 94; Belk v. P., ante; contra, Reg. v. Birchall, ante.

3 Reg. v. Williamson, 1 Cox C.C. 97, M. 91.

4 P. vy. Moan, 65 Cal. 532, 4 P. 545; S.v. Castello, 62 Ta. 404,17 N. W.
605. Compare Rex v. Johnson, 1 Lewin C. C. 164.

S. v. Tidwell, 70 Ala. 83; P. v. Ah Fat, 48 Cal. 61.
P. »v. Lewis, 124 Cal. 551, 57 P. 470, M. 569.

Reg. v. Haines, 2 C. & K. 368.

Walker v. S., 116 Ga. 537, 42 S. E. 787.

S. v. Scates, '5 Jones (N. C.), 420.

10 Rex v. Waters, 6 C. & P. 328, M. 90; Reg. v. Dalloway, 2 Cox C.C.
273; Belkv. P., 125 Ill. 584, 17 N. E. 744; Crum v. S., 64 Miss. 1, 1 So. 1.

oat HA a
24 CRIMINAL LAW. [Secr. 25.

For the same reason, negligence by the injured party in
caring for a wound will not make the offender the less charge-
able with the ultimate effect of the wound, nor will refusal by
the injured party to submit to an operation that would have
saved his life,? and improper treatment of the wound by the
surgeon is equally unavailing to purge the offender’s guilt.?

§ 25. Effect of Guilty Participation by the Injured Party. —
The fact that the injured party was injured while himself
engaged in an illegal act against the defendant does not lessen
the criminality of the offence; for the public wrong is equally
great, though the individual may have suffered no more than
he deserved. Thus, where the injured party was cheated
while himself endeavoring to cheat the defendant, the latter is
guilty.t| Where a servant absconds with money given him for
the master for an illegal purpose, he is nevertheless guilty of
embezzlement. And where the defendant gave a girl a coun-
terfeit coin, knowing it to be counterfeit, as a consideration
for illicit intercourse, he was held guilty of uttering the coin.§
So where the injured party is cheated while endeavoring to
buy counterfeit money,’ or to obtain government land to which
he has no right,® or to defraud a third person out of claims
against him.® But if the indictment is attempted to be based

1 Rex v. Rew, Kel. 26, M. 559; McAllister v.S., 17 Ala. 434; Kee v. S.,
28 Ark. 155; S. v. Bantley, 44 Conn. 537.

2 Reg. v. Holland, 2 Moo. & Rob. 351; Franklin v. S., 41 Tex. Cr. R
21, 51S. W. 951.

8 Reg. v. Davis, 15 Cox C. C. 174; Thomas z. S., 139 Ala. 80, 36 So.
734; C. v. Hackett, 2 All. (Mass.) 136, C. 168; S. v. Landgraf, 95 Mo.
97, 8 S. W. 237; C.v. Eisenhower, 181 Pa. 470, 87 Atl. 521. See also
post, § 230.

4 Reg. v. Hudson, § Cox C. C. 305, C. 142; C. v. Morrill, 8 Cush.
(Mass.) 571, C. 146. See, however, contra, McCord v. P., 46 N. Y. 470,
C. 148; S. v. Crowley, 41 Wis. 271.

5 Rex. v. Beacall, 1 C. & P. 454.

® Queen v, ——, 1 Cox C. C, 250, C. 145.

7 Crum v. §., 148 Ind. 401, 47 N. E. 833.

8 Re Cummins, 16 Col. 451, 27 P. 887.

® P. v. Martin, 102 Cal. 558, 36 P. 952, M.98. See also Rex v. Mott,
2C. & P. 521; Gilmore v. P., 87 Ill. App. 128; C. v. O’Brien, 172 Mass.
248, 52 N. E. 77; Cunningham »v. S., 61 N. J. L. 67, 88 Atl. 847.
Sucr. 26.] GENERAL PRINCIPLES. 25

on what the law does not recognize, as, for instance, depriving
one of an office that never existed, it is, for this reason,
defective.t

THE CRIMINAL INTENT. (3

§ 26. Motive Immaterial. — Like immorality of act, im-
morality of purpose is not an element of crime. The motive
with which an act was done is immaterial in deciding the
question of its criminality: a crime may be committed with a
good motive, while an act done from a sinful motive is not
necessarily criminal. Motive may, it is true, sometimes be
shown in evidence; but it is merely as evidence of intent.

Motive must not be confounded with intent. The intent
applies to and qualifies the act. Motive is that which leads
to the act. And while it is essential in common law crimes
that the intent to commit the crime should appear, either
expressly or by implication, no such necessity exists as to
motive, and it need not be proved.?

If, therefore, the intent to violafe the law exists, the motive,
as has been said, is immaterial. For example, it is an indict-
able offence at common law to enter, without the consent of
the owner, an unconsecrated burial-ground, and dig up and
carry away a corpse buried there, though it be done openly,
decently, and properly by a relative, and from a sense of filial
duty and religious obligation.?. Nor will it be any justification
for a person who intentionally does an act which the law pro-
hibits, — voting, for instance, — that he conscientiously be-
lieved he had a right to vote, notwithstanding the statute ;4
so fishing where the law forbids,® or issuing passes,® or selling

* Rex v. Stratton, 1 Camp. 549.

2 Baalam v. S., 17 Ala. 451; C. v. Hudson, 97 Mass. 565; P. ». Robin-
son, 1 Park (N. Y.), C. R. 649; S. ». Coleman, 20 S. C. 441, M. 139.

8 Reg. v. Sharpe, 7 Cox C. C. 214; S. v. McLean, 121 N. C. 589, 28
S. E. 140; Phillips v. 8., 29 Tex. 226.

4 U.S.v. Anthony, 11 Blatch. C. Ct. 200, Fed. Cas. No. 14,459, 2 Green’s
Cr, Law Rep. 208, and note. :

5 S. v. Huff, 89 Me. 521, 36 Atl. 1000.

8 §. v. So. Ry. Co., 122 N. C. 1052, 30 S. E. 188.
26 CRIMINAL LAW. [Szcr. 27.

liquor! or lottery tickets or carrying weapons.’ Nor is it a
defence that the act would be harmless ;*# nor that it would be
for the public benefit.6 Nor can polygamy ® or obscenity ‘ be
excused on the ground that the offender acted from the high-
est motives of religion or morality. And one is guilty of
crime who refuses to obey a statutory duty to call in medical
aid for a child, though he thought it irreligious to call in such
aid’ Nor is it of avail that the real purpose is other than to
violate the law, the natural result of the act being to violate
the law; as where one assaults an officer in the discharge of
his duty, the purpose not being to hinder the officer in the
discharge of his duty, but to inflict upon him personal chastise-
ment, on account of some private grief. If the act results in
the obstruction of the officer in the discharge of his duty, the
offender is guilty of the latter offence. So where logs are
left in a stream, thereby impeding navigation, although the
only purpose was to store them there for business reasons.!

§ 27. General Criminal Intent Presumed from the Unlawful Act.
— Aside from cases of negligence! it is ordinarily necessary,
in order to render a man criminally responsible, that there
should be a voluntary act by him that the law of crimes for-
bids. This is often expressed in the proposition that when a
man does an act that the law thus forbids, the law will pre-
sume the existence of a criminal intent and so punish him.

1 Marmont v. §., 48 Ind. 21; Pisar v. S., 56 Neb. 455, 76 N. W. 869;
S. v. Presnell, 12 Ire. (N.C.) 103; 8S. v. Voight, 90 N. C. 741.

2 C. v. Bull, 76 Ky. 656.

8 Hardy v. S., Tex. 448. W.173. See also Hood v. S., 56 Ind.
263; S. v. GZichfield, 23 Nev. 304, 46 P. 802.

4 U.S. v. Bott, 11 Blatch. C. Ct. 346, Fed. Cas. No. 14,626, 2 Green’s
Cr. Law Rep. 239; P. v. O’Brien, 96 Cal. 171, 31 P. 45.

5 Resp. v. Caldwell, 1 Dall. (Pa.) 150; C. v. Belding, 13 Met. (Mass.)
10.

6 Reynolds v. U. S., 98 U. 8. 145, C. 95, K. 31.

7 Reg v. Hicklin, L. R. 3 Q. B. 360; U. S. v. Harmon, 45 Fed. 414.

8 Reg. v. Downes, 13 Cox C. C. 111; Reg. v. Senior, 19 Cox C. C.
219, M. 143.

® U. S. v. Keen, 5 Mason C. Ct. 453, Fed. Cas. No. 15,511.

10 S. v. Corporation, 111 N. C. 661, 16S. E. 331. .

11 See post, §§ 29 et seq.
Secr. 27.] GENERAL PRINCIPLES. 27

In the light of the preceding section, and bearing in mind
the distinction between motive and intent it is clear that this
proposition is only a succinct statement of the truth that if a
man voluntarily does an act he necessarily has the intent to
do it. When one docs an unlawful act, he is by the law also
presumed to have intended the ordinary and natural conse-
quences flowing from that act, on the ground that these must
have been within his contemplation, if he is a sane man, and
acts with the deliberation which ought to govern men in the
conduct of their affairs! He is none the less responsible for
the natural consequences of his criminal act because, from
ignorance, or carelessness, or neglect, precautionary measures
are not taken to prevent those consequences.2 In some cases
of statutory crimes, as we shall sce, this presumption is con-
clusive as to the intended consequences, and cannot be met by
counter proof. As a general rule, however, in those cases
where an act in itself not criminal becomes so only if done
with a particular intent, there the intent must be proved by
the prosecution ; while in those cases where the act is in itsclf
criminal the law implies a criminal intent, and leaves it open
to the defendant to excuse or justify. But the unlawfulucss
of the act is a sufficient ground upon which to raise the pre-
sumption of criminal intent It is, of course, always open to
proof that there was no intention to do any act at all, whether
lawful or unlawful; as that the person charged was insane, or
was compelled to the act against his will, or was too young to
be capable of entertaining a criminal intent. So, at least when
the act is criminal in its nature and not peremptorily prohibited -

1 Rex v. Dixon, 3 M. & S. 11, M. 1387; Mullens.v. S., 82 Ala. 42,2 So.
481; C.v. Webster, 5 Cush. (Mass.) 805; C. v. Randall, 4 Gray (Mass.),
36; P.v. Kirby,.2 Park Cr. R. (N. Y.) 28, M. 142; S. v. King, 86 N.C. 603;
U. S. v. Taintor, 11 Blatch. C. Ct. 374, Fed. Cas. No. 16,428, 2 Green’s
Cr. Law Rep. 241, and note.

2 Reg. v. Holland, 2 M. & Rob. 851, K. 98; Rex v. Reading, 1 Keb. 17;
S. v. Bantley, 44 Conn. 537; C. v. Hackett, 2 Allen (Mass.), 186, C. 168.

8 Rex v. Woodfall, 5 Burr. 2667; S. v. Goodenow, 65 Me: 80; 3 Greenl.
Ey., § 13.

4 C.v. Randall, 4 Gray (Mass.), 36; U. S. v. Taintor, ante, and cases
cited, ante. :
28 CRIMINAL LAW. [SEcr. 28.

by the statute, it may be shown that it was done through mis-
take; as where one drives off the sheep of another, which are
in his own flock without his knowledge,! or, intending to shoot
a burglar, by mistake shoots one of his own family.?

§ 28. Constructive Intent. — The criminal intent need not
be an intent to commit the exact offence actually complained
of. A defendant may have intended to do one criminal act,
and may in fact have done another; for instance, intending
to inflict severe bodily harm, he may have killed the person
he intended only to injure. In such a case both the elements
of acrime are present; the act which is criminal has been
done with a wicked, and criminal intent; the public has been
wronged, and the offender is a fit subject for punishment.
Yet it would be too severe a rule to punish him in every case
of the sort, however unexpected the result of his act.

If the offender intended a mere civil wrong, an act which
was not criminal, and without any negligence on his part a
result happened which is in the nature of a criminal act, it is
clearly not a crime, but an accident.2 And so if the intention
was merely to do a malum prohibitum,—to break a police
regulation, such as an ordinance against fast driving, — and
an unexpected result happened entirely without negligence,
the offender should not be held a criminal because of the re-
sult, the reason being that there is no criminal intent to
carry over to the injury actually resulting. For this reason
it has been said that the distinction is not so much between
-mala in se and mala prohibita, as between offences which re-
quire a criminal intent and those which do not. If in the
course of committing an act of the first kind, even though it
be a malum prohibitum, an unexpected criminal result follows,
it would seem that the defendant would be liable therefor.
Thus where a statute punished the keeping of liquor withcut
a license, and also punished the keeping of adulterated liquor,
the defendant intending to keep liquor against the statute was
held punishable for the fact that it was, unknown to him,

1 1 Hale P. C. 507.
2 Tbid., 42.
8 Reg. v. Franklin, 15 Cox C. C. 168, C. 105, K. 118, M. 158.
Secr. 28.] GENERAL PRINCIPLES. 29

adulterated, the intent’ required by the statute being carried
over from the act intended to what was actually done.

“The offence he intended to do must at least be one which in
itself was sinful? Whether a sinful or immoral intent alone
would be sufficient does not seem clear. Strictly speaking,
thereis nocriminal intent to carry over to the unexpected result,
and it would seem, therefore, that the mental element neces-
sary to make the crime could not be found. Yet there are
cases holding that where the defendant attempts to do an act
of a sort that the law forbids but not str ictly within its terms,
if in fact the result is an act within the terms of the statute,
he will be held responsible therefor, although his intent was
not technically criminal. Thus where the statute forbids the
taking of a girl under sixteen from the custody of her guard-
ian without his consent, and A does so, believing the girl to
be over sixteen, if she wasin fact under, he is punishable.3

If the offender intended a crime of violence, and in the
course of it committed another crime of the same sort, natu-
rally growing out of it, he is responsible for the crime he
committed. Thus, where one attempted suicide, and accident-
ally killed a man who attempted to prevent the suicidal act,
he is guilty of homicide. So where A makes an assault on
B, and in the course thereof accidentally injures C, he may be
indicted for an assault on the latter,> or if the result is to
strike ont an eye, for a mayhem. So where A sets fire toa
dwelling house, and persons are thereby accidentally burned
to death, he is guilty of homicide.” So where one intended to

1 §, v. Stanton, 87 Conn. 421, M. 161.

2 Reg. v. Bruce, 2 Cox C. C. 262, K. 136; C. v. Adams, 114 Mass. 323,
M. 160; Estell v. S., 51 N. J. L. 182, 17 Atl. 118.

8 Reg. v. Prince, L. R. 2 C. C. 154, K. 21, M. 173; P. v. Fowler, 88
Cal. 136, 25 P. 1110; S. v. Ruhl, 8 Ia, 447; Riley». S, Miss. —,
18 So. 117. So as to rape on a girl under the age of consent: P. v. Ratz,
115 Cal. 182, 46 P. 915. Compare Rex. v. Pedley, Cald. 218; and see
post, § 56.

# C. v. Mink, 123 Mass. 422, C. 104, K. 110.

5 Rex. v. Hunt, 1 Moo. 93, M. 152.

6 Anon., Y. B. 13 H. VU, 14, pl. 5, K. 20.

7 Reg. v. Serné, 16 Cox C. C. 311, C. 183, M. 600; Reddick v. C.,
17 Ky. L. BR. 1020, 33S. W. 416.
380 CRIMINAL LAW. [Szcr. 28.

commit robbery, but in the course of it killed the victim, he is
guilty of homicide And where the result, though not in-
tended, follows naturally from the criminal act that was
intended, it is immaterial that the crime intended was of a less
heinous degree than the result actually produced; in other
words the criminal intent need not be of the same degree as
the ultimate criminal result. Thus, where the defendant
attempted to commit an assault on a slave and in the course
thercof killed a free man, he was held for the death of the
latter ;2 so where he intended to kill a negro and in fact killed
a white, the two offences being differently punished.2 It has
even becn held that one committing an act of violence is criin-
inally responsible for all consequences, however unexpected.
So where one assaulted a woman with intent to commit rape,
and she, to ransom her honor, without demand gave him
‘money, this was held to be robbery.4 So where the defendant
struck at B and the blow frightened a child into convulsions
from which it died, the jury were instructed that if the death
was caused by the defendant’s act he was guilty of man-
slaughter. And there is no doubt that if one intended humi-
cide he is guilty of murder, though he intended to kill A and
actually killed B.6

It would seem that, even if the result was unexpected, the
defendant is guilty, if his intention was to commit a felony or
other serious crime.
« But the result, whether unexpected or otherwise, must be
caused by the defendant’s criminal act; if the latter is so far
back in the chain of causation as not to be at least a partial
effective cause, the defendant is not responsible. Thus where
A in violatiof of the statute kept fireworks, and while they
were so kept they were negligently exploded by his servants,

1S. v. Barrett, 40 Minn. 77, 41 N. W. 463; S. v. Pike, 49 N. H. 399.

2 Bob v. S., 29 Ala. 20. .

3 Isham v. §., 38 Ala. 213, M. 148. See also Reg. v. Forbes, 10 Cox
C. C. 362.

4 Rex v. Blackham, 2 East P. C. 711.

5 Reg. v. Towers, 12 Cox C. C. 530, C. 163, K: 95.

® Saunder’s Case, 2 Plowd. 473, C. 176, K. 81; Gore’s Case, 9 Co. S1la,
C. 182, M. 557; Wynn ». S., 63 Miss. 260.
Sects. 29, 30.] GENERAL PRINCIPLES. 81

thereby killing a third person, A was held not responsible for
the death.1

§ 29. Accident. Negligence. — Where an act happens
through mere accident, there is necessarily an absence of
criminal intent ; and a mere accident, therefore, can never be
acrime. But if the accident was causcd by a breach of duty
on the part of the accused, that breach of duty may have been
so culpable as properly to be called criminal. Such a thing
is not a mere nonfeasance ; failure to do one’s duty may often
be regarded as a deliberate act, and if not deliberate it may
at least be treated as voluntary, so as to be charged as com-
mitted with a criminal intent. A breach of duty so culpable
as to be either deliberate or voluntary is called criminal negli-
gence; and is a sufficient criminal intent to make an act a
crime.

§ 30. Negligence when Criminal. — It has been said that, in
order to give rise to a criminal prosecution, the duty infringed
must have been a public duty ; by which is meant a duty im-
posed by law. Thus, it is said, the duty of a parent to support
his child, or of a watchman at a railway crossing, who was
required to be so placed by statute, would be of such a nature
that the infringement of it would be criminal; but not so the
negligence of a watchman ata railway crossing who was placed
there, not in consequence of a statute, but by private liberality?
This position, however, appears not to be sound.

Tt is clear that if A owes a duty directly to B and by a
criminally negligent failure to comply with that duty he
injures B, he should be punishable therefor. This covers
all cases of so-called negligent acts of commission: thus A,
simply as a member of the community owes B, any other
member, the duty of not shooting him, or dropping timbers

upon him, or driving over him, and if A negligently fail in that-

duty, i.e., negligently shoots B, or drops timbers on him, or
drives over him, and that negligence is sufficiently gross for
the criminal law to take cognizance thereof, he is clearly

1 Reg. v. Bennett, Bell. 1, M. 567, K. 98; Potter v. S., 162 Ind. 213,

70 N. E. 129; see also P. v. Rockwell, 39 Mich. 503.
2 Reg. v. Smith, 11 Cox C. C. 210, C. 116.
,

32 CRIMINAL LAW. [Secr. 30.

punishable for the result of his negligent act.1 The same
principle will hold good where A owes B the duty, not of
refraining, but of doing ;—a duty which may arise either by-
contract or by operation of law. Thus the husband owes the
wife the duty of providing shelter for her,? the parent owes
the infant child a similar duty,’ so the master and the ap-
prentice.t Under these or similar conditions,®> where the
duty of acting exists, criminal negligence, resulting in an
injury that the law punishes, will make the defendant re-
sponsible for that injury.

It would seem, however, that responsibility for acts of

_criminal negligence cannot be limited to the above cases.

Any duty which one undertakes ought so to be performed as
not to injure the public; and culpable negligence in the per-
formance of any duty, if its result is in nature criminal, ought
to be punished. Thus, where a workman in a mine is charged
with the duty of putting a stage over the mouth of the shaft,
and the omission so to do causes the death of a human
being, he is guilty of homicide.6 So where a person charged
with the duty of hoisting persons from a mine leaves the
engine in charge of a boy known to be incompetent,’ or a
railroad employee neglects to flag a train,’ or put on brakes ®
or turn aswitch,” and such negligence is so gross as to be

1 Reg. v. Salmon, 14 Cox C. C. 494; Hull’s Case, Kel. 40, M. 215;
Rigmaidon’s Case, 1 Lewin C. C. 180, K. 122, M. 217; Knight’s Case, 1
Lewin C. C. 168, K. 130, M. 217; Reg. v. Kew, 12 Cox C. C. 855, K.
135; Reg. v. Dant, 10 Cox C. C. 102, K. 126; Rex v. Sullivan, 7 C. & P.
641, K. 116; Fenton’s Case, 1 Lewin C. C. 179, K. 117, M. 568; P. v.
Pearne, 118 Cal. 154, 50 P. 376; C. v. McLaughlin, 5 All. (Mass.) 507;
8S. v. Barnard, 88 N. C. 661; Lee v. S., 1 Cold. (Tenn.) 62.

2 Terr. v. Manton, 7 Mont. 162, 14 P. 637.

5 Reg. v. Conde, 10 Cox C. C. 547; Reg. v. Handley, 13 Cox C. C. 79;
8. v. Behm, 72 Ia. 533, 34 N. W. 319; Gibson v. C., 106 Ky. 360, 50 S.
W. 532.

4 Rex v. Self, 1 East P. C. 226; Reg. v. Smith, 8 C. & P. 153.

5 Rex v. Huggins, 2 Str. 882, M. 559; Reg. v. Edwards, 8 C. & P. 611.

® Reg. v. Hughes, 7 Cox C. C. 301, C. 114. ,

7 Reg. v. Lowe, 3 C. & K. 123.

8 Rex v. Pargeter, 3 Cox C. C. 191.

9 Reg. v. Elliott, 16 Cox C. C. 710.

2 §. v. O’Brien, 32 N. J. L. 169, M. 218.
fom,
Sect, 30.] GENERAL PRINCIPLES. (33)

criminal, he is responsible for the injuries resulting therefrom.
Although his primary duty is the contractual one toward his
employer, by the very fact of undertaking that he owes a duty
toward all those whom his contract requires him to serve or
act for.t

Where A, the defendant, originally owed no duty to B,
either directly or by contract with a third person, it would
seem that nevertheless, if A so acts toward B that the latter
is induced to rely on the defendant and so put himself in such
a position that a failure by the defendant to continue the
action thus begun will result in injuries that if intentionally
inflicted would render the defendant criminally responsible,
the defendant is punishable if, as a result of his negligence,
those injuries do in fact occur. It is enough if the person

\\.\\..\injured had reason in fact to rely on the defendant’s care,

whether he had a legal right so to rely or not. So where one
chooses to take care of a child of tender years, though beund
neither by law nor by contract so to do, he is guilty of crime
if his culpable negligence cause injury to the child.2 So
where the defendant voluntarily undertakes the ¢are of an
aged and helpless woman and then neglects to provide for
her8

The responsibility in all these cases is predicated upon a
failure by the defendant to perform a legal duty to the party
injured ; consequently, where there is no duty, a failure to
act on the part of the defendant, even though by acting the
injury to the third party could have been avoided, can create
no legal liability. Thus, where a mother refuses to get a
midwife for her daughter, the daughter being of age and with
no contractual claim against her mother, and the latter not
having undertaken to see the daughter through her trouble,

1 For other cases of criminal responsibility when the duty is primarily
a contractual one with third persons see Reg. v. Haines, 2 C. & K, 368;
Reg. v. Benge, 4 F. & F. 504; Rex v. Pitwood, 19 T. L. R. 87; contra,
Reg. v._Barrett, 2 C. & K. 343.

2 Reg. v. Bubb, 4 Cox C. C. 455; Reg v. Martin, 11 Cox C. C. 136
(semble) ; Reg. v. Nicholls, 13 Cox C. C. 75; Lewis v. 8., 72 Ga. 164.

8 Reg. v. Marriott, 8 C. & P. 425, M. 229; Reg. v. Tnstan [1893], 1 Q.

B. 450; contra, Rex. v. Smith, 2 C. & P. 449.
3
84 CRIMINAL LAW. [Szcr. 31,

she is not criminally responsible for the death of the daughter
although due to such failure.t

On the other hand, the fact that the defendant owed a duty
to the injured person which he neglected to perform will not
render him punishable unless that neglect was the cause of
the injury. Thus where a master, with criminal negligence,
fails to supply proper food for his servant, if the latter can
get it by other means, and refuses to do so, it is not the
negligence of the master but his own stubbornness that causes
his death ;? and so where the captain of a vessel negligently
fails to pick up a sailor who has fallen overboard, if it appears
that the sailor must have sunk before any boat could reach
him, his death cannot be said to be due to the captain’s
negligence.?

§ 31. What Negligence Is Culpable. — Not every degree of
negligence is sufficient for conviction of crime. It must be
culpable negligence ; such as may fairly be described as gross,
wanton, or wicked. A mere error of judgment in a matter
on which reasonable men may differ, as in the proper sort of
medical attendance to call in for a sick person,> or the proper
remedies to apply,° is not sufficient. But carelessness in
handling a weapon that is dangerous to life is criminal.?

Whether, in determining the defendant’s negligence he
should be judged by the standard of the average reasonable
man, or by his own standard of care is a point upon which
the decisions do not agree. On principle it would seem clear

1 Reg. », Shepherd, 1 L. & C. 147, M. 223. There being no common
law of crimes in Ohio, an act, though grossly negligent, cannot be crimi-
nally so, unless forbidden by the criminal law of the State: Johnson v.
S., 66 O. St. 59, 63 N. E. 607, 61 L. R. A. 277, with elaborate note on
homicide through negligence,

2 Reg. v. Smith, 10 Cox C. C. 82.

5 U. S. v. Knowles, 4 Sawy. 517, Fed. Cas. No. 15,540; Re Doig, 4
Fed. 193; and see ante, § 2t. ; ;

4 Reg v. Noakes, 4 F. & F. 920; Reg. v. Finney, 12 Cox. C. C. 625,
K. 120; Reg. v. Nicholls, 13 Cox C. C. 75; Reg. v. Wagstaffe, 10 Cox
C. C. 530, C. 100; S. v. Hardister, 88 Ark. 605.

5 Reg. v, Wagstaffe, ante.

6 §. v. Hardister, ante.

7S. v. Hardie, 47 Ia. 647, K. 128; Chrystal v. C., 72 Ky. 669.
Secr. 32.] GENERAL PRINCIPLES. ‘85

that, since a criminal frame of mind is essential to punisha-
bility, and there is no criminal intent, the defendant cannot
be said to be ina punishable frame of mind unless he per-
sonally must have known that his actions were grossly negli-
gent If the action of the defendant is prescribed by law,
then his belief as to the necessity or reasonableness of the
requirement can have no bearing on his criminal liability, but
he is held up to the external standard thus established.?

§ 32. Specific Intent.— When a specific intent is made an
ingredient in crime,—as where one is charged with an assault
with intent to murder, or to commit rape, or with a burglarious
entering with intent to steal, — the offence is not committed un-
less the accused is actuated by the specific intent charged. The
intent to commit another crime, though of equal grade and of
the same character with the one charged, will not constitute
the offence charged.? Thus an indictment for wounding with
intent to maim and disable is not sustained. by showing that
the wounding was with intent to escape apprehension,‘ nor an
indictment for conspiracy with intent to defraud X by show-
ing an intent to defraud Y.5

Instances of specific intent are malice, premeditation, intent
to_steal, to defraud, etc. In all cases where an act is not

1 Reg. v. Wagstaffe, 10 Cox C. C. 580, C. 100; Reg. v. Elliott, 16 Cox C. C.
710; S. v. Obershaw, 11 Mo. App. 85. As to physicians, that it is enough
if they act in good faith and by their own best lights: Reg. v. Markuss,
4 F. & F. 356, K. 124; S. v. Schulz, 55 Ia. 628, 8 N. W. 469; Caywood
v. C., 7 Ky. L. R. 224; C. v.. Thompson, 6 Mass. 184; Rice v. S., 8 Mo.
561; Robbins v. S., 8 O. St. 181; contra, that a person acting as physi-
cian must exercise the skill and foresight of an average reasonable man in
his.position: Reg. v. McDonald, 12 Cox C. C. 534, M. 220; C. v. Pierce,
188 Mass. 165; S. v. Power, 24 Wash. 34, 63 P. 1112.

2 Reg. v. Downes, 13 Cox C. C. 111, C. 102; Reg. v. Senior, 19 Cox
C. C. 219, M. 143; P. v. Pierson, 80 App. Div. (N. Y.) 415, 81 N. Y. S.
214; U.S. v. Beacham, 29 Fed. 284. CompareS.v.Chenoweth, Ind. ,
71 N. E. 197.

3 Rex v. Boyce, 1 Moo. C. C. 29; note to U. S. v. Taintor, 2 Green’s
Cr. L. Rep. 244.

* Rex v. Boyce, ante; Rex v. Duffin, R. & R. 365, M. 167; Rex v. Kelly,
1 Crawf. & D. 186; Rex v. Pearce, 1 Leach, 4th ed. 594.

5 C. v. Harley,.7 Met. (Mass.) 506.
386 CRIMINAL LAW. [Secr. 32.+

criminal, or is criminal in a less degree, unless committed in
a certain state or condition of mind, express proof of this
specific condition of mind is necessary, and proof of general
criminal intent is not enough.!

Such specific intent cannot be presumed.Y It must be

ke :

proved by the government as one of the necessary facts of
the case, though the defendant’s acts may be shown as evi-
dence from which the jury can find that he was actuated by
the intent charged. Thus in an indictment for larceny the
fact that the defendant took the goods knowing them to be-
long to another is grounds for the jury to find that in fact he
took them animo furandi ;? so in an indictment for cutting
with intent to maim, the fact that the defendant intentionally
used a weapon likely to maim may justify the jury in finding
that such was his intent when he struck the blow?

Since the existence of the specific intent is thus a question
of fact in each case, while the jury may often be justified in
concluding that, from the action of the defendant under the
circumstances, he must as a sane man have had the specific
intent with which he was charged, it is always open to the
defendant to lay other evidence before the jury to show that,
the natural inference to the contrary notwithstanding, he did
not have the specific intent charged. Thus where the defend-
ant was charged with entering a stable with intent to killa
horse, he was allowed to show that although he did intention-
ally enter and cut the-leg of the horse so that the animal died,
his intent was only to disable it;* so in an indictment for

_ Bex v. Scofield, Cald. 397; C. v. Walden, 3 Cush. (Mass. ) 558,
C. 118.

28. v. Patton, 1 Marv. (Del.) 552, 41 Atl. 193.

8 8. v. Jones, 70 Ia. 505, 30 N. W. 750. See also as to the finding of
the existence of the specific intent in forgery: Curtisv. S,, 118 Ala. 125, 24
So. 111; false pretences: P. v. Baker, 96 N. Y. 340; bursa: Harvick
v.$., 49 Ark. 514, 6S. W. 19; conspiracy: P. v. Flack, 125 N. Y. 824, 26
N. E. 267; assault with intent: Ogletree v. S., 25 Ala. 693; Kimball v.
8., 112 Ga, 541, 37 S. E. 886; Roberts v. P., 19 Mich. 401; defrauding
the government: U. 8. v. Buzzo, 18 Wall. 125; U. S. v. Houghton, 14
Fed. 544.

4 Dobb’s Case, 2 East P. C. 513.
Sxcr. 33.] GENERAL PRINCIPLES. 37

cutting down a boundary tree with intent to destroy the
mark, in spite of the natural presumption that the defendant
in so doing must have done it with the intent of obliterating
the boundary, he may show that in fact his intent was
otherwise.!

Here, however, as with general criminal intent, the distinc- -
tion between intent and motive must be borne in mind. Thus
where the defendant was indicted for forging a receipt with
intent to defraud A, and it appeared that he made the forgery
in order to get the money thereby from A, it was immaterial
that he did not wish to injure A and did it only because he
needed the money2

§ 33. Malice. — Although in a popular sense malice means
hatred, hostility, or ill will, yet in a legal sense it has a much
broader signification. In the latter sense it is the consctous
violation of the law to the prejudice of another. It is evil in-
tent or disposition, whether directed against one individual or
operating generally against all, from which proceeds any un-
lawful and injurious act, committed without legal justification.
Actions proceeding from a bad heart actuated by an unlawful
purpose, or done in a spirit of mischief, regardless of social
duty and the rights of others, are deemed by the law to be
malicious. The voluntary doing of an unlawful act is a suffi-
cient ground upon which to raise the presumption of malice.
And so if the act be attended by such circumstances as are

1S. v. Malloy, 384 N. J. L. 410. See also Reg. v. Gurnsey, 1 F. & F.
394; S. v. Jefferson, 3 Harr. (Del.) 571; P. v. Cotteral, 18 Johns. (N. Y.)
115; P. v. Orcutt, 1 Parker Cr. R. (N. Y.) 252; 8. v. Mitchell, 27 N.C.
350.

2 Rex v. Sheppard, R. & R. 169; Reg. v. Cooke, 8 C. & P. 582; Reg. v.
Todd, 1 Cox C. C. 57. See also Reg. v. Regan, 4 Cox C. C. 335, M. 141;
Rex v. Gillow, 1 Moo. 85, M. 213; U.S. v. William Arthur, 3 Ware, 276,
Fed. Cas. No. 16,702; post, § 254. Compare Rex v. Williams, 1 Leach,
4th ed. 529, M. 211.

8 Foster Cr. Law, 256; Ferguson v. Kinnoull, 9 C. & F. 251 at 302,
821; Crowell v. P., 190 Ill. 508, 60 N. E. 872; S. v. Decklotts, 19 Ia. 447;
C. v. Webster, 5 Cush. (Mass.) 295 at 305; C. v. Chance, 174 Mass: 245,
51 N. E. 551; Bevansv. U. S., Fed. Cas. No. 14,589; Biasv. U. S., 3 Ind..
Terr. 27, 58 S. W. 471. See C. v. Walden, 3 Cush. (Mass.) 558, C. 118.
38 CRIMINAL LAW. [Sucr. 34.

the ordinary symptoms of a wicked and depraved spirit, the
law will, from these circumstances, imply malice, without ref-
erence to what was passing in the mind of the accused at the
time when he committed the act.

Envy and hatred both include malice; but the latter may
exist without either, and is a more general form of wicked-
ness. As to the proof of malice and the degree thereof neces-
sary to constitute specific crimes, more will be said hereafter,
as occasion requires.2. Something will also be said under
Homicide of the not now very material distinction between
express and implied malice.

§ 84. Constructive Specific Intent.— The doctrine of con-
structive intent is clearly inapplicable in a case where a spe-
cific intent must be proved ; for an express intent is necessary.
Thus, where a statute punished malicious injury to property,
and the defendant threw a stone intending ,to injure a human
being, and in fact injured property, it was held that the spe-
cific malice required by the statute was not present;? and
where a statute punished the malicious destruction of a vessel,
and the defendant while stealing rum in a vessel accidentally
set fire to it and destroyed it, he was held not guilty under the
statute. But the specific intent may be present, though the
result is not precisely what was intended. Thus one may be
convicted under a statute for maliciously injuring a person,
though he maliciously struck at A, and in fact hit B, or for
killing with malice aforethought whet he left poison for A
wile B took. So where he shoots at A and hits B he may
be indicted for an assault with intent to kill.g So where A
attempts to kill himself and kills B he is guilty of murder&
The specific intent called for, viz., the malice in the one case

18.2. Smith, 2 Strobh. (S. C.) 77.

2 See Arson, Homicide, and Malicious Mischief.

3 Reg. v. Pembliton, 12 Cox C. C. 607, C, 120, K. 157, M. 171; Niblo v.
S. (Tex.), 79 S. W. 31.

4 Reg. v. Faulkner, 18 Cox C. C. 550, C. 106, K. 152.

5 Saunder’s Case, 2 Plowd, 473, C. 176, K. 81; Gore’s Case, 91 Co. 81a,
C. 182, M. 557; post, §§ 221 et seq.

6S. v. Lindsey, 19 Nev. 47, 5 P. 822; S. v. Levelle, 34 S. C. 120, 13S.
E. 319, M. 604. Compare C. v. Mink, 123 Mass. 422, C. 104, K. 110.
Sucr. 34] GENERAL PRINCIPLES. 39

and the intent to kill in the other case, here existed! So
where A attempts to commit what he, because of a bona fide
mistake of fact as to the age of the girl, believes to be forni-
cation, but which, because of her age, is rape, he may be in-
dicted for an attempt to commit rape, the specific intent being
‘of so similar a nature as to supply that element in the crime.
On the other hand where the defendant strikes or shoots at
| A and hits B, an indictment for assault on B with intent to
wound or kill B is not good, because the intent as now alleged
in the more specific form cannot be established.?{ And so an
indictment for assaulting X with intent to kill him is not sus-
tained by showing that the defendant wantonly shot into a
crowd ;* a fact that would have been sufficient lad the indict-
ment charged a malicious shooting.®
A different question arises where the defendant, wishing to
kill A, sees B, and believing him to be A, assaults him. The
_indictment for an assault on B with intent to injure him, though
sometimes treated as a case of constructive specific intent,®
would seem to be a case of actual intent, since the defendant
did in fact intend to injure the person before him, though his
motive was to injure another.’
It is clear that’ negligence, however gross, cannot supply the
place of specific intent ;® though it may often furnish very

1 Reg. v. Latimer, 17 Q. B. D. 359, 16 Cox C. C. 70, K. 144, M. 163;
Walls v. S., 90 Ala. 618, 8 So. 680; Bush v. S., 136 Ala. 85, 33 So. 878.

2 C. v. Murphy, 165 Mass. 66, 42 N. E. 504. The decision was proba-
bly influenced by the nature of the crime; see § 28, ante.

3 Reg. v. Hewlett, 1 F. & F. 91; Lacefield v. S., 34 Ark. 275. In
Rex v. Williams, 1 Moo. 107, the defendant was convicted on an indict-
ment for killing a sheep with intent to steal the whole carcass where the
evidence showed an intent to steal part only.

4 Scott v. S., 49 Ark. 156, 4 S. W. 750; contra, P. v. “py. Raher, 92 Mich.
165, 52 N. W. 625.

5 Rex v. Bailey, R. & R. 1, ante, § 33.

® Reg. v. Lynch, 1 Cox C. C. 361.

7 Reg. ». Smith, 7 Cox C. C. 51; Reg. v. Stopford, 11 Cox C. C. 643;
contra, Rex v. Holt, 7 C. & P. 518, "M. 169; Reg. v. Ryan, 2 Moo. & R.
218.

8 U. S. v. Moore, 2 Low. 282, Fed. Cas. No. 15,803. Compare U. S.
v. Thomson, 12 Fed. 245.
40 CRIMINAL LAW. [Srcts. 35, 36.

strong grounds for inferring the existence in fact of the specific
intent, a matter which will be discussed under the various
crimes where the question arises.

CRIMINAL CAPACITY.

§ 35. Who May Become Criminal.— No person can be guilty of
a crime unless he has both mental and physical capacity.

§ 36. Infants, therefore, are not amenable to the criminal law
until they have reached that degree of understanding which
enables them to appreciate the quality of the act. The law
fixes this limit arbitrarily, for the sake of convenience, at the
age of seven years, and will not listen to evidence that a per-
son below this age is capable of understanding the quality of
his act. Between the ages of seven and fourteen, with some
exceptions, the presumption is that the infant lacks discretion
or crimimal capacity, and the burden of proof that he has
such capacity is upon the prosecutor.! If there be no evidence
upon this point the prosecution fails. It would seem that the
prosecution would also fail unless, when all the evidence is in,
the jury is convinced beyond a reasonable doubt of the de-
fendant’s criminal responsibility.2. The burden of raising this
doubt, to begin with, would seem to be upon the defendant;
he must, either by his appearance or other evidence, raise a
reasonable doubt in the minds of the jury as to his being over
fourteen.2 There are two generally admitted exceptions to
this rule, —a female under the age of ten years being con-
clusively presumed to be incapable of consenting to sexual
intercourse, and a male under fourteen being conclusively.
presumed to be incapable of committing rape. In Ohio this

1 Harrison v. S. (Ark.), 78S. W. 763; Angelo v. P., 96 Il]. 209; C. ».
Mead, 10 Allen (Mass.), 898; S. v. Doherty, 2 Overt. (Tenn.) 80.

2 Godfrey v. S., 31 Ala. 323, M. 252; S. v. George, 4 Penne. (Del.) 57,
54 Atl. 745; Heilman v. C., 84 Ky. 457, 1S. W. 731; S. v. Tice, 90 Mo.
112, 2 S. W. 269; §. v. Goin, 9 Humph. (Tenn.) 175; Law v. C., 75 Va.
885.

8 Compare S. v. Arnold, 13 Ire. (N. C.) 184, M. 255.

4 Reg. v. Philips, 8 C. & P. 736; Reg. v. Jordan, 9 C. & P. 118; ex-
cept, indeed, by being present, aiding and abetting: Law v. C., 75 Va.
885.
Sxcr. 37.] GENERAL PRINCIPLES. 41

presumption is held to be disputable ;1 and in Massachusetts
it has been held by a divided court that a boy under the age of
fourteen may be guilty of an assault with intent to commit rape,
on the theory that penetration only is necessary to the consum-
mation of the crime.? In California, by statute, all infants
under fourteen are incapable.?

After the age of fourteen, the presumption is that the in-
fant has criminal capacity, and the presumption is sufficient,
if not met by counter proof, to warrant the jury in finding the
fact. But the defendant may prove his incapacity. An ex-
ception to this last rule, in the nature of physical incapacity,
is where an infant over fourteen fails in some public duty, as
to repair a highway. In this case he is held incapable, as he
has not command of his fortune till he arrives at his ma-
jority.5

§ 387. Coercion. Fraud.— Married women are presumed to
be so far under the control and coercion of their husbands,
that in many cases they are not held responsible for crimes
committed in their presence. The defence is a technical one,
and applies only when the parties are husband and wife and
the act is done in the husband’s presence. Where the husband
is not present there is no presumption of coercion ;7 but she
may be in his presence, although for the time out of his sight or

1 Williams ov. S., 14 O. 222. See also Heilman v. C., 84 Ky. 457, 1
S. W. 731; S. v. Jones, 39 La. Ann. 985, 3 So. 57; P. v. Bondolphy 2
Park. Cr: R. (N. Y.) 174.

2 C. v. Green, 2 Pick. (Mass.) 380. But see also, upon this fink,
Rex v. Eldershaw, 3 C. & P. 396; C. v. Lanigan, 2 Boston Law Reporter,
49, Thatcher, J.; P. v. Randolph, 2 Park. C. R. (N. Y.) 174; S. v. Sam,
Winston (N. C.), 300.

3 Rey. Stat. 1852, c. 99.

4 Rex v. Owen, 4 C. & P. 286; Marsh v. Loader, 14 C. B. Nn. 8. 585;
Rex v. York, and note, 1 Lead. Cr. Cas. 71; Reg. v. Smith, 1 Cox C. C.
260; C. ». Mead, 10 Allen (Mass.), 398; P. v. Davis, 1 Wheeler (N. Y.),
C. C. 230; S. v. Learnard, 41 Vt. 585.

5 1 Hale P. C. 20.

6 1 Hale P.C. 44; Reg. v. Smith, D. & B. 553, K. 65; C. v. Eagan, 103
Mass. 71.

7 C. v. Tryon, 99 Mass. 442. See Rex v. Hughes, 2 Lewin C. C. 229,
M. 110; Rex v. Morris, R. & R. 270.
42 CRIMINAL LAW. [Secr. 37.

not in immediate proximity to him.1_ The older rule seems to
have been that these facts being shown, the presumption
of coercion was conclusive? It is now well established
that this presumption is only prima facie, and may be rebutted
by evidence that the woman was not coerced, but acted volun-
tarily, according to her own pleasure. There are exceptions
to this incapacity of married women, upon which, however, the
authorities are not agreed. She seems to be responsible for
treason and: murder, by the general consent of the authorities,
and perhaps for robbery, perjury, and forcible and violent mis-
demeanors generally. It has been asserted, however, that
there are no actual decisions that the defence of coercion may
not be set up even for these crimes. In certain minor
offences relating to the management of the house, such as
keeping a disorderly house, the doctrine of coercion is not
recognized. ®

But there are cases of a non-consenting will, as where one is
compelled, by fear of being put to death, to join a party of
rebels, or is entrapped into becoming the innocent agent of -
another, whereby a person unwittingly or unwillingly, rather
than through incapacity, becomes the instrument of crime
wielded by the hand of another. The will is constrained by
fear or deceived by fraud into what is only an apparent consent.’
The fact that the defendant was acting as the mere agent or

1 Connolly’s Case, 2 Lewin C. C. 229, M. 110; C. v. Munsey, 112
Mass. 287,

2 Anon., Kel. 31, K. 66; Rex ». Knight, 1 C. & P. 116, and note.

3 Reg. v. Pollard, 8 C. & P. 553; Reg. v. Cruse, 8 C. & P. 511, K. 66;
Rex v. Stapleton, Jebb C. C. 93; S. v. Cleaves, 59 Me. 298; C. v. Butler,
1 Allen (Mass.), 4; Seilerv. P., 77 N. Y. 411, M. 112; Uhl». C., 6
Grat. (Va.) 706; Miller v. S., 25 Wis. 384, 2 Green’s Cr. Law Rep.
286, note; U. S. v. Terry, 42 Fed. 317.

4 See the authorities collected in note to C. v. Neal, 1 Lead. Cr. Cas.
81; 3 Greenl. Ev., 15th ed., § 7.

5 1 Bish. New Cr. L., § 858. See Reg. v. Dykes, 15 Cox C. C. 771; P.
v. Wright, 38 Mich. 744.

6 Reg. v. Williams, 10 Moo. 63; C. v. Cheyney, 114 Mass. 281; S. v.
Bentz, 11 Mo. 27.

7 Foster Cr. Law, 14; 1 Hale P. C. 50; Steph. Dig. Cr. Law, art. 31;
Rex v. Crutchley, 5 C. & P. 133. See post, § 68.
«

Sect. 38.] GENERAL PRINCIPLES. 43

servant of another in the commission of a crime will not ex-
cuse him!

§ 38. Corporations, being impersonal, and merely legal en-
tities, without souls, as it has been said, though incapable of
committing those crimes which can only proceed from a cor-
rupt mind, may nevertheless be guilty of a violation not only
of statutory but common law obligations both by omission,
and, by the greater weight of authority, by commission. They
cannot commit an assault, though they may be held civilly re-
sponsible for a tort committed by their agent.2 Nor can they
commit any crime involving a criminal intent. But they may
create a nuisance, through the acts of their agents, and by the
very mode of their operations. Thus corporations may be
indicted for nuisance in obstructing a highway,’ in which case
they are subject to indictment and punishment by fine, or even
the abrogation of their charter, — the only punishments ap-
plicable to a corporation; the latter a sort of capital punish-
ment, inflicted when the corporation has forfeited the right to
live.*

A corporation is also indictable for negligence in the non-
performance of the duties imposed upon it by its charter, or
otherwise by law.® It has been held in some cases that a cor-
poration is not indictable for a misfeasance,® — in opposition,
however, to the great weight of authority.’

While it is thus well established that corporations may be
indicted for nuisances both in the way of misfeasances and non-

1 C. v. Hadley, 11 Met. (Mass.) 66.

2 Angell & Ames on Corporations, §§ 311, 387.

3 R.R. Co.v. P., 44 Ill. App. 632; S. v. By. Co., 77 Ta. 442, 42 N. W.
365; S. v. R. R. Co., 88 Ja. 508, 55 N. W. 727; S. v. R. BR. Co., 23 N. J.
L. 360; Ry. Co. v. C., 90 Pa. 800; 8.2. R. R. Co., 91 Tenn. 445, 19 8. W.
229.

4 Reg. v. Railway Co.,9 Q. B. 315; Delaware Canal Co. v. C., 60 Pa.
367; 1 Bish. Cr. Law, §§ 420, 422.

5 Reg. v. Railway Co., 3 Q. B. 223; P.v. Albany, 11 Wend. (N. Y.)
539.

6 §. v. Great Works, &c., 20 Me. 41; C. v. Swift Run, &c., 2 Va. Cas.
362.
7 See C. ». Proprietors, &c., 2 Gray (Mass.), 339; 1 Bish. Cr. Law,
§§ 420, 422.
44 CRIMINAL LAW. rv [Sxcts. 39, 40.

feasances, these being liabilities that exist irrespective of
criminal intent, it seems by no means clear that the criminal
liability of corporations is to be thus limited. A corporation
must necessarily act by agents: if it can perform a physical
act by them so as to render itself punishable therefor, there
scems no reason in principle why it may not also by the same
means have a criminal intent attributable to itself as a distinct
entity. The civil responsibility of corporations in cases in-
volving intent, as for malicious libel and malicious prosecution,
seems to be well established ;1 and it is hard to see why the
criminal liability may not similarly be brought home. It has
' been held that a corporation is liable for intentionally working
men over eight hours per day,? so a corporation is punishable
for contempt,’ for libel,* and for taking salmon in violation of
fishery statutes.6

The criminal liability of the corporation, as such, in no wise
affects that of the individual members of the corporation who
may have connected themselves personally with the criminal
act, as by soliciting or abetting or participating in the commis-
sion thereof.®

§ 39. Insane Persons. — Insanity, under which the law in-
cludes all forms of mental disturbance, whether lunacy, idiocy,
dementia, monomania, or however otherwise its special phe-
nomena may be denominated, is another ground upon which
persons are held incapable of committing a crime. Insanity
is mental unsoundness, It exists in different forms and de-
grees. A higher degree of insanity is requisite to protect a
person from the consequences of a criminal violation of law,
than to relieve him from the obligation of a contract.

§ 40. Test of Insanity. Knowledge of Right and Wrong. —
Various tests have been proposed by the courts for determin-

15 Thompson Corp., §§ 6310 et seg.

2 U.S. v. Kelso Co., 86 Fed. 304, M. 328,

8 Telegram Co. v. C., 172 Mass. 294, 52 N. E. 445; P. v. R. R. Co., 12
Abb. P. R. (N. Y.) 171.

4 §. v. Atchison, 3 Lea (Tenn.), 729.

5 U.S. v. Packers’ Ass’n., 1 Alaska, 217.

5 Reg. v. Ry., 9 Q. B. 315; P. v. England, 27 Hun (N. Y.), 189.
Szcr. 41] GENERAL PRINCIPLES. 45

ing the fact of insanity. The one which most widely prevails
is that laid down by the judges of England in. M’Naghten’s
Case,! to wit: if the offender has sufficient mental capacity to
know that the act which he is about to commit is wrong
and deserves punishment, and to apply that knowledge at the
time when the act is committed, he is not in the eye of the
criminal law insane, but is responsible. All persons whose
minds are diseased or impaired to the extent named, and all
whose minds are so weak — idiots, lunatics, and the like? —
that they have not the sufficiency of understanding and capac-
ity before stated, come under the protection of irresponsibility
And in many jurisdictions this is the only test for insanity.

§ 41. Irresistible Impulse. — Insanity also sometimes appears
in the courts in the form of what is called an trresistible im-
pulse to commit crime. And though, as we have seen, many
jurisdictions do not recognize this as a form of insanity which
will excuse from crime, yet in other jurisdictions it is recog-
nized by the courts if it is the product of disease; since an

110 Cl. & F. 200, K. 43, M. 256.

2 §. v. Richards, 39 Conn. 591. \

3 Reg. v. Haynes, 1 F. & F. 666, C. 76, K. 52; S. v. Johnson, 40 Conn:
136; S. v. Kavanaugh, 4 Penne. (Del.) 131, 53 Atl. 335; Spann v. S., 47 Ga.
553; S.r. Shippey, 10 Minn. 223; S.v. Huting, 21 Mo. 464; S. v. Pike, 49
N. H. 399; Flanagan v. P., 52 N. Y. 467; S. v. Brandon, 8 Jones (N. C.),
463; Blackburn v. S., 23 O. St. 146; Brown v. C., 78 Pa. 122; C. v. Gear-
hardt, 205 Pa. 387, 54 Atl. 1029; Lowev. S., 44 Tex. Cr, R. 224, 70S.
W. 206; U. S. v. MeGlue, 1 Curtis (U. S. C. Ct.) -1, Fed. Cas. No.
15,679.

The following States have not only adopted the “right and wrong”
test, but have also definitely rejected ‘‘ irresistible impulse’ as affecting
the defendant’s sanity, holding that it constitutes no defence: P. v. Hoin,
62 Cal. 120; P. v. Owens, 123 Cal. 482, 56 P. 281; Davis v. S., 44 Fla. 32,
32 So. 822; S. v. Mowry, 87 Kan. 369, 15 P. 282; S. v. Knight, 95 Me.
467, 50 Atl. 276; Spencer v. S., 69 Md. 28, 18 Atl. 809; S. v. Scott, 41
Minn. 365, 43 N. W. 62; Cunningham ». S., 56 Miss. 269, M. 306; S. v.
Berry, 179 Mo. 377, 78 S. W.611; Flanagan v. P., supra; S. v. Brandon,
supra; Genz v. S., 59 N. J. L. 488, 87 Atl. 69; S. v. Murray, 11 Or. 418,
5 P. 55; S. v. Alexander, 30S. C. 74, 8S. E. 440; Wilcox v. S.,94 Tenn.
106, 28S. W. 312; Leache v. S., 22 Tex. App. 279,38 8S. W. 539; S. v.
Harrison, 36 W. Va. 729,15 S. E. 982, M. 263; U. S. v. Guiteau, 10
Fed. 161; U. S. v. Young, 25 Fed. 710.
46 CRIMINAL LAW. [Sucrs. 42, 43.

act produced by diseased mental action is not a crime.) But
an irresistible impulse is not a defence, unless it produced the
act of killing. Yielding to an insane impulse which could
have been successfully resisted is criminal? The man who
has a mania for committing rape, but will not do it under such
circumstances that there is obvious danger of detection,’ and
the man who has a mania for torturing and killing children,
but always under such circumstances as a sane man would be
likely to adopt,‘ in order to avoid detection, are not entitled to
its shelter. This plea is to be received only upon the most
careful scrutiny.®

§ 42. Emotional Insanity, which is a newly discovered, or
rather invented, phase of irresistible impulse, and is nothing
but the fury of sudden passion driving a person, otherwise
sane, into the commission of crime, is utterly repudiated by
the courts as a ground of irresponsibility.

§ 48, Moral Insanity,’ or that obliquity which leads men to
commit crime from distorted notions of what is right and
what is wrong, and impels them generally and habitually in a

1 Parsons v. §., 81 Ala. 577, 2 So, 854; S. v. Windsor, 5 Harr. (Del.)
512; S.v. Felter, 25 Ia. 67; Smith v. C., 1 Duv. (Ky.) 224; C. v. Rogers,
7 Met. (Mass.) 500 ; Dejarnette v. C., 75 Va. 867.

In addition to the above-mentioned jurisdictions the following seem
directly or indirectly to recognize irresistible impulse as a defence : Greene
v. &., 64 Ark. 523, 48 S. W. 973; S. v. Johnson, 40 Conn. 136; Quatte-
baum v. S., 119 Ga. 433, 46 8. E. 677; Dacey v. P., 116 Ill. 555, 6 N. E.
165; Goodwin »v, S., 96 Ind. 550 ; Plake v. S., 121 Ind. 433, 28 N. E. 273;
Burgo v. S., 26 Neb. 639, 42 N. W. 701; Blackburn v, S., 23 O. St. 146;
Brown v. C., 78 Pa. 122; Lowe v. S., 118 Wis. 641, 96 N. W. 417.

2S. v. Jones, 50 N. H. 369; S. v. Felter, 25 Ia. 67.

8 See testimony of Blackburn, J., before the Parliamentary Commit-

tdée on Homicide, cited in Wharton on Homicide, § 582, note.
4 C. v. Pomeroy, 117 Mass. 148.
5 Scott v. C.,4 Met. (Ky.) 227; Hopps v. P., 31 Ill.385; C. v. Mosler, 4

Barr (Pa.), 264, M. 260; U. S. v. Hewson, 7 Boston Law Reptr. 361 (U. S.
C. Ct.), Fed. Cas. No. 15,360, Story, J.

6 Parsons v. S., 81 Ala. 577, 2 So, 854; P. v. Bell, 49 Cal. 485; S. uv.
Johnson, 40 Conn. 136; Willis v. P., 5 Parker C. C. (N. Y.) 621; see
also a very vigorous article upon the subject, 7 Alb. Law Jour. 273.

Upon the general subject of insanity as a defence, see C. ». Rogers, 1 Lead.
Cr. Cas. 94, and note.

7 The French call it “ moral self-perversion.”’
Secr. 43.] GENERAL PRINCIPLES. 47

criminal direction, as distinguished from mental insanity,
though appearing to have the sanction of the medical faculty
as a doctrine founded in reason and the nature of things, is
scouted by many of the most respectable courts as unfounded
in law ;1 and although accepted to a limited extent by others,
it is treated even by them as a doctrine dangerous in all its
relations, and to be received only in the clearest cases.2 It
may also be observed, that moral insanity is sometimes con-
founded with, and sometimes distinguished from, irresistible
impulse. In Pennsylvania, for instance, very recently, the
existence of such a kind of insanity seems to have been recog-
nized ; but it was said to bear a striking resemblance to vice,
and ought never to be admitted as a defence without proof
that the inclination to kill is irresistible, and that it does not
proceed from anger or other evil passion.2 Hence many cases
appear to be in conflict which in fact are not irreconcilable.
The absence of clear definitions is a serious embarrassment in
the discussion of the subject.

The fundamental question with which the court is concerned
in these cases is not the sanity or insanity of the defendant,
per se. That is material only in so far as it bears on the only
point with which the court is concerned, viz., his punishability.
With this idea in mind, the courts of some States have given
up attempting to lay down any fixed rule as to sanity and
have instructed the jury that the question for their decision
is whether or not the defendant was in a criminally responsible
state of mind at the time he did the act complained of. This
practice, though apparently leaving greater scope to the jury,
seems correct on principle, and makes for simplification of the
doctrines on this subject.*

1 P. v. McDonell, 47 Cal. 1384; Anderson v. S., 43 Conn. 514; Choice
v. S., 81 Ga. 424; Humphreys v. 8., 45 Ga. 190; S. v. Lawrence, 57 Me.
574; S. v. Brandon, 8 Jones (N. C.), 463; Farrer v. S., 2 O. St. 54;
U. S. v. Holmes, 1 Cliff. (U.S. C. Ct.) 98, Fed. Cas. No. 15,382; and
cases before cited on the general topic, ante, § 39. See also Wharton on
Homicide, § 583.

2 See Wharton on Homicide, §§ 583 et seq.

8 C. v. Sayre (Pa.), 5 Weekly Notes of Cas. 424. :

4 Parsons v. S., 81 Ala. 577, 2 So. 854; S. v. Pike, 49 N. H. 399; S. v.
48 CRIMINAL LAW. [Srcts. 44, 45.

§ 44. Insanity at Time of Trial. —An offender cannot be
tried, sentenced, or punished for crime while insane. The
test of insanity is, however, different in this case from the
test in the ordinary case. Insanity which prevents a trial is
not inability to distinguish right from wrong, but mental
incapacity to make a rational defence, or to understand the
meaning of punishment.

§ 45. Proof of Insanity.— As a question of evidence, the
burden of proof of sanity is upon the government in all cases.
The act must not only be proved, but it must also be proved
that it is the voluntary act of an intelligent person. Where
the will does not co-operate, there is no intent. But as sanity
is the normal state of the human mind, the law presumes
every one sane till the contrary is shown; and this presump-
tion, in the absence of evidence to the contrary, is sufficient
to sustain this burden of proof. If, however, the defendant
can, by the introduction of evidence, raise a reasonable doubt
upon the question of sanity, he is to be acquitted. This is
the better rule, supported by many authorities?

In other of the States, however, it is held that, if the prisoner
sets up insanity in defence, he must prove it by a preponder-
ance of evidence, or it is of no avail. It is not enough for
him to raise a reasonable doubt on the point. In New York,
the authorities seem to be conflicting.4
Jones, 50 N. H. 369, M. 275, See also P. v. Finley, 38 Mich. 482; S.v.
Keerl (Mont.), 75 P. 362.

1 Freeman v. P., 4 Denio (N. Y.), 9

2 §. v. Johnson, 40 Conn. 186; Davis v. S., 44 Fla. 32, 82 So. 822; Chase
v. P., 40 Ill. 852; Dacey v. P., 116 Ml. 555, 6 N. E. 165; Polk v. S., 19 Ind.
170; Plake v. S., 121 Ind. 433, 23 N. E. 273; S. v. Crawford, 11 Kan. 32,
32 Am. Law Reg. n. s. 21, and note; C. v. Pomeroy, 117 Mass. 143; P. v.
Garbutt, 17 Mich. 9; Cunningham ». S., 56 Miss. 269, M. 306; Wright
v. P., 4 Neb. 407; Burgo v.S., 26 Neb. 639, 42 N. W. 701; S. v. Jones,
50 N. H. 869; Faulkner v. Terr., 6 N. Mex. 464, 30 P. 905; P. ». Tobin,
176 N. Y. 978, 68 N. E. 359; Mans ». Terr , 10 Okl. 714, 63 P. 960; Dove
v. §., 3 Heisk. (Tenn.) 348; Revoirv. S., 82 Wis. 295, 52 N. W. 84; Davis
v. U. S., 160 U. S. 469, ith large sollsation of cases.

3 Gunvar v. 8., 83 Als. 96, 8 So. 600; Casat v.S., 40 Ark. 511; P. »v.

4 Wagner v. P.,4 Abb. App. (N. Y.) 509; P. v. McCann, 16 N. Y.
58 (semble) ; Flannagan v. P., 52 N. Y. 467; P. v. Tobin, 176 N. Y. 278,
68 N. E. 339.
Szcr. 46.] GENERAL PRINCIPLES. 49

In New Jersey, it seems to be the law that the prisoner
must prove the defence of insanity beyond a reasonable doubt.t
So also in Louisiana? and, by statute, in Oregon.

§ 46. Voluntary Drunkenness, as a rule, is not regarded by
the law as an excuse for the commission of a crime while
under its influence, since one who under such circumstances
perpetrates a crime is deemed to have procured, or at least
consented to, that condition of things by which the com-
mission of the crime became more probable. Although
intoxication, according to its degree, may cloud or eventually
obscure the reason for the time being, and excite the passions of
man, if it be the result of voluntary and temporary indulgence,
it cannot be regarded either in excuse, justification, or ex-
tenuation of a criminal act. If privately indulged in, it may
not be acrime in itself. It is nevertheless so‘far wrongful as to
impart its tortious character to the act which grows out of it.*
It was said by Coke,® and has been sometimes repeated by
text-writers since, that the fact of intoxication adds aggrava-
tion to the crime committed under its influence; but this
seems not to have the authority of any well-adjudged case,
nor to be well founded in reason. It cannot, for instance,
aggravate an offence, which in law is only manslaughter if

Best, 39 Cal. 690; P. v. Bemmerly, 98 Cal. 299, 33 P. 268; Lee v.S.,
116 Ga. 563, 42 S. E. 759; P. v. Walter, 1 Ida. 386; S. v. Felter, 32 Ia.
49; S. v. Thiele, 119 Ia. 659, 94 N. W. 256; S. v. Coleman, 27 La. Ann.
691; S. v. Lawrence, 57 Me. 574; Bonfanti v. S., 2 Minn. 123; S. v,
Hanley, 34 Minn. 430, 26 N. W. 397; S. v. Huting, 21 Mo. 464; S.v.
Palmer, 161 Mo. 152, 61 S. W. 651; S. v. Lewis, 20 Nev. 833, 22 P.
241; S. v. Potts, 100 N. C. 457, 6 S. E. 657; Loeffner v. S., 10 O. St.
598; Lynch v. C4 77 Pa. 205; S. v. Bundy, 24 S. C. 439; Burt v.S ,
38 Tex. Cr. R. 397, 40 S. W. 1000; P. v. Dillon, 8 Utah 92, 80 P.
150; Boswell v. C., 20 Grat. (Va.) 860; S. v. Strauder, 11 W. Va. 745,
823. :

1 §. v. Spenser, 1 Zab. (21 N. J. L.) 202.

2S. v. De Rancé, 34 La. Ann. 186, M. 302.

8 §. v. Murray, 11 Or. 413, 5 P. 55.

4 Beverley’s Case, 4 Co. 123 b, 1254; P. v. Lewis, 36 Cal. 531; Raf-
ferty v. P., 66 Ill. 118; C.v. Hawkins, 3 Gray (Mass.), 463; P. v, Garbutt,
17 Mich. 9; Flanigan v. P., 86 N. Y. 554.

5 Coke Litt. 247.

4
50 CRIMINAL LAW. [Secr. 47,

committed by a sober man, into murder if done by a drunken
one; nor generally lift a minor offence into the category of a
higher grade. If intoxication be a crime, it may be punished
distinctively ; but the punishment of intoxication should not
be added to that of the crime committed under its influence.
If this were permissible, greater responsibility would attach
to the intoxicated than to the sober man, in respect of the
particular offence.!

§ 47. Intoxication. Specifie Intent. — When, however, in
the course of a trial, a question arises as to the particular
state of mind of the accused at the time when he committed
a crime, —as, for instance, whether he entertained a specific
intent, or had express malice, or was acting with deliberation,
—the fact of intoxication becomes an admissible element to
aid in its determination ; not as an excuse for the crime, but
as a means of determining its degree. If a man be so drunk
as not to know what he is doing, he is incapable of forming
any specific intent.2, Thus where the common law crime of
murder, i.c., killing with malice aforethought, has been divided
by statute into murder in the first degree, i.e., killing with
deliberate, premeditated malice aforethought, and other mur-
der, proof of drunkenness, by showing that the defendant was
too intoxicated to form the intent to kill,® or that he acted on
sudden, though unreasonable, passion,’ may reduce murder
from the first to the second degree;® or may show such ab-
sence of intent as to justify acquittal on a charge of attempt

1 McIntyre v. P., 38 Ill. 514.

2 Whitten v. S., 115 Ala. 72, 22 So. 483, M. 826; S. v. Johnson, 40
Conn. 136; Malone v. S., 49 Ga. 210; McIntyre v. P., 38 Il. 514; S. v.
Bell, 29 Ia. 316, K. 55; 8. v. Roan, 122 Ia. 136, 97 N. W. 997; Roberts
v. P., 19 Mich. 401; S. v. Garvey, 11 Minn. 154; Schlencher v. 8. (Neb.),
8 Reptr. 207; P. «. Robinson, 2 Park. C. C. (N. Y.) 235; Jones v. C., 75
Pa. 403.

8 Reg. v. Doherty, 16 Cox C. C. 306, C. 187; P. v. Williams, 43 Cal.
314; S. v. Johnson, 40 Conn. 136; Jones v. C., 75 Pa. 403.

4 Rex v. Thomas, 7 C. & P. 817, M. 311; Cartwright v. SS Lea
(Tenn.), 376.

5 Longley v. C., 99 Va. 807, 87 S. E. 839; Hopt v. P., 104 U. S. 631,
C. 78.
Secr. 47a.] GENERAL PRINCIPLES. 51

to kill, burglary, forgery,? larceny,’ assault with intent to
kill? or other crime involving a specific intent.

But it must be remembered that to show intoxication in
this connection is merely to introduce evidence as to the de-
fendant’s frame of mind. If, in spite of his intoxication, he
was actuated by malice, he will be held for murder.* So, if in
spite of his intoxication, he consciously made use of a weapon
dangerous to life, the presumption that a man intends the
natural and probable consequences of his act is as applicable
to the drunken as to the sober man; and the capacity to form
the intent to shoot with a deadly Weapon implies the capacity
to form the intent to kill.”

If a person, having formed the intention to kill another,
drink in order to nerve himself for the deed, the fact of his
intoxication will not reduce the crime, the original malice
being taken to continue.®

§ 47a. An analogous question arises when the plea of self-de-
fence is set up. Here, too, the defendant may show he was intox-
icated, not to excuse his crime, but to show the good faith of his
action.® But where the exercise of self-defence leads toa homi-
cide, as distinguished from battery, since the rule is that the de-
fendant must justify his conduct by showing that he acted not
only in good faith but reasonably, his intoxication cannot be
taken into account. So where the killing was in hot blood.”

1 Reg. v. Doody, 6 Cox C. C. 463, C. 79.

2 §. v. Snow, 3 Penne. (Del.) 259, 51 Atl. 607; S. v. Bell, 29 Ia. 316.

8 P. v, Blake, 65 Cal. 275, 4 P. 1. 4 P. v. Walker, 38 Mich. 156.

5 S. v. Di Guglielmo, 4 Penne. (Del.) 336, 55 Atl. 850; 5. v. Pasnau,
118 Ia. 501, 92 N. W. 682; Roberts ». P., 19 Mich. 401. See Booher v.
S., 156 Ind. 435, 60 N. E. 156.

® C. v. Dudash, 204 Pa. 124, 53 Atl. 756.

In Wilson v. S.,60 N. J. 1.171, 37 Atl. 954, it was said that to excuse
the defendant it must appear not only that he did not, but could not, be-
cause of intoxication, have any intent. But see s. c. 38 Atl. 428.

7 Marshall v. 8., 59 Ga, 154. 8 §. v. Robinson, 20 W. Va. 718.

9 Reg. v. Gamlen, 1 F. & F. 90, C. 79, K. 54; Marshall’s Case, 1 Lewin
C. C. 76, M. 811.

10 Springfield v, S.,96 Ala. 81, 11 So, 250; S. v. Mullen, 14 La. Ann.
570; S. v. Davis, 52 W. Va. 224, 43 S. E. 99.

Rex v. Carroll, 7 C. & P. 145; C. v, Hawkins, 3 Gray (Mass.), 463,
52 CRIMINAL LAW. [Sxcrs. 478, 48.

§ 47). The Burden of Proof, where it is urged that drunk-
enness changes the nature of the crime, by showing the
lack of a specific intent, would seem to be the same as with
insanity, i.e., the prosecution having | made out a -primre-facie
case, the dolendaut need introduce only enough evidence to
raise a reasonable doubt as to the existence of ‘the specific
intent; and the prosecution must, when all the evidence is in,
convince the jury beyond a reasonable doubt, of the exist-
ence of all the elements of the crime, including the specific
intent.1

§ 48. Delirium Tremens. Mental Disease. — Delirium tre-
mens is rather a result of intoxication than intoxication itself,
and is regarded by the law as a disease of the mind, — a tem-
porary insanity. This, like any other mental disease induced
by long and excessive indulgence, which impairs the mind or
controls its operations to such an extent that the person
afflicted cannot distinguish right from wrong, and has not the
capacity to know what he does, may relieve from responsi-
bility. Though one may voluntarily and of purpose become
intoxicated, and so be held responsible for the natural conse-
quences of the condition which he has sought, he does not
intend to become delirious or demented.?

If the defendant, by long indulgence, or for other reasons,
has reached such a condition that he is irresistibly driven to
drink, or is, as it is sometimes called, a subject of dipsomania
or oinomania, it would seem that he should be no more respon-
sible for a crime induced by the intoxication to which he is
thus irresistibly driven than should an insane person subject

C. 79; Keenan v. C., 44 Pa, 55, M. 312; Haile v. S., 11 Humph. (Tenn.)
154.

1 Whitten v. S., 115 Ala. 72, 22 So. 483, M. 826; Davis v. S., 54 Neb.
177, 74 N. W. 599 (semble) ; contra, S. v. Kavanaugh, 4 Penne. (Del.) 131,
53 Atl 335; S v. Hill, 46 La. Ann., 27, 14 So. 294; S. v. Grear, 29 Minn.
221,13 N. W. 140.

2 Reg. v. Davis, 14 Cox C. C. 563, C. 81; Beasley v. S., 50 Ala. 149; P.
v. Williams, 43 Cal. 344; S. v. McGonigal, 5 Harr. (Del.) 510; Macon-
nehey v. 8,50. St. 77; Cornwell v. S., 1M. & Y. (Tenn.) 147; U.S.
v. Drew, 5 Mason (U.S. C. Ct.), 23, Fed. Cas. No. 14,9938. Compare
8. v. Haab, 105 La. 230, 29 So. 725, M. 320.
Sects. 49, 50.] ' GENERAL PRINCIPLES. 53

to an irresistible impulse! In some cases, however, the
courts have refused to recognize this as a defence.?

§ 49. Involuntary Intoxication, or that which is induced by
the fraud or mistake of another,— as when one is deceived
into drinking an intoxicating beverage against his will, or by
the advice of his physician drinks for another purpose, —
constitutes a valid excuse for crime committed while under
its influence. So, doubtless, would one be held excusable
who, without negligence, and with the intent to benefit his
health or alleviate pain,and not merely to gratify his appetite,
had, through his misjudgment or mistake, drunk more than
he intended, or than was necessary, to the extent of intoxica-
tion. In the absence of intent either to commit crime or
to become intoxicated, the essential criterion of crime is
wanting

But one cannot plead over-susceptibility as an excuse for
the excessive-indulgence of his appetite. And that degree
of indulgence is in him excessive which produces intoxication,
though the safe amount of indulgence would not ordinarily
produce intoxication in others. Voluntar y indulgence carries
with it responsibility for the consequences.

§ 50. Ignorance or Mistake of Fact.—Ignorance or mistake
of fact may prevent responsibility for a common law crime.
If the offender acted under a bona fide belief in a state of facts
different from what actually existed, he is to be held respon-
sible only for the act he supposed he was doing; unless that
would have been criminal, he is not guilty of acrime. Thus
where one was@@@t@@#eg at night by a cry of “Thieves!” and
killed a servant, honestly and reasonably believing him to be
a burglar, he was held not guilty of homicide.® So where a

’ police otticpn, charged “y the duty of arresting intoxicated

1 Ante, $41.

2 Choice v. S., 31 Ga. 424; Flanigan v. P., 86 N. Y. 554, M. 316.

3 1 Hale P. C. 32; Pearson’s Case, 2 Lew. C. C. 144, C. 77.

4 Humphreys v. S., 45 Ga. 190.

5 Levet’s Case, 1 Hale P. C. 42, C. 85, K. 26; Sherras ». De Rutzen,
L. BR. 1Q. B. D. 918, K. 82; S. v. Nash, 88 N. C. 618, M. 248. Compare
S. v. Downs, 91 Mo. 19, 3S. W. 219; and see, post, §§ 214, 235.
54 CRIMINAL LAW. [Sects. 51, 52.

persons, arrests a sober person, he is not criminally liable if
he acted in good faith and reasonably.}

§ 51. Ignorance of Law. — Knowledge of the criminal law
on the part of every person capax doli within its jurisdiction
is conclusively presumed, upon grounds essential to the main-
tenance of public order. This fact, therefore, is always taken
for granted. Ignorance of the law excuses no one. And this
principle is so absolute and universal, that a foreigner recently
arrived, and in point of fact not cognizant of the law, is
affected by it.2 So where an embargo act was passed, at once
becoming operative, a vessel leaving a port in a remote part
of the country so soon after the passage of the act that it was
physically impossible to have learned thereof, was held never-
theless liable.2 To avoid such unjust results it is generally
provided in statutes that they shall become operative at some
future.date. In the lack of such provision, however, the
general principle is clear. It rests upon considerations of
public policy, the chief of which is that the efficient adminis-
_tration of justice would become impracticable, were the gov-
ernment obliged to prove in every case that the defendant
oo had knowledge of the law.

rg 52. Same Subject. Specific Intent.— There arc cases,
eek, when there is doubt as to the interpretation of the
law, in walitelh it has been held that acting under a mistaken
opinion as to its purport may be an excuse.. Thus, it is said
that when the act done is malum in se, or when the law whieh
has been infringed is settled and plain, the maxim, Ignorantia
legis neminem excusat, will be applied in its rigor; but when
the law is not settled, or is obscure, and wien the guilty
intention, being a necessary constituent of the particular
offence, is dependent on a knowledge of the law, or of its
existence,— as where one takes property believed, to be his
own under a claim of right, in ignorance of the existence of

1. v. Presby, 14 Gray (Mass.), 65, K. 18, M. 244; C. v. Cheney, 141
Mass. 102,6 N. E 724. See also S. v. McDonald, 7 Mo. App. 510.

2 Ex parte Barronet, 1 E. & B. 1; Rex v. Esop, 7 C. & P. 456.

8 Brig. Ann, 1 Gall. 62, Fed. Cas. No. 397.

4 See S. v. Butts, 3S. D. 577, 54 N. W. 608.
Sxcr. 52.] GENERAL PRINCIPLES. 55

a law which vests the property in another,! or takes illegal
fees,? or illegally votes,? under a mistake as to the meaning
of the law, — this rule, if enforced, would be misapplied.

The doctrine as thus stated by the courts seems to involve
two distinct questions: first, the relation between specific
intent and ignorance of law; and, second, the construction
to be put on any given law, as to whether specific intent is
meant to be made an element of the act thereby forbidden.
As to the first question, as has already been pointed out,‘ if
the purpose of the law, whether common law or statute, is to
punish the intentional doing of the forbidden act without
the further element that we call specific intent, then ignorance
of the law is no excuse. With the common law offences there
can be little doubt on the question whether or not, in any
case, a specific intent is an essential element in the crime.
The same principle, of course, applies to statutory crimes.
If the purpose of the statute is to punish simply the inten-
tional doing of the act,> it is immaterial that the defendant
acted through ignorance of the law, as in cases where the
statute, irrespective of any specific intent, forbids voting in
more than one town for the same officer,6 or removing a dead
body,’ or miscegenation.? It being settled that such is the
law, it would seem clear as a matter of principle that the fact
that the law was obscure,’ or that the defendant acted on legal

1 Rex v. Hall, 3 C. & P. 409, C. 84; Reg. v. Reed, C. & M. 306; C.
v. Stebbins, 8 Gray (Mass.), 492, C. 83.

2 Cutler v. S., 36 N. J. L. 125, M. 241; Halstead v. S., 41 N. J. L.
552; P. v. Whalley, 6 Cow. (N. Y.) 661.

3 C. v. Bradford, 9 Met. (Mass.) 268; S. v. Macomber, 7 R. I. 349.

* Ante, § 51.

5 On the question of what statutes are interpreted as punishing the
act regardless of any intent, see post, §§ 53-58.

6 §. v. Perkins, 42 Vt. 399.

7 S. v. McLean, 121 N. C. 589, 288. E. 140.

8 Hoover v. §., 59 Ala, 57. See also Fraser v. S., 112 Ga. 13, 37 S. E.
114; S. v. Keller (Ida.), 70 P. 1051; Jellico Coal Co. v. C., 96 Ky. 878,
29S. W. 26; Begley v. C., 22 Ky. L. R. 1546, 60 S. W. 847; C. v. Ever-
son, 140 Mass, 292, 2 N. E. 839; Debardeleben v. 8., 99 Tenn. 649, 42
S. W. 684.

9 Levar v. S., 103 Ga. 42, 29 S. E. 467.
56 CRIMINAL LAW. [Secr. 52.

advice, while it might be a ground for mitigating the sen-
tence, could not affect his criminal responsibility.

If, on the other hand, the statute expressly requires, in
order to render an act punishable, that it should be done “ mali-
ciously,” or “corruptly,” or with any other specific intent, it
is equally clear that if, from ignorance of law, or any other
reason, that specific intent does not exist, there is lacking one
of the elements of the crime. Whenever, therefore, a special:
mental condition constitutes a part of the offence charged, and
such condition depends on the fact whether the party charged
had certain knowledge with respect to matters of law, the fact
of the existence of such knowledge is open to inquiry. Thus,
in a prosecution for maliciously setting fire to furze, proof of
a mistaken belief in the offender’s right to burn the furze is
admissible, since it disproves malice.”

The second question, viz., whether in fact specific intent is,
in any given case, made a part of the crime is not always thus
specifically answered by the statute. While there is some
conflict of authority, it would seem that as a matter of prin-
ciple the court may conclude from the nature of the evil sought
to be remedied, and other reasons, that it was the intent of the
legislature to make the act punishable only if done from cor- )
rupt motives. Thus, where the mere words of the statute for-
bade the taking of fees not allowed by law, or voting, when not
legally entitled to do so, the court held that the intent was to
punish these acts only when done with a corrupt motive and
that the defendant’s ignorance of the law might be shown in
explanation of his conduct.? Some courts, however, have said
that where the statute forbids “fraudulent and wilful” acts,
the mere fact that they are done intentionally and with (con-

1S. v. Marsh, 36 N. H. 196; S. v. Foster, 22 R. I. 163, 46 Atl. 833.

2 Reg. v. Towse, 14 Cox C. C. 827, C. 84; Goforth v. S., 8 Humph.
(Tenn.) 37; Dye v. C., 7 Grat. (Va.) 662; U.S. v. Conner, 3 McLean
5738, Fed. Cas. No. 14,847.

8 Leeman v. S., 85 Ark. 438; C. 2. Shed, 1 Mass. 227; C. v. Bradford,
9 Met. (Mass.) 268; S. v. Gardner, 5 Nev. 377; Cutter v. S., 36 N. J. L.
125, M. 241; P. v. Whaley, 6 Cow. (N. Y.) 661; contra, S. v. Welch,
73 Mo. 284. As to acts done under an unconstitutional statute, see S. wv.
Godwin, 123 N. C. 697, 31S. E, 221.
Secr. 53.] GENERAL PRINCIPLES, 57

structive) knowledge that the law forbids it, is in itself suffi-
cient to make it wilful, and hence fraudulent. This reason-
ing would seem inconsistent with the principles and cases
discussed above. ge

INTENT IN STATUTORY CRIMES.

§ 53. Statute May Ignore Intent. — Doubtless, in the earlier
history of the common law, only such acts were deemed crim-
inal as had in them the vicious element of an unlawful intent,
—acts which were mala in se, and indicated some degree of
moral obliquity. But this quality has long since ceased to be
essential, and at the present day mala prohibita — acts made
criminal by statute, many of them unobjectionable in a moral
aspect, except so far as doing an act prohibited by law may
be deemed immoral — constitute no inconsiderable portion of
the category of crimes.

To illustrate. The statute prohibits the sale of adulterated
milk. A person who sells adulterated milk without knowing
it to be adulterated, or even honestly believing it to be pure,

is nevertheless guilty of a crime, There are many acts which
the law, looking to the protection of the community, seeks
o prevent; making it perilous, by making it criminally
punishable, to do them. As every. one is presumed to

now the law, every one knows that the sale of adulterated
milk is prohibited. No one is bound to sell milk; but if he
do, he is bound to know whether it is adulterated or not; and
if he intentionally sell milk without having correctly deter-
mined beforehand, as it is in his power to do, whether it is or
is not of the character prohibited, he is so far at fault, and to
that extent guilty of a neglect of legal duty.2 For the
same reason, the sale of a single glass of intoxicating liquor,
even for a praiseworthy purpose, may or may not be criminal
in different jurisdictions, and at different times in the same
jurisdiction, according as the legislature, in the interest of the

1 §. v. Dickens, 1 Hay. (N. C.) 406; S. v. Boyett, 32 N.C. 336, M.
238; S. v. Hart, 51 N.C. 389. Compare McGuire v. 8.,7 Humph. (Tenn.)

54, and see post, §§ 58 to 58.
2 ©. v. Waite, 11 All. (Mass.) 264.
58 CRIMINAL LAW. [Secr. 54.

public good, may provide. The hardship of requiring that a
person shall know a fact is no greater than to require that he
shall know the law. In other words, where the statute clearly
so intends, ignorance of a fact is no more an excuse than igno-
rance of law. The necessity of a criminal intent may be done
away by the legislature, and the criminal act be made the sole
element of a crime.?

§ 54. Necessity of Intent a Question of Interpretation. — The
question becomes therefore one of interpretation of the crimi-
nal statute ; and to aid us in this work we have the principle
that a statute, other things being equal, is to be interpreted as
a modification, not as a repeal, of the common law. On the
other hand, however, the legislature has an undoubted right
to make the commission of any act, even without criminal
intent, a crime. Several theories have been put forward as
‘ to the proper interpretation of criminal statutes. According

to one theory, the commission of any act forbidden by statute

- would be a crime, though it was done without criminal intent,
unless the statute required such intent.2. This theory is, how-
ever, usually regarded as too harsh. Another theory, put for-
ward by Brett, J.,in Regina v. Prince,® is that the guilty
intent must always be shown, even in statutory offences, unless
the necessity is expressly done away in the statute. This
theory is usually regarded as too narrow.

1 Ex parte Barronet, 1 E. & B. 1; Rex v. Bailey, R. & R. C. C.1, K.
29; C. v. Boynton, 2 All. (Mass.) 160. Upon the general subject, see,
in addition to the cases already cited, Judge Bennett’s note to Rex v.
Wheatly, 1 Lead. Cr. Cas. 1; Queen v. Mayor, &c., L. R. 3 Q. B. 629;
Reg. v. Prince, L. R. 2 C. C. R. 154, 1 Am. Cr. Rep. 1, K. 21, M. 173;
Steph. Dig. Cr. L., art. 34; Barnes v. S., 19 Conn. 898; McCutcheon »v.
P., 69 Ill. 601; Ulrich v. C., 6 Bush (Ky.), 400; 8. v. Goodenow, 65 Me. 30;
S. v. Smith, 10 R. I. 258; Lawrence v. C., 30 Grat. (Va.) 845; U.S. o.
Anthony, and Mr. Green’s note, 2 Cr. L. R. 215. There are cases to the
contrary (Marshall v. 8., 40 Ala. 21; Stern v. 8. 53 Ga. 229; Williams »v.
8., 48 Ind. 306; Birney v. S., 8 O. 230), which Mr. Bishop approves. But
by the settled law of England, and the great weight of authority in this
country, the doctrine of the text is the better law. See 12 Am. Law Rev.
469.

2 C. v. Mash, 7 Met. (Mass.) 472, C. 88.

8 13 Cox C. C, 188, L. R. 2 C. C. 154.
Sects. 55, 56] GENERAL PRINCIPLES. 59

The true theory seems to lie between these two. The facts
of each case should be looked at, and the intention of the leg-
islature, as applied to those particular facts, should be deter-
mined by the court. This can be done by a consideration of
the general scope of the act, and of the nature of the evils to
be avoided.!

§ 55. By-Laws and Police Regulations. —In accordance with
this theory, the courts almost universally hold that such minor
provisions of the criminal statutes as are adopted for the reg-
ulation of the conduct of men in the ordinary affairs of life,
such as city by-laws or ordinances and police regulations, are
to be interpreted strictly, and infractions of them punished,
even if committed without guilty intent. For instance, it has
been held not necessary to provea guilty intent in prosecutions
for wrongfully selling liquor,? or oleomargarine,’ for selling
adulterated or diseased articles of food or drink,‘ or for per-
mitting a minor to remain in a billiard saloon. Soan infrac-
tion of the building laws would be held punishable, though
the owner of the building was ignorant of it.6 Upon the same
principle, one may be convicted on an indictment for receiving
lunatics into his house without a license, though he did not
know them to be lunatics.’

§ 56. Immoral Acts. — When the offender was engaged in

1 2 Steph. Hist. Cr. Law, 117; Wills, J., in Reg. v. Tolson, 23 Q. B.D.
168, K.15, M. 178; C. v. Weiss, 139 Pa. 247, 21 Atl. 10, M. 205.

2 Barnes v. S., 19 Conn. 398; McCutcheon v. P., 69 Til. 601; C. »v.
Boynton, 2 All. (Mass.) 160; C. v. Finnegan, 124 Mass. 824; S.v. Cain,
9 W. Va. 559; U.S. »v. Leathers, 6 Sawy. (U. S. Circ. Ct.) 17, Fed. Cas.
No. 15,581. See, contra, Williams v. S., 48 Ind. 306; P. v. W elch, 71
Mich. 548, 39 N. W. 747.

3 C. v. Weiss, 139 Pa. 247, 21 Atl. 10, M. 205; S. v. Newton, 50 N. J.
L. 534, 14 Atl. 604.

48, v. Stanton, 87 Conn. 421, M. 161; C »v. Farren, 9 All. (Mass.)
489; S. v. Smith, 10 R. I. 258. See, contra, Teague v. 8., 25 Tex. App.
577, 8S. W. 667.

5 §. v. Kinkead, 57 Conn. 173, 17 Atl. 855; S. v. Probasco, 62 Ia.
400, 17 N. W. 607. See, contra, Marshall v. §., 49 Ala. 21; Stern v. S.,
53 Ga. 229, M. 202. ? :

6 Wills, J., in Reg. v. Tolson, 23 Q. B. D. 168, K. 15, M. 178.

7 Reg. v. Bishop, 14 Cox C. C. 404, 5 Q. B. D. 259, C. 86.
60 CRIMINAL LAW. [Sects. 57, 58,

an act which is in itself immoral, but is made criminal by
statute only under certain circumstances, he is guilty if the
circumstances exist, though he believed they did not. .Thus,
upon an indictment for unlawfully taking an unmarried girl
under the age of sixteen from her father’s possession, a bona
fide belief that the girl was over sixteen will not protect the
defendant, the act itself being an immoral one.?

§ 57. Intent in Other Cases generally Required. — Where the
act forbidden by statute is not in its nature immoral, and
the statute is more than a mere regulation of the every-day
business of life, the tendency of the authorities is to require a
criminal intent, unless the statute expressly does away with
such requirement2 The burden of producing evidence of lack
of intent is of course on the accused, since intent is ordinarily
inferred from the act itself; but if evidence of lack of intent
is introduced, the burden of proving it is on the government.
Thus, upon an indictment. for bigamy, a bona fide belief upon
reasonable grounds that the defendant’s wife was dead at the
time of the second marriage is by the better view regarded as
entitling the defendant to acquittal.?

-y JUSTIFICATION FOR CRIME.

§ 58. Matters of Justification. — Up to this point we have
been considering what elements were sufficient to make a
complete crime: thus, as to the physical act, whether it was
of a kind to.injure the public; whether it. was more than
preparation ; the effect of contributing acts by other persons,
ete. ;* and as to the criminal state of mind, under what cir-

* Reg. v. Prince, 13 Cox C. C. 188, L. R. 2 C. C. 154, K. 21, M.
173; S. v. Ruhl, 8 Ia. 447. See § 28, ante.

2 Reg. v. Tinkler, 1 F. & F. 513; Anon., Foster Cr. L. (8d ed.) 489;
Birney v. S., 8 O. 230; U. S. ». Beaty, Hempst. (U. S. Circ, Ct.) 487,
Fed. Cas. No. 14,555; Lee v. Lacey, 1 Cr. C. C. (D. C.) 263, Fed. Cas.
No. 8,193.

5 Reg. v. Tolson, 23 Q. B. D. 168, K. 15, M. 178; Squire v. S., 46 Ind.

459, C. 90. See, contra, C. v. Mash, 7 Met. (Mass.) 472, C. 88;
gg 195,196. , (Mass.) 472, 5 post,

4 See §§ 6 to 25 inclusive.
Sect. 59.] GENERAL PRINCIPLES. 61

cumstances it existed ; the effect thereon of insanity ; what
amounts to criminal negligence, etc! But though an act
has been intentionally committed, which is in its nature
punishable, by one who is answerable for his acts, it may
nevertheless not be punishable as a crime. The soldier who
intentionally shoots an enemy, the sheriff who hangs a con-
demned murderer or seizes property on execution, are com-
mitting acts which are in their nature criminal; yet the act,
so far from being punishable, is done in execution of a public
duty. It becomes therefore necessary to consider under what
circumstances a man may be excused for the commission of
what would otherwise be acrime. It will be found that these
circumstances are comprehended in the following classes:
public authority, defence, and necessity.

§ 59. Execution or Enforcement of Law. — Any act done by
an officer of the law in execution of a writ or warrant issued
by a court of competent jurisdiction is justifiable, whether it
be to hang or imprison a man, or to seize his property. And
even a private person is justified in preventing by force, even
if necessary by taking life, the commission of treason, or of
a felony by the use or the threat of violence ;? or in arresting
and keeping in custody such a traitor or felon, or even in
killing him if necessary to prevent his escape.2 Where a
person, whether a private citizen or an officer, is rightfully
engaged in making an arrest, he is justified in using whatever
force is necessary to carry out the law; and if death ensues
it is justifiable homicide:* this is true even where the person
resisting arrest is a misdemeanant;°* the death is inflicted, not
as a punishment for the crime, but in the course of enforcing

1 See §§ 26 to 57 inclusive.

2 Foster C. L. 273; 1 East P. C. 271.

3 1 East P. C. 298.

4 Rex v. Daunt, 1 Crawf. & D. 166; S..v. Anderson, 1 Hill (S. C.),
327; U.S »v. Rice, 1 Hughes, 560, Fed. Cas. No. 16,153, M. 894; U. S.

''y. Jailer, 2 Abb. 265, Fed. Cas. No. 15,463; S. v. Gosnell, 74 Fed. 734.

5 Clements v. S., 50 Ala. 117; Lynn wz. P., 170 Ill. 527, 48 N. E. 964;
S. v. Dierberger, 96 Mo. 666, 10 S. W. 168; S. v. Garrett, 60 N. C, 144;
contra, Smith v. §., 59 Ark. 132, 26 S. W. 712; Stephens v. C. (Ky.), 47
S. W. 229; C. v. Rhoads, 23 Pa. Supr. Ct. 512.
62 CRIMINAL LAW. [Szcr. 60.

the law. Where, however, the offender does not forcibly
resist the enforcement of the law, but endeavors to make his
escape, the justification for killing no longer exists. It is
generally agreed that an escaping misdemeanant cannot be
killed even though there be no other way to make the arrest.1
As to escaping felons, it is sometimes said that the safety of
society demands that they be arrested even at the cost of their
life.2 On the other hand it has been said that it is only active
resistanca to the enforcement of the law that justifies a killing.®

§ 60. Authorization by Government.— Every man is justi-
fied in obeying the lawful commands of the. government
within the jurisdiction of which he is; therefore no act done
in pursuance of such command can be a crime. But this
justification is good only so long as the party justifying is
within the territorial jurisdiction of the government. Thus
the master of an English vessel may justify taking a man on
board his vessel at a Chilean port, by order of the Chilean
government; but he cannot justify any restraint put upon the
man after leaving Chilean territory.

A soldier is bound to obey only the legal orders of his
officers. Hence an order to do an obviously unjustifiable act
is no defence. Since, however, the soldier must, under
severe penalties, obey any legal order, his action is justified
if the order is apparently legal and not to do an act clearly
unjustifiable.

1 Reg v. Dadson, 4 Cox C. C. 858; Handley v. S., 96 Ala. 48, 11 So.
322; Brown v. Weaver, 76 Miss. 7, 23 So. 3888; Reneau v. S., 2 Lea
(Tenn.), 720; contra, S. v. Turlington, 102 Mo. 642, 15 S. W. 141
(statutory).

2 Rex v. Finnerty, 1 Crawf. & D. 167, note; Carr v. S., 48 Ark. 99;
Head v. Martin, 85 Ky. 480, 3 S. W. 622; Jackson v. S., 66 Miss. 89, 5
So. 690; S. v. Roane, 18 N.C. 58. Compare S. v. Bryant, 65 N. C. 827,

8 Reg. v. Murphy, 1 Crawf. & D. 20; Storey v. S., 71 Ala. 329.

* P. v McLeod, 1 Hill (N. Y.), 377.

5 Reg. v. Leslie, 8 Cox C, C. 269, C. 151.

6 C. v. Blodgett, 12 Met. (Mass.) 56; C. v. Shortall, 206 Pa. 165, 55
Atl. 952; U. S. ce. Jones, 3 Wash. C. C. 209, Fed. Cas. No. 15,494; U.S.
v. Clark, 31 Fed. 710, and cases there cited; Re Fair, 100 Fed. 149.
Compare Queen v, Stowe, 2 Nov. Scot. Dec. 121; Reg. v. Hutchinson, 9
Cox C. C. 555.
Sects. 61, 62.] GENERAL PRINCIPLES. 63

§ 61. Public Policy. — Certain other acts may no doubt be
justified upon the rather vague ground of public policy. Thus
one may justify the destruction of public property in time of
conflagration or pestilence, or the forcible entry on land in time
of hostile invasion.! So, no doubt, it would be justifiable to
disobey a police regulation which forbade all persons to leave
their horses unattended in the public street, if the attendant
left the horse in order to save life.2 -So the publication of
obscenity is in some cases justifiable, as when it is done in
good faith in the promotion of morality, science, or art, as,
for instance, by the publication of a medical treatise or of a
literary classic ;3 and public officials may justify the burning
of plague-infected clothing, though it causes such discomfort
in the neighborhood as amounts to a public nuisance, if it is a
proper and reasonable means to prevent contagion. Justifi-
cation of this sort has seldom been set up, probably because
common sense usually prevents a prosecution in such a case ;
and the extent to which courts would go in allowing such a
defence cannot be determined.

§ 62. Authority of a Parent or Master. — Of a similar nature
is the right of a parent or master to govern and correct his
child or apprentice. Any act done in proper correction of a
son, scholar, or apprentice is justifiable. It is only for excess
of force, or for causeless and cruel punishment, that a criminal
prosecution can be brought. The same principle applies to
others having the right and duty to exercise control, as a
school teacher or keeper of a poor farm.’ A husband has no
right to inflict any corporal punishment upon his wife, though
he may of course defend himself against attacks.®

1 Cooley, Const. Limit., 5th ed. 739.

2 Compare S. v. Wray, 72 N. C. 253, M. 209.

8 Steph. Dig. Cr. L., art. 172.

4 §. v, Mayor & Aldermen of Knoxville, 12 Lea (Tenn.), 146.

5 Post, § 207.

61 East P. C. 261; Steph. Dig. Cr. L., art. 201; Thompson v. 8.
(Tex.), 80 S. W. 623.

7S. v. Neff, 58 Ind. 516; C. v. Randall, 4 Gray (Mass.), 86; C. v.
Seed, 5 Clark (C. P. of Phil.), 78, M. 402.

8 C. v. McAfee, 108 Mass. 458; P.v. Winters, 2 Park. C. R. (N. Y.)
10. Compare S. v. Oliver, 70 N. C. 60, M. 399.
64 CRIMINAL LAW. [Szcrs. 63, 64. .

§ 63. Defence. —In defending person or property against
an unlawful attack, certain acts are justifiable; but it must
in all cases appear that they are both reasonable and neces-
sary. A mere attempt to commit larceny does not justify the
owner of the property attacked in killing the offender; nor, if
a felon can easily be captured, is it justifiable to kill or maim
him. This principle is to be borne in mind in all cases of
defence. .

The force used in defence must be continued only so long
as is necessary. The right/of self-defence will not justify one
in continuing an affray.! ,7

§ 64. Self-defence.? — In order to defend himself from death
or serious bodily harm, one may use such force as is necessary,
and even kill as a last resort. But this right exists only to
meet an actual attack of a mortal or at least serious nature;
mere fear of injury in the future, or a desire to avoid the
chance of being killed will not justify the taking of life On
the other hand, to require the person assailed to wait till the
blow was actually being delivered or the pistol discharged
would render this right of little avail. It is enough that when
he meets the deceased there is then something done that causes
a reasonable apprehension of immediate serious injury. Not
only, however, should the danger be present and immediate to
justify the right of self-defence but all other reasonable means
should be exhausted before killing. If a retreat in safety is
possible, it should be tried.6 In the old phrase, the party

1 Reg. v. Knock, 14 Cox C. C. 1, C. 192.

° For an exhaustive discussion of the principles of self-defence see an
article by Professor J. H. Beale, Jr., in 8 Columbia Law Rev. 526; see
also post, §§ 234, 23%. i

8 Foster C. L. 273; 8. v. Burke, 30 Ia. 331.

4 Karr v. S., 100 Ala. 4, 14 So. 851; S. v. Westlake, 159 Mo. 669, 61
S. W. 243; Brewer v.S. (Ark.), 78 S. W.773. Compare Kennedy v. C., 1
Bush (Ky.), 340.

5 Price v. P., 181 Tl. 223, 23 N. E. 639; S. v. Thompson, 83 Mo. 257;
Goodall v. S., 1 Or. 333, M. 413; S. v. Howard, 35 S. C. 197, 14 S. E. 481;
Field v. C., 89 Va. 690, 16 S. E. 865.

6 Duncan v. §., 49 Ark. 548, 6 S. W. 164; Rowsey v. C.,25 Ky. L. R.
841, 76 S. W. 409. Compare Tompkins v. C., 25 Ky. L. R. 1254, 77
8. W. 712.
Sect. 64.] GENERAL PRINCIPLES 65

attacked must “retreat to the wall.” Hence where the de/
fendant was assaulted by an old man with a pitchfork, and h
could have saved himself by retreat, a killing was not jnstified.!
On the other hand, this duty to retreat cannot be imposed upon
the assailed party unless it may be expected to produce the
result sought, i. e., the avoidance of trouble without danger to
the innocent party. If, therefore, retreat, though possible,
would put him in a worse position than before, as depriving
him of the shelter of his house ;? a fortiori, if the mere re-
treating would endanger him, he cannot be expected so to do.

in some jurisdictions a distinction is made between the
exercise of the right of self-defence in a case where the person
exercising that right is wholly innocent of any share in caus-
ing the quarrel, and in a case where the quarrel is mutual. It’
is sometimes said that in the first case the assailed person
need under no circumstances retreat, in order to make the
killing justifiable? As a matter of both public policy and
legal principle it would seem that the other view is clearly
preferable.

However the courts may differ on the above matter it is
everywhere agreed that if one is the aggressor in an affray,
he will not be justified in doing any act in the course of the
affray, even if it is done in self-defence, and this applies not
only where he actually begins the attack, but where he by
insults or otherwise provokes the deceased to assail him.® But
he may withdraw from the affray in good faith, and if he is
then pursued and attacked by the other party he may defend
himself. But his right of self-defence revives only after he

1 §. ». Donnelly, 69 Ia. 705, 27 N. W. 369.

2 Eversole v. C., 95 Ky. 623,26 S. W, 816; Albertz v. U.S., 162 U.S.
sa Reg. v. Knock, 14 Cox C.C.1, C. 192; Beard v. U. §., 158 U. 8.
550, M. 416. For a discussion of the rise of this doctrine and a collection
of the cases, see an article by Professor J. H. Beale, Jr., in 16 Harvard Law
Rev. 567.

4 Gibson v. S., 89 Ala. 121, 8 So. 98; Barnett v. S., 100 Ind. 171; S. v.
Herrell, 97 Mo. 103, 10 S. W. 387. Compare Hjeronymus v. 8. (Tex.),
79 8. W. 818.

5 S. uv. Scott, 41 Minn. 365, 43 N. W. 62.

6 Parker v. S., 88 Ala. 4,7 So. 98; P. v. Hecker, 109 Cal. 451, 42 P.

5
66 CRIMINAL LAW. [Sncr. 65.

has done enough to make it clear to his opponent, as a reason-
able man, that he has in fact withdrawn,! and if the inability
of his opponent to perceive this is due to the defendant’s own
act, he cannot kill even in self-defence.”

If an attack on a person is not of such violence as to threaten
severe bodily harm, his resistance must stop short of injury to
life or limb.2 For instance, one may not take life to prevent
an unlawful arrest. A case may, however, be imagined where
even the taking of life would be justifiable in resisting an
unlawful arrest, as when the arrest is threatened by outlaws
or savages. The danger of such an arrest would be as grave
as that of bodily harm.

The assaulted party is not required to make defence to an
attack that seems to threaten bodily harm at the risk of him-
self being guilty if he is mistaken. If the apprehension of
bodily harm is reasonable, the party attacked is justified in
doing all that is necessary to avoid the apparent danger, even
though no severe harm was in fact intended. But mere good
faith, where the belief is not one that a reasonable man, in the
position of the defendant, would have entertained, is not
sufficient.’

§ 65. Defence of Another Person, — Such force as a man may
use in defence of himself, he may also use in defence of one
dependent on him for protection; as a parent or child, wife,

307; S. v. Thompson, 45 La. Ann. 969, 13 So. 395; S. v. Linney, 52 Mo.
40; Stoffer v. S., 15 O. St. 47; Vaiden v. C., 12 Grat. (Va.) 717.

1S. v, Dillon, 74 Ia. 658, 88 N. W. 525; Jones v. 8. (Miss.), 36 So. 243;
8S. v. Smith, 10 Nev. 106; McMahon »v, S. (Tex.), 1 S. W. 296.

2 P.v. Button, 106 Cal. 628, 39 P. 1073, M. 421.

8 Reg. v. Hewlett, 1 F. & F. 91, K. 150; Floyd v. S., 36 Ga. 91, M. 412.

4 Creighton v. C., 84 Ky. 103; S. v. Cantieny, 34 Minn. 1, 24 N. W.
458; contra, Miers v. S., 34 Tex. Cr. Rep. 161, 29 S. W. 1074, M. 429.

5 Martin v. C., 25 Ky. L. R. 1928, 78 S. W. 1104; S. v. Miller, 43 Or.
325, 74 P. 658; Owens v. U. S., 180 Fed. 279.

6 Shorter v. P., 2 N. Y. 193.

* Pp. v. Glover, 141 Cal. 233, 74 P. 745; Cahill v. P., 106 Ill. 621; S. v.
Thompson, 9 Ia. 188; S. v. Allen, 111 La. 154, 35 So. 495 ; Wesley v. S.,
37 Miss. 327; S. v. Berkley, 109 Mo. 665, 19 S. W. 192; S. v. Thomson,
68 S. C. 183,46 S. E. 941. See 1 Wharton Cr. Law, 10th ed., §§ 488-
492.
Szcr. 66.] GENERAL PRINCIPLES. 67

master, or servant.!. Every member of the State has the duty
of suppressing crime. To fail to do so is in itself a misde-
meanor, viz., misprision. When the crime to be suppressed is
a felony of violence, whatever force is necessary, even to kill-
ing, may be used. This being so, it would seem that the right
to kill under these circumstances was not limited to the above
relations.?, But the exercise of unnecessary force, or for the
prevention of a merely threatened felony,? or on behalf of the
wrong doer,‘ renders the person thus interfering himself crim-
inally responsible.

§ 66. Defence of Property.— One may use such reasonable
force as is necessary to defend one’s property, which is in one’s
possession, from attack. Thus, reasonable force may be used
to oust an intruder from real estate,® or to repel an unlawful
attempt to seize a chattel. And if. possession of such property

_has been unlawfully taken, the owner has the right of imme-
diate recapture.” And if in the defence of the property by
reasonable means the assailant is killed the homicide is not
punishable.®

But the defence or recapture of property must stop short of
killing or severe bodily harm. Ne-one merely to defend his
property has the right to endanger life.

1 Reg. v. Rose, 15 Cox C. C. 540, C. 194, K. 140; Patten v. P., 18

Mich. 314, M. 433; S. cv. Prater, 52 W. Va. 182, 43 S. E. 230.
2S. v. Maloy, 44 Ta. 104; S. v. Westfall, 49 Ia. 328; Saylor v. C., 97

Ky. 184, 30 S. W. 390. Compare S. v. Totman, 80 Mo. App. 125, 2 Mo.
App. Reptr. 546.

3 P. v. Cook, 39 Mich. 236.

* Guffee v. S., 8 Tex. App. 187, M. 487.

5 C. v. Clark, 2 Met. (Mass.) 23.

®C. v. Keunard, 8 Pick. (Mass ) 188; Filkins v. P., 69 N. Y. 101; S.
v. Yancey, 74 N. C. 244.

7 C. v. Donahue, 148 Mass. 529, 20N.E. 171, C. 157; Anderson v. S., 6
Baxt. (Tenn.) 608, M. 449.

8 §. v. Thompson, 71 Ia. 503, 32 N. W. 476. Compare S. v. Merrill, 2
Dev. (N. C.) 269.

9 Rex v. Sculley, 1 C. & P. 319, K. 189; Storey v. 8., 71 Ala. 338; S.
v. Dooley, 121 Mo. 591, 26 S. W. 558; 8: v. Zellars,7 N. J. L. 220; S. v.
Morgan, 3 Ired. (N. C.), 186; S. v. Brandon, 8 Jones (N. C.), 463; Mont-
gomery v. C., 98 Va. 840, 36 8. E. 371.
68 CRIMINAL LAW. [Sucr. 67.

§ 67. Defence of the “Castle.” —The law allows a certain
protection to one’s dwelling-house which is not given to ordi-
nary property ; and.some acts of defence are allowable in one’s
dwelling-house which could not be lawfully committed outside.
For instance, where one is attacked and retreats, he need re-
treat no farther than the threshold of his dwelling. Any
force, even to killing, is allowable to keep out of one’s dwelling
an assailant who threatens death or severe bodily harm.! And
one who is attacked while in his dwelling-house by an assailant
outside is justified in keeping his assailant outside the house
by the use of any necessary force This applies, not only to
the house, but to any place where the defendant is entitled to
be protected and unmolested? On the other hand, since the
basis of the right is defence against felonies of violence, it fol-

lows that where the defendant had no reasonable ground to
anticipate such, a killing is not justifiable.*

Tt has been said in the authorities that any force, even death,
is justifiable in putting out of one’s dwelling-house one who has
entered peaceably, though unlawfully, and, having entered,
makes a forcible attack on the owner. It would seem, how-
ever, that all other means short of killing should be tried; and
that if it is practicable to defend the occupants by other means
short of killing, as by the imprisonment of the assailants: in
the house, this should be done, though the assailant still re-
mains within the house against the owner’s will. The case is
not now one of defence of the castle, but only of the occupants

The right of defence of a dwelling-house does not extend to
the land about it. One may not kill in order to prevent an
ageressor from entering the door-yard.’

11 Hale P. C. 486; S. ». Middleham, 62 Ta. 150, 17 N. W. 446;
Bledsoe v. C., 9 Ky. L. R. 1002, 7S. W. 884; S. ¢. O’Brien, 18 Mont. 1,
43 P. 1091, 44 P. 399; P. v, Rector, 19 Wend. (N. Y.) 569; S. v. Martin,
30 Wis. 216.

2 Rex v. Cooper, Croke Car. 544, K. 138; S. v. Patterson, 45 Vt. 308.

8 Rex v. Cooper, ante; Askew v. S., 94 Ala. 4, 10 So. 657; Maury x.
S., 68 Miss. 605, 9 So. 445.

4 Carroll v. S., 23 Ala. 28, M. 451; P. v. Walsh, 43 Cal. 447.

5 1 Hale P.C. 486.

6 Wild’s Case, 2 Lewin, 214, K. 116.

7 Lee v. §., 93 Ala. 15, 9 So. 407 ; Wallace v. U. S., 162-U. S. 466,
Sects. 67a, 68.] GENERAL PRINCIPLES. 69

§ 67a. Burden of Proof. — While the burden is on the de-
fendant to introduce evidence of the justification of his con-
duct, it would seem clear on principle that when all the evidence
is in the State must convince the jury, beyond a reasonable
doubt, that, all things considered, the defendant is punishable.

§ 68. Necessity. — It has been said that the pressure of cir-
cumstances may be so great as to justify one for an act which,
but for such pressure, would be a crime; as where a council,
without authority, depose and imprison a governor, to prevent
irreparable mischief to the State;2 or one of two persons
swimming in the sea supported by a plank thrusts the other
off, if by so doing one would be saved, and by not so doing both
would be lost.?

The exact limits of this doctrine, even if it is sound, cannot
be fixed It certainly does not justify a party of shipwrecked
sailors in killing the weakest of their number, though it seemed
the only way to preserve théir lives. It would seem that merely
on the ground of necessity the killing of another can never be
justified. If circumstances threaten one man’s life, there is
no principle of law which could justify him in shifting the
danger to another man. If, to be sure, one man has secured
a tabula in naufragio, and another attempts to share it, so en-
dangering the life of the former, he may protect himself; but it
is a case not of necessity, but of self-defence. The same would
secm to he true in the case put, of deposing a tyrannical gov-
ernor, In other cases, the principle of public policy, already
stated, may justify a crime. Apart from these principles, it
is doubtful whether there is any justification in the fact that a
crime was committed through so-called necessity, that is, by

1 Lane v. §.,44 Fla. 105, 32 So. 895; S. v. Porter, 3f Ia 131; Gravely
v. S., 88 Neb. 871, 57 N. W. 751; P. v. Riordan, 117 N. Y. 71, 22 N. E.
455; S. v. Patterson, 45 Vt. 308. See 17 Am. Law Rev., at 913;
contra, P. v. Milgate, 5 Cal. 127; S. v. Welsh, 25 8. C. 4; S. v. Ballou,
20 R. I. 607, 40 Atl. 861.

2 Rex v. Stratton, 21 St. Tr. 1041.

8 Bacon’s Maxims, No. 5. See also U. S. v. Holmes, 1 Wall Jr. (U.S.
Cire. Ct.) 1, Fed. Cas. No. 15,383.

4 Steph. Dig. Cr. L., art. 82.

5 Reg. v. Dudley, 14 Q. B. D. 273, 15 Cox C. C. 624, C. 195, K. 61.
70 CRIMINAL LAW. [Secr.69.

reason of extreme pressure of circumstances. If it is shown,
in defence to an indictment for larceny of bread, that it was
stolen to save the defendants life, the question would seem to
be whether it is for the interest of the public that such fact
should justify larceny. It might well be held for the public
interest, in order to prevent the increase of crime, that a man
under such circumstances should be held to a choice of evils,
starvation or crime, and should not be allowed legally to shift
his misfortune to the owner of the bread.! If this view were
taken, the facts of the case ought not to justify larceny; though
they should doubtless be considered in assessing the punish-
ment. On the other hand, where the result of the act is not to
shift a loss or burden to another, but to benefit one at the cost
of doing an act that ordinarily public policy forbids, it would
seem that extreme exigencies might afford a justification.
Thus, putting into an embargoed port to avoid sinking,? or
joining the enemy to avoid death.? Just how extreme the exi-
gency must be is not clear.4

It would seem that there may be cases of true necessity
where the volition of the defendant has no share in the result.
Thus where the defendant was indicted for not repairing a
road, the fact that it had been entirely washed away was a
defence, his duty not extending to rebuilding the road.

§ 69. Principals and Accessories. — Criminals guilty of felony
are classified by the common law, according to the nearness or
remoteness of their connection with the crime committed, into
principals and accessories. In high treason all are principals,
on account, it is said, of the heinousness of the crime; and in
misdemeanors all are principals, because it. is beneath the
dignity of the law to distinguish the different shades of guilt

1 Reg. v. Tyler, 8 C. & P. 616, K. 57; contra, Rex v. Crutchley, 5 C.
& P. 133.

2 Brig James Wells rv. U. S.,7 Cranch 22. See also U.S. v. Ashton,
3 Sumn. 18, Fed. Cas. No. 14,470, M. 128.

8 Resp. v. McCarty, 2 Dall. (Pa.) 86. Compare Rex v. McGrowther,
Foster’s Crown Law, 13, K. 56.

4 Compare S. v. Wray, 72 N.C. 253, M. 209, and Bice v. S., 109 Ga.
117, 34 8. E. 202.

- Reg. v. Bamber, 5 Q. B. 279, See also C. v. Brooks, 99 Mass. 434.
Sect. 69.] GENERAL PRINCIPLES. 71

‘in petty crimes. And of principals, in felony, we have those
of the first and second degrees.

A principal in the first degree is the perpetrator of the act
which constitutes the crime, whether he does it with his own
hand, or by the hand of an innocent third person, — the third
person being ignorant of the character of the act perpetrated ;?
where, for iuptenioe; a parent puts poison into the hands of his
son not yet arrived at the age of discretion, and directs him
to administer it, — or one person, by fraud, force,3 threats, or
otherwise, induces another to take poison‘ or to steal, —the
fact that the instigator is not actually present is immaterial,
if the connection between him and the act be direct, or the
crime be committed under such circumstances that no one
but the instigator can be indicted as principal. Otherwise,
acrime might be committed, and no one would be guilty as
principal.®

On the other hand the fact that the person actually doing
the act was employed so to do, while it would make his em-
ployer civilly liable as principal, does not affect his criminal
liability as principal,6 and the criminal responsibility of the
employer as principal in the second degree, or accessory,
depends, in general, on the principles explained below. There
are, however, certain classes of statutory crimes in which it

14 Bl. Com. 35; S. v. Stark, 63 Kan. 529, 66 P. 243; Candle v. S.
(Tex.), 74S. W. 545.

2 Reg. v. Bannen, 2 Moo. C. C. 309, C. 131; Bishop v. S., 30 Ala. 34;
S. v. Shurtliff, 18 Me. 868. And it is immaterial whether the act is done
through an agent not capable of a criminal intent as a child, Reg. v.
Michael, post; Reg. v. Manley, 1 Cox C. C. 104, K.78; S. v. Learnard,
41 Vt. 585; or a grown person acting under a mistake of fact, Reg. v.
Clifford, 2 C. & K. 202; Gregory v. S., 26 O. St. 510; or a grown person
who, though acting for the criminal, has received authority justifying his
act, Reg. v. Bannen, ante.

8 1 Hale P. C. 514; Reg. v. Michael, 2 Moo. C. C. 120, C. 183 ; Col-
lins v. S., 8 Heisk. (Tenn.) 14.

4 Blackburn v. S., 23 O. St. 146.

5 1 Hale P. C. 514; Vaux’s Case, 4 Coke 44.

6 Winter v. S., 30 Ala. 22; C. v. Hadley, 11 Met. (Mass.) 66; Allyn
v. S., 21 Neb. 593, 833 N. W. 212; Sanders v. S. (Tex.), 26 S. W. 62.
See Rex v. Huggins, 2 Ld. Raymond, 1574, K. 35.
72 CRIMINAL LAW. [Sxcr. 69.

has been held that it is the purpose of the statute to make the
employer responsible at all hazards, as opening a saloon on
Sunday. The same principle has been applied in a modified
form in indictments for criminal libel, the mere fact of publi-
cation being held enough to establish a prima facie liability on
the part of the employer; though this was held rebuttable
by showing neither approbation nor criminal negligence as to
the publication.2 So also with a public nuisance. Though it
may be proceeded against by indictment, it is in its nature
more closely akin toa public tort than to a crime in the strict
sense of the term, and it has been held that the employer may
be held directly responsible therefor, although the acts com-
plained of were done by his servants.®

When several persons participate in an act, each doing a
part and neither the whole, as where several take part in a
single burglary, all are principals in the first degree.* If,
however, a person does not take a share in the doing of the
crime charged he is not responsible as joint principal; as
where A and B start out to rob X, and A drops out before
the robbery takes place ;5 so where A, a servant, is indicted
as joint principal in larceny, and it appears that he inten-
tionally went away and left the door unlocked, but that B did
the actual taking ;® and so of any case where the criminal act
charged was not in fact jointly done.’ But if a person has
co-operated in a plan and started to carry it out jointly, it
seems clear that a mere mental withdrawal will not free him
from liability as principal, since his companion would still
in fact be acting in reliance upon and encouraged by him.
He must at least do enough to show his fellow conspirator,

1 P. v. Roby, 52 Mich. 577, 18 N. W. 865; S. v. McCance, 140 Mo.
398, 19 S. W. 648; ante, §§ 58, et seq.

2 Rex v. Almon, 5 Burr. 2686, K. 38,

8 Reg. v. Stephens, L. R. 1 Q. B. 702.

4 Rex v. Kirkwood, 1 Moo. C. C. 804, C.185. So where several parties
unite to make a forgery, Rex v. Bingley, R. & R. 446.

5 Rex v. Richardson, 1 Leach, 4th ed. 387.

6 Reg. v. Jeffries, 3 Cox C. C. 85, M. 464 ; Reg. v. Tuckwell, C. & M.
215. Compare Rex v. Jordan, 7 C. & P. 482.

7 Reg. v. McPhane, 1 C. & M. 212, M. 465; P. v. Woody, 45 Cal. 289.
Sect. 70.] GENERAL PRINCIPLES. 73

as a reasonable man, that he is no longer acting with
him.!

Principals in the second degree are those who, without ac-
tually participating in the act itself, are present aiding and
encouraging the party who commits the act ;2 as where one
undertakes to watch to prevent the principal from being
surprised, or to aid him to escape, or in some other way to
be of immediate and direct assistance to him in the promotion
of his enterprise. The principal of the’ second degree need
not be actually on the spot where the crime was committed.
Thus, where one, in pursuance of a plan, enticed the owner
of a shop to a place at some distance, and kept him there
while his confederates broke into the shop, he was held guilty
of burglary as principal.*

In this way one may be guilty as principal of a crime which
he could not commit; for instance, a woman present aiding
and abetting may be guilty of rape.®

This distinction of the old law, however, between principals
of the first and principals of the second degree, is not now
regarded with any favor, and in fact it has in many, if
not most, of the States become practically obsolete.© Some
statutes, however, recognize it, and in some the punishment
is based upon the distinction.

§ 70. Accessories are divided into two classes, — those be-
fore and those after the fact. An accessory before the fact
is one who, without being present aiding or abetting, procures,
advises, or commands another to commit the crime.’ An

1. v. Allen, 47 Conn. 121, M. 483.

2 Reg. v. Griffith, Plowd. 97, K. 73; Reg. v. Swindall, 2 C. & K. 280;
Thomas v. S., 180 Ala. 62, 80 So. 391; Mow ». P., 81 Colo, 351, 72 P.
1069; S.v. Lewis, 4 Penne. (Del.) 832, 55 Atl. 3; Lamb v. S. (Neb.),
95 N. W. 1050; S. v. Hess, 65 N. J. L. 544,47 Atl. 806; S. v. Roberts,
50 W. Va. 422, 40 S. E. 484.

3 4 Bl. Com. 36; Rex v. Owen, 1 Moo. C. C. 96, C. 187; C. v. Knapp,
9 Pick. (Mass.) 496.

4 Breese v. S., 12 O. St. 146; and see S. v. Hamilton, 18 Nev. 386.

5 §. v. Jones, 83 N, C. 605.

6 1 Bish. Cr. Law, § 648.

7 4 Bl. Com. 63; Rex v. Soares, R. & R. 25, C. 188.
74 CRIMINAL LAW. [Secr. 70.

accessory after the fact is one who, knowing! the fact that
a felony has been committed, receives, relieves, comforts, or
assists the felon.2 Here, as with a principal in the second
degree, mere knowledge or approval, in the lack of any act,
will not make a person liable as accessory. These distinc-
tions grew out of the rule of the common law, that every
offence should be particularly described, so that the party
charged might know with reasonable certainty to what he was
to answer. The tendency of the modern law is to disregard
the distinction, so far as it can be done consistently with the
observance of the rules of pleading.*

The offences of advising another to commit a felony, the
adviser not being present at its commission, and of receiving
and concealing stolen goods, are, so far as the circumstantial
description is concerned, different from the felonies them-
selves, and in several of the States the latter has been by
statute made a distinct and substantive offence, punishable
whether the principal felon has or has not been tried and con-
victed, though under the ancient common law the accessory
could be put upon his separate trial only in case the principal
had been tried and convicted.6 This rule was adopted to
avoid the absurdity of convicting an accessory and afterwards
acquitting the principal. And where now the accessory may
be tried before or after the principal is convicted, if after-

1 Rex v. Greenacre, 8 C. & P. 35; Reg. v. Butterfield, 1 Cox C. C. 39,
M. 499; Whorley v. S. (Fla.), 83 So. 849; S. v. Empey, 79 Ia. 460, 44
N. W.707. ‘That it is enough if the defendant had good reason to believe
the person a criminal, see Tully v. C., 13 Bush (Ky.), 142; Dent v. S,
43 Tex. Cr. Rep. 126, 65 S. W. 627.

2 4 Bl. Com. 37; P. v. Garnett, 129 Cal. 364, 61 P. 1114; Miller v. S.
(Tex.), 72 S. W. 996.

® P.v. Garnett, 129 Cal. 364, 61 P. 1114; Walker v. S., 118 Ga. 10,
43 S. E. 856; S.-v. Wolf, 112 Ia. 458, 84 N. W. 536.

4 P. v. Newberry, 20 Cal. 439; Pearce v. T., 11 Okl. 438, 68 P. 504;
Campbell v. C., 84 Pa. 187, M. 492. Ch. 94, § 2,24 & 25 Vict. makes
accessories before the fact and principals in the second degree indictable
as if they alone had committed the act, although any other party to the
crime may have been acquitted.

& Simmons v. S., 4 Ga. 465; C. v. Phillips, 16 Mass. 425. Compare
Starin v. P., 45 N. Y. 333; Bliss v. U. S., 105 Fed. 508.
Sect. 71.] GENERAL PRINCIPLES. 75

wards, before sentence, the principal be tricd and acquitted,
the accessory, already convicted, on proof of the acquittal of
the principal, will be entitled to his discharge, the statute
modifying the common law rule only so far as to allow of the
trial of an accessory before or after the conviction of the
principal, but not after his acquittal.

An accessory before the fact in one State to a felony com-
mitted in another State is amenable to the courts of the State

where he became accessory, although the principal can only be
tried where the felony was committed.”

It matters not how remote the accessory be from the prin-
cipal. If A through one or more intermediate agents procures
a person to commit a felony, he is accessory to the latter as
principal ; and one may be an accessory after the fact to an
accessory before the fact, by aiding and concealing him?

It is also a principle of the common law that the offence of
the accessory cannot be greater than that of the principal.

§ 71. Commission of a Different Crime. — A person who ad-
vises or assists in the commission of a particular crime cannot
be held as principal in the second degree, or as accessory to a
principal, who commits a substantially different crime, unless
the latter is the natural result of the effort to commit the one
advised. Thus, if-a person advises another to beat, a third,
he is accessory to the beating and its natural consequences, ‘but
he is not accessory to the different and additional crime of rape,
committed by the principal.6 Where one entered a house to
commit rape, and his confederate outside, in order to prevent

1 McCarty v. S., 44 Ind. 214, 2 Green’s Cr. Law Rep. 715. A sub-
stantially similar statute exists in most of the States, as well as in
England. See post, § 73.

2 §. v. Chapin, 17 Ark. 561; S. v. Wyckoff, 2 Vroom (N. J.), 63; contra,
S. v. Grady, 34 Conn. 118; S. v. Ayers, 8 Baxt. (Tenn.) 96. See also 8.
v. Ricker, 29 Me. 84; C. v. Smith, 11 Allen (Mass.), 243; Adams »v. P., 1
Comst. (N. Y.) 173; Holmes v. C., 25 Pa. 221; 2 Burr’s Trial, 440.

8 9 Hawk. P. C., c. 29, § 1.

4 Ibid.

5 2 Hawk. P. C., ¢. 29,§ 18; Saunder’s Case, 2 Plowd. 473, C. 176,
K. 81;. Lamb »v. P., 96 Ill. 78; S. v. Lucas, 55 Ta. 321.

6 2 Hawk. P. C., c. 29, § 18; Watts v. S., 5 W. Va. 582.
76 CRIMINAL LAW. [Secrs. 72, 73.

discovery, killed one who. attempted to enter, the one who
entered is guilty of the homicide;! but the confederate
would not be guilty of homicide in case the one who had
entered killed the girl by throwing her out of the window, to
prevent detection, after his purpose was accomplished.?
Murder in the course of robbery or burglary is not an unex-
pected result, and all confederates are guilty of it; and the
same is true of murder committed in the course of an attempt
to escape from jail, the confederates being armed ;* so murder
in carrying out a plan to “jump” land and hold it at all haz-
ards.6 The rule has been stated generally in England by
Lush, J., at Nisi Prius, that, if several persons agree together
to commit a criminal act in a particular way, each is respon-
sible for the acts of the others done in the way agreed on, but
not for acts done in any other way. If, for instance, A and
B agree to assault C with their fists, each is responsible for
the consequences Of an assault by the other with the fists.
But A is not responsible, if B, without his knowledge, uses a
knife, for the consequences of any injury by the knife.6 But
it may be doubted if this is sound law.?

§ 72. No Accessories in Misdemeanors.—In misdemeanors
all are principals, and so the common law seems to have held
of treason. To felonies, therefore, the distinction is confined.8

§ 73. Accessories in Manslaughter. — At common law it was
once held that one could not be accessory before the fact to
manslaughter, because that offence was in its nature sudden
and unpremeditated. But it has been said by high authority
that Lord Hale in thus stating the law alludes only to cases

1 Mercersmith v. S., 8 Tex. App. 211, M. 477,

2 Pp. v. Knapp, 26 Mich. 112.

8 Ruloff v. P., 45 N. Y. 213; S. v. Davis, 87 N.C. 514; S. v. Johnson,
7 Ore. 210.

4S. v, Allen, 47 Conn. 121, M. 483.

5 Weston v. C., 111 Pa. St. 251, 2 Atl. 191.

® Reg. v. Caton, 12 Cox C. C. 624, K. 119.

7 See 4 Bl. Com. 37 ; Foster Crim. Law, 369.

8 Reg. v. Greenwood, 2 Den. C. C. 453; C. v. McAtes, 8 Dana (Ky.),
28; C. v. Ray, 3 Gray (Mass.), 441; Williams v. §., 128. & M. (Miss. )

58; Ward v. P.,6 Hill (N. ¥.), 144; S. v. Goode, 1 Hawks (N. C.), 463.
9 1 Hale P. C. 437.
Sect. 74.] GENERAL PRINCIPLES. 17

of killing per infortunium, or in self-defence, and that in other
cases of manslaughter there seems to be no reason why there
may not be accessories.’ However this may be, the question
becomes unimportant in those States which do not favor the
distinction between principals in the first and second degree,
and principal and accessory before the fact; and there a man
indicted as accessory before the fact to murder may be con-
victed though his principal may have been convicted of man-
slaughter only, or even if he have been acquitted 2

Where one employs a second to procure a third person to
commit a felony, the first two are accessories to the third prin-
cipal? And this is true, although the first knows not who the
third may be. So one may be accessory after the fact by pro-
curing another to assist the principal. And where one would
become an accessory if the offence instigated should be com-
mitted, yet, if before its commission he countermands his ad-
vice and withdraws from the enterprise, he is not accessory
to any act done after notice actually given of the withdrawal.®
He is only accessory to the act which has been committed
when the aid is rendered. Thus, where one renders aid after
a mortal stroke, but before the consequent death, he is not
accessory to the death.’

§ 74.. Husband and Wife. — By the common law the duty of
a wife to.succor and harbor her husband prevented her from
incurring the guilt of an accessory after the fact thereby. But
no other relationship was a protection. By statute, however,
in some of the States, other relationships have been made a
protection. But though the wife cannot be an accessory after

1 Erle, J., Reg. v. Gaylor, 7 Cox C. C. 253; Reg. v. Taylor, 13 Cox C.
C. 68. See also Rex v. Greenacre, 8 C. & P. 35; 5. v. Coleman, 5 Port.
(Ala.) 32.

2 P. v. Newberry, 20 Cal. 439. See ante, § 70.

8 C. v. Smith, 11 All. (Mass.) 248.

4 Rex v. Cooper, 5 C. & P. 535.

5 Rex v. Jarvis, 2M. & R. 40; S. v. Engeman, 54 N. J. L. 247, 23 Atl.
676,

6 1 Hale P. C. 618.

7 1 Hale P. C. 602.

8 2 Hawk. P. C., ¢. 29, § 34.
78 CRIMINAL LAW. [Sxcr. 75.

the fact to her husband as principal, and it is said that for the
same reason — relationship and duty to succor and protect —
the husband cannot be accessory after the fact tu the wife?
(against the opinion, however, of the older authorities),? yet
either may be accessory before the fact to the other as principal.®

§ 75. Assistance Must Be Personal.— By a very nice dis-
tinction, it is held that he who buys or receives stolen goods,
though he may be guilty of a substantive misdemeanor, is not
an accessory, because he does not receive or assist the thief
personally, it being necessary to constitute an accessory after
the fact that the act should amount to personal assistance to
the principal ;* while he who assists him in further carrying
them away, after they have been stolen, is an accessory.25 On
the other hand, a person who is in fact absent and away.
from the place where the crime, by previous arrangement, is
committed, —as where he entices and keeps away the owner
of a store while his confederate robs it, this absence being in
furtherance and part of the enterprise,— is not an accessory,
but a principal. And so, on principle, where A, the watchman
of the store, in furtherance of a plan to rob, keeps away him-
self.7 So, if he watches for the purpose of giving information,
or other aid if necessary. Mere presence, however, without
approval known to the principal, or other encouragement,
evidenced by some act, does not make one an accessory.?
Nor is one absent, though in some sense aiding, as the stake-
holder to a prize-fight, to be regarded as an accessory.

1 1 Deac. Cr. Law, 15. .

2 4 Bl Com. 38; 1 Hale P. C. 621; 2 Hawk. P. C., c. 29, § 34.

8 Reg. v. Manning, 2 C, & K. 903; Rex v. Morris, R. & R. 270.

44 Bl. Com. 38; Reg. v. Chapple, 9 C. & P. 355, K. 82; Loyd v. S.,
42 Ga, 221; P. v. Cook, 5 Park. (N. Y.) C, R. 851.

5 Rex v. King, R. & R. 339; Norton v. P., 8 Cow. (N. Y.) 187.

6 Breese v. S., 12 O. St. 146.

7S. v. Poynier, 36 La. Ann. 572, M, 470.

8 Doan v. S., 26 Ind. 495; McCarney v. P., 83 N. Y. 408, M. 468;
Leslie v. 8., 42 Tex. Cr. R. 65, 57 S. W. 659. .

9 Walker v. S., 118 Ga. 10, 43 S. E. 856; Clem v. S., 33 Ind. 418;
S. v. Wolf, 112 Ia. 458, 84 N. W. 536; S. v. Hildreth, 9 Ired. (N. C.)

440; U.S. v. Jones, 3 Wash, Circe. C. 223, Fed. Cas. No. 15,493.
10 Reg. v. Taylor, 18 Cox C. C. 68.
Sects. 76,°77.] GENERAL PRINCIPLES. 79

§ 76. An Accomplice is one who shares in the commission
of the crime in such manner that he may be indicted with the
principal as a participator in the offence. Therefore, under a
statute for unlawfully administering a drug to a pregnant
woman with intent to procure a miscarriage, the woman is
not an accomplice! Nor is a person who enters into a pre-
tended confederacy with another to commit a crime, and aids
him therein for the purpose of detecting him, having himself
no criminal intent, either an accessory or an accomplice.?
Nor is one who entraps another into the commission of a
crime for a like purpose.2 So, under an indictment for betting
at tenpins, one who merely takes part in the game, but does
not bet, is not an accomplice.!

The question whether one is an accomplice usually arises
in the course of a trial, as a question of evidence, and is to be
determined by the jury, under instructions from the court as to
what constitutes an accomplice.® Being particeps criminis,
his evidence may be regarded as that of a criminal. And it
is the usual practice of the courts to advise not to convict
upon the uncorroborated testimony of an accomplice.®

LOCALITY AND JURISDICTION.

§ 77. Territorial Jurisdiction As a rule, an offence against
the laws of one sovereignty is no offence against the laws of
another; and one sovereignty has no jurisdiction over, and
will- not undertake to punish, crimes committed in another.
The jurisdiction of a country extends only to its boundaries,
unless it is bounded by the high seas. In case it is so bounded,
the government has a quasi territorial jurisdiction over the
sea for a distance of three miles from the shore.’

1 C. v, Boynton, 116 Mass. 343; S. ». Hyer, 39 N. J. L. 598.

2 Rex-v. Despard, 28 How. St. Trials, 346; S. v. McKean, 36 Ia.
343.

3 P, v. Barric, 49 Cal. 342; C. v. Downing, 4 Gray (Mass.), 29; S. v.
Anone, 2 N. & McC. (S. C.) 27; Alexander v. 8., 12 Tex. 540.

4 Bass v. S., 37 Ala. 469.

5 §. v. Schlagel, 19 Ia. 169; C. v. Glover, 111 Mass. 395.

® See post, § 130.

7 Reg. v. Keyn, 13 Cox €. C. 403.
80 CRIMINAL LAW. [Sxcts. 77a, 78.

A similar jurisdiction has been exercised over certain bays
extending into the body of the country, even where they were
over six miles in width.!

The jurisdiction of the court in which an indictment is
found commonly extends only over a single county, or a
smaller division of territory, and in such case it is necessary,
in order to show jurisdiction in the court, to prove not only
that the crime was committed within the jurisdiction of the
sovereignty, but also within that portion of it over which the
court has jurisdiction.

In many, if not all of the States, it is provided that, when-
ever a crime is committed within a certain distance of a county
line, the courts of either county-may have jurisdiction,—a
provision rendered necessary to prevent a failure of justice,
from inability to prove beyond reasonable doubt the exact
spot where the crime was committed.

It is further to be noted, that jurisdiction to try for the
commission of a crime is poutenred by the law, and not by
the consent of parties.?

§ 77a. Personal Jurisdiction. — In addition to this territorial
jurisdiction which extends over every person within the con-
fines of the State, except foreign sovereigns and their repre-
sentatives, a State has a qualified jurisdiction over its citizens
wherever they may be, in that it can lay commands upon
them which it can enforce upon their return to their home
State.3

§ 78. Jurisdiction on the High Seas.—For the purposes of
jurisdiction, a private vessel upon the high seas is to be re-
garded as a part of the sovereignty whose flag she carries, and
crimes committed on board of her while at sea are cognizable
only by that sovereignty,‘ even though committed by a for-

1 Reg. v. Cunningham, Bell C. C. 722; U.S. Cable Co. ». Anglo-
American Tel. Co., L. R. 2 App. Cas. 394. See also C. v. Manchester,

152 Mass. 230, 25 N. E. 118; s.c., on writ of error, 189 U. S. 240.
2 P. v. Granice, 50 Cal. 447.

8 See Dobree v. Napier, 2 Bing. N. C. 781; Underhill v. Hernandez,
168 U. S. 250.

* Reg. » Armstrong, 13 Cox C. C. 184. Compare U. S. v. Smiley, 6
Sawy. 640, Fed. Cas. No. 16,317.
Sec. 79.] GENERAL PRINCIPLES. 81

eigner.1 When, however, such vessel comes within the juris-
diction of another civilized power, crimes committed on board
of her are cognizable by the power into whose limits she has
come,” if they are a breach of the peace of that sovereignty.
The sovereignty of the flag still, however, has concurrent
jurisdiction.®

Where a crime is committed on the high seas by outlaws,
that is, by pirates, any civilized government which captures
the pirates has jurisdiction to punish the crime.4

§ 79. Locality of Crime-— When a crime is committed, its
locality is the place where the public is injured, that is, where
the act takes effect. Thus, where a force is set in motion in
one State or foreign sovereignty, and by continuity of opera-
tion takes effect in another, the courts of the latter have juris-
‘diction to punish the crime as if all the res geste had taken
place within its territory. If, for instance, a man standing
on one side of the boundary between two States intentionally
discharges a gun at a person standing on the other side of the.
boundary, and injures him, it has been held that the offence
may be punished at the domicil of the injured party.6 If this
latter State is the one where the force is brought in contact
with the injured person it would clearly have jurisdiction be-
cause of this latter fact. But it would seem doubtful as a
matter of principle whether the mere fact that the injured
person was domiciled in a particular State would give that
State jurisdiction over the offender; since he owes no per-
sonal allegiance to that State nor has he violated its territorial
sovereignty.6 In accord with what seems to be sound principle
it has been held that a defendant is indictable for uttering a

1 Reg. v. Lopez, 7 Cox C. C. 431.

2 Wildenhus’s Case, 120 U. S. 1. See P. v. Tyler, 7 Mich. 161, 8
Mich. 320.

8 Reg. v. Anderson, 11 Cox C. C. 198; post, § 388.

4 The Marianna Flora, 11 Wheat. (U. 8.) 1.

5 C. v. Macloon, 101 Mass. 1.

6 See 1 Bish. Cr. Law, §§ 112 et seq. for some observations tending to
limit the doctrine of C. v. Macloon, and compare post, this section, and
§ 81.

6
82 CRIMINAL LAW. [Sxcr. 79.

s

forged deed where it is recorded, even though the forgery was
committed in another State! So, if a man resident in one
sovereignty sends an innocent agent into another, who by
means of false pretences obtains money from a person resi-
dent in the latter, the principal is guilty of an offence in the
latter, and may be punished by its tribunals, if the offender be
found within the limits of their jurisdiction?

On the other hand, the first State, where the chain of events
was set in motion, cannot punish for the completed act, since
that did not take place within its jurisdiction. Thus where A,
standing on the deck of an American vessel, killed B on a
foreign vessel, the United States had no jurisdiction over the
murder.

But it is the act, and not the result of the act, which makes
a crime; consequently, the crime of murder is committed
where the blow is struck, not where the victim dies.4

It may happen that an attempt to commit a crime may be
indictable in one place, while the crime consummated must be
indicted in another; as where one encloses a forged note in a
letter, and deposits it in one post-office directed to another,
the depositing may be indicted at the former place as
an attempt to utter, while the consummated crime may
be indicted in the latter place. On the other hand, a per-
son may be convicted of embezzlement by the tribunals of
the State in which he was intrusted with the property em-

1 Lindsey-v. S., 88 O. St. 507. See also Reg. v. Taylor, 4 F. & F. 511,
C. 125; S. v. Marmouget, 10 La. 191, 34 So. 408; P. v. Adams, 3 Denio
(N.Y.), 190. Compare Reg. v. Finklestein, 16 Cox C. C. 107, C. 127; S.
v. Bass, 97 Me. 484, 54 Atl. 1113; C. v. Taylor, 105 Mass. 172, C. 129.

2 §. v. Chapin, 17 Ark. 561; Johns v. S., 19 Ind. 421; Adams ». P.,
1 Comst. (N. Y.) 173.

3 U.S. v. Davis, 2 Sumn. 482, Fed. Cas. No. 14,982; accord, Rex
v. Coombes, 1 Leach, 4th ed. 388; S. v. Lake, 16 R. I. 511, 17 Atl. 552.
Compare Reg. v. Armstrong, 13 Cox C. C. 184; P. v. Botkin, 182 Cal.
231, 64 P. 286.

4 Green v. S., 66 Ala. 40, M. 588; Davis v. S., 44 Fla. 32, 32 So. 822;
S. v. Gessert, 21 Minn. 869; U.S. v. Guiteau, 1 Mack. (D. C.) 498.

5 William Perkins’s Case, 2 Lew. C. C. 150; Reg. v. Burdett, 3 B. &

Ald. 717, 4 B. & Ald. 95; P. v. Rathbun, 21 Wend. (N. Y.) 509; U.S.
v. Worrall, 2 Dall. (U. 8.) 384.
Srcr. 80.] GENERAL PRINCIPLES. 83

bezzled, although the fraudulent conversion took place in
another State.!

§ 80. Continuing Crime.— Where a thief steals goods in
one county and brings the goods into another, where he is
taken with them, he may be indicted for larceny in the county
in which he is taken. A robber, however, in one county be-
comes merely a thief in another, by taking his stolen goods
into the latter.2 The doctrine has been exolngl on the
rather doubtful ground that there is a continuing trespass,
and therefore a new taking and larceny in every jurisdiction
into which the goods are brought. The true explanation is
probably an historical one.

This rule has never been applied in England to a taking in
one sovereignty and bringing into another. It must be proved
both that the goods were stolen and that the thief was appre-
hended within the jurisdiction of some English court.8

In this country the courts of some States have applied to
the States the analogy of the counties of England, rather than
of the several countries under the jurisdiction of the English
sovereign. So it has been held that a larceny of goods in one
jurisdiction is a larceny in every jurisdiction where the thief
may be found with the stolen goods.* But in other States the |
contrary view is held, it would seem more correctly And
an indictment against a receiver’ of stolen goods alleged to
have been stolen in Massachusetts was upheld upon proof
that the goods were stolen in New York, and taken by a New
York receiver into Massachusetts, and there sold to the ‘in-
dicted receiver,®—a decision the soundness of which cannot
be said to be free from doubt.

It has even been held in Vermont that where goods stolen
in a foreign country, as, for instance, Canada, are brought by

1. v. Haskell, 33 Me. 197.

2 1 Hale, P. C. 507, 508; 2 Hale, P. C. 163.

3 Rex v. Prowes, 1 Moo. C. C. 349, C. 879; Reg. v. Carr, 15 Cox C. C.
131, note, C. 378.

4S. v. Underwood, 49 Me. 181; C. v. Cullins, 1 Mass. 116; C. »v.
Holder, 9 Gray (Mass.), 7, C. 368.

5 Stanley v. S., 24 O. St. 166, where the cases are collected.
6 C. v. White, 123 Mass. 430.
84 CRIMINAL LAW. [Sxcrs. 81, 82.

the thief into one of the States of this country, he may here
be indicted for larceny! This, however, is not the general
rule,”

§ 81, Statutory Jurisdiction of Crime. — The question is
sometimes raised how far a certain jurisdiction has power, by
statutory enactment, to punish an act committed on the terri-
tory of another jurisdiction. An act which, though done out-
side a State, yet has a disturbing effect on the people of the
State, may doubtless be punished by statute. Thus a State
may by statute punish forgery outside the State of a deed to
land within it. There is more doubt whether a State has
power by statute to punish homicide when the fatal stroke
was given in another jurisdiction, but the death occurred
within the jurisdiction attempting to punish it. In Massa-
chusetts such power has been held to exist;* but in other
States it has been denied.®

§ 82. Jurisdiction of the United States Courts. — Where lands
within the territorial limits of a State are ceded to the United
States, exclusive legislative and judicial authority is vested by
the Constitution in the government of the United States ; and
they may exercise it, unless the State, by the act of cession, re-
serves rights inconsistent with the exercise of such authority.®

The United States have jurisdiction, also, over crimes of
such a nature that they interfere with the due execution of the
laws of the United States; for instance, over embezzlement of
pension money, and fraudulent voting for members of Con-
gress.6 They have jurisdiction also over crimes committed

1§. v. Bartlett, 11 Vt. 650, C. 376.

2 C. v. Uprichard, 3 Gray (Mass.), 434. For a collection of later
cases on the subject of this section see M. 714, note, and also S. v. De
Wolfe, 29 Mont. 415, 74 P. 1084; Beard v. S. (Tex.), 78 S. W. 348.

8 Hanks v. S., 13 Tex. App. 289.

* C. v. Macloon, 101 Mass. 1.

5 S. uv. Kelly, 76 Me. 881; S. v. Carter, 27 N. J. L. (3 Dutch.) 499,
M. 585.

6 Mitchell v. Tibbetts, 17 Pick. (Mass.) 298; Wills v. S., 3 Heisk.
(Tenn.) 141; U. S. ». Ward, 1 Wool. C. Ct. 17, Fed. Cas. No. 16,639 -
U.S. v. Tucker, 122 Fed. 518.

7 U.S. v. Hall, 98 U. S. 348.

8 In re Coy, 127 U.S. 731.
SEcTS. 88-85.] GENERAL PRINCIPLES. 85

against their officers in the course of their duty,! and have a
certain power to protect from the criminal process of a State
any officer who is indicted for an act done in the pursuance of
his duty.?

§ 83. Concurrent Jurisdiction. — The same act — counterfeit-
ing, for instance — may be an offence against two sovereign-
ties, and punishable by both.? So a bank officer, under the
national bank law of the United States, may be punished by
the United States for wilful misappropriation of the funds of
the bank, and also, under the common law, for larceny, or for
embezzlement, if the statute make it embezzlement, by the
State in which the act is done.* Doubtless, however, a prose-
cution in good faith by one government would be taken into
consideration by the other.®

§ 84. Extradition. — In case of the flight of a criminal from
the jurisdiction in which he committed the crime, he is not
punishable where he is found, for he committed no crime
against that sovereignty ; yet the government which he offended
cannot arrest and punish him. In the absence of compact
between the two sovereignties he is therefore dispunishable.
He has, however, no claim to impunity; he has gained no
right of asylum, and justice will be furthered if some means
are found of punishing him. This can be done only by mu-
tual arrangement between the sovereignties, that is, by treaty.
The process of obtaining the surrender of a fugitive from jus-
tice to the sovereignty whose laws he has broken is called ex-
tradition, and the treaty by which the surrender is guaranteed,
an extradition treaty.

§ 85, Foreign Extradition.°— The surrender of fugitives from
justice to foreign governments, being a matter of foreign inter-

1 U.S. v. Logan, 45 Fed. 872.

2 Tennessee v. Davis, 100 U. 8. 257; In re Neagle, 185 U. 8.1; Re
Fair, 100 Fed. 149.

8 Phillips v. P., 55 Ill. 429; Fox v. Ohio, 5 How. (U.S.) 410; Moore v.
Illinois, 14 How. U. S. 13. So extortion: Sexton v. California, 189 U. S.
819; counterfeiting : Martin v. S., 18 Tex. App. 224.

4 C. v. Barry, 116 Mass. 1.

5 U.S. v. Amy, 14 Md. 149.

6 See in general, on this subject, 17 Am. L. Rev. 315.
86 CRIMINAL LAW. [Secr. 85.

course, is by the Constitution of the United States committed
to the Federal government exclusively; it is therefore uncon-
stitutional for a State to surrender a fugitive to a foreign goy-
ernment under any circumstances.!

An application for extradition under a treaty is made to the
President of the United States, who thereupon issues a man-
date, directed to a judge or commissioner of the United States,
or to the judge of any court of record of any of the States.
Under this mandate a complaint is made by the representative
of the foreign government to any officer named in the mandate,
and a warrant of arrest is thereupon issued, and the accused is
brought before the court for examination.

This examination is not a trial, and sufficient evidence for
conviction is not required. The accused may testify on his
own behalf, and the evidence should be sufficient to justify a
holding for trial according to the law of the forum.? The find-
ing is certified to the Secretary of State, and thereupon the
President issues his warrant of extradition. He has, however,
discretion to refuse to issue the warrant.? Extradition treaties
are construed not to cover political offences, even though the
act committed would otherwise be extraditable.*

Any érror of law in the extradition proceedings may be re-
viewed and corrected by means of a writ of habeas corpus,
which will lie even after the President has issued his warrant.5
The decision of the commissioner or court on the questions of
fact involved cannot, however, generally be reversed. If any
legal evidence was shown which would justify a holding for
trial, the finding on questions of fact is final.

An offender brought into a country by extradition proceed-
ings can be tried only for the offence with which he was

1 U.S. v. Rauscher, 119 U. S. 407.

2 In re Farez,7 Blatch. C. Ct. 345, Fed. Cas. No. 4,645; Pettit v.
Walshe, 194 U. S. 205.

5 In re Stupp, 12 Blatch. C. Ct. 501, Fed. Cas. No. 18,563; Spear on
Extradition, 1st ed. 214.

§ Re Tivnan, 5 Best. & S. 645.

5 In re Farez, 7 Blatch. C. Ct. 345, Fed. Cas. No. 4,645.

6 In re Oteiza, 186 U. S. 880; Benson v. McMahon, 127 U, S. 457.
Sect. 86.] GENERAL PRINCIPLES. 87

charged, until a reasonable time has been given him to return
to the country from which he was extradited.1

Where one is forcibly abducted in a foreign country and
brought into one of the States of the Union, and there tried,
no Federal. question is involved. The extradition treaties do
not guarantee an asylum in the foreign country ; and the kid-
napper therefore violated only the laws of the foreign country,
not of the United States. Whether the State court will try
an offender so brought within its jurisdiction is a question
solely for the State to determine; but the better view appears
to favor the right of the State to prosecute,” and its jurisdic-

‘tion is equally, unaffected by ipregnlaeitice in the procedure
of the surrendering State?

§ 86. Interstate Extradition. — The Cutaein of the
United States ¢ provides for the surrender by any State of fugi-
tives from justice from another State. This makes the sur-
render of such fugitives the absolute duty of the State in which
they have taken refuge; a duty, however, which must he left
to the moral-sense of the Executive of such State, since there
is no power in the Federal government to compel the HExecu-
tive of a State to the performance of his official duty, nor to
inflict punishment for the neglect of it.6 Extradition may be
had under the Constitution for anything which is made crimi-
nal by the laws of the demanding State, though it was not a
crime when the Constitution was formed, and is not a crime in
the State of refuge.®

Since the judicial proceedings of one State are to have full
faith and credit in every other,’ it is not necessary to institute
judicial proceedings in the State of refuge; the proceedings
in the demanding State are enough. Accordingly, the proc-
ess of interstate extradition is simpler than that of foreign

1 U.S. v. Rauscher, 119 U. S. 407.

2 Ker v. Illinois, 119 U. S. 436, 444.

8 Kelley v. S.,13 Tex. App. 158.

4 Art. 4, § 2.

5 Kentucky v. Dennison, 24 How. (U. S.) 66.
6 Thid.

™ Const. U.S., art. 4, § 1.
88 CRIMINAL LAW. [Sxcr. 86.

extradition. The procedure is established by act of Congress.
An application is made to the Governor of the State of refuge
by the Governor of the demanding State, accompanied by a
copy, certified by the Governor to be authentic, of an indict-
ment found, or complaint made to a magistrate, in the de-
manding State. If satisfied that the accused is a fugitive from
justice, the Governor of the State of refuge issues his warrant
to the agent of the demanding State, who thereupon arrests
and removes the fugitive.

The question of the guilt of the accused is not in issue. It
is enough if he is legally charged with crime, according to
the law of the demanding State.2 Whether he is properly
charged, the indictment duly certified, and the demand legally
made, are questions of law, reviewable by the court on a writ
of habeas corpus.8

The question whether the accused is a fugitive from justice
is, however, a question of fact, to be decided by the Governor
of the State of refuge. His decision, if reviewable, is so only
if the evidence is utterly insufficient to justify a finding that
the accused is a fugitive.* To be a fugitive from justice, it is
not necessary that the accused should have left a State to avoid
prosecution ; it is enough that, having committed a crime, he
left that jurisdiction, and when sought for prosecution was
found in another,’ even though when found he was in the State
of his domicil.¢ One is not however a fugitive from justice
who did not leave the State in which he is found. Thus,
where one commits a crime in another State by letter or by
innocent agent, always remaining in the State of his domicil, he
cannot be extradited.’

1 Stat. 1793, c. 7, § 1; Rev. St. U. S., § 5278.

* Kingsbury’s Case, 106 Mass. 223 ; In re Clark, 9 Wend. (N. Y.) 212;
Wilcox v. Nolze, 34 O. St. 520.

3 Robb v. Connolly, 111 U. S. 624.

4 Ex parte Reggel, 114 U. S. 642; see Eaton v. West Virginia, 91 Fed.
760.

5 Roberts v. Reilly, 116 U. S. 80, 97; Re Strauss, 126 Fed. 327.

6 Kingsbury’s Case, 106 Mass. 223,

7 In re Mohr, 73 Ala. 503; Hartman v. Aveline, 63 Ind. 344; Jones
. v. Leonard, 50 Ia. 106.
Sect. 86.] GENERAL PRINCIPLES. 89

A warrant of extradition may be revoked by the Governor,
or his successor, for any cause, even after the accused is in the
hands of the agent of the demanding State.1

There is much controversy upon the question whether an of-
fender who has been extradited for one offence may be tried
for another. The weight of authority seems to be that this is
allowable, provided the extradition was procured in good faith,
and the offence for which the trial is had is one for which the
offender might have been extradited.2 Many respectable
authorities, however, hold that an offender can be tried only
upon the indictment on which he was extradited, until he has
had an opportunity to return to the State of refuge.®

1 Work v. Corrington, 34 O. St. 64.

2 Waterman v. S., 116 Ind. 51, 18 N. E. 63; Ham v. S., 4 Tex. App.
645; Harland v. Terr., 3 Wash. Terr. 131, 138 P. 453; S. v. Stewart, 60
Wis. 587,19 N. W. 429. Compare Re Little, 129 Mich. 454, 89 N. W. 38;
Mahon v. Justice, 127 U. S. 700.

3S. v. Hall, 40 Kan. 338, 19 P. 918; Jn re Cannon, 47 Mich. 481, 11
N. W. 280. ;
90 CRIMINAL LAW. [Sxcrs. 87, 88.

CHAPTER II.

OF CRIMINAL PROCEDURE.

§ 87. Process of a Criminal Prosecu-|§ 111. Joinder of Counts and Of-

tion. fences.
98. Criminal Pleading. —The In- 117. Double Jeopardy.
dictment. 124. Evidence in Criminal Cases.

PROCESS OF A CRIMINAL PROSECUTION.

§ 87. Arrest. — The first step in a criminal suit is generally
the arrest of the accused. This is ordinarily accomplished by
means of a warrant, issued by a magistrate upon a complaint
under oath. The warrant is thereupon executed by the proper
official. In making the arrest, the officer may use all neces-
sary force. He may after request break down the door even
of a third party, upon reasonable belief that he will find the
accused there ;1 especially if the accused has been lawfully
arrested, and has escaped.”

The officer must be prepared to show his warrant on de-
mand ;8 though he need not show it, if the accused or the owner
of the house into which he comes has seasonable notice that
he is an officer acting under a warrant.*

§ 88, Arrest without Warrant.— Under certain circum-
stances an arrest may be made at once, without first obtaining
a warrant. A private person is justified in making an arrest
only if felony has been committed; but an officer may arrest
upon reasonable suspicion of-felony, or for a breach of the
peace committed in his view. The power of an officcr to
break down doors, and to use all necessary force, would seem

1 C. v. Reynolds, 120 Mass. 190; 2 Hale P. C. 117.

2 Cahill v. P., 106 Ill. 621; C. v. McGahey, 11 Gray (Mass.), 194.
8 Codd v. Cabe, 1 Ex. Div. 352.

4 C..v. Irwin, 1 All. (Mass.) 587.
Sects. 89, 90.] OF CRIMINAL PROCEDURE. 91

to be equally great, if he is justified in making an arrest,
whether he has or has not a warrant; but a private person
can break down doors only while following a felon on fresh
pursuit.?

§ 89. Commitment. — After being arrested, whether with
or without a warrant, the prisoner must be taken before the
proper court or magistrate as soon as possible ;? and mean-
while he is in the custody of the officer who arrested him. His
personal property cannot be interfered with except that any
article which might prove the crime, or which is described in
the complaint as stolen, may be taken and preserved till the
trial. But a watch or money belonging to the prisoner must
be left in his possession.’

When the prisoner is brought before the court or magistrate,
he is entitled to a speedy investigation of the charge against
him. If the crime is one within the jurisdiction of the judge,
an immediate trial may be had. If, however, the prisoner
must be tried in a court of higher jurisdiction, evidence is in-
troduced only for the purpose of proving a prima facie case ;
and if that is found, the prisoner is committed to await further
proceedings.

The commitment is either to jail or to bail. Every prisoner
must at common law be allowed bail upon a commitment,
unless he is charged with a capital crime?

§ 90. Accusation. — The formal accusation of the accuscd
may be made in three ways: by indictment, by information,
or by complaint. A complaint is an accusation by a private
person, under oath, and is generally allowed only in case of
small misdemeanors. An information is an accusation by the
Attorney General under his own oath. This is not a common
form of procedure, except in a few States of the Union. The
common form of accusation is by indictment, which is found
by the grand jury upon its oath.

1 4B). Com. 292.

2 Tubbs v. Tukey, 3 Cush. (Mass.) 438.

3 Rex v. Burgiss, 7 C. & P. 488; Houghton v. Bachman, 47 Barb. (N.
Y.) 388.

‘, Rex v. Kinsey, 7 C. & P. 447; Rex v. O’Donnell, 7 C. & P. 138.

5 4 Bl. Com. 296.
92 . CRIMINAL LAW. [Szcr. 91,

An indictment may be found against one who has already
been arrested and committed, or against one who is still at
large; in the latter case, a warrant for arrest issues at once
on the indictment being found, and is served in the same way
as a warrant issued on complaint under oath.

§ 91. Grand Jury.—The grand jury is a jury of at least
twelve men, and of no more than twenty-three; a majority of
the jury, and at least twelve jurors, must join in finding a true
bill.

Upon assembling, the jury is charged by the court, and then
retires for consultation. No one may be present at its delib-
erations except the witnesses, and, in this country, the public
prosecuting attorney.2_ The jury chooses a foreman, and then
proceeds to consider the matters that may come before it.

The grand jury can act only upon certain lines. Its chief
duty is to consider and pass upon the bills, that is, the formal
written charges of crime, prepared by the prosecuting at-
torney. Such bills being presented to it, the evidence in
support of the prosecution is heard. It is the duty of the
prosecuting attorney to see that none but legal evidence is
allowed to go to the grand jury. He may open the case, but
must take no part in the discussion, and express no opinion.
If twelve jurors find that there is reasonable cause for believ-
ing the charge stated in a bill to be a true one, the words
“true bill” are indorsed upon it, and certified by the foreman ;
and at the end of the jury’s sitting the foreman hands all
“true bills” to the clerk. Bills so indorsed and presented to
the court are called indictments. As an indictment cannot
be found originally except by the grand jury, so it can be
amended only by that body.

Besides the bills prepared by the prosecuting attorney for
the consideration of the grand jury, it may inquire into certain
other matters; namely, matters called to its attention by the
court, or such public offences as come to light while it is con-
sidering other matters, or as may have come to the knowledge

1 Clyncard’s Case, Cro. Eliz. 654.
2 McCullough v. C., 67 Pa. 30.
Sects. 92-94.] OF CRIMINAL PROCEDURE. 93

of individual jurors! If upon inquiry these matters seem to
require prosecution, the grand jury states them in the form of
‘a presentment, and it is thereupon the duty of the prosecuting
attorney to frame an indictment for the crime thus presented.

§ 92. Arraignment and Pleading.— An indictment having
been found, the prisoner must be set at the bar of the court;
it is then read to him, and he is required to answer to it.
This is called the arraignment. Except in the case of small
misdemeanors, where the punishment is only by fine, the pris-
oner must be personally at the bar to plead.

If the prisoner would not plead, but stood mute, it was
formerly necessary to empanel a jury and find whether the
prisoner stood mute by visitation of God,? and if not, to com-
pel the prisoner to plead by the use of force,? at least in case
of felony. Now, however, the plea of not guilty is every where
entered, by statute, in such a case.

§ 93. Trial and Verdict. —If the prisoner pleads not guilty,
an issue is joined, and must be tried by a jury. The prisoner
must be present during the trial; a privilege, however, which
he may waive, except in capital cases. If there is no such
waiver, the jury must be empanelled, and the evidence, charge,
and verdict must be given, in the presence of the prisoner.
Motions may, however, be made and argued by counsel in his
absence. If the prisoner pleads guilty, or nolo contendere, no
issue is joined, and there is therefore no trial; and sentence
may be at once imposed.

The prisoner may be convicted not merely of the offence
with which he is charged, but of any lesser offence that can
be carved out of his indictment. At common law, however,
he cannot, on an indictment for felony, be convicted of a mis-
demeanor; but this has been generally changed by statute.

§ 94. Nolle Prosequi and Quashing. — The prosecuting at-
torney may, in his discretion, put an end to the prosecution of
an indictment by entering a nolle prosequi. This can be done
in some States only by consent of the court.

1 McCullough v. C., 67 Pa. 30.

2 §. v. Doherty, 2 Overton (Tenn.), 80.
3 1 Steph. Hist. Cr. Law, 297.
94 CRIMINAL LAW. [Szcrs. 95-97.

If the indictment is defective, it may be quashed on motion
of either party, or by the court on its own motion. An indict-
ment may be quashed at any stage of the prosecution if it is
apparent on the face of it that no judgment upon it could be
supported. For certain formal defects, however, an indict-
ment can be quashed only before plea.

§ 95. Benefit of Clergy was an old common law right which
the clergy had, when they were charged with crime, of having
their causes transferred to the ecclesiastical tribunals, or,
after conviction, of pleading certain statutes in mitigation of
sentence. Of its specific character and its limitations it is not
proposed to speak, as it is doubtful if it isa right which can
now be successfully asserted in any State of the Union.!

§ 96. Sentence. —The only remaining step in a criminal
prosecution is the judgment and sentence of the court. The
defendant should be sentenced in presence of the court; but
this is a privilege he may ordinarily waive. In case of capital
crimes, however, the prisoner must be present, in order that
he may state any reason why sentence should not be passed
upon him. This is a matter of great importance to the State
itself, which is interested in preserving the lives of its citi-
zens; and the prisoner is therefore not allowed to waive the
privilege.

§ 97. Pardon. — The executive branch of the government
has power to pardon an offence, —a power which is defined
and regulated in most of our constitutions. In the absence
of constitutional limitation, a pardon may be granted at any
time after an offence has been committed, whither or not
prosecution has begun. The effect of a pardon is to remove
all the consequences of a crime, not merely to remit the
sentence.”

A pardon may be conditional; as that the offender will
permanently leave the country, or will submit to a lesser pun-
ishment. In this case, if the offender breaks the condition,
the original sentence may be enforced? This may be done

! See, for these particulars, 1 Bish. Cr. Law, § 88, and the authorities
by him cited.
2 4 Bl. Com. 401. 3 1 Bish. Crim. Law, 7th ed. § 914.
Sect. 98.] OF CRIMINAL PROCEDURE. 95

by immediate arrest and return to prison ;! though in Michi-
gan it is held that one accused of violating the condition of
his pardon is entitled to a trial.?

A temporary stay of execution of the sentence is called a
reprieve.3

CRIMINAL PLEADING, — THE INDICTMENT.

§ 98. Requisites of Indictment. —The indictment is the
formal charge upon which the entire suit is based; and it
must set forth the crime of which the defendant is accused
fully, plainly, substantially, and formally It should contain
a description of the facts which constitute the crime, without
ambiguity or inconsistency ; and except where, as in indict-
ments for felony, certain formal words, such as feloniously,
burglariously, with malice aforethought, etc., must be used,® the
language may be such as is ordinarily used and understood ;
so long as the meaning is clear and unambiguous, the language
is immaterial.é

Since judgment must be given on the indictment, this must
state facts which are incompatible with the innocence of the
accused. If itis capable of a meaning which would not neces-
sarily import a crime it is insufficient,’ and may be attacked
on this ground by demurrer.

Two and sometimes three sets of allegations are necessary
to complete a charge of crime. It must first be shown what
right the prosecuting government has to complain; that is,
an obligation toward the government must be shown to have
been infringed. For this purpose, it is ordinarily enough to
show that the act was committed within the jurisdiction of the
government prosecuting. If the crime is one against the
property of an individual, the existence of this individual

1 §. v. Barnes, 82 S, C. 14, 10 S. E. 611.

2 P. v. Moore, 62 Mich. 496, 29 N. W. 80.

3 4 Bl Com. 394.

4 Mass. Bill of Rights, art. 12; C. v. Davis, 11 Pick. (Mass.) 482.
5 2 Hawk. P. C., c, 25, § 55.

6 King v. Stevens, 5 East, 244, 259.

7 C. v. Grey, 2 Gray (Mass.), 501.
96 CRIMINAL LAW. [Secrs. 99-101.

right must also be alleged in addition to the public right.
The right or rights having thus been set up, an infringement
by the accused must finally be charged.

Where an indictment is made up of two or more distinct
charges of crime, each charge is called a count of the indict-
ment. Every count must in itself, without reference to the
others, be sufficient as an indictment.

§ 99, Elements of Crime. — The indictment must contain all
the elements of the crime charged. Thus, where a specific
intent is one element of a crime, this intent must be alleged
in the indictment.! So where the punishment is greater for a
second offence, a former conviction must be alleged in the
indictment in order to justify the infliction of the greater
punishment.?

§ 100. Particularity. — The particularity which is necessary
in framing an indictment is governed by the rights of the ac-
cused. Any one accused of crime has a right to be informed
of the charge against him, so as to prepare for his defence.
He has a right also to have the record so full that he may
avail himself of the proceedings if he is again prosecuted for
the same acts. There are therefore two tests of the particu-
larity of an indictment: first, does it furnish sufficient infor-
mation and particulars to enable the accused properly to
prepare his defence ; secondly, is it sufficiently precise to pro-
tect him from a second prosecution.3

§ 101. Surplusage.— Where allegations are made in the
indictment which are unnecessary to the offence charged,
they may be treated as surplusage; and so long as the
offence is sufficiently described without them, they may be
neglected, and a failure to prove them will not prevent a
conviction.

lt is very different, however, when a material allegation is
made unnecessarily precise,t as when a horse is described as
white, or a person is alleged to be a resident of a certain place.

1 C. v. Shaw, 7 Met. (Mass.) 52.

2 C. v. Harrington, 180 Mass. 35; Larney v. Cleveland, 34 O. St. 599.
8 C. v. Ramsey, 1 Brewst. (Pa.) 422; Fink v. Milwaukee, 17 Wis. 26,
* Shearm v. Burnard, 10 A. & E. 593, 596. A
Szcr. 102.] OF CRIMINAL PROCEDURE. 97

For in preparing his defence the accused, knowing that the
allegation must be proved, would prepare to mect it as it was
made, and, if he could prove it untrue, would be justified in
resting his case, Therefore, where an indictment alleges that
the accused suborned J. S. of W. to commit perjury, it is not
proved by showing that he suborned J. S. of X.; though the
indictment would have been sufficient if it had not alleged
‘the residence of J.S.1. So where the indictment describes the
special marks on timber alleged to have been stolen, these
marks must be proved ;? and where a burial-ground alleged to
have been desecrated is described in the indictment by metes
and bounds, the description must be proved.2 And in like
manner, where a woman is unnecessarily described as a widow,
she must be proved to be a widow.

§ 102. Jurisdiction and Venue.— As has been seen, facts
must be stated which show the right of the court to try and
punish; that is, there must be an allegation of jurisdiction on
the part of the sovereignty prosecuting. This is ordinarily
done by alleging that the act was against the peace of that
sovereignty. If, however, one sovereignty succeeds another,
—as happened for instance where the State of Maine was
separated from Massachusetts, — an act committed before the
change, but prosecuted after it, must be alleged to have been
against the peace of the former government.®

Not only must there be an allegation of jurisdiction on the
part of the State; jurisdiction over the crime must also be
shown on the- part of the court in which the indictment is
found. This is done by laying the venue of the crime within
the county or other district over which the court has juris-
diction. It is generally provided that a crime committed
within a certain distance of the boundary of two counties
may be tried in either county. In such a case,-in order to
show jurisdiction on the record, the act must be alleged

1 C. v. Stone, 152 Mass. 498, 25 N. E. 967.
2 8. v. Noble, 15 Me. 476.
8 C.v, Wellington, 7 All. (Mass.) 299.
4 Rex v. Deeley, 1 Moo. C. C. 803.
5 Damon’s Case, 6 Me. 148.
7
98 CRIMINAL. LAW. [Secr. 103.

to have been committed in that county in which the court is
sitting

,§ 103. Names. — The indictment must contain the name of
the accused, and of any one whose person or property he is
charged with having injured. These names must be absolutely
correct; otherwise, if the accused were a second time prose-
cuted, he could not avail himself of the former judgment.
Therefore the transposition of two Christian names,? or the
omission of one,’ is a fatal misnomer.

Not every slight error in a name is however fatal. The
important question is, whether it would be impossible to doubt
the identity ; and if the name as written sounds the same as
the true name, or, in technical language, if thé two are idem
sonantia, the indictment is sufficient. Thus in an indictment
for forging the name MeNicole, a forgery of the name McNicoll
may be shown. The question whether two names are idem
sonantia is for the jury.6

If the name of the injured person is unknown to the grand
jury, it may be so stated, and the indictment is sufficient;
though if this is done, and it transpires that the name was
known, the allegation is bad. There is more difficulty where
the accused refuses to give his name. In such a case, he
should be described in the indictment as a person whose name
is unknown, but who was personally brought before the jurors
by the keeper of the jail.’

If one is described by a name by which he is actually
known, it is sufficient, though it is not his true name’ If,
however, a person is known by two names, the ordinary and
safer course is for both to be alleged; as, John Jones, alias
John Smith.

1 C. v. Gillon, 2 All. (Mass.) 502.

2 Reg. v. James, 2 Cox C. C. 227,

8 C. v. Perkins, 1 Pick. (Mass.) 388.
* Reg. v. Wilson, 2 Cox C. C. 426.

5 C. v. Donovan, 13 All. (Mass.) 571.
® ©. v. Morse, 14 Mass. 217.

™ Rex v. ——, Russ. & Ry. 489.

8 Rex v. Norton, Russ. & Ry. 510; C. v. Desmarteau, 16 Gray (Mass.),
1, 17.
Sects. 104, 105.] OF CRIMINAL PROCEDURE. 99

A variance in the name of a person other than the defendant
is fatal, and entitles the defendant to an acquittal on the in-
dictment. A variance in the name of the defendant is not,
however, a fatal defect, since the fact tried is the guilt of the
prisoner actually at the bar. In order to avail himself of
such a defect, the defendant must plead the misnomer in
abatement.?

§ 104. Time. —It is necessary that the time of the offence
should be alleged in the indictment; but it is not generally
necessary to prove the time as laid. It is enough if some

. time is proved before the date of the indictment, and within
the period set by the statute of limitations. The time of a
continuing offence may be charged on a certain day, and con-
tinuing from that day to the day of receiving the complaint.?

If however time is material, it must be accurately stated ;
for instance, where the crime is against a Sunday law, or
where it is part of the description, as the date of a newspaper
in which a libel was published. And so where the punish-
ment of an offence is changed by statute, one cannot, on an
indictment laying the offence before the new statute, be con-
victed of an offence after it. So the time laid must not be
impossible or absurd; as, for instance, a time later than the
complaint or indictment,’ or a time before the period of
limitation.

§ 105. Place. — As has been seen, the place of the offence
must be stated, in order to show the venue of the court. It
is not, however, generally necessary to prove the place pre-
cisely as alleged; any place may be proved which is within
the venue of the court.

If however the place is material, as, for instance, in the
case of burglary, the place must be alleged and proved with
1 Turns v. C., 6 Met. (Mass.) 224, 235.

2 P. v. Stocking, 50 Barb. (N. Y.) 573..
Frates, 16 Gray (Mass.), 236.
Caverly, 51 N. H. 446.
. Varney, 10 Cush. (Mass.) 402.
- Maloney, 112 Mass. 288.

. Doyle, 110 Mass, 108.
. Tolliver, 8 Gray (Mass.), 386.

artank » &
eaeess

eaaana

e
100 CRIMINAL LAW. [Szors. 106, 107.

the greatest accuracy. And so in every case where the act
is local; sucb as maintaining a nuisance.2 The place is also
material when an act is a crime only when committed in a
certain place, as within ten feet of the highway.

Every act alleged in the indictment must be laid at a
certain time and place. When the acts were simultaneous,
the ordinary method is to allege that they were done then
and there. This form of words is not necessary; but such
language must be used as will state some time with sabsolute
certainty.

§ 106. Description. — A sufficient description must be given
of everything as. to which a material allegation is made in
the indictment. Thus, all property must be described as
owned by some one, either the general or the special owner.!
The name ordinarily used to describe a thing is sufficient;
but if it is ordinarily known by a specific name, it is not
enough to describe it by the name of the material of which
it is made. For instance, an ingot of tin or a bar of iron may
be described as tin or iron, but cloth must be called cloth, not
wool; and a coin or a cup must be so described, and not
as such a weight of silver.

§ 107. Words. — Whenever an offence consists of words
written or spoken, these words must be stated in the indict-
ment with exactness; any omission is a defect of substance.§
A mere literal variance, however, which does not affect the
meaning, is not fatal; such, for instance, as the misspelling of
a name, where the two forms are idem sonantia,

Where the words are obscene, it is held in this country that
they need not be spread upon the records; it is enough to
describe them in general terms, and explain the reason of
omitting them.’ In England, however, this is not allowed.8

1 Rex. v. Napper, 1 Moo. C. C. 44.

2 C. v. Heffron, 102 Mass, 148.

8 Arch. Crim, Plead., 19th ed. 51.

4 C. v. Morse, 14 Mass. 217.

5 Reg. v. Mansfield, Car. & M. 140.

® Bradlaugh v. Reg., 3 Q. B. Div. 607, 616, 617.
7 C. v. Holmes, 17 Mass. 886.

5 Bradlaugh v. Reg., 3 Q. B. Div. 616.
Sects. 108, 109.] OF CRIMINAL PROCEDURE. 101

The rule applies to spoken as well as to written words,
where they are the gist of the offence. But where words
complained of are not the gist of the offence but only the
means of committing it, as in the case of a prosecution for
threats, they need not be set out with technical accuracy.!

§ 108. Contracts and Written Instruments. — When it is
material in the course of an indictment to allege the making
or the existence of a contract, or of any written instrument,.
the writing or the contract must be set out exactly; and
if it is an instrument that has a specific name, that name
must be given to it, otherwise the indictment is repugnant,
and fatally defective?

§ 109. Indictments upon Statutes. — Where an indictment is
brought for breach of a criminal statute, it must conclude
with the allegation that the act was against the form of the
statute (contra formam statutt) in that case made and pro-
vided.? If the indictment states a common law crime, the
allegation that it is contra formam statuti may be rejected as
surplusage.* It is therefore always safe to conclude with that
allegation.

Where the enacting clause of a criminal statute describes
the offence and makes certain exceptions, it is necessary in
the indictment to negative the exceptions; but where excep-
tions are contained in a separate clause or proviso, they need
not be mentioned in the indictment.5

It is not always sufficient for the indictment to follow the
language of the statute. As has been seen, the statute must
be interpreted with relation to the common law; and may
omit certain elements of the crime which the common law
supplies. Again, a certain specific intent is sometimes
required in statutory crimes, though not mentioned in the

1C. v. Murphy, 12 All. (Mass.) 449; C. v. Goodwin, 122 Mass. 19,
33.

2 C. v. Lawless, 101 Mass. 32.

8 C. v. Springfield, 7 Mass. 9.

4 C. v. Reynolds, 14 Gray (Mass.), 87.

5 Beasley v. P., 89 Ill. 571; C. v. Maxwell, 2 Pick. (Mass.) 189; Jeffer-
son v. P., 101 N. Y. 19, 3 N. E. 797; U.S. v. Cook, 17 Wall. (U. S.) 168,

6 U. S. v. Carll, 105 U. 8. 611.
/102 CRIMINAL LAW. [Secr. 110.

statute. This intent must be alleged in the indictment. So
where a statute forbade the removal of a human body from a
grave, this was held to mean a removal for purposes of dis-
section, and that purpose must be alleged in the indictment ;3
and an indictment for keeping open shop on the Lord’s day
must allege that the shop was kept open for business.?

In many cases statutes have been framed with the evident
purpose of extending to the realty that protection which the
common criminal law extended to personalty. In these cases
the indictment must show that the property alleged to have
been interfered with was part of the realty. Thus, an in-
dictment upon a statute forbidding the removal of gravel
from land must allege that the gravel was part of the realty ;2
and where the statute forbids the malicious destruction of glass
in a building, the indictment must allege that the glass was
part of the building.4

§ 110. Statutory Forms of Indictment. — The legislature often
prescribes a shortened. and simplified form of indictment; and
such action is often salutary, especially in the case of indict-
ments for felony, where much useless verbiage has become or
has seemed to be necessary. But care must be used that in
shortening the form of indictment no necessary allegations
are omitted ; for, at least under our Constitutions, an indict-
ment, though authorized by statute, is bad if every necessary
element of crime is not stated in it. Thus, a statutory form
of indictment is unconstitutional if it omits the allegation of
a specific intent,’ or if it charges the defendant with perjury
before a certain court without alleging in what respect he
swore falsely.6 So it is unconstitutional to provide that one
may be more heavily punished for a second offence, though
the former conviction is not alleged in the indictment.?

C. v. Slack, 19 Pick. (Mass.) 304.
C. v. Collins, 2 Cush. (Mass.) 556.
Bates v. S., 81 Ind. 72.

C. v. Bean, 11 Cush. (Mass.) 414.
S. v. Learned, 47 Me. 426.

S. v. Mace, 76 Me. 64.

C. v. Harrington, 180 Mass. 35.

A Oo nm © wD Hw
Sects. 111, 112.] OF CRIMINAL PROCEDURE. 103

It is perfectly constitutional, however, to provide for a
charge of crime by the use of its legal name, without a full
description of it. So it is constitutional to indict one for
committing perjury before a certain court by giving certain
testimony, without alleging that the testimony was false; for
perjury is necessarily false swearing.}

JOINDER OF COUNTS AND OFFENCES.

§ 111. Duplicity.— Only one crime may be stated in a
single count. If the elements of more than one crime are
included in a count, it is uncertain which crime is charged,
and the accused cannot prepare his defence.?

Where, however, one or more smaller crimes are merged
in a greater crime when the latter is committed, the indict-
ment for the greater crime is not double because it states such
elements of the smaller crimes as also exist in the greater.
So an indictment for homicide may and must include a charge —
of assault and of battery; and an indictment for burglary may
contain a charge of larceny, and must include one of attempt
to commit larceny.?

Whether duplicity is a defect of form or of substance is
doubtful. The hetter opinion seems to be that it is a defect
of form only, and therefore that it cannot be taken advantage
of after verdict. In some jurisdictions, however, it is held
that where the punishment for the two offences which are
joined is different, duplicity is a fatal defect, even after
verdict.*

§ 112, Conviction of Lesser Offence.— When the crime charged
necessarily embraces a lesser offence as part and parcel of it,
and the latter is described in the indictment with such dis-
tinctness that it would constitute a good separate indictinent
for that offence, the accused, under the indictment charging
the greater and the lesser, may be found guilty of the latter.

1 S. v. Corson, 59 Me. 187.

2 Rex v. Marshall, 1 Moo. C. C. 158.

8 C. v. Tuck, 20 Pick. (Mass.) 356.

4 Reed v. P., 1 Park. (N. Y.) 481; P.v. Wright, 9 Wend. (N. Y.) 193.
104 CRIMINAL LAW. [Seors. 113, 114.

Thus, on an indictment for an assault with intent to mur-
der, the assault being well charged, and the intent not being
proved, the defendant may be found guilty of an assault.
This was the common law when both offences were of the
same grade, and is now the law by statute in England, and
very generally in the United States, when the offences are
of different grades.!

§ 113. Joinder of Counts for Same Offence. — It is allow-
able for the pleader to state the same offence in different
ways, in as many different counts to one indictment, even
though the punishment is different, provided the counts are
all for felony or all for misdemeanor.2— At common law, two
counts could not be joined in the same indictment where
one was for a felony and the other for a misdemeanor; for the
incidents of trial—as to challenges of jurors, for instance —
were different in the two classes of crime. By statute, how-
ever, this has almost everywhere been done away with, and
felony and misdemeanor may be joined.?

When a trial is had on an indictment containing several
counts for the same offence, a general verdict of guilty is
good; or the defendant may be found guilty on one count and
not guilty on the rest. He may not, however, be found guilty
on two counts, and not guilty on others; for such a verdict
would be inconsistent, and would make two offences out of
one.

A misjoinder of counts is cured by a verdict for the defend-
ant on the counts improperly joined.6 And where one of the
counts is bad, a general verdict of guilty will stand, so long
as there is a valid count to support it.§

§ 114. Joinder of Offences.— Two or more counts may be
joined in the same indictment, even for different offences,

1 Reg. v. Bird, 5 Cox C. C. 20; C. v. Roby, 12 Pick. (Mass.) 496; 1
Bish. Cr. Law, 7th ed., § 809.

2 Beasley v. P., 89 Ill. 571.

* So in Pennsylvania by the common law: Stevick v. C., 78 Pa. 460.

4 C. v. Fitchburg R. R. Co., 120 Mass. 372.

5 C. v. Chase, 127 Mass. 7.

6 Claasen v. U. S., 142 U. S. 140, and cases cited.
Sects. 115, 116.] OF CRIMINAL PROCEDURE. 105

provided they are of the same general nature, and subject to
the same sort of punishment; and, in the absence of statute,
provided they are all felonies or all misdemeanors.! This
liberty is liable to abuse; for where a great number of offences
‘are joined in a single indictment, too great a burden is put
on the defendant in preparing his defence. There exists no
remedy for this abuse, however, except the discretion of the
court to order the prosecution to elect on which count or
counts it will proceed.? This is more often done in the case
of felony than of misdemeanor. In fact, it seems to follow of
course in England that the court, on request of the defendant,
should compel an election in case of felony; but it is never a
matter of course in a case of misdemeanor.?

§ 115. Cumulative Sentence. — Where an indictment charges
different offences in different counts, the question of punish-
ment isa difficult one. In England in such a case each count
is held to be a separate charge of crime ; and sentence is im-
posed upon each count, that on the second count to begin upon
the termination of the sentence on the first count. In New
York, however, a cumulative sentence, where the punishment
of each crime was imprisonment, was held void. The argu-
ment on which this decision was based would seem to hold
equally good where the punishments are all fines; yet every
court would probably hold it proper to impose a separate fine
on each count of an indictment. The English decision would
seem to be supported by the most valid arguments.

§ 116. Joinder of Defendants. — Where two or more join in
the commission of a crime, each may be separately indicted,
or all may be joined in a single indictment; and in that case
they may be tried together, and one found guilty while an-
other is acquitted.© The defendants, must, however, all be

1 C. v. Mullen, 150 Mass. 394, 23 N. E. 51; C.v. O’Connell, 12 Allen
(Mass.), 451.

2 C. v. Mullen, ante.

8 Castro v. Reg. 6 App. Cas. 229, 244.

* Castro v. Reg. 6 App. Cas. 229.

5 P. v. Liscomb, 60 N. Y. 559.

6 2 Hawk. P. C., c. 25, § 89.
106 CRIMINAL LAW. [Secr. 117.

guilty of the same offence; therefore, all must be principals
or all accessories.

It lies in the discretion of the court, where two defendants
are jointly indicted, to try them separately ; and a defendant
cannot object to the exercise of this discretion, or the refusal
to exercise it.1

DOUBLE JEOPARDY.

§ 117. No One Twice to Be Put in Jeopardy. — It is a well-
settled and most salutary principle of criminal law that no
person shall be put upon trial twice for the same offence.
This old doctrine of the common law has found its way into
the Constitution of the United States, and into that of most
or all of the States, in different forms of expression, substan-
tially that no person shall be put twice in jeopardy of life or
limb for the same offence. The meaning of this is, that when
a person has been in due form of law put upon trial upon a
good and sufficient indictment, and convicted or acquitted,
that conviction or acquittal may be pleaded in bar to a subse-
quent prosecution, within the same jurisdiction, for the same
offence.2. And even if the indictment be insufficient and the
proceedings be irregular, so that a judgment thereupon might
be set aside upon proper process, yet if the sentence thereunder
has been acquiesced in by and executed upon the convict,
such illegal and voidable judgment constitutes a good plea in
bar. So if the prisoner be sentenced to an illegal punish-
ment — as, for instance, to fine and imprisonment, where the
law authorizes only one — after part execution of either, he
cannot afterwards, upon a revision of the sentence, even dur-
ing the same term of court, be punished by the imposition of
the lawful punishment.+!

The trial and jeopardy begin when the accused has been
arraigned and the jury empanelled and sworn.5

1 1 Bish. Crim. Proc., 3d ed. § 1018.

2 U.S. v. Gibert, 2Sumn. (U. S. C. Ct.) 19, Fed. Cas. No. 15, 204.

8 C. v. Loud, 3 Met. (Mass.) 328.

* Ex parte Lange, 18 Wall. (U. S.) 163, Clifford and Strong, JJ,
dissenting.

5 Bryans v. §., 34 Ga. 823; C. v. Tuck, 20 Pick. (Mass.) 356; Ferris v.
P., 48 Barb. (N. ¥.) 17.
Sect. 118.] OF CRIMINAL PROCEDURE. 107

Though from the words “jeopardy of life or limb” it has
been contended that the rule is applicable, where such words
or their equivalent are used, only to. such crimes as are pun-
ished by injury to life or limb, yet it is very generally, if not
universally, held by the courts that it is applicable to all
grades of offences.) It is not only-for the interest of society
that there should be an end of controversy, but it is a special
hardship that an individual should be indefinitely harrassed
by repeated prosetutions for the same offence. Where, how-
ever, the same act constitutes two offences, there may be a
punishment for each offence.? But if the same act is made an
offence by two statutes, creating different offences in name
but designed to prevent the same crime, the offender cannot
be convicted under both statutes.?

§ 118. So firmly is this doctrine established, that the gov-
ernment will not be allowed to institute a second prosecution,
or put the prisoner to a new trial, even though his acquittal
is consequent upon the judge’s mistake of law, or the jury’s
disregard of fact. If, however, he be convicted by a misdirec-
tion of the judge in point of law, or misconduct on the part of
the jury, he may by proper process have the verdict set aside ;
in which case, the trial not having been completed, and the
verdict having been set aside, at his request, the accused may
be again set to the bar.*

To give the accused, therefore, a good plea that he has once
been put in jeopardy, it must appear that he was put upon
trial in a court of competent jurisdiction, upon an indictment
upon which he might have been lawfully convicted of the
crime charged, and before a jury duly empanelled, and that,
without fault on his part, he was convicted or acquitted, or
that, if there was no verdict, the jury were unlawfully dis-
charged. And the jury may be discharged before verdict is

11 Bish. Cr. Law, § 990.

2 §. v. Inness, 53 Me. 536; C. v. McShane, 110 Mass. 502.

3 Wemyss v. Hopkins, L. R. 10 Q. B. 378.

* Reg. v. Drury, 8 Car. & K. 193; Reg. v. Deane, 5 Cox C. C. 501; C.
v. Green, 17 Mass. 515; C. v. Sholes, 13 All. (Mass.) 554; P. v. M’Kay,
18 Johns. (N. Y.) 212. .
108 CRIMINAL LAW. [Sxcr. 119.

rendered when, in the judgment of the court, there is a clear
necessity therefor, or the ends of justice will otherwise be
defeated ; as where the term of court expires before a verdict
is reached ; or the jury, after sufficient deliberation, of which
the court is the judge, cannot agree; or the trial is interrupted
by the sickness or death of judge or juror; or the jury is dis-
charged by the consent of the prisoner. So much of the
learned opinion of Judge Story, in United States v. Gibert,?
as holds that no new trial can be had in cases of felony,
is now generally, if not universally, regarded as unsound law?
If the accused procure a conviction by fraud, it will not avail
him as a plea in bar, this being, within the above rule, by his
fault.4 So if, after a trial, the prisoner fails to appear when
the jury return with their verdict, and no verdict is rendered,
no trial is completed, and the accused may be put on trial
~again. And if the court before whom the accused was for-
merly tried had no jurisdiction, there has been no jeopardy.®
§ 119. Prosecution by Another Sovereignty. — The rule does
not protect from prosecution by another sovereignty, if the
same act is a violation of its law, as the laws of a country, and
especially the criminal laws, have no extra-territorial efficacy.
If, therefore, one sovereignty has punished an act which was
also a violation of the law of another sovereignty, the latter
has the right, in its discretion, also to punish the act.6 Doubt-
less, however, in such case, the fact of prior punishment would
have great weight in determining whether the guilty party
should be again punished at all, or if punished, to what

1 See Reg. v. Bird, 5 Cox C. C. 20; McNeil vo. S., 47 Ala. 498; S. ».
Wilson, 50 Ind. 487; S. v. Vaughan, 29 Iowa, 286; C. v. Roby, 12 Pick.
(Mass.) 496; Guenther v. P., 24 N. Y. 100; S. v. Jefferson, 66 N. C. 309;
Hines v. 8. 24 O. St. 134; Ex parte Lange, 18 Wall. (U. S.) 163;
Simmons v. U.S., 142 U. S. 148.

2 2 Sumner C. Ct. 19, Fed. Cas. No. 15,204.

® Ex parte Lange, ante, dissenting opinion of Clifford, J.

4S. v. Battle, 7 Ala. 259; C. v.' Alderman, 4 Mass. 477; C. v. Das-
com, 111 Mass. 404; S. v. Cole, 48 Mo. 70: S. v. Lowry, 1 Swan (Tenn.), 34.

° Reg. v. Bowman, 6 C. & P. 387; C. v. Peters, 12 Met. (Mass.) 387;
P. v. Barrett, 1 Johns. (N. Y.) 66.

6 Phillips v. P., 55 Ill. 429; U.S. ». Amy, 14 Md. 149, n.; C. 2.
Green, 17 Mass. 515; S. v. Brown, 1 Hayw. (N. C.) 100; ante, § 88.
Secr. 120.] OF CRIMINAL PROCEDURE. 109

degree.! It has been said by high authority,® that a conviction
under one sovereignty of piracy, which is an offence against
all sovereignties, would doubtless be recognized in all other
civilized countries as a good plea in bar to a second prosecu-
tion. When there are two sovereignties having jurisdiction
within the same geographical limits, there can be no doubt
that one act may constitute a crime against both, and be pun-
ishable by both. Thus, an assault upon an officer of the
United States, while acting in the discharge of his duty within
the limits of a State, may be punished by the State as an as-
sault, and by the United States as an assault upon its officer
in the discharge of his duty,—a higher offence.? So it has
been held that the same act may be a violation of a city
charter and the penal law of the State But the better view
seems to be that in such a case there is only one offence, and
can be but one punishment.®

§ 120. What Is the Same Offence.— Where there has been
an acquittal for variance, a new indictment will lie, in which
the crime is correctly described. The two offences are not
identical.6 So where formerly the venue was wrongly stated ;7
or the property alleged to have been injured was wrongly de-
scribed ; ® or a murder was alleged to have been committed by
shooting, where the evidence showed it was done by beating.
The same is true where the act is described as a different
crime, having been wrongly described before; as where one
acquitted of larceny is indicted for receiving stolen goods,” or
one acquitted of a crime as principal is indicted as accessory."
The test is this: whether, if what is set out in the second in-

1U.S. ». Amy, ante.

2 U.S. v. Pirates, 5 Wheat. (U. 8.) 184.

3 Moore v. Illinois, 14 How. (U. 8.) 18.

* Ambrose v. 8., 6 Ind. 351.

5 Preston v. P., 45 Mich. 486, 8 N. W. 96; S. v. Thornton, 37 Mo. 360.
6 C. v. Chesley, 107 Mass. 223.

7 C. v, Call, 21 Pick. (Mass.) 509.

8 C. x. Wade, 17 Pick. (Mass-) 895.

® Guedel v. P., 43 IL. 226.
10 C. v. Tenney, 97 Mass. 50.

U1 Rex »v. Plant, 7 C. & P. 575; Reynolds v. P., 83 Ill. 479.
110 CRIMINAL LAW. [Secrs. 121, 122.

dictment had been proved under the first, there could have
been a conviction. , >)

§ 121. Prior Conviction of Less Degree of Same Offence. —
Where one is tried on an indictment consisting of several
counts, and is acquitted on some counts and convicted on
others, and secures a new triai, he cannot again be tried on
those counts on which he has been acquitted? Where he is
found guilty of a less degree of crime than that charged, as
when on an indictment for murder he is found guilty of man-
slaughter, and secures a new trial, he cannot, according to the
weight of authority, be again convicted of a higher crime than
that of which he was formerly convicted ; for conviction of the
lower crime involves an acquiital of the higher.?

§ 122. Greater or Less Offence. — As to the effect of a former
acquittal of an offence which includes, or is part of, another
offence, there is some confusion, not to say difference, amongst
the authorities. But the following is believed to be a fair
statement of the result. Where a person has been tried for
an offence which necessarily includes one or more others of
which he might have been convicted under the indictment, he
cannot be afterwards tried for either of the offences of which
he might have been convicted under the indictment on which
he was tried Thus, if the trial is upon an indictment for as-
sault and battery, it cannot be afterwards had upon an indict-
ment for an assault. On an indictment for an offence which
is part and parcel of a greater, a previous trial for the lesscr
is not a bar to a subsequent trial for the greater, unless some
decisive fact is necessarily passed upon under the first indict-
ment, in such a way as to amount to an effectual bar to the
seconds <A conviction or acquittal, in order to be a bar to a

1 2 East P. C. 522; 1 Bish. Crim. Law, 7th ed., § 1052; Rex v. Taylor,
8B. & C. 502; U.S. v. Nickerson, 17 How. (U. 8.) 204.

2 §. v. Kattlemann, 35 Mo. 105.

8 Slaughter v. S.,6 Humph. (Tenn.) 410; S. v. Belden, 33 Wis. 120;

contra, S. v. Behimer, 20 O. St. 572. See the authorities collected,
Wharton, Crim. Plead., 9th ed., § 465.

4 Reg. v. Gould, 9 C. & P. 364; P. v. M’Gowan, 17 Wend. (N. Y.)
386.

5 Reg. v. Bird, 5 Cox C. C, 20.
Sxcr. 122.] OF CRIMINAL PROCEDURE. 111

subsequent prosecution in such a case, must be for the same
offence, or for an offence of a higher degree, and necessarily
including the offence for which the accused stands a second
time indicted. Thus, a conviction under an indictment for
assault is no bar to an indictment for assault with intent to
rob, because the prisoner has never been tried on an indict-
ment which involves an issue conclusive upon the second
charge. On the other hand, if one be acquitted on an indict-
ment for manslaughter, he cannot afterwards be tried for
murder, because the acquittal necessarily involves the finding
the issue of killing, whether with or without malice, in favor
of the defendant.1 And this would be true, even if the judge
should discharge the jury on the ground that the proof made
the case one of murder.2. And the same is true where the
prisoner was formerly tried for a less serious degree of larceny
or of house-burning than that now charged. The offence is
the same if the defendant might have been convicted on the
first indictment by proof of the facts alleged in the second.
The question is not whether the same facts are offered in proof
_to sustain the second indictment as were given in evidence at
the trial of the first, but whether the facts are so combined and
charged in the two indictments as to constitute the same of-
fence. It is not sufficient that the facts on which the two in-
dictments are based are the same. They must be so alleged
in both as to constitute the same offence in degree and
kind.

A conviction or acquittal on a charge of larceny of one of
several articles, all stolen at the same time, is a good plea in

1S. v. Foster, 33 Ia. 525; Scot v. U. S., Morris, 142.

2 P. v. Hunckeller, 48 Cal. 331. See also upon the general subject, as
invdlving the different views of different courts, Wilson v. S., 24 Conn. 57;
Roberts v. S., 14 Ga. 8; S. v. Inness, 53 Me. 536; C. ». Hardiman, 9 Allen
(Mass.), 487; S. v. Pitts, 57 Mo. 85; S. v. Conper, 1 Green (N. J.) 361;
S. v. Nutt, 28 Vt. 598; and 1 Bish. Cr. Law, c. 63, where the whole sub-
ject is treated with great fulness.

8 C. v. Squire, 1 Met. (Mass.) 258.

* Rex v. Vandercomb, 2 Leach (4th ed.) 708; Durham »v. P., 4 Scam.
(Tl.) 172 ; Cov. Clair, 7 Allen (Mass.) 525 ; P. v. Warren, 1 Park. (N. Y.)
C. R. 338.
112 CRIMINAL LAW. [Sxcrs. 123, 124,

bar of any subsequent prosecution for the larceny of either or
all of the other articles.}

An exception, however, exists in the case of murder. Where
the prisoner was formerly tried for an assault, and convicted,
if the party assaulted afterwards dies from the assault, the
prisoner may be tried for the murder, and his former jeopardy
will not avail him.2- And an acquittal of an assault with in-
tent to kill the party who afterwards dies from the assault will
not necessarily protect the accused, since murder may be
committed without any intent to kill, and even without a crim-
inal assault.?

§ 123. Practice. —If a plea of former acquittal or conviction
to an indictment for a misdemeanor be found, on replication
or demurrer, against the prisoner, he might be sentenced with-
out a trial for the offence itself ;* but upon the decision against
the prisoner in such a case, on an indictment for felony, he
might answer over, and have his trial upon the merits. This
is not, however, the rule in this country, where the prisoner is
usually allowed to have his trial in both cases, asa matter of
right, if in his plea he reserves the right to plead over.® In
Tennessee, it has been said to be a matter of discretion with
the court.®

EVIDENCE IN CRIMINAL CASES.

§ 124. Burden of Proof.— The rules of evidence applicable
in criminal cases are substantially the same as in civil cases,
with the single exception that in a criminal case every essential
allegation made by the prosecution must be proved beyond a
reasonable doubt, in order to entitle the government to a ver-

1 Jackson v. S., 14 Ind. 827. See also Fisher v. C., 1 Bush (Ky.) 211;
Guenther v. P., 24 N. Y. 100.

2 Reg. v. Morris, 10 Cox C. C. 480; S. v. Littlefield, 70 Me. 452; C.v.
Roby, 12 Pick. (Mass.) 496.

8 Reg. v. Salvi, 10 Cox C. C. 481, n.

4 Reg. v. Bird, 2 Eng. L. & Eq. 530, 5 Cox C. C. 20.

5 S. v. Dresser, 54 Me. 569; C. v. Goddard, 13 Mass. 455; Ross. v. S.,
9 Mo 696; Barge v. C., 3 P. & W. (Pa.) 262; U. S. v. Conant, C. Ct.
Mass., Fed. Cas. No. 14,848.

6 Bennett v, S., 2 Yerg. (Tenn.) 472.
Secr. 124.] OF CRIMINAL PROCEDURE. 113

dict. If upon all the evidence introduced by the government
and by the accused there results a reasonable doubt upon any
essential allegation in the indictment or complaint, the crim-
inal is entitled to an acquittal. Upon all these issues, there-
fore, he has only to raise a reasonable doubt. When, however,
the accused sets up in defence a distinct and independent fact,
not entering into these issues, he must prove it by a prepon-
derance of evidence. Thus, if the defence be insanity, the
better view is, that, since it is a part of the case of the prose-
cution that the accused was sane, it is necessary for the
accused to produce, or that there should appear in the case
upon all the evidence introduced, only so much evidence of
insanity as to induce a reasonable doubt on the issue, in order
to secure his acquittal.! If, on the other hand, the defence be
a former acquittal, since this is a new, distinct, and independ-
ent fact, in no way embraced in the allegations of the prose-
cution, the accused assumes the burden of proof, and must
establish the fact by a preponderance of evidence. In civil
cases, each party takes the burden of proof of the facts alleged
essential to make out his case, and may establish them by a
preponderance of proof? Criminal cases to which the rule
of proof beyond reasonable doubt applies are such only as are
criminal in form, and cognizable by a court administering the
criminal law. If the question whether a crime has been com-
mitted arises in a civil case, tried by a court administering
the civil, as contra-distinguished from the criminal law, the
rule of evidence applicab'e in the civil courts prevails. Thus,
in an indictment for an assault, the prosecution must prove.
the assault beyond a reasonable doubt; while, ina civil action
for damages for the same assault, the plaintiff is only required
to prove it by a preponderance of evidence.

The general test of a criminal case is that it is by indict-
ment, and of a civil case that it is by action: But the decisions
upon this point are not uniform.®

1 Ante, § 45.

2 See 1 Greenl. Ev. (13th ed.), §§ 81a, 815; 2 Greenl. Ev., § 29, n.;
Steph. Dig. of the Law of Ev. (May’s ed.), p. 40,n.; 10 Am. L. Rev.,
pp- 642 et seq.; Kane v. Hibernia Ins. Co., 10 Vroom (N. J.) 697.

8 The cases are very fully collected in 1 Bish. Cr. Law, §§ 32, 33.

8
114 CRIMINAL LAW. [Secrs. 125-127.

§ 125. Doubt as to Interpretation. —If it be fairly doubtful
whether the crime charged comes within the purview of a
statute, it has been frequently said, the prisoner is entitled
to the benefit of the doubt.! But it has also been held that
it is not the duty of the court to instruct the jury that, if they
have a reasonable doubt as to the law or the applicability of
the evidence, they must give the prisoner the benefit of the
doubt And perhaps it is only a court of last resort, if any,
which should give the prisoner that benefit.?

It is, however, a universal rule of construction, that all
penal and criminal laws shall be construed strictly in favor
of the life, liberty, and property of the citizen.*

§ 126. Corpus Delictii— There must be clear proof of the
corpus delicti, that is, of the fact that a crime has been com-
mitted’ Were this not required, the danger of conviction
in cases where no crime had in fact been committed would
be great. But this fact, like any other, may be proved, by a
proper amount of circumstantial evidence ;® it must, however,
be so proved beyond reasonable doubt.’

§ 127. Testimony of Defendant.— At common law the de-
fendant was not allowed to testify in his own behalf. This
has been changed in this country by statute, and a defendant
may if he chooses testify on his own behalf. By all our Con-
stitutions, however, a witness cannot be compelled to testify
against himself; consequently the prosecution cannot call
upon the defendant to take the stand.

It is provided in some States that, if the accused does not
testify, no inference can be drawn apairtal him. Even where

1U. 8. v. Whittier, Dillon, J. 6 Reptr. 260, Fed. Cas. No. 16,688,
and cases there cited.

2 O'Neil v. S., 48 Ga. 66.

3 Cook v. S., i Ga. 53.

4 C. v. Barlow, 4 Mass. 4389.

5 2 Hale P. C. 290; Best, Evid. (Chamberlayne’s ed.), § 441; Rex v.,
Burdett, 4 B. & Ald. 95, 128, 162; P. v. Palmer, 109 N. Y. 110, 16 N. E.
529; Willard v. S., 27 Tex. App. 386; S. v. Davidson, 30 Vt. 377,

® Stocking ». S., 7 Ind. 326; S. v. Cardelli, 19 Nev. 319, 10 P. 433;
U.S. v. Williams, 1 Cliff C. C. 5, Fed. Cas. No. 16,707.

7 Lee v. S., 76 Ga. 498; Gray v. C., 101 Pa. 380.
‘

Sect. 128.] OF CRIMINAL PROCEDURE. 115

this provision is not made, if would seem unfair to draw such
an inference, especially in view of the constitutional provision.1
It has however been held in such a case that the refusal of
the accused to testify may be used against him.?

If the accused goes on the stand, the better view is that he
has waived his constitutional privilege, and may be compelled
to answer any questions pertinent to the issue,? though not
questions which are asked merely to affect the: credibility
of the witness. Some authorities, however, hold that a
defendant who has become a witness can claim his privilege
at any time, though if he does so unfavorable inferences may
be drawn.6

If the evidence of the defendant is weak and unsatisfactory,
the same inferences may be drawn as in the case of any
witness.®

§ 128. Confessions.— The genius of the common law looks
with disfavor upon any attempt to prove one guilty of crime
by his own testimony; and even a confession of guilt by the
accused is received in evidence only under certain conditions.
The confession must be entirely voluntary. If it was made
under duress, or by reason of a threat or promise of favor by
one in authority, it is not admissible.’ Such confessions are
not rejected because of the breach of faith, but because a
confession gained by such means is untrustworthy.2 It must
appear, therefore, that the confession was induced by the
threat or promise, and, it would seem, that the circumstances
were such that the accused would be likely to tell an untruth
from fear or hope induced by those in authority.®

1 Pp. v. Tyler, 86 Cal. 522.

2S. v. Bartlett, 55 Me. 200.

3 C. v. Nichols, 114 Mass. 285 ; C. v. Tolliver, 119 Mass. 8312; Connors
v. P., 50 N. Y. 240.

4 Pp. v. Brown, 72 N, Y. 571.

‘ 5 Cooley, Const. Limit., *317.

® Stover v. P., 56 N. Y. 315.

7 Warickshall’s Case, 1 Leach C. C. 263.

8 Reg. v. Baldry, 2 Den. C. C. 430; C. v. Knapp, 9 Pick. (Mass. ) 495.

® Reg. v. Jarvis, L. R. 1C. C. 96; Reg. v. Reeve, L. R. 1 C. C. 362;
C. v. Cuffee, 108 Mass. 285.
116 CRIMINAL LAW. [Secr. 128.

It seems to be doubtful whether court or jury is to decide
on the question of threat or promise. As a question involving
the admissibility of evidence, it would seem more properly to
be a question for the court;! but it is often held that the
question should be left to the jury?

If the confession was in fact voluntarily made, it is admis-
sible, though given without any reference to the present pro-
ceedings, and even under a misapprehension. Thus, testimony
voluntarily given at a fire inquest,? or at a former trial, is
admissible; and so is a confession made to officers who had
arrested the accused illegally. And this is true, although the
confession was made without knowledge of the constitutional
rights of an accused, and without advice of counsel.®

If one receives a confession while pretending to be an
officer, but in fact is not in authority, the better view would
seem to be that the confession is admissible. So if a man’s
confession is overheard, or is obtained by a private person by
cheat or drunkenness, it may be used.’ And if in conse-
quence of an inadmissible confession other evidence is dis-
covered, as, for instance, if the weapon with which a murder
was committed is found, such evidence may be introduced.®

The rule as to confessions does not apply to admissions
from conduct, Evidence of the conduct of the accused is
always receivable; such, for instance, as the flight of the de-
fendant,’ or silence of the acctised when damaging statements
are made under such circumstances as call for denial.!°

An uncorroborated confession is not enough to justify a
conviction. The corpus delicti or fact that a crime has been
committed, must be at least plausibly shown by other evidence.!!

1 Biscoe v. S., 67 Md. 6, 8 Atl. 571; Ellis v. S., 65 Miss. 44, 3 So. 188.

2 C.v. Piper, 120 Mass. 185.

8 C. v. Bradford, 126 Mass. 42.

4 C. v. Reynolds, 122 Mass. 454.

5 Balbo v. P., 80 N. Y. 484.

6 §. v. Garrett, 71 N. C. 85.

7 C. v. Howe, 9 Gray (Mass.) 110.

5 C. v. James, 99 Mass. 438; S. v. Garrett, 71 N. C. 85.

® P. v. Stanley, 47 Cal. 113 (semble).
1 Kelley v. P., 55 N. Y. 565.

1 Matthews v. S., 55 Ala. 187; S. v. German, 54 Mo. 526, 14 Amer.
Sxcts. 129, 130.] OF CRIMINAL PROCEDURE. 117 |

§ 129. Evidence of Character The character of the ac-
cused cannot be shown in evidence by the prosecution ;! but
the defendant may introduce evidence of his own good char-
acter, which then may be controverted by the prosecution.?
It has been sometimes said that proot of the good character of
the defendant is available only in doubtful cases; but the
better opinion is that it may be shown in any case, the weight
of it being for the jury.2 Character is to be proved by general
reputation, not by- special instances of good or bad conduct.*

In certain cases of offences against women, the woman’s
character for chastity may be shown, as bearing on the ques-
tion of consent.5 ;

§ 180. Testimony of Accomplice.—It is sometimes urged
that a defendant should not be convicted upon the testimony
of an accomplice without corroboration.6 This, however, is
not a rule of law. It is entirely within the discretion of the
court whether it will caution the jury in this way; and a re-
fusal so to do is no matter of exception.’ The practice in Eng-
land is more uniform in felonies than in misdemeanors, in
which latter case it is sometimes refused.® In Georgia the
rule is made applicable only in felonies.® But a conviction on
the uncorroborated evidence of an accomplice is good at com-
mon law. The principle which allows the evidence to go to
the jury at all necessarily involves the right to believe and act

Rep. 483, 486, n.; Ruloff v. P., 18 N. Y. 179; Gray v. C., 101 Pa.
380.
“1 P. v. Greenwall, 108 N. Y.:296, 15 N. E. 404.

2 C. v. Webster, 5 Cush. (Mass.) 295, 324.

38. v. Northrup, 48 Ia. 583, and cases cited; C. v. Leonard, 140
Mass. 473, 4 N. E. 96; S. v. Daley, 53 Vt. 442.

48. v. Bloom, 68 Ind. 54; C. v. O’Brien, 119 Mass. 342; P. v. Green-
wall, ante.

§ C. v. Kendall, 118 Mass. 210; Woods v. P., 55 N. Y. 515; S. v. Reed,
39 Vt. 417.

6 See ante, § 76. /

7 Smith v. §., 37 Ala. 472; S. v. Litchfield, 58 Me. 267.

8 McClory v. Wright, 10 Ir. Com. Law, 514; 1 Greenleaf, Evidence,
§ 382, n.

® Parsons v. S., 43 Ga. 197.
118 CRIMINAL LAW [Szcrs. 131, 132,

upon it.) But by statute in Iowa and Texas, and perhaps
other States, there must be corroboration.”

§ 131. Fresh Complaint. — In rape cases, evidence is admis-
sible that the woman made complaint of the ill usage as soon
as she was able to do so; but not, in most jurisdictions, the
particulars of the complaint.2 In some States, however, all
the particulars of the complaint are allowed to be given in
corroboration.4

§ 182. Dying Declarations. — In trials for homicide, declar-
ations of the deceased made in contemplation of death are ad-
missible to prove the circumstances of the killing, in favor of
the prisoner, as well as against him. The declaration must
be a statement of fact,° and it must appear that the deceased
was conscious that he was at the point of death.’ If he was so
conscious, the declaration is admissible, though in fact he lived
several days;® and if not so conscious it is inadmissible,
though he died at once.®

1S. v, Wolcott, 21 Conn. 272; Collins v. P., 98 Til. 584; Dawley ». S.,
4 Ind. 128; S. v. Prudhomme, 25 La. Ann. 522; C. v. Bosworth, 22 Pick.
(Mass.) 897; C. v. Holmes, 127 Mass. 424, 34 Amer. Rep. 391, 408, n.;
Hamilton v. P., 29 Mich. 173; S. v. Hyer, 39 N. J. L. 598; P. v. Costello,
1 Denio (N. Y.) 83; Linsday v. P., 63 N. Y. 143; S.v. Holland, 83 N. C.
624; Kilrow v. C., 89 Pa. 480; U.S. v. Kessler, 1 Bald. C. Ct. 15, Fed.
Cas. No. 15,528; contra, P. v. Ames, 39 Cal. 403.

2 Smith v.8., 37 Ala. 472; S. v. Moran, 34 Ia. 453; Lopez v. S., 34
Tex. 133.

8 Reg. v. Walker, 2 M. & R. 212.

4 S. vu. Kinney, 44 Conn. 153.

5 Reg. v. Scaife, 1 Moo. & R. 551.

® Collins v. C., 12 Bush (Ky.) 271; P. v. Shaw, 63 N. Y. 36; Whart.
Crim. Ev., § 294.

7 §."v. Wagner, 61 Me. 178; C. v. Casey, 11 Cush. (Mass.) 417; Sulli-
van v. C., 93 Pa. 284.

8 C. v. Cooper, 5 All. (Mass.) 495.

® Reg. v. Jenkins, L. R. 1 C. C. 187.
Sects. 133, 134.] OFFENCES AGAINST THE GOVERNMENT. 119

CHAPTER III.

OFFENCES AGAINST THE GOVERNMENT.

§ 134. Treason. § 146. Embracery.
140. Bribery. 147, Perjury.
141, Extortion and Oppression. 154. Contempt.
143. Barratry—Champerty—Main-| 159. Rescue. — Escape. — Prison
tenance, Breach.

$ 183. Introductory. — In the following chapters, the more
important offences will be considered more at large. It is to
be borne in mind that there is no sharply defined line between
criminal and merely civil offences; the difference is only one
of degree. There is no limit to the number of crimes. Those
that will be described are only a few, which from their more
frequent occurrence or their greater importance it has become
possible to define with exactness.

The first class of crimes consists of offences against the
public in its corporate capacity ; against the government itself,
or some department of it. The most heinous crime of this
sort is treason. Other important crimes are bribery, extor-
tion, and oppression ; offences against justice, such as barra-
try, champerty and maintenance, embracery, perjury, and
contempt; and prison breach and kindred crimes.

TREASON.

§ 134. At common law there are two kinds of treason:
first, disloyalty to the King, or a violation of the allegiance
due him, which was of the highest obligation, and hence called
high treason ; and, secondly, a violation of the allegiance or
duty owed by an inferior to a superior, as of a wife to the
husband, a servant to his master, or an ecclesiastic to his lord
or ordinary,— either of which inferiors, if they should kill
120 CRIMINAL LAW. (Secrs. 135, 136.

their superior, were held guilty of petit treason.! There is
now, however, neither in England nor in this country any such
classification of treasons,— petit treasons being everywhere
punished as homicides.

§ 185. Definition. — By the ancient common law, the crime
of treason was not clearly defined, whence arose, according to
the arbitrary discretion of the judges and the temper of the
times, a great number of modes by which it was held
treason might be committed, not important to be here detailed.
The inconvenience of such uncertainty as to the law led to the
enactment of the Stat. 25 Edw. III. c. 2, which, confirmed
and made perpetual by 57 Geo. III. c. 6, defines the law of
England upon the subject, enumerating a large number of
specific acts which may constitute the offence. Only two
of these, however, are treasonable in this country.?

By the Constitution of the United States,? treason is de-
clared to consist only “in levying war against them, or in ad-
hering to their enemies, giving them aid and comfort”; and
this must be by a person owing allegiance to the United States.*
Substantially the same definition is’ adopted by the several
States, some of them, however, setting out, either in their
constitutions or the statutes, at some length, the particular
methods of adhesion and of giving aid and comfort which
shall constitute treason.

§ 186. War May Be Levied, not only by taking arms against
the government, but under pretence of reforming religion or
the laws, or of removing evil counsellors, or other grievances,
whether real or pretended. To resist the government forces
by defending a fort against them is levying war, and so is
an insurrection with an avowed design to put down all en-
closures, all brothels, or the like; the universality of the
design making it a rebellion against the State and a usurpa-
tion of the power of government. But a tumult, with a view

14 Bl. Com. 75; Resp. v. Chapman, 1 Dall. (Pa.) 53.
2 Stephen’s Dig. Cr. Law, art. 51 et seq.
8 Art. 3, § 3.

; ‘ As to what constitutes allegiance, see Kent Com, (12th ed.), pp. 39
et seq.
Sect. 136.] TREASON. 121

to pull down a particular house or lay open a particular
enclosure, amounts at best to riot, there being no defiance
of public government.! An insurrection to prevent the execu-
tion of an act of Congress altogether, by force and intimida-
tion, is levying war;? but forcible resistance to the execution
of such an act for a present purpose, and not for a purpose of
a public and general character, does not amount to treason ;3
nor does the mere enlistment of men into service. There
must be, to constitute an actual levy of war, an assemblage
of persons met for a treasonable purpose, and some overt act
done, or some attempt made by them, with force, to execute,
or toward executing, that purpose. There must be a present
intention to proceed to the execution of the treasonable
purpose by force.. The assembly must be in a condition to
use force, if necessary, to further, or to aid, or to accomplish
their treasonable design. If the assembly is arrayed in a
military manner for the express purpose of overawing or
intimidating the public, and to attempt to carry into effect
their treasonable designs, that will, of itself, amount to a
levy of war, although no actual blow has been struck of en-
gagement has taken place.’ So, aiding a rebellion by fitting
out a vessel to cruise against the government rebelled against
in behalf of the insurgents, is levying war, whether the vessel
sails or not.6 So is a desertion to, or voluntary enlistment
in, the service of the enemy.’

In England, “levying war” is held to mean: Ist. At-
tacking, in the manner usual in war, the Sovereign himself, or
his military forces, acting as such by his orders in the execu-
tion of their duty ; 2d. Attempting by an insurrection, of what-
ever nature, by force or constraint, to compel the Sovereign to

14 Bl. Com. 81, 82; post, §§ 165, 166.

2 U.S. v. Mitchell, 2 Dall. (Pa.) 348.

8 J. S. v. Hoxie, 1 Paine C. Ct. 265, Fed. Cas. No. 15,407; U. S. a.
Hanway, 2 Wall. Jr. C. Ct. 139, Fed. Cas. No. 15,299.

4 Ex parte Bollman, 4 Cranch (U. 8.) 75.

5 Burr’s Trial, 401. See also 14 Law Reporter, p. 413

6 U. S. v. Greathouse, 2 Abb. C. Ct. 364, Fed. Cas. No. 15,254.

7 Roberts’s Case, 1 Dall. (Pa.) 89; McCarty’s Case, 2 Dall. (Pa.) 86;
U.S. v. Hodges, 2 Wheeler’s Cr. Cas. 477, Fed. Cas. No. 15,374.
122 CRIMINAL LAW. [Szcrs. 137-139.

change his measures or counsels, or to intimidate or overawe
both Houses or either House of Parliament; and, 3d. Attempt-

ing, by an insurrection of whatever kind, to effect any general

* public object. But an insurrection, even conducted in a
warlike manner, against a private person, for the purpose
of inflicting upon him a private wrong, is not levying war, in
a treasonable sense.

Adhering to the Sovereign’s enemies is held to be active
assistance within or without the realm to a public enemy at
war with the Sovereign. Rebels may be public enemies,
within the meaning of the rule.?

§ 187. Who May Commit. — Treason involves a breach of
allegiance; a foreigner not in the country cannot therefore
be guilty of the crime. But even an alien owes allegiance
to the laws of the country in which he is, and is bound to
abide by them. He may therefore be guilty of treason by
giving aid and comfort to an enemy of that country.?

§ 188. Misprision of Treason is the concealment, by one
having knowledge, of any treason committed or (in some of
the States) contemplated, or the failure to make it known to
the government.’

§ 189. Evidence. — The rule is incorporated into the Con-
stitution of the United States, and into those of most of the
States, that treason can only be proved by the evidence of
two witnesses to the same overt act, or by confession in open
court. Unless the overt act is so proved, all other evidence
is irrelevant. But an overt act being proved by two wit-
nesses, all other requisite facts may be proved by the testi-
mony of a single witness.®

The common law rule was that there must be two wit-
nesses; but it was held sufficient if one testified to one overt
act, and another to another. And this may be the rule now
in those States whose constitutions or statutes do not contain

1 Stephen’s Dig. Cr, Law, arts. 53 and 54.

2 Carlisle v. U. S., 16 Wall. 147.

8 See the Constitutions and statutes of the several States.
4 U.S. v. Burr, 4 Cranch, 493.

5 U.S. v. Mitchell, 2 Dall. (Pa.) 848,
Sect. 140.] BRIBERY. 123

the explicit language of the Constitution of the United States.
The ordinary rules of evidence generally prevail in the proof
of misprisions.?

A confession not in court may be proved by the testimony
of one witness, as corroborating other testimony in the case ;
but in those States prohibiting conviction unless upon con-
fession in open court, it cannot be made the substantive
ground of conviction?

BRIBERY.

§ 140. Bribery is a misdemeanor at common law,‘ and has
generally been defined as the offering or receiving of any undue
reward to or by any person whose ordinary profession or
business relates to the administration of public justice, in
order to influence his behavior in office, and induce him to act
contrary to the known rules of honesty and integrity.6 But
in more modern times the word has received a much broader
interpretation, and is now held to mean the corruptly offer-
ing, soliciting, or receiving of any undue reward as a con-
sideration for the discharge of any public duty. Strictly
speaking, an offer to give or receive a bribe is only an at-
tempt,® and the receipt. of a bribe is the consummated offence.
But as long ago as 1678 a standing order of the House of
Commons made it bribery as well to offer as to receive, and
so at the present day either the offering or receiving is held
to constitute the offence, and an actual tender of the bribe is
not necessary.”

By undue reward is meant any pecuniary advantage, direct
or indirect, beyond that naturally attached to or growing out
of the discharge of the duty. Thus, voting is a public duty,

1 Stat. 7 Will. III, c. 3, § 2; R. S. New York, vol. ii, p. 890, § 15; 3
Greenl. Ev., § 246, and notes.

2 3 Greenl. Ev., § 247.

8 Roberts’s Case, 1 Dall. (Pa.) 39; McCarty’s Case, 2 Dall. (Pa.) 86.

4 1 Hawk. P. C., bk. 1, c. 67, § 6.

5 Coke, 8d Inst. 145; 3 Greenl. Ev., § 71.

6 Walsh v. P., 65 Ill. 58,

1 §. v. Woodward, 182 Mo. 391, 81S. W. 857.
124 CRIMINAL LAW. [Sxcr. 140.

and though no compensation is allowed, yet by the exercise of
the right one may promote the public welfare, and thus indi-
rectly his own. But if he sells or promises to sell his vote in
consideration of any other private reward, it is an abuse of the
trust, and an indictable offence;! as where A votes for B
for one office, in consideration of B’s vote for A for another.
And bribery even of a member of the nominating convention
of a political party seems criminal at common law.? And
buying or promising to buy the vote is equally an offence,
though the person selling refuses to perform the contract,! or,
if a legislator, has no jurisdiction in the premises,° or in point
of fact has no right to vote.6 So where a candidate for public
office offered, in case of his election, to serve for less than the
salary provided by law for the office, whereby the taxes would
be diminished, this was held to be within the spirit of the law
against bribery.’ So conduct inducing or tending to induce
corrupt official action, as the offer of money to one having
the power of appointment to office, to influence his action
thereon ;° or to a sheriff or his subordinate having the custody
of prisoners, to induce him to connive at their escape ;° or to
a customs officer, to induce him to forbear making a seizure
of goods forfeited by violation of the revenue laws. The
theory of our government is that all public stations are trusts,
and that those clothed with them are to be actuated in the
discharge of their duties solely by considerations of right,

1 Reg. v. Lancaster, 16 Cox C.'C. 737; S. v. Jackson, 73 Me. 91.

2 C, v. Callaghan, 2 Va. Cas. 460, C. 6.

8 C. v, Bell, 145 Pa. 374, 22 Atl. 641.

* Sulston v. Norton, 38 Burr. 1235; Henslow v. Fawcett, 3 Ad. &
El. 51.

5 P. v. McGarry (Mich.), 99 N. W. 147; S. v. Ellis, 4 Vroom (N. J.),
102, M. 23; contra, S. v. Butler, 178 Mo. 272, 77 8. W. 560.

6 Combe v. Pitt, 3 Burr. 1586.

7S. v. Purdy, 36 Wis. 213. But see Dishon v. Smith, 10 Ia 212,
where giving a note to the county as an inducement to the people to vote
for the removal of the county seat was held not to be bribery.

8 Rex v. Vaughan, 4 Burr. 2494; Rex v. Pollman, 2 Camp. 229.

® Rex v. Beale, 1 East, 183.

10 Rex v. Everett, 3B. & C. 114. See also Caton v. Stewart, 76 N. C.
357.
Secr. 141.] EXTORTION AND OPPRESSION. 125

justice, and the public good ; and any departure from the line
of rectitude in this behalf, and any conduct tending to induce
such departure, is a public wrong.! The offer of money to
induce a public officer to resign office, the intent being that
the defendant might be appointed in his place, is criminal
bribery.2 Under the statute ® which prohibits the payment of
money to a voter to induce him to vote, it has been held to be
an offence to pay the travelling expenses of the voter to and
from the polling places.!

EXTORTION AND OPPRESSION.

§ 141. Extortion is the demanding and taking of an illegal
fee, under color of office, by a person clothed by the law with
official duties and privileges. The fee is illegal, if demanded
and taken before it is due, or if it be a greater amount than
the law allows, and, of course, if not allowed at all by law.
Thus, it is extortion for a justice of the peace to exact costs
where they are not properly taxable, or from the party to
whom they are not taxable ;® or fora jailer to obtain money
of his prisoner by color of his office;7 or for a ferryman 8 or
miller® to collect tolls not warranted by custom; or for a
county treasurer to exact fees for acts required in the collec-
tion of taxes, but which had not been done; or for a coroner ¥
or sheriff to refuse to do their official duty unless their fees are

1 Trist v. Child, 21 Wall. (U. 8.) 441.

2 Reg. v. Mercer, 17 Up. Can. Q. B. 602 (semble).

8 17 & 18 Vict. c. 102.

4 Cooper v. Slade, ‘6 H. L. C. 746.

5 Rex v. Baines, 6 Mod. 192; Ming v. Truett, 1 Mont. 322. For dis-
tinction between bribery and corruption see Levar v. S., 108 Ga. 42, 29
S. E. 467.

6 P. v. Whaley, 6 Cow. (N. Y.) 661; Resp. v. Hannum, 1 Yeates (Pa.),
71. So with a constable: Levar v. S., ante.

7 Rex v. Broughton, Trem. P. C. 111.

8 Rex v. Roberts, 4 Mod. 101.

® Rex v. Burdett, 1 Ld. Raym. 148,

10 §. v. Burton, 3 Ind. 93.

11 Rex v. Harrison, 1 East P. C. 382.
126 CRIMINAL LAW. [Secr. 142.

prepaid ;1 or to demand and receive fees where none are by law
demandable.? So it is extortion for an officer to avail him-
self of his official position to force others, by indirect means,
to contribute to his pecuniary advantage to an amount and
in a manner not authorized by law; as, for instance, for a
sheriff to receive a consideration from A for accepting A as
bail for C, whom he has arrested. That the illegal fee is in
the form of a present, or other valuable thing than moncy,
is immaterial ;* unless the gift be voluntary,’ in which case
there is no offence committed. By a very strict construction,
the taking a promissory note for illegal fees is held not to
constitute the offence, as the note is void, cannot be enforced,
and is therefore of no value. And the taking must be with
a wrong intent,’ and not through mistake of fact ® or of law.®

§ 142. Oppression is such an abuse of discretionary author-
ity by a public officer, from an improper motive, as consists
in inflicting any other injury than extortion. Thus, where a
judge inflicts an excessive sentence from unworthy motives,
he is guilty of oppression. So where a public officer refuses
to issue a license to an inn-keeper because he does not vote as
the officer wishes, the officer is guilty of oppression! And so
where a magistrate punishes a defendant without pursuing
the forms of law, he is guilty of oppression. ™

1 Hescott’s Case, 1 Salk. 330; C. v. Bagley, 7 Pick. (Mass.) 279; S.v.
Vasel, 47 Mo. 416, 444; S. v. Maires, 4 Vroom (N. J.), 142.

2 C. v. Mitchell, 3 Bush (Ky.), 25; Simmons v. Kelley, 33 Pa. 190.

® Stotesbury v. Smith, 2 Burr. 924; Rex ». Higgins, 4 C. & P. 247;
Rex v. Burdett, 1 Ld. Raym. 148; Rex v. Loggen, 1 Stra. 73; P. v. Cal-
houn, 8 Wend. (N. Y.) 420.

* Rex v. Eyres, 1 Sid. 307.

5 C. v. Dennie, Th. Cr. Cas. (Mass.) 165.

8 C. v. Cony, 2 Mass. 523; U.S. v. Driggs, 125 Fed. 520. But see
Empson v. Bathurst, Hut. 52; C. v. Pease, 16 Mass. 91.

7 Cleaveland v. S., 84 Ala. 254; S. v. Stotts, 5 Blackf. (Ind.) 460;
Resp. v. Hannum, 1 Yeates (Pa.), 71.

8 Bowman v. Blythe, 7 E. & B. 26.

®° S. v. Cutter, 36 N. J. L. 125, M. 241; P. v. Whaley, 6 Cow. (N. Y.)
661.

10 Steph. Dig. Cr. Law, § 119 (1).

11 Rex v. Williams, 2 Burr. 1317.

12 Rex v. Okey, 8 Mod. 46.

-
Sects. 142a, 143.] BARRATRY, CHAMPERTY, MAINTENANCE. 127

§ 142a. Other Official Misconduct. — Extortion and oppression
are but two illustrations of the general principle that the pub-
lic has a right to be honestly served by its officers, and that
any dereliction of duty by them is punishable; it is immater-
ial whether it consists in a wrongful doing, or in a wrongful
failure to do. Thus a license commissioner is indictable
for corruptly giving a license to an unfit person ;! a justice for
discharging a prisoner without proper bail,? a constable for
unnecessarily and maliciously binding a prisoner,’ a city coun-
cil for corruptly, though not extortiously, awarding a contract
to other than the lowest responsible bidder.* So also, the
mayor of a city is indictable for failing to take proper steps to
suppress a riot;® a town clerk for not properly keeping the town
records.®

ps

BARRATRY, CHAMPERTY, MAINTENANCE.

§ 148. Barratry, Champerty, and Maintenance are kindred
offences. The encouragement of strife was regarded by the
common law as a matter of public concern, and it interposed
to punish and preventit. There were two special forms which
this encouragement assumed : one, where a stranger in interest
takes part in the promotion of a controversy under an agree-
ment that he shall have part of the proceeds, is called champerty,
because it is an agreement campum partire,—to divide the
spoils; the other, where one officiously and without just cause
intermeddles with and promotes the prosecution or defence of
a suit in which he has no interest, is called maintenance.

Barratry is habitual champerty or maintenance, and is com-
mitted where one has become so accustomed to intermeddle
in strifes and controversies in and out of court that he may be
said to be a common mover, exciter, or maintainer of suits and

1 Rex v. Holland, 1 T. R. 692; P. v. Norton, 7 Barb. (N. Y.) 477.

2 P.y. Coon, 15 Wend. (N. Y.) 277.

8 S. v. Stalcup, 2 Ired. (N. C.) 50.

4S. v. Kern, 51 N. J. L. 259, 17 Atl. 114.

5 Reg. v. Neale, 9 C. & P. 431.

€ S. v. Buxton, 2 Swan (Tenn.), 57. On the question of intent in these
cases see ante, §§ 52-58. f
128 CRIMINAL LAW. [Secr. 144.

quarrels ; as one becomes a common scold by the too frequent
and habitually abusive use of the tongue, or a common seller of
liquor, by habitually selling it in violation of law. A single
act is sufficient upon which to maintain an indictment either
for champerty or maintenance; but a series of acts, not less
than three, are necessary to constitute the habit, which is the
gist of the crime of barratry.

The offence of barratry may be committed by a justice of the
peace who stirs up prosecutions to be had before himself for
the sake of fees ;? and, it seems, by one who unnecessarily,
and for the purpose of opposing his adversary, brings numerous
ungrounded suits in his own right.®

§ 144. Interest.— The intervention, in order to constitute
the crime of maintenance, must be without interest. If one
may be prejudiced by the result of the suit, or has a contin-
gent interest therein, as if a vendee has warranted title to the
vendor, he has an interest which justifies the intervention.*
So if the party intermeddling has a special interest in the
general question to be decided, though not otherwise in the
result of the particular suit, his intervention is not unlawful
In short, if the party have any interest, legal or equitable,
though it be but a contingent interest, he may assist another
in a lawsuit. Any substantial privity or concern in the suit
will justify him.6 So where a creditor of a bankrupt took an
assignment of a right of action from the trustee in bank-
ruptcy, agreeing to sue at his own expense and pay one-fourth
of what was realized to the trustee, the transaction was not
champertous, since the creditor had an interest.7

14 Bl. Com, 184, 185; C. «. Davis, 11 Pick. (Mass.) 432; C. v.
McCulloch, 15 Mass. 227; C. v. Tubbs, 1 Cush. (Mass.) 2; Case of Bar-
retry, 8 Coke, 36, which contains much of the early learning on the
subject.

2 8. v. Chitty, 1 Bail. (S. C.) 879.

3 C. v. McCulloch, ante; 1 Hawk. P. C., ec. 81, § 3.

* Master v. Miller, 4 T. R. 820; Williamson v. Sammons, 34 Ala. 691;
Goodspeed v. Fuller, 46 Me. 141.

® Gowen v. Nowell, 1 Green]. (Me.) 292; Davies v. Stowell, 78 Wis.
334, 47 N. W. 870.

6 Wickham v. Conklin, 8 Johns. (N. Y.) 220.
7 Guy v. Churchill, 40 Ch. D. 481.
Sect. 145.] BARRATRY.—CHAMPERTY.—MAINTENANCE. 129

§ 145. Officious. — The intervention must also be officious,.
and without just cause. If, therefore, the relationship of the
parties or their circumstances be such as to warrant the belief
that the intervention is of a friendly kind, in the interest of
justice, and to prevent oppression, it will not now, — whatever
may have been the extravagant notions of the old lawyers,!
adopted under the pressure of the opinion that such interven-
tion tended to the formation of combinations calculated to
obstruct if not overawe the courts, — be held to be criminal.”
The intervention is not officious or unjustifiable, if prompted
by personal sympathy growing out of relationship, or long
association, as between master and servant,’ or by motives of
charity.4| The common law of champerty and maintenance is
still recognized in some of the States, though a much less
degree of interest will now justify the intervention than for-—
merly.5 ‘And in these States an agreement by an attorney to
carry on a lawsuit, making no disbursements, and to look to
a share of the proceeds for the compensation of his services,
is held to be clearly champertous.6 Other States, however,
deny that the law of maintenance and champerty was ever
applicable to this country, and refuse to recognize it as in
force.’

In point of fact, the tendency is to disregard the common

1 1 Hawk. P. C., c. 83, §§ 4 et seq.

2 Lathrop v, Amherst Bank, 9 Met. (Mass.) 489.

8 Campbell v. Jones, 4 Wend. (N. Y.) 808; Thallhimer v. Brinkerhoff,
3 Cow. (N. Y.) 623. :

4 Perine v. Dunn, 3 Johns. Ch. (N. Y.) 508.

5 Wood v. McGuire, 21 Ga. 576; Lathrop v. Amherst Bank, 9 Met.
(Mass.) 489.

6 Lathrop v. Amherst Bank, ante. See also Elliott v. McClelland, 17
Ala. 206; Martin v. Clarke, 8 R. I. 389.

7 Bayard v. McLean, 3 Harr. (Del.) 189; Newkirk v. Cone, 18 Ill. 449;
Wright v. Meek, 3 Greene (Ia.), 472; Schomp v. Schenck, 40 N. J. L.
195; Stanton v. Sedgwick, 14 N. Y. 289; Key v. Vattier, 1 O. 132;
Sherley v. Riggs, 11 Humph. (Tenn.) 58; Bentinck v. Franklin, 38 Tex.
458; Danforth v. Streeter, 28 Vt. 490; Richardson v. Rowland, 40 Conn.
563. See also note to the last cited case, 2 Green’s Cr. Law Rep. 495,
for some interesting details of the state of society out of which grew
the law of maintenance and other analogous crimes.

9
130 CRIMINAL LAW. [Szcr. 145.

law, except so far as it may have been adopted by statute ; 1
and it may be doubted if any indictment would now be main-
tained for champerty or maintenance, not coming strictly
within the limits of some precedent. The practices out of
which originated the common and early English statute laws
against the offences of champerty and maintenance, — among
which a common one was for a party litigant to interest some
‘“‘oreat person” to come in and aid him to overwhelm his
antagonist by giving him a share of the proceeds, —are not
how so commun as to require the interposition of the aid of
the criminal law. And it is, to say the least, very doubtful
whether, at the present day, an indictnent for either offence,
pure and simple, and unattended by circumstances of aggrava-
tion which would amount to a hindrance or perversion of
justice, would be sustained in any of our courts.”

Questions concerning them have usually arisen in civil
actions, in which a champertous contract has been set up as
a defence. And here the courts are inclined, without much
regard to the old common law precedents, to hold such con-
tracts as are clearly against a sound public policy, and only
such, as champertous.8

Thus, where an attorney agrees to carry on a suit at his
own expense for a share of the proceeds, this seems generally
held to be champertous ;* but not where the expense is to be
borne by the party. And even in such case, if the suit is
against the government, and there is no danger that a “ great
person” may bear down and oppress a weak defendant, the
reason of the law failing, the rule itself fails; and accordingly
it has been recently held that an agreement by an attorney to
carry on a suit against the United States in the Court of

1 See note to Richardson v. Rowland, 14 Am. lL. Reg. n. s. 78.

2 Note to Richardson v. Rowland, 2 Green’s Cr. Law Rep. 495; Maybin
». Raymond, 15 Nat. Bkr. Reg. (U.S. C. Ct., South Dist. Miss.) 354, Fed.
Cas. No. 9,338; 2 Bish. Cr. Law, 7th ed., §§ 125, 126.

3 Key v. Vattier, 1 O. 132.

4 Lancy v. Havender, 146 Mass. 615,16 N. E. 464; Martin », Clarke,
8 R. I. 389; Stearns v. Felker, 28 Wis. 594.

5 Winslow v. Ry. Co., 71 Ia. 197, 82 N. W. 330; Aultman v. Waddle,
40 Kan. 195, 19 P. 730.
Sects. 146, 147.] EMBRACERY. — PERJURY. 131

Claims, at his own expense, for a portion of the proceeds, is
not champertous.1 Nor is an agreement to pay an attorney a
fixed suin for his services “ out of the proceeds of sales of the
property [real estate], as such proceeds shall be realized.” 2

EMBRACERY.

§ 146. Embracery is an attempt, by corrupt means, to induce
a juror to give a partial verdict. Any form of tampering with
a jury, whether successful or not is immaterial, constitutes the.
crime.2 The means most commonly resorted to are promises,
entertainments, presents, and the like. But any means cal-
culated and intended to cause a juryman to swerve from his.
duty, if used, will make the person using them for that pur--
pose indictable at common law. As the crime is in itself am
attempt, it is complete whether successful or not in its pur-
pose, whether the verdict be just or unjust, and even if there
be no verdict. A juror may be guilty of embracery, by the
use of corrupt and unlawful methods of influencing his fellows,
or of obtaining a position on the jury with intent to aid either:
party

PERJURY.

§ 147. “Perjury, by the common law, seemeth to be a wil-
ful false oath, by one who, being lawfully required to depose
the truth in any proceeding in a course of justice, swears ab-
solutely, in a matter of some consequence, to the point in
question, whether he he believed or not.”® Modern legislation
-has allowed persons having conscientious scruples against
taking an oath to substitute an affirmation for the oath.

1 Maybin v. Raymond, 15 Nat. Bkr. Reg. 354, Fed. Cas. No. 9,338,
So of the Court of Alabama Claims: Manning v. Sprague, 148 Mass. 18,
18 N. E. 673.

2 McPherson v. Cox, 96 U. S. 404.

3 1 Hawk. P. C., 8thed. 466; P. v. Myers, 70 Cal. 582, 12 P. 719.

4 S. v. Sales, 2 Nev. 268; Gibbs v. Dewey, 5 Cow. (N. Y.) 503.

5 Rex v. Opie et al., 1 Saund. 301.

6 1 Hawk. P. C., 8th. ed. 429; C. v. Pollard, 12 Met. (Mass.) 225; S.
‘vy. Wall, 9 Yerg. (Tenn.) 347; S. v. Simons, 30 Vt. 620.
132 CRIMINAL LAW. [Srcr. 148.

An oath is a declaration of a fact made under the religious
sanction of an appeal to the Supreme Being for its truth.

An affirmation is substantially like an oath, omitting the
sanction of an appeal to the Supreme Being, and substituting
therefor the “ pains and penalties” of perjury.

The proper form of administering either is that which is
most binding on the conscience of the affiant, and in accord-
ance with his religious belief. But the form is not essential,
even though it be prescribed by statute, if there be a substan-
tial compliance, — the prescription being regarded as directory
merely. And therefore, if a book other than the Evangelists
be unwittingly used, it does not vitiate the oath.2 Nor can a
prosecution for perjury be sustained upon testimony given
orally which the law requires to be in writing,’ nor upon an
affidavit not required by law. But when the witness is
sworn generally to tell the truth, instead of to make true
amv according to the usual practice, false testimony is still
perjury 3

§ 148. Lawfully Required. — But, to be valid, the oath must
be administered by a court or magistrate duly authorized. If
a court having no jurisdiction of the person or subject matter,
or magistrate not duly authorized or qualified, administer the
oath, it has no binding force or legal efficacy, and no prosecu-
tion for perjury can be predicated upon it. Itis extra-judicial
if the law does not require the oath, or, the oath being re-
quired, if an unauthorized person administers it.6 Thus, as

‘

1 Rex v. Haly, 1 C. & D. (Ire.) 199 ; C. v. Smith, 11 Allen (Mass.),
243.

2 Ashburn v. S., 15 Ga. 246; P. v. Cook, 4 Seld. (N. Y.) 67.

8S. c. Trask, 42 Vt. 152; S. v. Simons, 30 Vt. 620.

4 P. v. Gaige, 26 Mich. 30; Ortner v. P.,6 T. & C. (N. Y. S.C.)
548.

5 S. v. Keene, 26 Me. 33.

® Pankey v. P., 1 Scammon (Ill.), 80; Muir v. S., 8 Blackf. (Ind.) 154;
8. v. Plummer, 50 Me. 217; P. v. Travis, 4 Parker (N. Y.), C. C. 213;
Lambert v. P., 76 N. Y. 220; S. v. Wyatt, 2 Hay. (N. C.) 56; S. v. Hay-
ward, 1 N. & McC. (S. C.) 546; C. v. Pickering, 8 Grat. (Va.) 628; U. S.
v. Babcock, 4 McLean (C. Ct.), 118, Fed. Cas. No. 14,488; U. S. ».
Howard, 37 Fed. 666. Compare S. v. Kirkpatrick, 832 Ark. 117.
Secr. 148.] PERJURY. 133

illustrations of the first point, it has been held that, if a party to
the record be sworn, the law not admitting him as a compe-
tent witness, false testimony by him is no perjury. So it has
been held that it is no perjury to swear falsely to a place of
residence in obtaining a certificate of naturalization, the oath
to that fact being voluntary and immaterial under the law.?
So to take a wilfully false oath as to the non-mineral character
of homestead land is not perjury, where the oath is not called
for by the statute, although required by a departmental regu-
lation, the latter being held forbidden by the language of the
statute So if an immaterial allegation of fact be introduced
and sworn to in a petition to court. So where a bill in equity
is sworn to where the oath is not required.> Nor will a false
answer in chancery, the bill not calling for a sworn answer,
amount to perjury.®

Similarly, as to the other requirement: even though the oath
be required, if the court administering it has no jurisdiction,
as where a police court wrongfully attempts to try a larceny 7
or burglary § case, or for any other reason has no jurisdiction ; 9
or the official administering the oath is incompetent to do
so, the defendant cannot be held guilty of perjury. But if
jurisdiction and authority exist, formal irregularities, — as

1S. ». Hamilton, 7 Mo. 300.
2 §. v. Helle, 2 Hill (S. C.), 290.
2 U.S. v. Maid, 116 Fed. 630.

4 Gibson v. S., 44 Ala. 17. See also Klug v. McPhee, 16 Col. App.

39, 63 P. 709; S. v. Hamilton, anie.
5 P. v. Gaige, 26 Mich. 30.
6 Silver v. S., 17 O. 365.

7 §. v. Jenkins, 26.8. C. 121,158. E. 487.

8 S. v. Wymberley, 40 La. Aun. 460, 4 So. 161.

® Collins v. §., 78 Ala. 433; Renew v. S., 79 Ga. 162,4 S. E. 19; S.
v. Furlong, 26 Me. 69; S. v. McCone, 59 Vt. 117, 7 Atl. 406.

10 Custodes v. Gwinn, Style 336, K. 416, M. 959; S. v. Cannon, 79 Mo.
343; S. v. Peters, 57 Vt. 86. But mere irregularities in the appointment
are no defence; Markey v. S. (Fla.), 37 So. 53; S. v. Woolridge (Or.),
78 P. 333; Manning v. 8. (Tex.), 81 S. W. 957. It is sufficient that the
judge was such de facto, so that the judgment would have been bind-
ing on the parties: S. v. Williams, 61 Kan. 789, 60 P. 1050; Morford v.
Terr., 10 Okl. 741, 63 P. 958.

a)
134 CRIMINAL LAW. [Sects. 149, 150.

where the witness is sworn to tell the truth and the whole
truth, omitting from the oath the words “and nothing but the
truth,” ! or there is error in some of the proceedings, of which
the oath is a part,? — are immaterial.

§ 149. “Judicial Proceeding” embraces not only the main
proceeding, but also subsidiary proceedings incidental thercto ;
as a motion for continuance,? or an affidavit initiatory. of a
proceeding ¢ or in aid of one pending,® or a motion for removal ®
or for a new trial,’ or a hearing in mitigation of sentence § or
for taking bail,® or on a preliminary inquiry as to the compe-
tency of a witness or juror. It also embraces any proceeding
wherein an oath is required by statute, if the oath is to an
existing fact, and not merely promissory.“ It has also been
held to embrace a proceeding required or sanctioned by “the
common consent and usage of-mankind.” 8

§ 150. Wilfully False. — The oath must be wilfully false to
constitute the offence. If it be taken by mistake, or in the
belief that it is true, or upon advice of counsel, sought and
given in good faith, that it may lawfully be taken, the offence
is not committed."*

1 P. v, Parent, 139 Cal. 600, 73 P. 423; S.v. Gates, 17 N. H. 373.

2S. v. Lavalley, 9 Mo. 824. See also S. v. Hall, 7 Blackf. (Ind ) 23;
S. v. Dayton, 3 Zabr. (N. J.) 49; Van Steenbergh v. Kortz, 10 Johns. (N.
Y.) 167; U. S. v. Babcock, 4 McLean (C. Ct.), 118, Fed. Cas. No. 14,488.

3 Sanders v. P., 124’ Ill. 218, 16 N. E. 81; S. v. Shupe, 16 Ia. 36.

4 Rex v. Parnell, 2 Burr. 806; Carpenter v. 8., 4 How. (Miss.) 163.

5 Rex v. White, M. & M. 271; White >. S., 1 S:& M. (Miss.) 149.

6 Walker v. Bryant, 112 Ga. 412, 87 S. E. 749; Pratt v. Price, 11
Wend. (N. Y.) 127.

7 §. v. Chandler, 42 Vt. 446.

8 S. v. Keenan, 8 Rich. (S. C.) 456.

9 C. v. Hatfield, 107 Mass. 227.

0S. v. Wall, 9 Yerg. (Tenn.) 347; C. v. Stockley, 10 Leigh (Va.),
678.

11 Compare P. v. Martin, 175 N. Y. 315, 67 N. E. 589.

12 Rex v. Lewis, 1 Strange, 70; Avery v. Ward, 150 Mass. 160, 22 N.
E. 707; S. v. Dayton, 3 Zabr. (N. J.) 49; O’Bryan v. S., 27 Tex. App.
339.

18 Arden v. S., 11 Conn. 408, M. 962; S. v. Stephenson, 4 McC. (S. C.)
165. :
4 Hood v. 8, 44 Ala, 81; Cothran v. §., 89 Miss. 541; Tuttle v. P.,
Secr. 150.] PERJURY. 1385

Some authorities hold that one may commit perjury not-
withstanding he believes what he swears to be true, if it be
made to appear that he had no probable cause for his belief.
But it certainly cannot be considered as established law, that
one who swears inconsiderately, or rashly, or even negligently,
to what he believes, though upon very insufficient data, to be
true, is guilty of perjury.?

Oaths of office, being in the nature of promises of future
good conduct, and not affirming or denying the truth or false-
hood of an existing fact within the knowledge of the affiant,
do not come within the provision of the law of perjury?

It is immaterial whether the witness gives his testimony
under compulsion, if his testimony be required by law,‘ or of
his own accord, as when he voluntarily gives privileged testi-
mony ;° as also, it has been held, whether he is legally com-
petent or incompetent to testify, if his testimony be actually
taken.* But this last proposition is not universally accepted
as sound. In the former cases the testimony as such was
good, it being a personal matter with the defendant whether
he would give it or not. In the latter case the testimony is
as a matter of law incompetent and the consent of the witness
cannot render it any the less so.’

36 N. Y. 431, C. 528; U.S. v. Conner, 3 McLean (C. Ct.), 573, Fed. Cas.
No. 14,847. Compare S. v. Allen, 94 Mo. App. 508, 69 S. W. G04.

_ 1 P.v. McKinney, 3 Parker C. C. (N. Y.) 510; S. v. Knox, Phil. (N.
C.) 312; C. v. Cornish, 6 Binn. (Pa.) 249.

21 Hawk. P. C., c. 69, § 2; S. v. Lea, 3 Ala. 602; Jesse v. S., 20 Ga.
156; C. v. Thompson, 3 Dana (Ky.), 301; C. v. Brady, 5 Gray (Mass.),
78; S. v. Cockran, 1 Bailey (S. C.), 50; S. v. Chamberlain, 80 Vt. 559;
C. v. Cook, 1 Rob. (Va.) 729; U. S. v. Shellmire, 1 Bald. (C. Ct.) 370,
Fed. Cas. No. 16,271; U. S. v. Atkins, 1 Sprague, 558, Fed. Cas. No.
14,474; U.S. v. Stanley, 6 McLean (C. Ct.), 409, Fed. Cas. No. 16,376.

3 1 Hawk. P. C., 8th ed., 481; S. v. Dayton, 3 Zabr. (N. J.) 49.

4 C. v. Knight, 12 Mass, 274.

5 Mackin v. P., 115 Il]. 312, 3 N. E 222; S. v. Maxwell, 28 La. Ann.
861; contra, U. S. v. Bell, 81 Fed. 830.

6 Chamberlain v. P, 23 N. Y. 83; S. v. Molier, 1 Dev. (N. C.) 263;
Monigomery v. S., 10 O. 220.

7 Compare ante, § 148, and S. v. Keene, 26 Me. 33; P. v. Brown, 54
Mich. 15, 19 N. W. 571; P. v. Courtney, 94 N. Y. 490.
136 CRIMINAL LAW. [Secr. 151.

Swearing that a certain fact is true according to the affiant’s
knowledge and belief, is perjury, if he knows to the contrary,
or if he believes to the contrary, even though the fact be true.’
So, perhaps, if he have no knowledge or belief in the matter.?
So, testimony that he does not remember certain material
transactions when in fact he does.®

§ 151. Materiality.— That is material which tends to prove
or disprove any fact in issue, although this fact be not the
main fact in issue, but only incidental. Thus, where a woman
was charged with larceny, and the defence was that the goods
stolen belonged to her husband, a false statement under oath
by the alleged husband that he had never represented that she
was his wife is perjury, whether she was or was not in fact his
wife. And it is also material whether it has any effect upon
the verdict or not. Thus, the fact that the perjured testimony
was given to a grand jury after they had ordered indictments
drawn is no defence.6 So where three persons were indicted
for a joint assault, and it was contended that it was immaterial,
if all participated init, by which certain acts ‘were done, it was
held that evidence attributing to one acts which were done by
another was material. So all answers to questions put to a
witness on cross-examination, which bear upon his credibility,
are material.” But substantial truth is all that is necessary,

1 Rex v. Pedley, 1 Leach, 825; S. v. Cruikshank, 6 Blackf. (Ind.) 62;
Patrick v. Smoke, 3 Strobh. (S.C.) 147; Wilson v. Nations, 5 Yerg.
(Tenn.) 211; U.S. v. Shellmire, 1. Bald. (C. Ct.) 870, Fed. Cas. No.
16 271.

2 1 Hawk. P..C., 8th ed. 433 ; S. v. Gates, 17 N. H. 378.

8 P. v. Doody, 72 App. Div. (N. Y.) 372, 76 N. Y. S. 606,

41 Hawk. P.C., 8th ed. 433; C.v. Grant, 116 Mass. 17, C. 537;
Wood v. P., 59 N. Y. 117.

5 §. v. Faulkner, 175 Mo. 546, 75 S. W. 116.

6 §. v. Norris, 9 N. H. 96.

7 Reg. v. Overton, C. & M. 655. For cases showing various states of
facts under which the testimony of the defendant was held sufficiently
material as affecting the credibility of witnesses, see Reg. v. Baker, L. R.
[1895] 1 Q. B. 797, K .419 ; Reg. v. Tyson, L. R. 1 C. C. 107, M. 964; P.
v. Barry, 63 Cal. 62; Brown v. 8S. (Fla.), 86 So. 705; S. v. Hunt, 137
Tnd. 537, 87 N. E. 409; S. v. Strat, 5 N. C. 124; S. v. Miller (B.1.), 58
Ati. 882. Compare Reg. v. Holden, 12 Cox C.C. 167, K. 418; 8, x.
Sect. 152.] PERJURY. 137

and slight variations as to time, place, or circumstance, will not,
in general, be material ; as where one swears toa greater or less
number, or a longer or shorter time, or a different place, or a
different weapon, than the true one, — these circumstances not
bearing upon the main issue. A false statement.as to the terms
of a contract which is void by the Statute of Frauds, made in
a proceeding to enforce the contract, has been held to be im-
material, and no perjury, whichever way the party swears, the
contract being void ;? while a like false statement in a pro-
ceeding to avoid the contract would be material. And the
fact that an indictment is bad, or that a judgment is reversed,
does not affect the question of the materiality of the evidence
given to sustain it;* nor does the fact that the evidence is
withdrawn from the case,> or the fact that the officer taking
the oath knew that it was false and took it to entrap the de-
fendant.6 Whether materiality is a question of law for the
court, or of fact for a jury, is a point upon which the author-
ities are about equally divided.

§ 152. Evidence.—In prosecutions for perjury, a single
witness (contrary to the general rule of evidence) to the false-
hood of the alleged oath is not sufficient to maintain the case,
since this would be but oath against oath. There must be two
witnesses to the falsity, or circumstances corroborating a single
witness ;° though all other material facts may be proved by

Brown, 68 N. H. 200, 88 Atl. 731; S. v. Hattaway, 2 N. & McC. (S. C.)
118, M. 961.

11 Hawk. P. C., c. 69, § 8.

2 Rex v. Dunston, Ry. & M. 109.

3 Reg. v. Yates, C. & M. 132.

4 Reg. v. Meek, 9 C. & P. 513; Maynard »v. P., 185 Il. 416, 25 N. E.
740; C. v. Tobin, 108 Mass. 426; S. v. Brown, 68 N. H. 200, 38 Atl, 731;
S. v. Rowell, 72 Vt. 28, 47 Atl. 111.

5 Reg. v. Phillpotts, 3 C. & K. 135.

€ Thompson »v. S., 120 Ga. 132, 47 S. E. 566.

7 See the cases collected in 2 Greenl. Ev. (13th ed.) § 196, n.; also
2 Bish. Cr. Law, § 1039 a.

® Reg. v. Hook, D. & B. 606, K. 422; S. v. Raymond, 20 Ia. 582,
C. 534 ; C. v. Pollard, 12 Met. (Mass.) 225; S. v. Heed, 57 Mo. 252; S.
v. Molier, 1 Dev. (N. C.) 263; S. v. Peters, 107 N.C. 876, 12 8. E. 74;
U.S. v. Hall, 44 Fed. 864.
138 CRIMINAL LAW. [Secrs. 153-154.

a single witness, as in other cases.! Nor can a man be convicted
of perjury by showing that he has sworn both ways. It must
be shown which was the false oath.?

§ 153. Subornation. — Subornation of perjury is the procur-
ing of perjured testimony. In order to the incurring of guilt
under this charge, it must appear that the party procuring the
false testimony knew, not only that the testimony would be
false, but also that it would be corrupt, or that the party giving
the testimony would knowingly, and not merely ignorantly,
testify falsely. And a conviction may be had upon the testi-
mony of a single witness,* unless that witness be the party
who committed the perjury; in which case he will need cor-
roboration.® But a person cannot be convicted of attempted
subornation of perjury by proof that he attempted to procure
a person to swear falsely in a suit not yet brought, but which
he intended to bring. There must be some proceeding pending,
or the procured false testimony must constitute a proceeding
in itself.§

§ 153a. Offences Less than Perjury.— It would seem clear
that there may be a false swearing, not amounting to perjury
and yet so prejudicial to society as to be punished as a crime.’

CONTEMPT.

§ 154. Contempt of Court is a crime indictable at common
law when it amounts to an obstruction of public justice, and
it is also, in many cases, summarily punishable, without in-

1U.S. v. Hall, 44 Fed. 864.

2 Reg. v. Hughes, 1 C. & K. 519; Jackson’s Case, 1 Lewin, 270; S. ».
Williams, 30 Mo. 364; S. v. J. B., 1 Tyler (Vt.), 269; Schwartz v. C., 27
Grat. (Va.) 1025. But see P. v. Burden, 9 Barb. (N. Y.) 467, which,
however, is examined and denied to be law in Schwartz v. C., ante.

8 §.v. Fahey, 3 Penne. (Del.) 594, 54 Atl. 690; C. v. Douglass, 5 Met.
(Mass.) 241; Stewart v. S., 22 O. St. 477.

4 C. v. Douglass, ante.

5 Pp. v. Evans, 40 N. Y. 1.

6 §. v. Joaquin, 69 Me. 218; P. v, Chrystal, 8 Barb. (N. Y.) nap But
see S. v. Whittemore, 50 N. H. 245.

7 Rex v. De Beauvoir, 7 C. & P. 17 ; Davidson v. S., 22 Tex. App.
372,38. W. 662.
Sxor. 155.] CONTEMPT. 139

dictment, by the court, when its rules are violated, its author-
ity defied, or its dignity offended.

_ It is the latter class of cases which constitute what are
technically called contempts of court, and, though not well
defined, may be said to embrace all corrupt acts tending to
prevent the court from discharging its functions.

In the former case, it belongs to the category of crimes,
though not bearing any specific name, and is included in the
general class of offences against public justice.

In the latter case it is not strictly a crime, — though sub-
stantially so, being punishable by fine and imprisonment, —
but is noticed summarily by the courts as an infraction of
order and decorum, which every court has the inherent power
to punish, within certain limits, —a power necessary to their
efficiency and usefulness, and resorted to in case of violation
of their rules and orders, disobedience of their process, or
disturbance of their proceedings! Since it is not a crime, a
party accused is not entitled to trial by jury,? nor, save where
provided by statute, to any particular mode of procedure?

§ 155. What Are Contempts. — All disorderly conduct, or
conduct disrespectful to the court, or calculated to interrupt
or essentially embarrass its business, whether in the court-
room or out of it, yet so near as to have the same effect,
such as making noises in its vicinity,* refusal by a witness to

1 Ex parte Robinson, 19 Wall. (U. S.) 505, 2 Green’s Cr. Law Rep.
135. In Pennsylvania it is held (Brooker v. C., 12 S. & R. 175) that a
court not of record, as a justice of the peace, has not the power to pro-
ceed summarily to punish for contempt, the power not being necessary, as
the justice may proceed immediately to bind over for indictment. But
the case is unsupported elsewhere, and must stand, if it can stand at all,
upon some peculiarity of the statutes of that State. See on this question
and on the question of contempts of Legislative and other bodies, 2
Bish. New Cr. L., § 244 et seq.

2 McDonnell v. Henderson, 74 Ia. 619, 838 N. W. 512; Jn re Deaton,
105 N. C. 59, 11 S. E. 244,

8 Ex parte Terry, 128 U. 8S. 289; Ex parte Savin, 1381 U. S. 267;
accord,. Hardin v. Silvari, 114 Ta. 157, 86 N. W. 223; Toozer v. S. (Neb.),
97 NW. 5384.

4S. v. Coulter, Wright (Ohio), 421.
140 CRIMINAL LAW. [Szcr. 155.

attend court,! or to be sworn or to testify? or of any officer of
court to do his duty,3 or of a person to whom a habeas cor-
pus is directed to make return,! assaulting an officer of ‘the
court, or any other person in its presence,’ or one of the
judges during recess,® improperly communicating with a
juror,’ or by a juror with another person,’ will usually be
dealt with, upon their occurrence, pendente lite, in order to
prevent the evil consequences of a wrongful interference with
the course of justice.

In other cases, proceedings more or less summary will be
had, whenever a corrupt attempt, by force, fraud, bribery, in-y
timidation, or otherwise, is made to obstruct or impede the
due administration of justice. Thus, the courts will take no-
tice of, and punish in a summary way, the use by an attorney
of contemptuous language in the pleadings, or a resort to the
public press in order to influence the proceedings in a pending
case,!° or any libellous publication, though indictable as such,
relative to their proceedings, tending to impair public confi-
dence and respect in them." So the courts will intervene in
like manner if attempts are made to bribe or intimidate a
judge, juror, or any officer of court, in relation to any matter
pending before them, or upon which they are to act officially.

1 Johnson v. Wideman, Dudley (S. C.), 70.

2 Ex parte Stice, 70 Cal. 51, 11 P. 459; Lott v. Burrel, 2 Mill (S. C.),
167; Stansbury v. Marks, 2 Dall. (U. S.) 213. |

8 Chittenden v. Brady, Ga. Dec. 219, ~

4 S. v. Philpot, Dudley (Ga.), 46.

v. Turner, 1 Cal. 152; Ex parte Terry, 128 U.S. 289.
v. Garland, 25 La. Ann. 582.

v. Doty, 82 N. J. L. 403.

v. Helvenston, R. M. Charlt. (Ga.) 48,

. v. Keene, 11 La. 596.

° Matter of Darby, 3 Wheeler Cr. Cas. (N. Y.) 1.

11 Reg. v. Shipworth, 12 Cox C. C. 371, 1 Green Cr. Law Rep. 121; S.
v. Morrill, 16 Ark. 384; P. v. Wilson, 64 Ill. 195, 1 Am. Cr. Rep. 107; S.
v. Earl, 41 Ind. 464; Jn re Sturock, 48 N. H. 428; In re Cheeseman, 49
N. J. L. 115, 6 Atl. 513; P. v. Freer, 1 Caines (N. Y.), 485; In re Moore,
63 N. C. 397; Oswald’s Case, 1 Dall. (Pa.) 319.

12 Charlton’s Case, 2 M. & C. 316; Reg. v. Onslow, 12 Cox C C. 358,
1 Green’s Cr. Law Rep. 110; S. v. Bee Pub. Co., 60 Neb. 282, 83 N. W.
204; S. v. Doty, 32 N. J. L. 408.

5
6
7
8
9

RED hrs

‘

b
Secr. 155a.] CONTEMPT. 141

They will also punish ‘the circulation of a printed statement
of a pending case, before trial, by one of the parties to the
prejudice of the other ;1 publishing a report of the proceed-
ings of a trial, contrary to the direct order of court;2 or
publishing such proceedings with comments calculated to
prejudice the rights of the parties;* preventing the attend-
ance of a witness, after summons, or procuring his absence,
so that he could not be summoned ;‘ procuring a continuance
by a false pretence of illness; and, generally, all such acts
of any and all persons as tend substantially to interfere with
their efficient service in the administration of justice for which
they are established. :

§ 155a. Officers of the Court, are equally amenable to it for
misbehavior in their official capacity. Thus a sheriff may be
attached for contempt for failing to levy properly,® or for giv-
ing notice to a defendant so that he might escape a warrant
issued for his arrest ;7 so a clerk for refusing to issue a writ
ordered by the court.®

An attorney is an officer of the court, and as such he may
be punished for contempt if his conduct merits it. Thus,
leading a lynching in the court-yard, although the court is not
at the time in session;® so advising a client to disobey the
order of the court.!° And if the contempt is sufficiently gross,

1 Rex v. Jolliffe, 4 T. R. 285; In re Crown Bank, 44 Ch. Div. 649;
Cooper v. P., 13 Colo. 337, 373, 22 P. 790.

2 Rex v. Clement, 4 B. & Ald. 218.

8 Reg. v. O’Dogherty, 5 Cox C. C. 348.

4 McConnell v. S.,46 Ind. 298; Montgomery v. Judge, 100 Mich. 436,
59 N. W. 148; S. v. Buck, 62 N. H. 670; Fisher v. McDaniel, 9 Wyo.
457, 64 P. 1056; Ex parte Savin, 131 U.S. 267. See also Hale v. S., 55
O. St. 210, 45 N. E. 199.

5 Welch v. Barber, 52 Conn. 147.

6 §. ». Tipton, 1 Blackf. (Ind.) 166; Pitman »v. Clark, 1 McMul.
(S. C.) 316.

7 §. v. O’Brien, 87 Minn. 161, 91 N. W.. 297.

8 Terr. v. Clancy,.7 N. M. 580, 37 P. 1108.

9 Ex parte Wall, 107 U. S. 265.

10 Anderson v. Comptois, 109 Fed. 971; Terr. v. Clancy, ante. See P.
v. Court, 29 Colo. 182, 68 P. 242.
142 CRIMINAL LAW. [Szcr. 156.

the punishment may be suspension or disbarment! But a
distinction must be made between the disciplinary power of
.a court to punish for contempts, which must be acts that
affect the particular court that punishes, and are of the gen-
eral character discussed above; and the right of the court to
suspend or disbar attorneys for unprofessional conduct, al-
though the circumstances may not amount to a contempt.
The latter power can be exercised only when the conduct of
the attorney is such as to show him unfit to be a member of
the profession.2 It is, however, disciplinary and summary in
its nature, and is not governed by the rules of ordinary trials8

§ 156. Contempt of Process.— One is guilty of contempt,
and punishable therefor, who, being served with process by a
court of competent jurisdiction, wilfully and improperly refuses
to obey the process.t Thus a refusal, after service of the
writ or notice of the making® of the order or decree, to obey
an injunction,’ a decree or order of court,’ or a writ of pro-
hibition or mandamus,’ is contempt. It is likewise contempt
for an inferior court to disobey the orders of a superior court ; 9
or for an officer of court, as a receiver, to disobey the order of
the court.

1 Ex parte Wall, ante.

2 Ex parte Robinson, 19 Wall. (U. S.) 505.

8 Re Hardwick, L. R. 12 Q. B. D. 148. See further as to this distine-
tion, Beene v. §., 22 Ark. 149; P. v. Turner, 1 Cal. 143; P. v. Good-
rich, 79 Ill. 148; Re Delano, 58 N. H. 5; Matter of Eldridge, 82 N. Y.
161; Ex parte Bradley, 7 Wall. (U. S.) 346.

4 2 Bish. Crim. Law, § 242.

5S. v. Court, 29 Mont. 230, 74 P. 412; Williamson v. Pender, 127
N. C. 481, 37 8. E. 495.

6 Winslow v. Nayson, 113 Mass. 411.

7 Mayor of Bath v. Pinch, 4 Scott 299; Stuart v. Stuart, 123 Mass. 370;
Buffum’s Case, 13 N. H. 14; Yates v. Russell, 17 Johns. (N. Y.) 461;
Knuckle v. Kunckle, 1 Dall. (Pa.) 364.

5 Rex v. Edyvean, 3 T. R. 352; Rex v. Babb, 3 T. R. 579; S. v. Judge
of Civil District Court, 38 La. Ann. 48; Board of Commissioners of
Leavenworth »v, Sellew, 99 U. S. 624.

® Patchin v. Mayor of Brooklyn, 13 Wend. (N. Y.) 664.

10 Tindall v. Westcott, 113 Ga. 1114, 39 S. E. 450; Cartwright’s Case,
114 Mass, 230; Williamson v. Pender, 127 N. C. 481, 87 S. E. 495; Tor-
nanses v. Melsing, 106 Fed. 775.
Sxcts. 157, 158.] CONTEMPT. 143

Where the court is without jurisdiction in the premises, its
order is of course ineffective, and a disobedience thereof is no
contempt. Thus where a person was summoned as a witness
and the court ordered him to-execute a conveyance aE land
his refusal was no contempt.}

§ 157. Contempt of Jury.— One may be punished fon con-

empt by reason of misconduct before the grand jury, or by
publishing a libel on the grand or petit jury. 3 And it is con-
tempt for a reporter to conceal himself in the jury room, and
to report the deliberations of the jurors.*

§ 158. Proceedings.— When the contempt is committed in
the presence of the court, the offender may be ordered into
custody, and proceeded against at once.

But if the offence be not committed in presence of the court,
the offender is usually proceeded against by an attachment
preceded by an order to show cause, but without an order to
show cause if the exigency demands it.®

Whether proceedings will be had, in the last class of cases,
for a contempt whereby the proceedings in a particular case
are improperly obstructed or otherwise interfered, with after
the case is concluded, is perhaps not perfectly clear; but the
better opinion seems to be that they may, at any time before
the adjournment of the court for the term at which the con-
tempt is committed. In acase apparently to the contrary 7?
there was no contempt, and the dictum is not supported by
the citation of any authority.

1 Ex parte Pahia, 18 Hawaii, 575; accord, Tomsky v. Court, 181 Cal.
620, 63 P. 1020; S. v. Sommerville, 105 La. 278, 29 So. 705. See Gardner
v. P., 100 Il. Ao. 254.

2 In re Gannon, 69 Cal. 541, 11 P. 240.

8 Little v. S., 90 Ind. 388; Jn re Cheeseman, 49 N. J. L. 115, 6 Atl.
513.

4 P. v. Barrett, 56 Hun (N. Y.), 351.

5 Welch v. Barber, 52 Conn. 147; Whittem v. S., 36 Ind. 196; S. z.
Matthews, 37 N. H. 450; P. v. Kelly, 24 N. Y. 72.

6 Reg. v. O’Dogherty, 5 Cox C. C. 348; Johnson v. Wideman, Dudley
(Ga.), 70; Clarke’s Case, 12 Cush. (Mass.) 320.

7 Robertson v, Bingley, 1 McCord (S. C.), Ch. 333.
144 CRIMINAL LAW. [Seors. 159-162.

RESCUE.— ESCAPE.— PRISON BREACH.

§ 159. These are analogous offences under the general
category of hindrances to public justice. Few cases at com-
mon law have occurred in this country, the several offences
being generally matter of statutory regulation.

§ 160. Rescue is “the forcibly and knowingly freeing an-
other from an arrest or imprisonment.”! If, therefore, the
rescuer supposes the imprisonment tu be in the hands of a
private person, and not of an officer, he is not guilty, as the
imprisonment must be a lawful one.?_ It is essential that the
deliverance should be complete, otherwise the offence may be
an attempt merely.?

. $161. Escape is the going away without force out of his
place of lawful confinement by the prisoner himself, or the
negligent or voluntary permission by the officer having custody
of such going away. The escape must be from a lawful con-
finement. And if the arrest be by a private person without
warrant, though legal, yet if the custody, without bringing the
party before a magistrate, be prolonged for an unreasonable
period, the escape will be no offence; and although it seems
to have been held, in this country, that, after an arrest volun-
tarily made by a private person without warrant, he may let
the prisoner go without incurring guilt, by the common law®
such private person will be guilty if he do not deliver over the
arrested party to the proper officer. If the warrant on which
the arrest is made be void, neither the prisoner nor the officer
is liable for an escape.?

§ 162. Prison Breach is the forcible breaking and going
away out of his place of lawful confinement by the prisoner.

14 Bl. Com. 181.

2S. v. Hilton, 26 Mo. 199.

8 §. v. Murray, 15 Me. 100.

‘ Nall v. S., 34 Ala, 262; S. v. Doud, 7 Conn. 384, M. 82; Riley v. S.,
16 Conn. 47; C. v. Sheriff, 1 Grant (Pa.), 187; Luckey v.S., 14 Tex. 400.

5 Habersham ». S., 56 Ga. 61.

6 2 Hawk. P. C., c. 20, §§ 1-6.

78. v. Leach 7 Conn. 452; Housh »v. P., 75 Ill. 487; Hitchcock »v.
Baker, 2 Allen (Mass.), 431; C. v. Crotty, 10 Allen (Mass.), 403.
Sxer, 162.] RESCUE, — ESCAPE.— PRISON BREACH. 145

It is distinguished from escape by the fact that there must be
a breaking of the prison. There must also be an exit, in
order to constitute the offence. The imprisonment must be
lawful, but it is immaterial whether the prisoner be guilty or
innocent.?

A prison is any place where a person is lawfully confined,
whether it be in the stocks, in the street, or in a public or
private house. Imprisonment is but a restraint of liberty.?

At common law, the punishment of the several offences was
the same as would have been inflicted upon the escaped or
rescued prisoner.* It is now, however, generally a subject of
special statute regulation.

1 2 Hawk. P. C., c. 18, § 12.

2 Reg. v Waters, 12 Cox C. C. 390; Habersham v. §., 56 Ga. 61;
C. v. Miller, 2 Ash. (Pa.) 61. Upon the general subject see 2 Hawk. P.
C. c. 18-21; 1 Gab. Cr. Law, 305 et seq.

3 2 Hawk. P. C., ¢. 18, § 4.

4 2 Hawk. P. C., c. 19, § 22; C. v. Miller, 2 Ash. (Pa.) 61,

10
146 CRIMINAL LAW. [Sxcrs. 163, 164.

CHAPTER IV.

OFFENCES AGAINST THE PUBLIC TRANQUILLITY, HEALTH,
AND ECONOMY.

§ 164, Affray. § 177. Engrossing. — Forestalling. —
165. Riot. — Rout.— Unlawful As- Regrating.
sembly. 178. Nuisance.
167. Forcible Entry and Detainer. 183. Attempt.
171. Eavesdropping. 186. Conspiracy.

172. Libel and Slander.

§ 163. All offences against the public peace are criminal,
as has been seen ;! but the law protects not only the physical
peace of the public, but also the established order and economy
of the government. As part of this established order, the
public trade seems to some extent to be protected ; at least,
against such combinations and conspiracies as individuals
cannot protect themselves against.

attempts and conspiracies are crimes of this class, being
acts prejudicial to the general well-being of the State.

AFFRAY.

§ 164. An Affray is the fighting, by mutual consent, of
two or more persons in some public place, to the terror of the
people? The meaning of the word is, that which frightens ;
and the offence consists in disturbing the public peace by
bringing on a state of fear by means of such fighting, or such
threats of fighting as are calculated to excite such fear, whether
there be actual fear or not beingimmaterial. A mere friendly
scuffle? or a mere wordy dispute, therefore, without actual or
threatened violence by one party or the other, does not amount

1 Ante, § 14.

? Wilson v. §., 3 Heisk. (Tenn.) 278; Simpson v. S., 5 Yerg. (Tenn.)

356; 4 Bl. Com. 146.
5 §. v. Freeman, 127 N. C. 544, 37 S. E. 206.
Szcr.165.] RIOT. —ROUT.— UNLAWFUL ASSEMBLY. 147

to anaffray But if actual or threatened violence is resorted
to by one who is provoked thereto by the words of the other,
this will make the latter guilty, even though he does not strike
back It is sometimes held that consent is not essential.3
But it is obvious that one who is assaulted, and merely uses
such force as is necessary to beat off his assailant, is guilty of
no offence. He is not fighting, in the sense of the definition,
but is merely exercising his right of self-defence.*

The place must be a public one. A field, therefore, sur-
rounded by a dense wood,a mile away from any highway or
other public place, does not lose its private character by the
casual presence of three persons, two of whom engage in a
fight.6 An enclosed lot, however, in full view of the public
street of a village, thirty yards. distant,® is a public place,
though a highway itself is not necessarily a public place, be-
cause by disuse, or the undergrowth of trees, or otherwise, it
may have become concealed from public view.’ A fight begun
in private, and continued tilla public place is reached, becomes
an affray.§

By the definition, it requires two to make an affray. If,
therefore, one of two indicted persons be acquitted the case
fails as to the other.®

RIOT. —- ROUT. — UNLAWFUL ASSEMBLY.

§ 165. A Riot is a tumultuous disturbance of the peace, by
three or more persons assembling together of their own au-

1 Hawkins v. S., 13 Ga. 822; S. v. Downing, 74 N. C. 184; S. v. Sum-
ner, 5 Strobh. (S. C.) 53.

2 Hawkins v. S., anfe; Blackwell v. S., 119 Ga. 314, 46 S. E. 432;
S. v. Downing, ante; S. v. Perry, 5 Jones (N.C.), 9; S. v. kanning, 94
N. C. 940; S. v. Sumner, ante. But see, contra, O’ Neill v. S., 16 Ala. 65.

3 Cash v. S , 2 Overt. (Tenn.) 198.

4 See also Klum ». S., 1 Blackf. (Ind.) 377.

5 Taylor v. S., 22 Ala. 15. Compare S. v. Fritz, 183 N. C. 725, 45 S.
E. 957. See also S. v. Heflin, 8 Humph. (Tenn.) 84.

* Carwile v. S., 35 Ala. 392. Compare Gamble v. S., 113 Ga. 701,
39 S. E. 801.

7S. v. Weekly, 29 Ind. 206.

8 Wilson v. S., 3 Heisk. (Tenn.) 278.

® Ilawkins v. S., 18 Ga. 322. See also § 165,
148 CRIMINAL LAW. [Secr. 166.

thority, with an intent to assist one another against any one
who shall oppose them in the execution of some enterprise of a
private nature, and afterwards actually executing the same in
a violent and turbulent manner, to the terror of the people,
whether the act itself be lawful or unlawful.1

A Rout is a similar meeting upon a: purpose which, if exe-
cuted, would make them rioters, and which they actually
make a motion to execute. It is an attempt to commit a
riot.2

An Unlawful Assembly is 2 mere assembly of persons upon a
purpose which, if executed, would make them rioters, but
which they do not execute, or make any motion to execute.®

A like assembly for a public purpose, as where it is the
intent of a riotous assembly to prevent the execution of a
law by force, or to release all prisoners in the public jail, is
treason.4 ,

It has been held that an unlawful assembly, armed with
dangerous weapons, and threatening injury, to the terror of
the people, amounts to a riot, even before it proceeds to the
use of force.5

Two persons, it has also been held, with a third aiding and
abetting, may make a riot.®

That the assembly is in its origin and beginning a lawful
one is immaterial, if it degenerate, as it may, into an unlawful
and riotous one.’

§ 166. The Violence Necessary to constitute a riot need not
be actually inflicted upon any person. Threatening with

1 1 Hawk. P. C., 8th ed., 5138, § 1; S. v. Russell, 45 N. H. 83.

2 §. v. Sumner, 2 Speers (S. C.), 599.

8 1 Hawk. P. C., 8thed., 513-516, §§ 1, 8, 9; 4 Bl. Com. 146; Rex v.
Birt, 5C. & P. 154, K. 887; Reg. ». Vincent, 9 C. & P. 91, K. 391; Bankus
v. 8.,4 Ind 114.

44 Bl. Com. 147; Judge King’s Charge, 4 Pa. L. J. 29.

5 C, v. Hershberger, Lewis Cr. L. (Pa.) 72; 8. v. Brazil, Rice (S. C.),
257.

6 S. v. Straw, 33 Me. 554.

7 Reg. v. Soley, 2 Salk. 594; S. v. Snow, 18 Me. 846; Judge King’s
Charge, 4 Pa. L. J. 31; S. v. Brooks, 1 Hill (S. C.), 361; 1 Hawk. P. C.,
8th ed., 514, § 3. But see S. v. Staleup, 1 Ired. (N. C.) 30.-
Secr. 166.] RIOT.—ROUT.— UNLAWFUL ASSEMBLY. 149

pistols, or clubs, or even by words or gestures, to injure if
interfered with in the prosecution of the unlawful purpose,
or any other demonstration calculated to strike terror and
disturb the public peace, is a sufficient violence to constitute
the assembly riotous ;! thus a tumultuous and threatening
assemblage which without any specific act of violence pre-
vents a sheriff from removing a prisoner to another jail, is a
riot.2 So where several attempt by threats and menaces to
rescue a lawful prisoner, they are guilty of a riot? Indeed,
it has been held that a trespass to property in the presence of
a person in actual possession, though there is no actual force,.
amounts to a riot. The disturbance of the peace by exciting
terror, is the gist of the offence.5 Hence it is immaterial:
whether the act sought to be performed is one that is in.
itself lawful or unlawful.6 To disturb another in the enjoy--
ment of his lawful right is a trespass, which, if done by three-
or more persons unlawfully combined, with noise and tumult,,
is a riot; as the disturbance of a public meeting,’ or making.
a great noise and disturbance at a theatre for the purpose of.
breaking up the performance, though without offering personal
violence to any one; ® or even going in the night upon a man’s.
premises and shaving his horse’s tail, if it be done with so.
much noise and in such manner as to rouse the proprietor and
alarm his family.

Violent threatening, and forcible methods of enforcing
rights, whether public or private, are not lawful.?°

1 Rex v. Hughes, 4 C. & P. 873; Bell v. Mallory, 61 Ill. 167; 8. v.
Calder, 2 McCord (S. C.), 462; S. v. Jackson, 1 Speer (S. C.), 13.

2 Green v. §., 109 Ga. 536, 35 S. E. 97.

8 Fisher v, S., 78 Ga. 258.

4S. v. Fisher, 1 Dev. (N. C.) 504.

5 §. vy, Renton, 15 N. H. 169; S. v. Brooks, 1 Hill (S. C.), 361.

6 Kiphart v. §., 42 Ind. 273; S. v. Boies, 34 Me. 235; S. v. York, 70
N.C. 66.

7 §. v. Townsend, 2 Harr. (Dei.) 543; C. v. Runnels, 10 Mass. 518,
S. v. Brazil, Rice (S. C.), 257; Judge King’s Charge, 4 Pa. L. J. 29, 38.

8 Clifford v. Brandon, 2 Camp. 358; S. v. Brazil, ante.

9 §S. v. Alexander, 7 Rich. (S. C.) 5.

1 Judge King’s Charge, 4 Pa. L. J. 29, 31.
150 CRIMINAL LAW. [Secrs. 167, 168.

FORCIBLE ENTRY AND DETAINER,

§ 167. This, though not strictly a common law offence,
was made so at an early date by statute in England; and
is now in many of the States, by adoption, a part of their
common law. It consists in “violently taking or keeping
_ possession of lands and tenements, with menaces, force and
arms, and without the authority of law.”

§ 168. Force and Violence. — The entry or detainer must,
in order to. constitute an indictable offence, be with such
force and violence, or demonstration of force and violence,
threatening a breach of the peace or bodily harm, and calcu-
lated to inspire fear, and to prevent those who have the right
of possession from asserting or maintaining their right, as to
become a matter of public concern in contradistinction to
a mere private trespass.2 Such force as will tend to a breach
of the peace may not be used? but only such force is per-
missible as would sustain a plea in justification of molliter
manus imposuit.* That degree of force which the law allows
a man to use in defence of his lawful possession, it does not
allow him to use in recovering property of which he has been
dispossessed, if it be tumultuous or riotous, or tends to a
breach of the peace. It does not allow a breach of the peace
to regain possession of property, or in redress of private
wrongs.® Like circumstances accompanying the wrongful de-

14 Bl. Com. 148.

2 Rex. v. Wilson, 8 T. R. 357, C. 471; Harding’s Case, 1 Greenlf.
(Me.) 22, C. 472; Benedict ». Hart, 1 Cush. (Mass ) 487; C. v. Shattuck,
4 Cush, (Mass.) 141; S. v. Pearson, 2 N. H. 550; Wood v. Phillips, 43
N.Y. 152; C.v. Keeper, &c., 1 Ashm. (Pa.) 140; S. v. Cargill, 2 Brev.
(S. C.) 445; 1 Hawk. P. C., c. 28, § 27.

8 But the mere force implied in the trespass is not enough; and an
indictment which has only an allegation that the defendant broke and
entered ‘‘ vi et armis ’’ is not sufficient : Rex. v. Blake, 8 Burr. 1731, C.
473; C. v. Taylor, 5 Binney (Pa.), 277, M. 44.

4 Fifty Associates v. Howland, 5 Cush. (Mass.) 214.

5 Gregory v. Hiil, 8 T. R. 299; Sampson v. Henry, 11 Pick. (Mass.)
379; Hyatt v. Wood, 3 Johns. (N. Y.) 289; Davis v. Whitridge, 2
Strobh. (S. C.) 232; 3 Bl. Com. 4,
Sect. 169.] ENTRY AND DETAINER. 151

tention of the possession of real property will constitute a
forcible detainer.?

It is immaterial how the intimidation is produced, whether
by one or many, by actual force or by threats, or by tumul-
tuous assemblies, or by weapons, or in whatever way it may
be produced, provided it actually occurs, or might reasonably
be expected to occur, if the parties entitled to possession
should be present and in a position to be affected by it.
Ilence it is not necessary to show that the person in posses-
sion was actually expelled by force if the display: was such
as to deter him from offering resistance? But his fear must
be a reasonable one.2 And entry and detainer by such
demonstrations of force and violence are equally indictable,
although no one be actually present and in possession of the
premises entered to be intimidated thereby.

Nor need the display of force be upon the actual premises ;
for if the owner be seized and kept away, for the purpose of
thwarting his resistance, and an entry be then made during
such enforced absence, though peaceably, it will amount to a

‘forcible entry and detainer.5 And a peaceable entry followed
by a forcibie expulsion of the owner will also constitute the
offence.© The threats of violence must be personal. No
threats of injury to property will be sufficient.’ A peaceable
entry and detainer even though by trick is not criminal.®

§ 169. What May Be Entered upon or Detained. — Peaceable
occupancy, without reference to title, is the possession which
the law says shall not be taken away or detained by force.?

11 Hawk. P. C., 8th ed., c. 28, § 30; C. v. Dudley, 10 Mass. 403; P.
v. Rickert, 8 Cow. (N. Y.) 226.

2 Williams v. 8., 120 Ga. 488, 48 S. E. 149.

8 §. uv. Mills, 104 N. C. 905, 10 S. E. 676.

4 P. v. Field, 52 Barb. (N. Y.) 198; 1 Hawk. P. C., 8th ed., c. 28,
§§ 26, 29.

5 Ibid.

6 3 Bac. Abr., For. Entry (B).

7 1 Hawk. P. C., 8th ed., c. 28, § 28.

8 See C. v. Shindell, 9 Pa. Dist. R. 298; S. v. Leary, 186 N. C. 578,
48 S. E. 570.

9 Rex v. Wilson, 8T. R. 357; Peelle v. S., 161 Ind. 378, 68 N. E. 682;
152 CRIMINAL LAW. [Secr. 170.

And this possession may be constructive as well as actual; as
where the owner of a building, which he does not personally
occupy, but rents to tenants, while waiting for a new tenant,
is forcibly kept out by a stranger and trespasser.! Mere
custody, however, is not enough. Therefore, if a servant with-
holds possession against his employer, the latter is not guilty
of the offence in asserting his right to the possession which is
already his, and which the servant has not.? So if the owner
has gained peaceable possession of the main house, this carries
with it the possession of the whole ; and he is not liable under
the law for the forcible entry of a shed adjoining, in which a
tenant had intrenched himself.

One cotenant may be guilty of the offence as against another
who is in peaceable possession and resists; and so may a
wife as against her husband. ®

§ 170. Personal Property. Forcible Trespass. — These rules
and principles are strictly applicable only to the forcible entry
and detention of real property ; and it has been said that the
forcible detainer of personal property is not indictable.® But the
seizure of personal property under like circumstances, and with
similar demonstrations, may be indicted as a forcible trespass.’
And there seems to be no reason why its forcible detention
may not be also indictable by an analogous change in the de-
scription of the offence. It is not less a public injury. It has
been suggested that the offence can only be committed when
the party trespassed upon is present;® but upon principle as
well as upon authority the reverse seems to be the better law?

Beauchamp v. Morris, 4 Bibb (Ky.), 812; C. v. Bigelow, 3 Pick. (Mass.)
31; S. v. Pearson, 2 N. H. 550; P. v. Leonard, 11 Johns. (N. Y.) 504.

1 P. v. Field, 52 Barb. (N. Y.) 198.

2S. v. Curtis, 4 Dev. & Bat. (N. C.) 222; S. v, Leary, 186 N. C. 578,
48 S. E. 570; C. v. Keeper, &c., 1 Ashm. (Pa.) 140.

8 §, uv. Pridgen, 8 Ired. (N. C.) 64.
* 4 Reg. v. Marrow, Cas. temp. Hardw. 174.

5 Rex v. Smyth, 1 M. & R. 155.

6 S. v. Marsh, 64 N. C. 378.

7 §. v. Ray, 10 Ired. (N. C.) 39; S. v. Widenhouse, 71 N. C. 979.

8 S. v. McAdden, 71 N. C. 207.

® Ante, § 168; S. v. Thompson, 2 Overton (Tenn.), 96.
Sxcts. 171, 172.] EAVESDROPPING. — LIBEL AND SLANDER. 153
EAVESDROPPING,

§ 171. Eavesdropping is a kind of nuisance which was pun-
ishable at common law, and was defined to be a listening under
the eaves or windows of a house for the purpose of hearing
what may be said, and thereupon to form slanderous and mis-
chievous tales, to the common nuisance.t The offence is no
doubt one at common law in this country. It has, indeed,
been expressly so held;? and it would seem that any clandes-
tine listening to what may be said in a meeting of the grand
jury, for instance, required by law to be secret, or perhaps
any meeting which may lawfully be held in secret, with an
intent to violate that secrecy, to the public injury or common
nuisance,® would constitute the offence.

LIBEL AND SLANDER,

§ 172. Definition. — A general and comprehensive definition
of libel is that of Lord Camden, cited by Hamilton in the ar-
gument in the case of The People v. Croswell,* which has been
repeatedly approved by the courts of New York, and is as
follows: “ A censorious or ridiculing writing, picture, or sign,
made with a mischievous or malicious intent, toward govern-
ment, magistrates, or individuals.” ®

Within the scope of this definition, printed and published
blasphemy is also indictable as a libel,® and so is printed
obscenity or other immoral matter, — both on the ground that
they tend to deprave or corrupt the public morals,’ So is a
publication against the government, tending to degrade and
vilify it, and to promote discontent and insurrection ;* or

1 1 Hawk. P. C., Table of Matters to Vol. I. Eavesdropper.

2S. v. Williams, 2 Overton (Tenn.), 108.

3 C. v. Lovett, 6 Pa. L. J. Rep. 226; S. v, Pennington, 3 Head
(Tenn.), 299.

4 3 Johns. Cas. 354.

5 Cooper v. Greeley, 1 Denio (N. Y.), 347.

6 C. v: Kneeland, 20 Pick. (Mass.) 211; P.v. Ruggles, 8 Johns. (N. Y.)
290; post, § 194.

7 C. v. Holmes, 17 Mass. 336; C. v. Sharpless, 2S. & R. (Pa.) 91.

8 Resp. v. Dennie, 4 Yeates (Pa.), 267.
154 CRIMINAL LAW. [Secr. 172.

calumniating a court of justice, tending to weaken the ad-
ministration of justice! So libels upon distinguished official
foreign personages have repeatedly been held in England pun-
ishable at the common law,’as tending to disturb friendly
international relations.2 It remains to be seen whether the
State courts (the United States courts having no jurisdiction)
will in this country follow such a precedent.

But the more common and restricted definition of libel at
common law, as against individuals, is, the malicious publica-
tion of any writing, sign, picture, effigy, or other representation
tending to defame the memory of one who is dead, or the
reputation of one who is living, and to expose him to ridicule,
hatred, or contempt. It is punishable as a misdemeanor, on
the ground that such a publication has a tendency to disturb
the public peace.2 The libel is equally criminal if directed
against a family, though it is not against any individual
member of it.4

Words that would not be actionable as slanderous may
nevertheless, if written and published, be indictable as libel-
lous. Written slander is necessarily premeditated, and shows
design. It is more permanent in its effect, and calculated to
do much greater injury, and “contains more malice.”5 Thus,
it is libellous to write and publish of a juror that he has mis-
behaved, as such, by staking the verdict upon a chance ;® or
of a stage-driver, that he has been guilty of gross misconduct
and insult towards his passengers;7 or that a bishop has
attempted to convert others to his religious views by bribes ; 8

1 Rex v. Watson, 2 T. R, 199.

2 Rex v. D’Eon, 1 W. Bl. 510; Peltier’s Case, 28 Howell St. Tr. 529.

3 1 Hawk. P. C., 8th ed., 542, § 3; S. v. Avery, 7° Conn. 266; Giles v.
S., 6 Ga. 276; C. v. Clap, 4 Mass. 168, C. 524; P. v. Croswell, 3 Johns,
Cas. (N. Y.) 337; Cooper v. Greeley, 1 Denio (N. Y.), 347; S. ».
Henderson, 1 Rich. (S. C.) 179.

4S. v. Brady, 44 Kan. 435, 24 P. 948,

5 King v. Lake, Hardr. 470.

6 C.v. Wright, 1 Cush. (Mass.) 46.

7 Clement v. Chivis, 9 B. & C. 172.

8 Archbishop of Tuam v. Robeson, 5 Bing. 17.
Secr. 172.] LIBEL AND SLANDER. 155

or that a man is a “rascal”; or that“ he is thought no more
of than a horse-thief” ;? or to charge a lawyer with divulging
the secrets of his client ;* or to say of a member of a conven-
tion to frame a constitution, that he contended in the con-
vention that government had no more right to provide for
worship of the Supreme Being than of the devil ;4 or to print
of a man that he did not dare to bring an action in a certain
county, “because he was known there.”5 And it has even
been held that it is libellous to charge a man with a gross
want of feeling or discretion. It is a criminal libel to write
an indecent proposal toa woman.’ If a portrait-painter paints
the ears of an ass to a likeness he has taken, and exposes it
to the public, this is a libel.8 So is it to say of an historian
that he disregards justice and propriety, and is insensible to
his obligations as an historian. So it is libellous to publish a
correct account of judicial proceedings, if accompanied with
comments and insinuations tending to asperse a man’s char-
acter ;!° or for an attorney to introduce such matter into his
pleadings." So to say of a candidate for office that he would
betray his trust from motives of political aggrandizement, or
to accomplish some sinister or dishonest purpose, or to gratify
his private malice, is a libel; but it is not a libel to publish
the truth concerning his character and qualifications for the
office he aspires to, with a view to inform the electors.”

1 Williams v. Karnes, 4 Humph. (Tenn.) 9.

2 Nelson v. Musgrave, 10 Mo. 648.

8 Riggs v. Denniston, 3 Johns. Cas. (N. Y.) 198.

4 Stow v. Converse, 3 Conn. 325.

5 Steele v. Southwick, 9 Johns. (N. Y.) 214.7

6 Weaver v. Lloyd, 2 B. & C. 678; S. v. Keenan, 111 Ta. 286, 82
N. W. 792; S. v. Atkins, 42 Vt. 252. See also Barthelemy v. P.,2 Hill
(N. Y.), 248.

7 Reg. v. Adams, 22 Q. B. D. 66.

8 Mezzara’s Case, 2 City Hall Rec. 113.

® Cooper v. Stone, 24 Wend. (N. Y.) 484.

10 Thomas v. Croswell, 7 Johns. (N. Y.) 264.

11 C. v, Culver, 2 Pa. Law Jour. 359; King v. McKissick, 126 Fed. 215.

12 C. v. Clap, 4 Mass. 163, C. 524; 8. v. Burnham, 9 N. H. 34; Powers
v, Dubois, 17 Wend. (N. Y.) 68; C. v. Odell, 3 Pitts. (Pa.) 449; Wilson
v. Noonan, 23 Wis. 105.
4

156 CRIMINAL LAW. [Srcr. 173.

The form of expression in charging is immaterial, whether
interrogative or direct, or by innuendo, or ironical, or allegori-
cal, or by caricature, or by any other device whatever. The
question always is, what is the meaning and intent of the
author, and how will it be understood by people generally

§ 178. Malicious. — To constitute a malicious publication it
is not necessary that the party publishing be actuated by a
feeling of personal hatred or ill-will towards the person de-
famed, or even that it be done in the pursuit of any general
evil purpose or design, as in the case of malicious mischief.®
It is sufficient if the act be done wilfully, unlawfully, and in
violation of the just rights of another, according to what, as
we have seen,’ is the general definition of legal malice. And
malice is presumed as matter of law by the proof of publica-
tion.® Under modern statutes, and, in some cases, constitu-
tional provisions, however, the whole question of law and fact,
i. e., whether the matter published was illegal and libellous,
and whether it was malicious or not, as well as whether it was.
written or published by the defendant, is left to the jury, they
having in such cases greater rights than in other criminal
prosecutions.®

It is not essential that the charge should be false or scandal-
ous: it is enough if it be malicious. Indeed, the old maxim of
the common law was, “ The greater the truth, the greater the
libel,” on the ground that thereby the danger of disturbance
of the public peace was greater. The truth, therefore, is no

1 Thus a- wax-works exhibit may be libellous; Monson v. Tussauds
Ltd. [1894] 1 Q. B. 671, K. 434.

2 Rex v. Lambert, 2 Camp. 398; Gathercole’s Case, 2 Lewin, 287;
Hoare v. Silverlock, 12 Q. B. 625, C. 517; Reg. v. Munslow, [1895] 1
Q. B. 758, K. 482; S. v. Chace, Walk. (Miss.) 384.

3 See post, § 322; Kubrecht v. S. (Tex.), 69 S. W. 157.

4 Ante, § 33.

5 Rex v. Harvey, 2 B. & C. 257, C. 511; Layton v. Harris, 3 Harr.
(Del.) 406; C. v. Snelling, 15 Pick. (Mass.) 821; Root v. King, 7 Cow.
(N. Y.) 613; C. v. Sanderson, 3 Pa. Law Jour. 269; Smith v. S., 32
Tex. 594.

6 S. v. Goold, 62 Me. 509; S. v. Lehre, 2 Brev. (S. C.) 446; 2 Greenl.
Ey., § 411.
Secr. 174.] LIBEL AND SLANDER. 157

justification by the common law. But this rule has in some
cases, in this country, been so far modified as to permit the
defendant to show, if he can, that the publication under the
circumstances was justifiable and from good motives, and

‘then show its truth, in order to negative the malice and intent
to defame.! And statutes in most if not all of the States now
admit the truth in defence if the matter be published for a
justifiable end and with good motives, and give the jury the
right to determine these facts, as well as whether the publiea-
tion be a libel or not.?

§ 174, Publication. — Placing a libel where it may be seen
and understood by one or more persons other than the
maker, is a publication, for the purposes of the criminal law,
without reference to the question whether in fact it is seen or
not,? or if seen whether or not it is understood. It has been
held that to send a libellous letter to the person libelled is a
sufficient publication. But it may be doubted, in the absence
of statutory provision to that effect, if the mere delivery of
a letter containing libellous matter to the libelled party is a
technical publication, though doubtless the sending of such a
letter is an indictable offence, as tending to a breach of the
peace. But there can be no doubt that a sealed letter ad-
dressed and delivered to the wife, containing aspersions upon
her husband’s character, is a publication.’

1 Reg. v. Newman, 1 E. & B. 268, 558, K. 488; C. v. Clap, 4 Mass.
163, C. 524; C. v. Blanding, 3 Pick. (Mass.) 804, M. 954; Barthelemy ».
P., 2 Hill (N. Y.), 248. See also Codd’s Case, 2 City Hall Rec. (N. Y.)
171; S. v. Lehre, 2 Brev. (S. C.) 446; C. v. Morris, 1 Va. Cas. 176.

2 Riley v. S., 182 Ala. 18, 81 So. 781; C. v. Bonner, 9 Met. (Mass. )
410; S. v. White, 7 Ire. (N. C.) 180; S. v. Brock, 61 S. C. 141, 39 S. E.
859. Compare S. v. Haskins, 109 Ja. 656, 80 N. W. 1063.

8 Rex v. Burdett, 4 B. & Ald. 95, 126; Whitfield v. 8. E. Ry. Co., E.
B. & E, 115; Giles v. S., 6 Ga 276, M. 952.

4 Reg. v. Brooke,7 Cox C. C. 251, C. 526; Haase v. S., 53 N. J. L. 34, 20
Atl. 751; Mankins v. S., 41.Tex. Cr. R. 662, 57 8. W. 950.

5 §. v. Avery, 7 Conn. 266.

® McIntosh v. Matherly, 9 B. Mon. (Ky.) 119; Sheffill v. Van Deusen,
13 Gray (Mass ), 304; Lyle v. Clason, 1 Caines (N. Y.), 581; Fonville v.
M’Nease, Dudley (S. C.), 803 ; Hodges v. S., 5 Humph. (Tenn ) 112.

7 Wenman v. Ash, 13 C. B. 8836; Schenck v. Schenck, 1 Spencer (N. J.)
208.
é

158 CRIMINAL LAW. [Sxcr. 175.

§ 175. Privileged Communications. — Certain publications
are privileged, that is to say, are prima facie permissible and
lawful. If the occasion and circumstances under which they
are made rebut the inference of malice drawn from its libellous
character, the publications are privileged and lawful, unless
the complainant shows that the defendant was actuated by
improper motives. But no one can intentionally injure under
cover of a privileged communication; and if he avail himself
of this course he is chargeable, although the matter. published
be true and privileged.1 Thus, a fair and candid criticism,
though severe, of a literary work, exposing its demerits, is
privileged ; but if the criticism is made the vehicle of personal
calumny against the author aside from the legitimate purpose
of criticism, it becomes libellous.2, A communication made in
good faith by a person in the discharge of some private duty,
legal or moral, or in the conduct of his own affairs, and in
matters wherein he is interested, is privileged.2 Therefore,
one may write to a relation warning her not to marry a certain
person, for special reasons affecting the character of that per-
son ;* or complain to a superior against an inferior officer in
order to obtain redress ;® or give the character of a servant
in answer to a proper inquiry ;® or report a servant’s conduct
to his master;7 or tell the truth to defend his own character
and interests ;® or to enforce the rules of a society; or to

1 Wright v. Woodgate, 2 C., M. & R.573; Central Ry. Co. v. Sheftall,
118 Ga. 865, 45 S. E. 687; S. v. Keenan, 111 Ia. 286, 82 N. W. 792; C.».
Blanding, 3 Pick. (Mass.) 304, M. 954; McArthur v. S, 41 Tex. Cr. Rep.
635, 57 S. W. 847. On criticism of public officers see 23 Am. Law Re-
view, 346,

2 Carr v. Hood, 1 Camp. 355.

® Toogood v. Spyring, 4 Tyrw. 582; Bodwell v. Osgood, 3 Pick. (Mass.)
379.

4 Todd v. Hawkins, 8 C. & P. 88.

5 Fairman v. Ives, 5 B. & Ald. 642.

§ Child v. Affleck, 9 B. & C. 403.

7 Cockayne v. Hodgkisson, 5 C. & P. 548.

8 Coward v. Wellington, 7 C. & P. 581.

® Remington v. Congdon, 2 Pick. (Mass.) 3810; Streety v. Wood, 15
Barb. (N. Y.) 105.
Sects.176,177.] ENGROSSING.—FORESTALLING.—REGRATING. 159

aid in the exposure or detection of crime, or protect the public
or a friend from being swindled or otherwise injured.1 These
communications and the like, though they may be to some
extent false, are all privileged if made without malice, and
for justifiable ends. Though a man is protected in making a
libellous speech in a legislative assembly, if he publish it he is
guilty of libel. And fair reports of judicial and other proceed-
ings, as matter of news, will be privileged, while if unfair, or
interlarded with malicious comment, they will be punishable
as libellous.2 If, however, the matter published is-in itself
indecent, blasphemous, or contrary to good morals, it has been
held, upon very careful consideration, to be indictable.*

§ 176. Slander. — No instance has been found of an indict-
ment for mere verbal slander against an individual in this
country, nor is it indictable in England, unless the individual
sustained such a relation to the public, or the slander was of
such a character, as to involve something more than a private
injury, as where one was held indictable for calling a grand
jury as a body a set of perjured rogues.6 In many States the
rule has been changed by statute so as to make certain slan-
ders criminal offences.

ENGROSSING. — FORESTALLING. — REGRATING.

§ 177. These were severally offences at the common law,
and describe different methods of speculation and artificial
enhancement or depression of the prices of merchandise, by
resort to false news, extraordinary combinations, and other
indirect means outside of the regular action of the laws of
trade. They were based upon early English statutes, and
notably 5 and 6 Edward VI, c. 14, which are cited by Haw-

1 Lay v. Lawson, 4 A. & E. 795; C. v. Blanding, 3 Pick. (Mass.) 304.

2 Rex v. Abington, 1 Esp. 225, K. 440; Rex v. Creevey, 1 M. & S. 273.

3 Lewis ». Walter, 4 B. & Ald. 605; Curry v. Walter, 1 B. & P. 525 ;
Clark v. Binney, 2 Pick. (Mass.) 118; Thomas v. Croswell, 7 Johns.
(N. Y.) 264.

* Rex v. Carlile, 3 B. & Ald. 161.

5 Reg. v. Langley, 6 Mod. 125, K. 437; Rex v. Spiller, 2 Show. 207.
See also 2 Bish. Cr. Law, 7th ed., §§ 945 et seq.
160 CRIMINAL LAW. [Szcrs. 178, 179.

kins,! and of which a very good summary may be found in
Bishop.2. These statutes are now repealed in England, and
the offences abolished. They were undoubtedly a part of the
common law brought to this country, but seem, nevertheless,
not to have been enforced, — perhaps on account of the greater
freedom of trade, and the infrequency of the occurrence of the
evils connected with them in a new country. There is no
reason in principle, however, why they should not be applicable
to many of the practices of the stock and other markets of the
present day.?

NUISANCE,

§ 178. A Nuisance is anything that works hurt, inconven-
ience, or damage. If to the public, as the obstruction of a
highway or the pollution of the atmosphere, it is a common
nuisance, and punishable by indictment at common law. It
the hurt is only to a private person or interest, the remedy
is by civil proceedings. And that is hurtful which substan-
tially interferes with the free exercise of a public right, which
shocks or corrupts the public morals, or injures the public
health. And the hurt may be wrought as well by acts of
omission as by acts of commission; as by failing to repair a
road, or to entertain a stranger at an inn, both being regarded
as disorderly acts.®

§ 179. Obstruction and Pollution.*— Certain acts are said to
be nuisances per se, because they are in violation of the public
right. Thus, an obstruction in a street is a nuisance, because
it may interfere with public travel, although it does not affir-

11 Hawk. P. C., 8th ed., 646.

21 Cr. Law, 7th ed., §§ 518 et seq.

8 City of Louisville v. Roupe, 6 B. Mon. (Ky.) 591; 7 Dane Abr. 39.
For the learning on this subject, in addition to the authorities already
cited, see Rex v. Waddington, 1 East, 143; Rex v. Webb, 14 East, 402 ;
Pratt v. Hutchinson, 15 East, 511; Rex v. Rusby, Peake Add. Cas. 189;
2 Chitty Cr. Law, 52.

+ 3 BL Com. 216 ; 4 Bl. Com. 166; S. v. Schlottman, 52 Mo. 164.

5 4 Bl. Com. 167; S. v. Madison, 63 Me. 546; S. v.“Morris Canal Co.,
2 Zabr. (N. J.) 537; Hill v. S., 4 Sneed (Tenn.), 443. .

6 Ante, § 14.
Secr. 179.] NUISANCE. 161

matively appear that it certainly has interfered with it, or even
of it appears that there has been no travel to obstruct since
the obstruction was erected! So of the obstruction of navi-
gable waters, although the inconvenience may be inappreciable.?
So doing any act in the street or in a building adjoining the
street (as giving an exhibition of pictures in a window,? or other
exhibition near the street, or holding an auction sale on the
street,® or erecting houses on a public square,® or running an
engine in the streets,’ or digging therein a hole,’ or discharging
water so as to cover the sidewalk with ice,® or delivering out
merchandise or other material, as brewer’s grain from a
brewery), in such a manner as to cause the street to be con-
stantly obstructed by men or vehicles, will amount to a
nuisance. A mere transitory obstruction, however, resulting
from the ordinary and proper use of a highway, as in the un-
loading of goods from a wagon, or the dumping of coal into a
street to be removed to the house, if the obstruction be not
permitted to remain more than a reasonable time, does not
amount toa nuisance." Trees in the street are not necessarily
a nuisance.”

The pollution of a stream of water, by discharging into it
offensive and unwholesome matter, if the water be used by the

1 Knox v. New York City, 55 Barb. (N. Y.) 404, C. 543.

2 8. Merrit, 35 Conn. 314 ; Pascagoula Boom Co. v. Dickson, 77 Miss.
587, 28 So. 724; T. v. Vanderbilt, 28 N. Y. 396 ; Woodman v. Kilbourn
Mfg. Co., 1 Abb. (U. S.) 158, Fed. Cas. No, 17,978. Compare Reg. v.
Stephens, L. R. 1 Q. B. 702.

8 Rex v. Carlile, 6 C. & P. 636.

4 Hall’s Case, 1 Vent. 169; Walker v. Brewster, L. R. 5 Eq. 25.

5 Cv. Milliman, 138. & R. (Pa.) 403.

6 C. v. Rush, 14 Pa. 186.

7 C. v. Allen, 148 Pa. 358, 23 Atl. 1115.

8 Robinson v. Mills, 25 Mont. 891, 65 P. 114.

8 Leahan v. Cochran, 178 Mass. 566, 60 N. E. 382.

10 Rex v. Russell, 6 East, 427; P.v. Cunningham, 1 Denio (N. Y.), 524.
See also Attorney General v. Williams, 140 Mass. 329, 2 N. E. 80
Beecher v. P., 38 Mich. 289; Cohen v. New York, 113 N. Y. 582,21 N. ~
E. 700; Robinson v. B. & O. R. R., 129 Fed. 753.

ll Rex v. Carlile, 6C. & P. 636; P. v. Cunningham, ante.

12 Burget v. Greenfield, 120 Ia, 432, 94 N. W. 933.

11 is
162 CRIMINAL LAW. [Secr. 180.

public, is also indictable as a nuisance,! and all who contribute
to such pollution are guilty.2 So is the damming up ofa
stream, so as to make the water stagnant and pestiferous.*
In New Hampshire, the prevention of the passage of fish by a
dam constructed across a non-navigable stream is indictable
at common law.!

8 180. Obnoxious Business, — Other acts may or may not be
nuisances, according to the attendant circumstances. A law-
ful business conducted in a proper manner, in a proper place,
and at a proper time, without inconvenience to the public, may
be perfectly innocent; while the same business, if carried on
in an improper manner, or at an improper place, or at an im-
proper time, to the annoyance or injury of the public, will
become abatable as a nuisance. Manufacturing gunpowder,
refining oils, tanning hides, and making bricks are examples
of this class. So the setting of spring-guns ;* the mainten-
ance of a ‘pesthouse,’ slaughter-house,® dump,® or bowling
alley No act authorized by the legislature, however, can
be punished as a nuisance, even though at common law a nui-
sance per se But this will not protect an act done in a
manner unauthorized by the license,” or in excess thereof, as
storing dynamite beyond the amount allowed," or prior to the
giving of the license.

. v. Taylor, 29 Ind. 517; S. v. Buckman, 8 N. H. 208.
. v. Smith, 82 Ia. 423, 48 N. W. 727,
. v. Rankin, 3 S. C. 488.

4 §. v. Franklin Falls Co., 49 N. H. 240.

5 Anon., 12 Mod. 342; Powder Co. v. Tearney, 131 Tl. 322, 23 N. E.
889; S. v. Hart, 34 Me. 86; Attorney General v. Steward, 20 N. J. Eq.
415; Wier’s Appeal, 74 Pa. St. 230.

6 §. v. Moore, 31 Conn. 479.

T Youngstown Trustees v. Youngstown, 25 O. Cir. Ct. R. 518.

8 Wilcox v. Henry, 35 Wash. 591, 77 P. 1055,

® Percival v. Yousling, 120 Ia. 451, 94 N. W. 9138.

10 Harrison v. P., 101 Ill. App. 224.

11 C. v. Boston, 97 Mass. 555; P. v. New York Gas Light Co., 64 Barb.
(N. Y.) 55; Danville, &c., R. R. v. C., 73 Pa, 29.

12 Rand Lumber Co. v. Burlington, 122 Ia. 208, 97 N. W. 1096. Com-
pare S, v. Hartford St. Ry. Co., 76 Conn. 174, 56 Atl. 506.

18 Ricker v. Shaler, 89 App. Div. (N. Y.) 300, 85 N. Y. S. 825.

14 C. v. Packard, 185 Mass. 64, 69 N. E. 1067.

o mm
MMN
Sects. 181, 182.] NUISANCE. 163

In the case of offensive odors, they become a nuisance if
they make the enjoyment of a right, — as of a passage along
the highway, or of life elsewhere, — uncomfortable, though the
odors may not be unwholesome.! So a coal-shed in a thickly
settled locality, which disturbs the neighborhood by reason
of noise and dust, is a nuisance. ?

§ 181. Immoral Nuisances. — Any business obnoxious to the
public morals is a criminal nuisance. Such is the business of
carrying on “ bookmaking” in a booth on a race-course,? or
the singing of ribald songs on the public streets. So profan-
ity, or profane cursing and swearing, is a special form of nui-
sance, indictable at common law.’ But it has been held that a
single instance of swearing will not constitute the offence ;
there must be such repetition as to make the offence a common
nuisance.6 Havesdroppers, common scolds, railers and brawl-
ers, common drunkards, common barrators, and the like,
persons guilty of open obscenity of conduct or language, of
blasphemy, or profanity, or who keep disorderly houses, as for
gaming or prostitution, or make disorderly and immoral ex-
hibitions, or promote lotteries, or carry about persons affected
with contagious disease, or make unscemly noises at improper
times and places, may all be included under the general cate-
gory of common nuisances, if the several acts work injury to
the public, punishable at common law unless otherwise pro-
vided for by statute.’

§ 182. Prescription. Public Benefit. — The lapse of time does
not give the right to maintain a nuisance.6 No one can pre-

1 Rex v. White, 2 C. & P. 485, n.; Seacord v. P., 121 Jl. 623,13 N. EF.
194; C.v. Perry, 189 Mass. 198, 29 N. E. 656, C. 552; S. v. Payson, 87
Me. 361; S.v. Purse, 4 McCord (S. C.), 472.

2 Wylie v. Elwood, 134 Ill. 281, 25 N. E. 570.

3 McClean v. S., 49 N. J. L. 471, 9 Atl. 681.

4 §. v. Toole, 106 N. C. 736, 11 8. E. 168.

5 S. v. Powell, 70 N. C. 67.

® S. v. Jones, 9 Ired. (N. C.) 38; 8. v. Graham, 3 Sneed (Tenn.), 134.

7 4 BI. Com. 167 et seq., and notes, Sharwood’s ed.; Rex v. Moore,
8 B. & Ad. 184; Barker v. C.,19 Pa. 412. See on all these kinds of
nuisance, 1 Bish. New Cr. L., §§ 1082-1151.

8 Reg. v, Reed, 12CoxC.C.1; Kelly v. Pittsburgh R. R., 28 Ind. App.
164 CRIMINAL LAW. [Szcr. 182.

scribe against the State, against which the statute of limita-
tions does not run, and which is not chargeable with laches.
Nor is*it any excuse that the public benefit is equal to the
public inconvenience ;! nor that similar nuisances have been
tolerated?

It has indeed been said by high authority that, where a
useful trade or business has been established, away from popu-
lation, it may be continued, notwithstanding the approach of
population.2 So, too, it has been held that a business estab-
lished .in a neighborhood where offensive trades already exist,
which, though individually offensive, does not materially add
to the already existing nuisance, may be permitted. And in
one case, at least, in this country the doctrine of the first case
seems to hare been accepted.6 But it is questionable whether
this is now the law in Eneland.6 And the very decided weight
of authority in this country is to the contrary on both points.’

But an important qualification is to be noted. It is true
that a business which is a nuisance cannot be defended by
reason of lapse of time, or of the character of the surround-
ings; but in deciding whether in fact the business constitutes
a nuisance, these facts are to be considered, along with the
other circumstances of the case. What would be a nuisance

457, 63 N. E. 283; Leahan v. Cochran, 178 Mass. 566, 60 N. E. 382, 53
L. R. A. 891, with note and collection of cases on the point; Isham v.
Broderick, 89 Minn. 397, 95 N. W. 224. See also Mercer County v. City
of Harrodsburg, 24 Ky. L. R. 1651, 71 8. W. 928.

1 Seacord v. P., 121 Ill. 623,13 N. E. 194; S. v. Kaster, 35 Ia. 221)
C. 549; Hart v. Albany, 9 Wend. (N. Y.) 571; Resp. v. Caldwell, 1 Dall.
(Pa.) 150.

2 Pittsburgh Ry. Co. v. Crothersville, 159 Ind. 330, 64 N. E. 914; C. ».
Deerfield, 6 All. (Mass.) 449; C. v. Perry, 139 Mass. 198, 29 N. E. 656;
P. v. Mallory, 4 T. & C. (N. Y.) 567.

8 Abbott, C. J., Rex v. Cross, 2 C. & P. 483.

4 Rex v. Watts, M. & M. 281.

5 Ellis v. 8., 7 Blackf. (Ind.) 534.

6 Reg. v. Fairie, 8 E. & B. 486.

7 Ashbrook v. C., 1 Bush (Ky.), 139; C. ». Upton, 6 Gray (Mass. ), 473 ;
P. v. Detroit White Lead Works, 82 Mich. 471, 46 N. W. 735; Taylor v.
P., 6 Parker C. C. (N. Y.) 347 ; P. v. Cunningham, 1 Denio (N. Y.), 524;
C. v. Van Sickle, 1 Bright (Pa.), 69; Douglass v. S., 4 Wis. 387.
Sxcr. 183.] ATTEMPT. 165

in a country village, or in the residential quarter of a ‘city,
might not be a nuisance if established in a locality devoted to
manufacturing: Therefore a refinery or a slaughter-house is
not a nuisance, if established in a locality which is devoted to
such business, and draws its prosperity from it.?

ATTEMPT.” 3

§ 183. Attempt, Preparation, and Intent. — An attempt to
commit a crime is distinguishable from preparation to com-
mit it, and also from the intent to commit. The purchase
of matches, for instance, with the intent to set fire to a house
at some convenient opportunity, is not an attempt to set the
fire. It is mere preparation, and, though the intent exists,
there is no step taken in the perpetration of any crime to
which the intent can attach. The law does not punish the
mere entertainment of a criminal intent. To bring the law
into action it is necessary that some act should be done in
pursuance of the intent, immediately and directly tending to
the commission of the crime,—an act which, should the
crime be perpetrated, would constitute part and parcel of the
transaction, but which does not reach to the accomplish-
ment of the original intent, because it is prevented, or volun-
tarily abandoned.? What does immediately and directly so
tend is to be determined by the circumstances of each par-
ticular case; and, as might be expected, courts which agree
upon the principle are not entirely consistent in its appli-
cation. The dividing line between acts preparatory to and
in execution of a crime is very shadowy.4 If the act prepara-
tory be unequivocal and explicable only upon the theory that

1 Ballentine v. Webb, 84 Mich. 38,47 N. W. 485; C. v. Miller, 139
Pa. 77, 21 Atl. 138, C. 553.

2 On this general subject see an article by Professor J. H. Beale, Jr.
in 16 Harvard Law Rev. 491.

8 Steph. Dig. Crim. Law, art. 49; Lewis v. S., 35 Ala. 380; Field, C.
J.,in P. v. Murray, 14 Cal. 159; Kelly v. C., 1 Grant’s Cas. (Pa.) 484,
M. 342.

4 For a discussion of the line between preparation and attempt see:
P. v. Murray, ante; C. v. Kennedy, 170 Mass. 18, 48 N. E. 770; C. v.
-Peaslee, 177 Mass. 267,59 N. E. 55, M. 3848; U.S. v. Stephens, 8 Sawy.
C. C. 116..
166 CRIMINAL LAW. [Szcr. 183.

it was intended as a step in tle commission of a crime, as in
the procuring dies fur making counterfeit coins, it seems to
be held to be an attempt; although, if explicable as a lawful
act, it might be otherwise! So taking a false oath in order
to procure a marriage license is an attempt to marry without
a license.2 So taking an impressiun of a key to a storehouse
and preparing a false key, with intent to enter and steal, has
been held to be an attempt to steal.2 So setting aside certain
goods with the purpose of later carrying them away. So
making false statements is an attempt to obtain money under
false pretences, the deception being discovered before the
money is obtained. On the other hand, putting the finger on
the trigger of a pistol at half-cock, or otherwise not in con-
dition to be discharged, has been held not to constitute an
attempt to shoot. Sending an order for the purchase of
liquor in San Francisco, to be shipped to Alaska, is not an
attempt to introduce liquor into Alaska.’ And the delivery
of poison by A to B, in order that the latter might deliver
it to C, to be taken by the latter, is not an “attempt to
poison” by A.B Nor is the actual administration of a sub-
stance supposed to be poisonous, but not so in fact. But
Regina v. Williams was a case under a statute; and it seemed
to be agreed by all the judges, that, while they must confine
statutory attempts strictly to the terms of the statute, a less
intimate connection of the act done with the crime intended
is requisite in common law, attempts.”

1 Rex, v. Fuller, R. & R. C. C. 408; Reg. v. Roberts, 7 Cox C. C. 39.

2 Reg. v. Chapman, 3 Cox C. C. 467; contra, P. v. Murray, 14 Cal. 159.
See P. v. Stites, 75 Cal. 570, 17 P. 693.

8 Griffin v. S., 26 Ga. 493.

4 Reg. v. Cheeseman, L. & C. 140, K. 85.

5 Reg. v. Eagleton, 6 Cox C. C. 559; Reg. v. Hensler, 11 Cox C. C.
570.
“6 Rex v. Harris, 5 C. & P.159. See Burton v. S., 109 Ga. 134, 34
8S. E. 286.

7™ U.S. v. Stephens, 8 Sawy. C. C. 116.

8 Reg. v. Williams, 1 Den. C. C. 39.

° S. v. Clarissa, 11 Ala. 57.

© Reg. v. Roberts, 7 Cox C. C. 39. See the cases illustrative very
Secr. 184.] ATTEMPT. 167

§ 184, Impossibility of Execution. —It is not enough that
the act done must have been more than a mere preparation
for the crime, an actual step toward the commission of it; in
addition thereto the means must be, to the apprehension of a
reasonable man, calculated to effect the purpose. Using
witchcraft for the purpose of killing an enemy is not an
attempt to kill. “It is true, the sin and wickedness may be
as great as an attempt or conspiracy by competent means ;
but human laws are made, not to punish sin, but to prevent
crime and mischief.”! Hence, striking at a man with a
small stick is not sufficient te support an indictment for an
attempt to kill.2 On the other hand, it is enough, the other
elements being present, that the act was apparently adapted
to bring about the result sought, though uot in reality suffi-
cient In England, it was once held that, to constitute an
attempt, the act committed must be of such a nature and
under such circumstances that the actor has the power to
carry his intention into execution, and that thrusting the
hand into the pocket of another with intent to steal a pocket-
book, or some other article of property, is no attempt, ‘if
there be at the time nothing in the pocket to steal. But
this doctrine has been abandoned even in England ;® and the
contrary is generally, if not universally, held in this country.®

A somewhat different aspect of the principle that though
the execution of the intended act may not in fact be possible,

fully collected and stated ‘in 1 B. & H. Lead. Cr. Cas., note to Rex v.
Wheatley, pp. 6-10; Reg. v. Cheeseman, 9 Cox C. C. 100, K. 85;
P. v. Murray, 14 Cal. 159.

1 Pollock, C. B., in Attorney General v. Sillem, 2 H. & C. 431, 525.

2 Kunkle v. S., 32 Ind. 220; see also Lott v. S., 83 Miss. 609, 36 So. 11.

8 C. v. Shaw, 184 Mass. 221; P. v. Gardener, 144 N. Y. 119, 38 N. E.
1003.

* Reg. v. Collins, 10 Jur. N. S. 686.

5 Reg. v. Brown, 38 W. R. 95, 24 Q. B. D. 357; Reg. v. Ring, 61
L. J. R. (M. C.) 116, K. 88.

6 Harvick v. S., 49 Ark. 514,68. W.19; S. v. Wilson, 30 Conn. 500;
Hamilton v. S., 36 Ind. 280; C. v. McDonald, 5 Cush. (Mass.) 365; P. v.
Jone3, 46 Mich. 441, 9 N. W. 486; P.v. Moran, 123 N. Y. 254, 25 N. E.
412; S. v. Beal, 87 O. St. 108; Clark v. 8., 86 Tenn. 511, 8S. W. 145.
168 CRIMINAL LAW. [Secr. 184a.

the means adopted must be in themselves calculated to bring
about the result finally desired, else the public tranquillity is
not disturbed, and the act done not criminal, is seen when we
consider the transaction, not from the point of view of the
implements used, but of the physical end sought. Thus there
must be some real object at which the act is aimed. Striking
at a corpse, or shooting at a bush thinking it a man, is for
this reason not an attempt to kill. And where a soldier, see-
ing a body of troops in the distance and thinking them hostile,
rode toward them intending to desert, this was held not an
attempt to desert when the troops in fact were friendly, not
hostile.}

So it is generally held that a boy under fourteen cannot be
indicted for an assault with intent to commit rape, or for an
attempt to commit rape.2. This is based on the view that as
the crime of rape is committed only when a woman is forced
by a person over fourteen, a boy under that age, had he done
all that he intended to do, would not have been guilty of rape;
consequently, any steps falling short of success cannot be an
attempt to commit what, if completed, would not have been,
legally, rape. In other States it has been held that the fact
that a boy under fourteen is presumed, either conclusively or
prima facie to be incapable of committing rape has no bearing
on the question of whether he may not in fact attempt, or
make an assault with the intent, so to do; and that, if the
other elements of an attempt are present, he should be con-
victed.3 Similarly, impotency is no defence to an indictment
for an assault with intent to commit rape.t

§ 1844. Desisting before Completed Crime cannot, if the
other elements are present, make the act done any the less an

1 Resp. v. Malin, 1 Dall. (Pa.) 88. See also S. v. Lawrence, 178 Mo.
350, 77 S. W. 497; Marley v. S., 58 N. J. L. 207, 33 Atl. 208, M. 352;
S. v. Cooper, 2 Zabr. (N. J.) 52; S. v. Brooks, 76 N. C. 1.

* Reg. v. Williams, [1893] 1 Q. B. 320; McKinney »v, S., 29 Fla. 565,
10 So. 732; P. », Randolph, 2 Park. (N. Y.) 213; Foster v. C., 96 Va.
806, 31 S. E. 503. ”

8 Davidson v. C., 20 Ky. L. R. 540, 47 S. W. 213; C. », Green, 2
Pick. (Mass.) 880, C. 117. See Reg. v. Brown, 24 Q. B. D. 387.

* Terr, v. Keyes, 5 Dak. 244, 88 N. W. 440.
Sect. 185.] ATTEMPT. : 169

attempt! Nor can the consent of the person attacked, as for
example in rape, although sufficient to prevent the completed
act from being rape, operate to take away the criminality of
the transaction prior to the giving of the consent.? Similarly,
the successful completion of the crime in a second State will
not prevent whatever part of the transaction took place in the
first State from being punishable there.®

§ 185. Solicitation. — To incite, solicit, advise, or agree
with another to commit a crime is in itself a crime in the na-
ture of an attempt, although the contemplated crime be not
committed. But it has recently been said that the doctrine of
these cases, if sound law, cannot be extended to the solicita-
tion to commit a misdemeanor, a mere solicitation not amount-
ing to an attempt.2 It would seem, however, that if solicitation
is an attempt in the case of felony, it is in that of misde-
meanor. It is certainly something more than intent, and the
doctrine of the last case can better be supported upon the fail-
ure of the indictment sufficiently to set forth the mode of solici-
tation, than upon the point that mere solicitation is not an
act.6 An offer to give a bribe, and an offer to accept a bribe,
have been held to be indictable offences ; 7 and so have a chal-
lenge to fight a duel,’ and inviting another to send a challenge.9

“l Lewis v. S., 35 Ala. 380; P. v. Stewart, 97 Cal. 238, 32 P. 8; Glover
v. C., 86 Va. 382, 10 S. E. 420.

2 §. v. Bagan, 41 Minn. 285, 43 N. W. 5; S. v. Hartigan, 32 Vt. 607.

8 Regent v. P., 96 Ill. App. 189.

* Rex v. Higgins, 2 East, 5, K. 83, M. 337; Reg. v. Quail, 4 F. & F.
1076, C. 189; S. v. Avery, 7 Conn. 266; S. v. Sales, 2 Nev. 268; C. v.
Randolph, 146 Pa. 83, 23 Atl. 388; 3 Greenl. Ev. (13th ed.), § 2, and
note; Steph. Dig. Cr. Law, arts. 47, 48; 1 Bish. New Cr. Law, § 767.

There are certain technical differences between a solicitation and an
attempt in their relation to the substantive crime. The solicitor does not
seek himself to perform the criminal act, but to get another to do it. If
the act is completed he will be liable, not as principal but as accessory be-
fore the fact. See Cox v. P., 82 Ill. 191; Stabler v. C., 95 Pa. 318; S. v.
Butler, 8 Wash. 194, 35 P. 1093.

5 Smith v. C., 54 Pa. 208.

® See C. v. Hutchinson, 6 Pa. Sup. Ct. 405, M. 338.

7 Walsh v. P., 65 Ill. 58; U. S. v. Worrall, 2 Dall. 384.

8 §. v. Farrier, 1 Hawks (N. C.), 487; C. v. Whitehead, 2 Law Re-
porter, 148.

® Rex v. Philipps, 6 East, 464.
170 CRIMINAL LAW. [Secr. 186,

Although suicide is not punishable, yet it is criminal,
and an unsuccessful effort at suicide is punishable as an at-
tempt ;? though in Massachusetts the phraseology of the stat-
ute, which makes attempts punishable by one-half the penalty
provided for the completed crime, has practically made the
offence of an attempt to commit suicide dispunishable? In
some of the States suicide is not regarded as a crime, but by
statute it is made a felony to persuade another to commit
suicide.*

CONSPIRACY.

§ 186. We see, therefore, that it isa crime for one person to
solicit another to commit acrime. It is one step in a series
of acts, which, if continued, will result in an overt act; and
although it may be ineffectual, it is part and parcel of what,
if consummated, becomes a complete and effectual crime. It
therefore partakes of its criminality, and belongs strictly, per-
haps, to that class of crimes which is included under “at-
tempts.” Mutual solicitation by two or more persons is, of
course, upon the same grounds, equally criminal; and when
this mutual solicitation has proceeded to an agreement, it is
regarded by the law as a complete and accomplished crime,
which it denominates conspiracy, and defines to be “ an agree-
ment to do against the rights of another an unlawful act, or
use unlawful means.”

This definition carries us to a different kind of case. Where
the end sought is criminal, then, as already explained, a solici-
tation thereto by a single individual would be criminal; and
it is none the less so because reciprocal. But we may, within
this definition, have a case where the end sought is either un-
lawful, though not criminal, or in itself entirely lawful.
Here again, if, although the end be lawful, the means used are
criminal, solicitation to use those means would be itself a
crime: thus if A is in possession of lands to which B is en-

1C. v. Mink, 123 Mass. 422, C. 104, K. 110.
2 Reg. v. Doody, 6 Cox C. C. 463.

8 C. v. Dennis, 105 Mass. 162.

4 Blackburn ». S., 23 O. St. 146.
Secr. 187.] CONSPIRACY. 171

titled, the obtaining of possession by B is a lawful end, but if
he endeavors to doso by force and violence he becomes a crim-
inal,! and if C incites him so to do, C himself thereby becomes
a criminal; and if C and B solicit each other so to do and
agree thereto they are both guilty of conspiring to accomplish
a legal end by criminal means. But we may, further, have a
case where neither the end is criminal nor the means such as
would be criminal if employed by a single individual. This
case cannot be explained on any principle of solicitation. It
is, however, well established that it is immaterial that the end
sought is lawful, provided the means by which itis to be sought
are unlawful. Nor is it necessary that that which is agreed to
be done should be criminal, or in itself indictable. It is suffi-
cient if it be unlawful,? the criminality of the act being found
in the mere fact of the combination by which an undue and
perhaps dangerous power and efficacy in bringing about the
purpose sought are obtained.

§ 187. In What Sense Unlawful. — Yet perhaps not every un-
lawful act will support an indictment for conspiracy. Thus,
it has been held in England that an agreement to trespass
upon the lands of another, as to poach for game, is no conspir-
acy.2 And this case has been followed in New Hampshire.*
So it has been held that an agreemcnt to sell an unsound horse
with a warranty of soundness is not an indictable conspiracy.
And it has even been held in New Jersey that to support an
indictment for conspiracy there must be indictable crime,
either in the end proposed or the means to be used. But all
these are cases upon which later decisions have thrown great

1 Ante, §§ 167-171.

2 Reg. v. Bunn, 12 Cox C. C. 816, 1 Green’s Cr. Law Rep. 52; Reg.
v. Warburton, L. R. 1 C. C, 274; S. v. Rowley, 12 Conn. 101; Smith v.
P., 25 Il. 17; S. v. Mayberry, 48 Me. 218; C. v. Hunt, 4 Met. (Mass.)
111; S. v. Burnham, 15 N. H. 396; P. v. Mather, 4 Wend. (N. Y.) 229,
M. 385.

8 Rex v. Turner, 13 East, 228.

4S. v. Straw, 42 N. H. 393.

5 Rex v. Pywell, 1 Stark. 402.

6S. v. Rickey, 4 Halst. 298.
172 CRIMINAL LAW. [Sucr. 187.

doubt, and neither perhaps would now be followed except
upon its exact facts.?

It may be that some unlawful acts or means might be held
too trivial to support a charge of conspiracy ; but what they
are, and how trivial, we have no means of determining?

However that may be, it seeins to be settled that all combi-
nations to defeat or obstruct the course of public justice, as
by the presentation of false testimony,’ or tampering with wit-
nesses, or with jurors,> or with the making up of the panel,6
or preventing the attendance of witnesses,’ or by destroying
evidence, or falsifying a public record,® or rescuing a prisoner
from jail ” are indictable as conspiracies, not only because of
the greater power given by combination to accomplish the
purpose but because all the acts mentioned are in themselves
criminal," and hence any solicitations or attempts toward them
are for the same reason a crime.

Another class of cases that amount to conspiracies are
agreements to cheat or injure the public or individuals. Thus
a plan to procure copies of the questions to be put by a State
examining board; or for A to pass a civil service examina-
tion for and in the name of B, is a conspiracy. So, an agree-
ment to collect a debt in a manner not allowed by law," or to
defraud by imposing upon the public a spurious article for the

1 See Reg. v. Kenrick, 5 Q. B. 49; Reg. v. Rowlands, 5 Cox C. C. 466,
490; Lambert v. P., 9 Cow. (N. Y.) 578, in addition to cases cited anie,
§ 186.
2 See Reg. v. Kenrick, ante.
3 Rex v. Mawbey, 6 T. R. 619.
4 Rex v. Johnson, 1 Show. 15.
® Rex v. Gray, 1 Burr. 510; P. v. O'Donnell, 110 Ill. App. 250.
® Gallagher v. P., 211 Ill. 158, 71 N. E. 842.
7 Rex v. Steventor: 2 East, 362.
8S. v. De Witt, 2 Hill (S. C.), 282.
® C.v. Waterman, 122 Mass. 48.
10 Kipper v. S., 42 Tex. Cr. R. 6138, 62 S. W. 420.
1 Ante, §§ 18, 140, 146-154.
12'S. ». Stewart, 32 Wash. 103, 72 P. 1026.
8 U.S. v. Curley, 122 Fed. 738, 180 Fed. 1; under a statute punishing
conspiracies with intent to defraud.
14 C. v. Stambaugh, 22 Pa. Supr. Ct. 386,
Sect. 187.] CONSPIRACY. 173

genuine,! or by running up the price of goods at an auction by
means of false bids,? or by manufacturing false news or using
coercive means to enhance or depress the price of property or
labor or by unlawful means to compel an employer to in-
crease, or employees to reduce,® the rate of wages. Under
the older law it was held a criminal conspiracy to agrce
merely not to work for less than a given wage.® But it seems
clear that this would not be so held today. Employees, either
individually or in a body, have a right to refuse to work for
any wage that does not satisfy them.’ If, however, the agree-
ment goes beyond this, and is not only to refrain from work-
ing themselves, but to compel other employees also to refuse to
work, or to join the union, the conspiracy is criminal. So an
agreement by boycotting to compel an employer to discharge
certain employees is criminal.® So, for the same reason, a
combination to force a paper to reduce its advertising rates.
Another class of criminal conspiracy is that embracing
agreements to injure or disgrace others in their character,
property, or business, as by seducing a female," or by abduct-
ing a minor daughter, for the purpose of marrying her against

1. v. Judd, 2 Mass. 329.

2 Reg. v. Lewis, 11 Cox C. C. 404.

8 Vertue v. Clive, 4 Burr. 2478, K. 401 ; Reg. v. Blake, 6 Q. B. 126;
Levi v. Levi, 6 C. & P. 239; Rex v. De Berenger, 3 M. & S. 67; P. «.
Sheldon, 139 N. Y. 251, 34 N. E. 785; Morris Run Coal Co. v. Barclay
Coal Co., 68 Pa. 173.

4 Reg. v. Bunn, 12 Cox C. C, 316; C. v. Hunt, 4 Met. (Mass.) 111; S.
v. Donaldson, 32 N.J. L. 151; P. v. Fisher, 14 Wend. (N. Y.) 9.

5 Rex v. Hammond, 2 Esp. 719.

® Rex v. Journeyman-Tailors, 8 Mod. 10, K. 404.

7S. v. Stockford (Conn.), 58 Atl. 769. See also Cote v. Murphy,
159 Pa. 420, 28 Atl. 190.

8 §. v. Dyer, 67 Vt. 690, 82 Atl. 814.

® Rex v. Bykerdyke, 1 M. & R. 179, M. 362; S. v. Glidden, 55 Conn.
46,8 Atl. 890; C.v. Hunt, ante; P. v, McFarlin, 43 Misc. Rep. (N. Y.)
591, 89 N. Y. S. 527; S. v. Stewart, 59 Vt. 273, 9 Ath 559, M. 377;
Crump v. C., 84 Va. 927, 6 S. E. 620.

io §. v. Huegin, 110 Wis. 189, 85 N. W.1046. For a further discussion
of this question see 16 Harvard L. R. 389. ‘

11 Smith v. P., 25 Ill. 17; S. v. Savoye,’ 48 Ta. 562; Anderson v. C., 5
Rand. (Va.) 627. -
174 CRIMINAL LAW. [Secr. 188.

the wish of her parents,! or by hissing an actor or injuring a
play,? or by destroying one’s property or depreciating its value,3
as by a conspiracy to stifle bidding at an auction,‘ or by de-
ceiving a partner as to how much is due him in the final
settlements of the partnership accounts,’ or by falsely charg-
ing a man with being the father of a bastard child,® or by
getting him drunk in order to cheat him.’ Of course, all
agreements to commit acts in themselves criminal, or to be
accomplished by criminal means, and all acts contra bonos
mores, are indictable conspiracies.

§ 188. Agreement the Gist of the Offence. — The law regards
this unlawful combination of two or more evil-disposed per-
sons as especially dangerous, since increase of numbers,
mutual encouragement and support, and organization, increase
the power for and the probability of mischief. And the con-
spiracy is punished to prevent the accomplishment of the
mischief. It is, therefore, entirely immaterial whether the
agreement be carried out, or whether any steps be taken in
pursuance of the agreement; or whether the defendant with-
drew before the crime planned was completed,® or whether the
plan was likely to miscarry,” or that certain additions were
afterward made to the agreement.! When the agreement is
made, the crime is complete; and it seems to be settled,
without substantial dissent, that persons may be indictable

a

1 Mifflin v.C., 5 W.&S. (Pa.) 461. See Rex v. Wakefield, 2 Lewin, 1.

2 Clifford v. Brandon, 2 Camp. 383.,

8 §. v. Ripley, 31 Me. 386.

4 Levi v. Levi, 6 C. & P. 239.

5 Reg. v. Warburton, L. R.1C. C. R. 274.

® Reg. v. Best, 2 Ld. Raym. 1167.

7 §. v. Younger, 1 Dev. (N. C.) 357.

8 Young’s Case, 2 T. R. 734 (cited); S. v. Murphy, 6 Ala. 765; S. v.
Buchanan, 5 H. & J. (Md.) 317.

9 Dill v. S., 35 Tex. Cr. Rep. 240, 33 S. W. 126,

10 P. v. Gilman, 121 Mich. 187, 80 N. W. 4.

uC. v. Rogers, 181 Mass. 184, 63 N. E. 421,

12 Reg. v. Best, 2 Ld. Raym. 1167; Rex v. Gill, 2 B. & Ald. 205; C. v.
Judd, 2 Mass. 829; C. v. Ridgway, 2 Ashm. (Pa.) 247; Hazen v. C., 23
Pa. 855; S. v. Noyes, 25 Vt. 415; U. S. v. Cole, 5 McLean C. Ct. 513,
Fed. Cas. No. 14,832.
Sects. 189, 190.] CONSPIRACY. 175

for conspiring to do that which they might have individually
‘done with impunity.?

If the conspiracy be executed, and a felony be committed
in pursuance of it, the conspiracy disappears, being merged in
the felony, and punishable as part of it.2 It is otherwise, how-
ever, when a misdemeanor is committed. Here there is no
merger, and the conspiracy is separately punishable.?

A conspiracy, from its very nature, must be participated in
by more than one person. Hence, husband and wife’ alone
cannot be indicted for this offence. So, if all but one of the
conspirators are acquitted, that one cannot be found guilty.é

§ 189. Intent.-—- As in common law offences generally,
there must be an actual wrongful intent in order to render the
conspiracy criminal. Thus, if a person be deceived into be-
coming a conspirator, and is himself acting in good faith, he
is not guilty. So, if two parties conspire to procure another
to violate a statute, in order that they may extort money from
him by threats of prosecution, they are indictable. But if the
object be to secure the detection and punishment of suspected
offenders, they are not.”

§ 190. All Equally Guilty. — All conspirators are equally
guilty, whether they were partakers in its origin, or became
partakers at a subsequent period of the enterprise ; and each

1 Reg. v. Gompertz, 9 Q. B. 824; S.v. Buchanan, 5 H. & J. (Md.) 317;
Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173; Berkowitz v. U.S.,
93 Fed. 452.

2 ©. v. Blackburn, 1 Duv. (Ky.) 4; S. v. Mayberry, 48 Me. 218; C. v.
Kingsbury, 5 Mass. 106; contra: Reg. v. Button, 11 Q. B. Rep. N.S. 929;
Graff v. P., 108 Il. App. 168; Wait v. C.,24 Ky. L. R. 604, 69 S. W. 697.
Compare S. v. Setter, 57 Conn. 461, 18 Atl. 782; C. v. Dean, 109 Mass.
349; Johnson v. S., 26 N. J. L. 313.

3S. v. Murphy, 6 Ala. 765; S. v. Murray, 15 Me. 100; P. v. Richards,
1 Mich. 216; P. ». Mather, 4 Wend. «N. Y.) 229, M. 885; S. v. Noyes,
25 Vt. 415.

4 P. v. Miller, 82 Cal. 107, 22-P. 934; S. v. Clark, 9 Houst. (Del.) 536,
33 Atl. 310; C.v. Allen, 24 Pa. Co. Ct. R. 65.

5 Rex v. Thorp, 5 Mod. 221, K. 407; Rex v. Plummer, [1902] 2 K. B.
839, 20 Cox C. C. 269; S. v. Tom, 2 Dev. (N. C.) 569.

6 Rex v, Whitehead, 1 C. & P. 67.

7 Hazen v. C., 23 Pa. 855; but compare ante, § 22a.
i: * CRIMINAL LAW. [Secr. 191.

is responsible for all acts of his confederates, done in pursu-
ance of the original purpose.!

§ 191. Effect of Local Laws. —In determining what is in-
dictable as a conspiracy much depends upon the local laws of
the place of the conspiracy. It may well be that in one juris-
diction that may be unlawful, and even criminal, which in
another is not; and therefore it does not follow that because
in one State or country where the common law is in force an
agreement to do a particular act may be a conspiracy, the
same would be true of another. This would depend upon
local considerations. An indictment and conviction in one
State may not be a precedent in another. Upon this point
the following observations ? are worthy of careful considera-
tion: “ Although the common law in regard to conspiracy in
this Commonwealth is in force, yet it will not necessarily fol-
low that every indictment at common law for this offence is a
precedent for a similar indictment in this State. The general
rule of the common law is, that it is a criminal and indictable
offence for two or more to confederate and combine together,
by concerted means, to do that which is unlawful or criminal,
to the injury of the public, or portions or classes of the com-
munity, or even to the rights of an individual. This rule of
law may be equally in force as a rule of the common law in
England and in this Commonwealth ; and yet it must depend
upon the local laws of each country to determine whether the
purpose to be accomplished by the combination, or the con-
certed means of accomplishing it, be unlawful or criminal in
the respective countries. All those laws of the parent country,
whether rules of the common law or early English statutes,
which were made for the purpose of regulating the wages of
laborers, the settlement of paupers, and making it penal for
any one to use a trade or handicraft to which he had not

1 Frank v, §., 27 Ala. 87; S. v. Wilson, 30 Conn. 500; Ferguson v.
S., 32 Ga. 658; P. v. Mather, 4 Wend. (N.Y.) 229, M. 385. Compare
Handley v. 8., 115 Ga, 584, 4S. E992; §. v. Furney, 41 Kan. 115, 21 P.
218, and ante, § 71. %

? Shaw, C. J., C. v. Hunt, 4 Met. (Mass.) 111.
Sect. 191.] CONSPIRACY. 177

served a full apprenticeship,—not being adapted to the cir-
cumstances of our colonial condition, — were not adopted,
used, or approved, and therefore do not come within the de-
scription of the laws adopted and confirmed by the provision
of the Constitution already cited. This consideration will
do something toward reconciling the English and American
cases, and may ... show why a conviction in England, in
many cases, would not be a precedent for a like conviction
here.”

12
178 CRIMINAL LAW. [Sucrs. 192, 193,

CHAPTER V.

CRIMES AGAINST RELIGION, MORALITY, AND DECENCY.

§ 193. Apostasy. § 199. Kidnapping.
194, Blasphemy. 200, Abortion.
195. Adultery. 201. Lasciviousness.
196. Bigamy. 202. Fornication.
197. Seduction. 203. Sodomy.

198. Abduction.

§ 192. The principal common law crimes of this class are
comprehended under three heads: crimes against Christianity,
such as apostasy and blasphemy; crimes against the family
relation, such as adultery, bigamy, seduction, and abortion ;
and sexual crimes, such as lasciviousness, fornication, and
sodomy.

APOSTASY.

§ 198. Apostasy stands at the head of the list of crimes
against religion of which the ancient common law took cog-
nizance, and is defined as a total renunciation of Christianity
by one who has embraced itt. The Church of England was
and is a State institution, and it has been deemed to be the
duty of the State to protect it, and through it the State
religion. Hence the common law punished whatever was
calculated to injure or degrade it. Out of this view of State
policy grew the common law crimes of Apostasy, Heresy,
Simony, Non-conformity, Reviling the Ordinances of the
Church, Blasphemy, and Profane Cursing and Swearing.
None of these, it is believed, except the last two, have ever
been, or are likely to be, here recognized as crimes against
the State ; for though, as has already been seen,2 Christianity
is a part of the common law in this country as well as in

14 Bl. Com. 42, 2 Ante, § 2,
-

Secr. 194,] APOSTASY. — BLASPHEMY. 179

England, yet, as we have no established church and no estab-
lished religion to which the State is bound to extend its
protection, most of these offences are left to the discipline
of the various religious bodies in which they may arise.
Blasphemy and profane cursing and swearing, however, being
offences against good morals as well as hostile to the spirit of
Christianity, have, by exception, in this country been held
indictable,! and will now be considered.

BLASPHEMY.

§ 194. Blasphemy is, literally, evil-speaking. But only that
kind of evil-speaking which injuriously affects the public is
taken notice of by the common law, and, under this particular
head, only the evil-speaking of sacred things. The definitions
of blasphemy differ, according to the different views enter-
tained by different ages and countries as to what things are
so sacred as to require, in the interest of public order, their
protection against assault. Thus, in Spain it is held to be
blasphemous to speak evil of the saints;? and in Woolston’s
Case’ it was held blasphemous at common law to write against
Christianity in general, while it was intimated that learned
men might dispute about particular controverted points.
Though the common law is understood to prevail in this
country relative to this crime, except so far as it has been
abrogated by statute, yet it cannot be doubted that its applica-
tion would, at the present day, be greatly restricted. No such
discussion would now be regarded as blasphemous, unless
executed in such a manner as to betray a malicious purpose
to calumniate and vilify, and to such an extent as to become
an injury to public morals. Good morals, being one of the
strong foundations of social order, must be encouraged and
protected. Whatever, therefore, tends essentially to sap such
foundation is punishable, upon the same ground as is the
publication of obscene writing or pictures.

1 See 1 Bl. Com., bk. 4, ¢. 4.
2 Bouv. Dict., “ Blasphemy.”’
8 2 Stra. 834.
180 CRIMINAL LAW. [Secr. 194.

No category of the sacred things with reference to which
blasphemy may be committed has been given in any descrip-
tion or definition of the offence by the courts or text-writers.
It has been held to be blasphemous to deny the existence of
God, with the intent to calumniate and disparage ;! so, to
speak of the Saviour as a “bastard,” with like intent,? or as
an impostor and murderer ;° so, with like intent, to speak of
the Holy Scriptures as “a fable,’ and as containing “ many
lies,’ ¢ or otherwise maliciously to revile them.’ Christianity
is a part of the common law of this country, and its principles
are so interwoven with the structure of modern society that
whatever strikes at its root tends manifestly to the dissolution
of civil government. “ Blasphemy,” says Chancellor Kent,®
“according to the most precise definitions, consists in’
maliciously reviling God or religion,’— as satisfactory a
definition, perhaps, as can be given, taking religion to mean
that body of doctrine and belief commonly accepted as
Christianity.

Whether the words are spoken or written is immaterial.
They must, however, if spoken, be heard by somebody, and, if
written, be published. 7

Many of the States have enacted statutes prescr ibing the
punishment which shall be imposed in certain cases of "blas-
phemy; but these statutes are not regarded as changing the
common law, except so far as their special terms provide.
What was blasphemy at common law is still blssphemy, sub-
ject to the modifications of the statute.®

Profanity is an offence analogous to blasphemy, which will

1 C. v. Kneeland, 20 Pick. (Mass.) 206.

2S. v. Chandler, 2 Harr. (Del.) 553 ; P. ». Ruggles, 8 Johns. (N. Y.)
290.

8 Rex v. Waddington, 1 B. & C. 26.

4 Updegraph v. C., 11S. & R. (Pa.) 394.

5 Rex v. Hetherington, 5 Jur. (1st ser.) 529,

6 P. v. Ruggles, ante.

7 P. v. Porter, 2 Parker (N. Y.), C. R. 114; S. v. Powell, 70 N. C.
67.

8 1 Bish. Cr. Law, § 80, and cases there cited.
Sect. 195.] BLASPHEMY. — ADULTERY. 181

be further treated under the head of Nuisance, of which both
offences are special forms.}

ADULTERY.

§ 195. Adultery is the unlawful and voluntary sexual inter-
course between two persons of opposite sexes, one at least of
whom is married. It is not an offence at common law,? and
although in most of the States it is not made criminal, it is in
some of them cognizable only in the ecclesiastical tribunals.
The foregoing definition is based upon the general terms of
the statutes of the several States under which it is not mate-
rial which of the parties is married, the offence being adultery
on the part of the married person, and fornication on the part
of the unmarried.? But it embraces a wider field, no doubt,
than comes within the original idea of adultery, which was
the introduction of spurious offspring into the family, whereby
a man may be charged with the maintenance of children
not his own, and the legitimate offspring be robbed of their
lawful inheritance, making it necessary that one of the parties
should be a married woman. In some of the States, this idea
still prevails as to criminal prosecutions for adultery, while in
suits for divorce the intercourse of a married man with an
unmarried woman is held to be adultery.4 The statutes of
the several States so differ, however, that while in some States
intercourse of an unmarried man with a married woman is
adultery on the part of the man,’ in others intercourse by a

1 The. question of the unconstitutionality of such laws, as restrictive
of the liberty of speech and of the press, is elaborately discussed, and
decided in the negative, by Shaw, C. J., in Com. v. Kneeland (ante),
which, with the cases in New York and Pennsylvania before cited, are
leading cases upon the subject.

2 4 Bl. Com. 65.

3 Miner v. P., 58 Ill. 59; 8. v. Hutchinson, 36 Me. 261; C. v. Call, 21
Pick. (Mass.) 509. In other States it is adultery by both parties: S. v.
Hinton, 6 Ala. 864; Lyman ». P., 198 Ill. 544, 64 N. E. 974; S.v. Wilson,
22 Ia. 364; S. v. Byrum, 60 Neb. 384, 83 N. W. 207.

4 §. v. Armstrong, 4 Minn. 335.

5 8. v. Pearce, 2 Blackf. (Ind.) 318; S. v. Weatherby, 43 Me. 258;
S. v. Wallace, 9 N. H. 515. :
182 CRIMINAL LAW. [Secr. 196.

married man with an unmarried woman is not adultery on
the part of the latter} and in others, an unmarried man can-
not commit adultery.”

That the parties cohabited in the honest belief that they
had a right to, and did not intend to commit the crime, is no
defence, as has already been shown.®

“Open and notorious adultery” cannot be shown by the
mere act of adultery. The fact of openness and notoriety
must be proved, and that the party charged publicly and
habitually violated the law.t So “living in adultery ” means
more than a single act of illicit intercourse.®

Where two are charged with adultery, committed together,
they may be tried together; and one may be tried and con-
victed, though the other has not been arrested.® So where one
of the parties was so intoxicated as to be ignorant that the act
was committed, the other may be convicted alone.’ And it
has been held that, where the parties are tried separately, and
one is acquitted, the other may be convicted.2 But where
they are tried together, it would of course be impossible to
acquit one and convict the other.®

BIGAMY.

196. Bigamy, otherwise called polygamy, or the offence
of having a plurality of wives or husbands at the same time,

1 Cook v. S., 11 Ga. 58; S. v. Armstrong, 4 Minn. 385; S. v. Lash, 16
N. J. L. 380.

2 Resp. v. Roberts, 2 Dall. (Pa.) 124; C. v. Lafferty, 6 Grat. (Va.) 672.

3 Anle, §§ 52 et seq.; S. v. Goodenow, 65 Me. 30.

4P.v. Gates, 46 Cal. 52; Miner v. P., 58 Ill. 59; Wright v. S.,5
Blackf. (Ind:) 358; S. v. Marvin,.12 Ia. 499; Carrotti v. S., 42 Miss.
334 ; S. v. Crowner, 56 Mo. 147; ante, § 15.

5 Smith v. &., 39 Ala. 554; Bodiford v. S., 86 Ala. 67, 5 So. 559; Jack-
son v. 8. 116 Ind. 464, 19 N. E. 330; Richardson »v. S., 37 Tex. 316;
Collins v. S. (Tex.), 80 S. W. 372.

6 §. v. Carroll, 30 8. C. 85, 8 S. E. 433.

™ C. v. Bakeman, 131 Mass. 577; S. v. Cutshall, 109 N. C. 764, 14 S.
E. 107.

§ Alonzo v. §., 15 Tex. App. 378,

® S. v. Rinehart, 106 N. C. 787, 11S. E, 512.
Szcr. 196,] BIGAMY. 183

was, like adultery, an offence of ecclesiastical cognizance, but
ultimately became a statutory offence,! the marrying another
by a person already married and having a husband or wife
living being made a felony. This statute was adopted by Mary-
land as one which “ by experience had been found applicable to
their local and other circumstances,” and is there held to this
day, except as to the punishment, to be a part of the common
law. And by the law of Maryland the crime is a felony, as
doubtless it is in other States, where punishment in the State
prison is or may be the penalty.2 It is substantially the law
in most, if not all, of the States of the Union.

It is only the second marriage which is criminal ; and there-
fore, if the first marriage be in one jurisdiction and the second
in another jurisdiction, the crime is only committed in, and of
course only cognizable by the tribunals of, the latter.2 Equally,
of course, if the first marriage is invalid, the second is no
offence anywhere, —in fact, there is no second marriage.*
Thus where the defendant first marries A, then, while she is
still his wife, marries B, and then, after the death or divorce
of A, but while his relation with B is unchanged, marries C,
this last marriage is not bigamous, since the marriage with
B, because of the then subsisting marriage with A was
wholly void; and the later dissolution of the latter leaves him
single.5 We must, however, distinguish cases where the first
marriage is not void but simply voidable, as, for example, if
contracted under the age of consent; the mere fact of its
voidability does not make the second the less bigamous,® simi-

1 1 James J, c. 11; 4 Bl. Com. 164.

2 Ante, § 10.

3 1 Hawk. P. C. bk. 1, c. 43; Johnson v. C., 86 Ky. 122, 5 S. W. 365;
Putnam v. Putnam, 8 Pick. (Mass.) 4383; C. v. Lane, 113 Mass. 458; P.
v. Mosher, 2 Park. (N. Y¥.) C. R. 195.

4 P.v. Slack, 15 Mich. 193; Shafher v. S., 20 O.1; S. v. Barefoot, 2
Rich. (S. C.) 209; McReynolds v. S., 5 Cold. (Tenn.) 18.

5 C. v. M’Grath, 140 Mass. 296, 6 N. E.515; Lane v. S., 82 Miss, 555,
84 So. 353; Keneval v. S., 107 Tenn. 581, 64S. W. 897; S. v. Goodrich,
14 W. Va. 834.

6 §. ». Barefoot, ante, P. v. Slack, ante ; Beggs v.8., 55 Ala. 108; P. v.
McQuaid, 85 Mich. 123, 48 N. W. 161; S. v. Cone, 86 Wis. 498, 57 N.
W. 50.
184 CRIMINAL LAW. [Secr. 196.

larly if the first marriage has been ratified by subsequent
cohabitation.?

Of course the fact that the bigamous marriage is void is no
defence. In the nature of things there can be but one lawful
marriage, and if the first be valid the second is void; nor is
it material that the second would be void on other grounds.
The offence consists in the entering into a void marriage
while a prior valid marriage relation exists,? and is complete
without cohabitation?

A divorce may, and unless restricted in its terms usually
does, annul the former marriage, so as to make the second one
valid. In some States, however, the guilty party in a divorce
for adultery on his part may be guilty of polygamy by marry-
ing without leave of court while his divorced wife is living.*
But after a divorce in one State, a marriage in another, valid
by the laws of that State, followed by a return to the State
where the divorce was granted, and a cohabitation there with
the second wife, will not be held polygamous, unless the sec-
ond wife be an inhabitant of the State granting the divorce,
and the parties went to another State to be married, in order
to evade the law.® Oonversely, the fact that in the divorce
from the first marriage the defendant was forbidden to re-
marry will not make the second one void so as to render a
third non-bigamous.§ So if the party goes to another State
merely for the purpose of obtaining a divorce, and obtains it
by fraud, it will be of no avail to him on his return to the

1 Hampton v. S., 45 Ala. 82; McReynolds v. S., ante.

2 Reg. v. Brawn, 1 C. & K. 144; Reg. v. Allen, L. R. 1 C. C. 367;
Robinson v. C., 6 Bush. (Ky.) 309; P. ». Brown, 34 Mich. 339; Hayes v.
P., 25 N. Y. 890; Carmichael v. S., 12 O. St. 553.

8 Nelms v. §.,84 Ga, 466, 10 S. E. 1087; C. v. Lucas, 158 Mass. 81,
32 N. E. 1033; S. v. Smiley, 98 Mo. 605, 12 S. W. 247; Gise v. C., 81 Pa.
428.

* C. v. Putnam, 1 Pick. (Mass.) 136; Baker v. P., 2 Hill (N. Y.), 825.

5 C. v. Lane, 113 Mass. 458, semble ; Pennegar v. S., 87 Tenn. 244, 10
S. W. 305. So with miscegenation: S. v. Kennedy, 76 N. C. 251; Kinney
v. C., 30 Grat. (Va.) 858; contra: Stevenson v. Gray, 17 B. Mon. (Ky.)
193; Medway v. Needham, 16 Mass. 157.

® Thompson »v. S., 28 Ala. 12.
Secr. 197.] BIGAMY. — SEDUCTION. 185

State he left and marrying again there. So if the State
granting the divorce had no jurisdiction ;? and it has been held
that the crime may be committed although the defendant in
good faith believed his former partner was dead or divorced.?
The bigamy statutes, however, generally contain a provision
whereby the defendant is freed from criminal liability if he
marries only after a lapse of a specified number of years if he
has no grounds to believe the absent spouse to be alive.
Whether the formerly unmarried party to a polygamous mar-
riage, if he married with knowledge of the other party’s disa-
bility, is also guilty of any offence, and what, is an open question,
and may be solved differently in different States, according to
the degree of the principal offence, whether felony or misde-
meanor, or by special provisions of the statute.t

SEDUCTION.

§ 197. It is at least doubtful whether seduction was an
indictable offence by the old common law. It seems, how-
ever, to have been the subject of statutory prohibition as long
ago as the time of Philip and Mary,® whereby, after reciting
that “ maidens and women” are, “ by flattery, trifling gifts,
and fair promises,” induced by “ unthrifty and light person-
ages,” and by those who “for rewards buy and sell said maid-
ens and children,” it.is made unlawful for any person or
persons to “take or convey away, or cause to be taken or
conveyed away, any maid or woman child, being under the

1 Crawford v. S,, 73 Miss. 172, 18 So. 848.

2 P. vu. Dawell, 25 Mich. 247; 8. v. Armington, 25 Minn. 29; Andrews
v. Andrews, 188 U. 8. 14. Compare P. v. Baker, 76 N. Y. 78; Atherton
z. Atherton, 181 U. S. 155.

3 Rogers v. C., 24 Ky. L. R. 119, 68 S. W. 14; C. v. Mash, 7 Met.
(Mass.) 472, C. 88; contra: Reg. v. Tolson, L. R. 23 Q. B. D. 168, K.
15; Squire v. 8., 46 Ind. 459, C. 90; Welch v. S. (Tex.), 81 S. W. 50.
Compare P. v. Hartman, 130 Cal. 487, 62 P. 823; S. v. Goodenow, 65 Me.
80; S. v. Zichfield, 23 Nev. 304, 46 P. 802; ante, §§ 53 et seq.

4 See Bish. Cr. Proc , § 594; Boggus v. S., 34 Ga. 275.
ia Rex v. Moor, 2 Mod. 128; Rex v. Marriot, 4 Mod. 144, 1 East P. C,

64&5 Ph. &M.,c. 8, §§ 1, 2,
186 CRIMINAL LAW. [Secr. 197.

age of sixteen years,” out of the possession of their lawful
custodian. There seems to be no reason to doubt that this
statute became a part of the common law of the Colonies,}
and it seems to have been adopted by statute, and acted upon
in South Carolina with certain modifications, — the limitation
to heiresses, for instance, being regarded as not applicable to
the condition of society in that jurisdiction. Indeed, it was
held that such a limitation was not in the act itself fairly in-
terpreted.2. The distinction between abduction and seduction
seems to be that the former is presumed to be by force, or its
equivalent, for the purposes of marriage or gain; while the
latter is presumed to be without force, and by enticement,
for the purpose of illicit intercourse. The distinction is by
no means clearly made, and the decisions in indictments for
abduction and seduction will be found interchangeably useful
to be consulted. In Counecticut, the statute punishes “ who-
ever seduces a female”; and seduction is held ex vi terminz to
imply sexual intercourse, and is defined to be “ an enticement”
of the female “to surrender her chastity by means of some
art, influence, promise, or deception calculated to effect that
object’; and the seduction is proved, though it appear that it
followed a promise of marriage made in good faith* Here,
too, as in the cases to be cited illustrative of the statutes
against abduction, by “ previous chaste character” is meant
actual personal virtue,® which is presumed to exist, unless it
be shown that the woman has had illicit intercourse with the
defendant or another prior to the seduction,® and may still

1 C. v. Knowlton, 2 Mass. 530, C. 1.

2S. v. Findlay, 2 Bay (S.C.), 418; S. v. O’Bannon, 1 Bail. (S. C.) 144.
See also 8. v. Tidwell, 5 Strobh. (S. C.) 1, which, however, is a case for
abduction under the third and fourth sections of the statute.

8 §. v. Crawford, 34 Ia. 40.

4S. v. Bierce, 27 Conn. 319; S. v. Brandenburg, 118 Mo. 181, 23 S.
W. 1080; Dinkey v. C., 17 Pa. 126; Croghan v. S., 22 Wis. 444. See
the statutes of several States collected, 8 Amer, St. Rep. 870, n.

5 Munkers v. §., 87 Ala. 94,6 So. 857; Walton v. S.,71 Ark. 398,
75 8S. W. 1; Lyons v. S., 52 Ind. 426; S. v. Smith, 124 Ja. 334, 100 N. W.
40; Kenyon v. P., 26,N. Y. 203; Crozier v. P., 1 Park. (N. Y.) C. C. 453.

® Caldwell v, S. (Ark.), 83 S. W. 929; Wood v. S., 48 Ga. 192;
Szcr. 197.] SEDUCTION. 187

exist if it be shown that, though at some former time she may
have yielded to the defendant, she had reformed, and was a
chaste woman at the time of the seduction! And it seems
that, if the alleged seducer be a married man, and known to
be such by the female said to have been seduced, and the
means of seduction are alleged to be a promise of marriage,
this is not such a false and fraudulent act as could lead to the
betrayal of the confidence of any virtuous woman, and has not
therefore the element of fraud which is necessary to constitute
the crime of seduction.?- So where the promise to marry is no
part of the influence under which the woman yields, but is 4
mere matter of bargain, there is no seduction.2 So where she
is willing to have intercourse, but stipulates for a marriage in
the event of pregnancy.’ Where, however, the promise in the

8. v. Higdon, 32 Ia. 262; P. v. Brewer, 27 Mich. 134; P. v. Clark, 33
Mich. 112; Ferguson v. S., 71 Miss. 805, 16 So. 355; P. v, Kearney, 110
N. Y. 188, 17 N. E. 736; Griffin v. S.,109 Tenn. 17,70 8. W. 61; Barnard
v. 8S. (Tex.), 76 8. W. 475; Mills v. C., 93 Va. 815, 22 8. E. 863; con-
tra: that the defendant being presumed to be innocent the burden is
on the prosecution to show, as one of the elements in its case, that the
woman was chaste, P. v. Wallace, 109 Cal. 611, 42 P. 159; Williams v.
S., 130 Ind. 58, 29 N. E. 1078; C. v. Whittaker, 131 Mass. 224; S. v.
Lockerby, 50 Minn. 363, 52 N. W. 958; S. v. Eckler, 106 Mo. 585, 17 S.
W. 814; Harvey v. T., 11 Okl. 156,65 P. 837; Oliver v. C.,101 Pa. 215.

1 Wilson v. S., 73 Ala. 527; S. v. Carron, 18 Ia. 372; P. v. Gibbs,
70 Mich. 425, 38 N. W. 257; S.v. Timmens, 4 Minn. 325; S. v. Thornton,
108 Mo. 640, 18 S. W. 841. But see Cook v. P., 2 T. & C. (N. Y.)
404, ;.

2 Wood v. S., ante; Hinkle v. S., 157 Ind. 237, 61 N. E. 196; P. ».
Alger, 1 Parker C. C. (N. Y.) 333, See also Boyce v. P., 55 N. Y. 644,
and post, § 198. The case of Wood v. S. is sometimes cited as holding
the doctrine that it is not necessary, in order to show that a woman is not
a virtuous woman, to prove that she has been guilty of previous illicit
intercourse, but it is sufficient to show that her mind has become deluded
by unchaste and lustful desires. But though this was the view of the
judge who gave the opinion, it was distinctly disavowed by Warren, C. J.,
and Trippe, J.,— a majority of the court, — who held to the contrary.

8 P. v. Clark, 33 Mich. 112; S. v. Reeves, 97 Mo. 668, 10 S. W. 8£1.

4 P. v. Van Alstyne, 144 N. Y. 361, 89 N. E. 343; P. v. Ryan, 63 App.
Div. (N. Y.) 429, 71 N. ¥. 8. 527; 8. v. Adams, 25 Or. 172, 85 P. 36;
contra : S. v. O’Hare (Wash.), 79 P. 39.
188 CRIMINAL LAW. [Secr. 198.

event of pregnancy is merely one of the elements leading to
the consent, there may be a seduction.

The actual consent of the woman is not necessary in order
to constitute the crime of seduction ;? but if such force is
used as amounts to a rape, the crime of seduction is not com-
mitted.

ABDUCTION.

§ 198. Abduction was made a crime by an old statute,$— _
sufficiently old to have been brought with our ancestors to
this country as part of the common law. The specific offence
seems to have been limited to the taking away for lucre, -— no
doubt by force, fraud, or fear,— of adult females, ‘ maid,
widow, or wife,” having property, or being heirs apparent, for
the purpose of marriage. A taking for lucre and a marriage
- or defilement are essential to the completion of the offence.®
And perhaps the distinction between this offence and kidnap-
ing consists in this limitation, — kidnapping relating to the
taking away of any person, and more especially children, for any
unlawful purpose. It may be, also, that abduction might be
complete without taking the person abducted out of the realm,
but only from home to some other place within the realm ;
while it was essential to the act of kidnapping that the person
seized should be taken out of the country, or, at all events,
seized with that intent:? It is now an offence for the most
part, if not entirely, regulated by statute.

These statutes variously describe and define the offence.
While the substance is substantially the same in all, yet there
are specific differences which distinguish, and leave it uncer-

1 Cherry v. §., 112 Ga. 871, 88S. E. 841; S. v. Hughes, 106 Ia. 125,
76 N. W. 520, As to the effect of subsequent marriage, see ante, § 23a.

2 S. v. Horton, 100 N. C. 443, 6S. E. 238.

8 S. v. Lewis, 48 Ia. 578; P. v. De Fore, 64 Mich. 693, 31 N. W. 585.

4 3 Hen. VII, c. 6.

5 C, v. Knowlton, 2 Mass. 530, C. 1.

® Baker v, Hall, 12 Coke, 100; C. v. Nickerson, 5 All. (Mass.) 519,
M. 75; Gould v.. 8. (Neb.), 99 N. W. 541; Griffin v. S., 109 Tenn. 17,
70S. W. 61; S. v. Rhoades, 29 Wash. 61, 69 P. 389.

T See post, § 199, Tores v, S. (Tex.), 63 S. W. 880.
Scr. 198.] ABDUCTION. 189

tain, till a comparison of the statutes solves the question,
whether the decisions in one State are applicable to the stat-
utes in another. Under these several statutes it has been held
that abduction ‘for the purpose of prostitution,’ means for
general and promiscuous illicit intercourse. A mere seduc-
tion and illicit intercourse! with the seducer does not amount
to prostitution.? But if the purpose is that the woman shall
enter into such a course of life as shall constitute prostitution
or concubinage, the crime is at once committed ; no long con-
tinuance of the life is necessary.2 Where a statute provides
that the person so abducted must have been of previous chaste
character, the abduction of a person who had been previously
a prostitute is not within the statute, unless she had reformed.*
If she had previously had intercourse with the defendant only,
it seems that this cannot be held to be conclusive of previous
unchaste character. The unchastity must be with other men.
In a case in Indiana,® a distinction is made between the phrase
“ of previous chaste character,” as used in the statute against
abduction, and the phrase ‘“ of good repute for chastity,” used
in another section of the same statute against seduction. In
the former case, a single proven act of illicit intercourse is ad-
missible in defence, as the issue is actual personal virtue;
while in the latter case it might not be, as reputation is the
issue. But the distinction is between “character ” used in
one statute, and “repute” used in the other; and it may be
doubted if the distinction is not too fine. Very high authori-
ties treat character and reputation as substantially identical.7

Tt is also held under these statutes that within the meaning

1 Haygood v.S.,98 Ala. 61, 13 So. 325; Bunfil v. P., 154 Ill. 640, 39
N. E. 565; S. v. Gibson, 108 Mo. 575, 18 S. W. 1109; U.S. v. Zes Cloya,
35 Fed. 493.

28. v. Ruhl, 8 Ia. 447; S. v. Stoyell, 54 Me. 24; C. v. Cook, 12 Met.
(Mass.) 93; S. v. Rorebeck, 158 Mo. 130, 59 S. W. 67; S. v. Brow, 64
N. H. 577. 15 Atl. 216; P. v. Parshall, 6 Park. (N. Y.) C. R. 129.

8 Henderson »v. P., 124 Ill. 607, 17 N. E. 68.

# §. v. Carron, 18 Ia. 372; Carpenter v. P., 8 Barb. (N. Y.) 603.

5 §. v. Willspaugh, 11 Mich. 278.

6 Lyons v. S., 52 Ind. 426.

7 See 1 Greenl. Ey., § 461 and notes.
190 CRIMINAL LAW. [Secrs. 199, 200,

¥

of the term “forcible abduction” are included cases where
the mind of the person is operated upon by falsely exciting
fears, by threats, fraud, or other unlawful or undue influence
amounting substantially to a coercion of the will, and an effect-
ive substitute for actual force. Anda child four years old
is incapable of consenting to be taken away by the father from
the mother.2 Where a statute limits the offence to the abduc-
tion of persons within a specified age, it is held that the fact
that the abductor did not know, or even the fact that he had
reason to believe, and did believe, that the person taken away
was not within the designated age, is immaterial. The act is
at the peril of the perpetrator.®

KIDNAPPING.

§ 199. Kidnapping is defined by Blackstone as the forcible
abduction or stealing away of a man, woman, or child from
his own country and sending him away to another. And this
definition has been adopted, with the modification that the
carrying away need not be into another country.® It is false
imprisonment, with the element of abduction added.6 And
here, as in false imprisonment, fraud or fear may supply the
place of force.7

ABORTION.

§ 200. Although there is’ the precedent of an indictment
for an attempt to procure an abortion as a crime at common
law, and it has been said by a distinguished text-writer® that
the procuring of an abortion is an indictable offence at common

1 Moody »v. P., 20 Ill. 315; P. v. Parshall, 6 Park. (N. Y.) C. R. 129.

2S. v. Farrar, 41 N. H. 53. See also C. v. Nickerson, 5 All. (Mass.)
519, M. 75; and ante, § 197.

3 Reg. v. Prince, 13 Cox C. C.188; S. v, Ruhl, 8 Ia. 447; ante, § 56.

* 4 Bl. Com. 219; Click v.. S., 3 Tex. 282,

5S. v. Rollins, 8 N. H. 550.

6 Click v. S., ante.

7 Moody v. P., 20 Tl. 815; Payson v. Macomber, 3 All. (Mass.) 69;
Hadden v. P., 25 N. Y. 378. See also Abduction, False Imprisonment.

® 3 Chitty Cr. Law, 557.

® 2 Whart. Cr. Law, § 1220.
Sxcr. 200.] ABORTION. 191

law, it is found upon examination that the precedent referréd
to is for an assault, and the case! relied upon as an authority
is also for an assault. The better opinion is, that the procuring
of an abortion is not, as such, an indictable offence at common
law, although the acts done in pursuance of such a purpose do
undoubtedly amount to other offences which the common law
recognizes and punishes, But the procuring of an abortion
with the consent of the mother before she is quick with child
is not, at common law, even an ‘assault, the consent of the
mother effectually doing away with an element necessary to
the constitution of an assault.2, The procuring it after that
time is a misdemeanor, and may be a murder.®

Under a statute punishing the procurement of an abortion
“by means of any instrument, medicine, drug, or other means
whatever,” the indictment charging that the defendant beat a
certain pregnant woman with intent to cause her to miscarry,
it was held that the case was not made out by proof that the
defendant beat her, and caused her thereby to miscarry, unless
the beating was with that intent.4

This view of the common law doubtless led to such statutes
as prevail in’ Massachusetts, Vermont, and New York, and
probably most of the other States, punishing the procurement
of a miscarriage, or the attempt to procure it, under which it
is held that the consent of the woman is no excuse, and that
the crime may be committed though the child be not quick.®

1 C. v. Demain, 6 Pa. L. J. 29. A later casein Pennsylvania, however,
holds that an indictment will lie: Mills v. C., 13 Pa. 631, M. 536. See
Met. Slagle v. S., 83 N.C. 630.

2 Mitchell v. C., 78 Ky. 204; Smith v. S., 33 Me. 48; C. v. Parker, 9
(Mass.) 263; 8. v. Cooper, 22 N. J. L. 52.

3 Reg. x. West, 2C. & K. 784; Smith v. S., anie; C. v. Parker, ante;
S. v. Cooper, anie; Evans vr. P., 49 N. Y. 86.

4 Slattery v. P., 76 Ill. 217. See also ante, § 32.

5 S.v. Magnell, 3 Penne. (Del.) 307, 51 Atl. 606; S. x. Alcorn, 7 Ida.
599, 64 P. 1014; Lamb ». S., 67 Md., 524, 10 Atl. 208, 298; C. v. Wood,
11 Gray (Mass.), 85; P. v. Davis, 56 N. Y. 95; Cobel v. P., 5 Park. (N-Y.)
C. R. 348 ; Mills». C., 13 Pa. 631, M. 536; S.v. Howard, 32 Vt. 380; contra:
Sullivan v. S. (Ga.), 48 S. E. 949 (semble). See also Willey v. S., 46 Ind.
363; S. v. Fitzgerald, 49 Ia. 260; S.v. Van Houten, 387 Mo, 357; S. v.
Murphy, 3 Dutch, (N. J.) 112.
192 CRIMINAL LAW. [Secr. 201.

And under the New York statute the woman who takes drugs
to effect a miscarriage is equally guilty with the person who
administers them to her.! Yet she is not strictly an accom-
plice, the law regarding her rather as a victim than a perpe-
trator? :

Upon general principles, as we have already seen, an at-
tempt to commit a statutory misdemeanor or felony is itself a
misdemeanor, indictable and punishable as such at common
law.8

LASCIVIOUSNESS.

§ 201. Lasciviousness is punishable at common fw, and em-
braces indecency and obscenity, both of word and act; as the
indecent exposure of one’s person in a public place,‘ or the use
of obscene language in public.’ It is immaterial how many or
how few may see or hear, if the act be done in public where
many may see or hear.6 And the permission of those for
whose decent appearance one is responsible to go about pub-
licly in a state of nudity has been held to be lewdness on the
part of the person so permitting.’ Under statutes against
lascivious behavior and lascivious carriage, — substantially the
same,— it seems to be the law that the offence may be com-
mitted by exposure of the person and solicitation to sexual
intercourse, without the consent of the party so solicited,
although it be not done in a public place.8 This, however,
would not amount to open and gross lewdness.® Lascivious
cohabitation implies something more than a single act of sexual

1 Frazer v. P., 54 Barb. (N. Y.) 806; accord: McCaughey v. S., 156
Ind. 41, 59 N. E. 169.

2 Dunn ». P., 29 N. Y. 528; anie, § 76.

8 Ante, § 18.

4 §, v. Rose, 32 Mo. 560.

5 §. v. Appling, 25 Mo. 315.

6 Van Houten v. S., 46 N.J. L. 16; Sv. Millard, 18 Vt. 574; ante,
§ 15.

7 Britain v. $., 3 Humph. (Tenn.) 203.

§ Fowler v.S., 5 Day (Conn.), 81; S. v. Millard, ante. See also Dillard
v. §., 41 Ga. 278; C. v. Wardell, 128 Mass. 52.

® C. v. Catlin, 1 Mass. 8; but see C. v. Wardell, 128 Mass. 52, 53.
Sxcrs. 202, 203] LASCIVIOUSNESS.— FORNICATION.—SODOMY. 193

intercourse ;} it must be shown that the parties lived together
as man and wife, not being legally married.?

FORNICATION.

§ 202. Fornication is the unlawful sexual intercourse of an
unmarried person with a person of the opposite sex, whether
married or unmarried. In some States such intercourse with
a married person is made adultery. Like adultery, it was
originally of ecclesiastical cognizance only; and without cir-
cumstances of aggravation, which will make it part and parcel
of another fence, it is not believed to have been recognized
as an offence at common law in this country.2 The statutes
of the several States, however, generally, if not universally,
make it punishable under certain circumstances of openness
and publicity, which perhaps would make it indictable if there
were no statute.4 And where it is indictable, it has been fre-
quently held that, on failure to prove the marriage of the party
indicted for adultery, he may be found guilty of fornication, if
the circumstances alleged and proved would warrant a convic-
tion on an indictment for foraication.®

SODOMY.

§ 208. Sodomy, otherwise called buggery, bestiality, and the
crime against nature, is the unnatural copulation of two per-
sons with each other, or of a human being with a beast. This

1 Penton v. 8., 42 Fla. 560, 28 So. 774; Lawson v. S., 116 Ga. 571, 42
8. E, 752; S. v. Marvin, 12 Ia. 499; S. v. Cassida, 67 Kan. 171, 72 P.
522; C. v. Calef, 10 Mass. 153; S. v. Miller, 42 W. Va, 215, 248. E, 882.

2 Pruner v. C., 82 Va. 115.

8 S. v. Rahl, 33 Tex. 76; S. v. Cooper, 16 Vi. 551.

4 Terr. v. Whitcomb, 1 Mont. 359; S. v. Moore, 1 Swan (Tenn.),
186; S. v. Cooper, 16 Vt. 531; Anderson v. C., 5 Rand. (Va.) 627; 4 BL.
Com. 65, and note by Chitty; contra: Musfelt v. 8., 64 Neb. 445, 90 N.
W. 237. Former good reputation for chastity is no defence : Boatwright
v. S., 42 Tex. Cr. R. 442, 60 8. W. 760. See also Cook v. S., 11 Ga. 53.

5 S. v. Cowell, 4 Ired. (N. C.) 231; Resp. v. Roberts, 2 Dall. (Pa.) 124.
See also C. v. Squires, 97 Mass. 59; S. v. Cox, 2 Taylor (N. C.), 165,

8 1 Hawk. P. C. (8th ed.), 357.

18
194 CRIMINAL LAW. [SEcT. 203.

crime was said to have been introduced into England by the
Lombards, and hence its name, from the Italian, bugarone! It
may be committed by a man with a man, by a man with a
beast ;2 or by a woman with a beast, or by a man with a
woman, — his wife, in which case,.if she consent, she is an
accomplice. But the act, if between human beings, must be
per anum, and the penetration of a child’s mouth does not /
constitute the offence.t If both parties consent, both are guilty,
unless one be under the age of discretion.® Under the old
common law, both penetration and emission were necessary to
constitute the offence ;® but since the statute of 9 Geo. 1V, c.
31, § 18, penetration only is necessary.’ Before this statute,
copulation with a fowl was not an offence, as a fowl is not a
“beast”; but this statute covers copulation with any “ animal.”
It was always regarded as a very heinous offence, and was
early denounced as “the detestable and abominable crime
amongst Christians not to be named,” and was a felony pun-
ishable with death.2 But though it is still a felony in most of
the States, it is, we believe, nowhere capitally punished. In
some of the States, where there is no crime not defined in the
code, it seems to have been purposely dropped from the cate-
gory of crimes.® The origin of the term “sodomy” may be

1 Coke, 3d Inst. 58.

2 A fowl is now held in England to be a beast: Reg. v. Brown, 24 Q.
B. D. 357,

= Reg. v. Jellyman, 8 C. & P. 604.

* Rex »v. Jacobs, R. & R. C. C. 331; P.v. Boyle, 116 Cal. 658, 48 P.
800; Prindle v. 8.,31 Tex. Cr. R. 551,21 S, W. 360; contra, by stat-
ute: Herring v. S., 119 Ga. 709, 46 S. E. 876; Honselman »v. P., 168 Il.
172, 48 N. E. 804; S. v. McGruder (Ia.), 101 N. W. 646.

5 Reg. v. Allen, 1 Den. C. C. 364; Coke, 3d Inst. 58.

® Rex v. Doffin, 1 R. & R. C. C. 365; P. v. Hodgkins, 94 Mich. 27, 53
N. W. 794; contra: White v. C., 24 Ky. L. R. 2349, 73 S. W. 1120; S. ».
Vicknair, 52 La. Ann. 1921, 28 So. 273.

T Rex v. Reekspear, 1 Moo. C. C. 342.

8 1 Hawk P. C. (8th ed.) 357.

° But few cases occur in the reports. C. »v. Snow, 111 Mass. 411;
Lambertson v. P., 5 Park. (N. Y.) C. R. 200; C. v. Thomas, 1 Va. Cas.
807. In Fennell v. S., 32 Tex. 878, it is held by a divided opinion not
Secr. 203.] _ SODOMY. 195

found in the nineteenth chapter of Genesis. The practice was
first denounced by the Levitical law as a heathen practice,
and amongst non-Christian nations, at the present day, it is
not generally regarded as criminal.

to be an offence, on the ground that it is not defined by statute, no unde-
fined offence being punishable there. See also Estes v. Carter, 10 Ia.
400; Davis v. S., 3 H. & J. (Md.) 154.
196 CRIMINAL LAW. [Secrs. 204, 205.

CHAPTER VI.

OFFENCES AGAINST THE PERSON.

§ 205. Assault. § 240. False Imprisonment.
217. Mayhem. 241. Rape.
218. Homicide. 245. Robbery.

§ 204. The principal offences against the person may be
divided into three classes: first, an injury to the person,
ranging in enormity from a simple assault to homicide;
secondly, a false imprisonment of the person; and, thirdly,
composite crimes, in which a wrongful act is committed by
the use of violence to the person, such as robbery and larceny
from the person, and rape.

ASSAULT.

§ 205. Strange as it may seem, there is no definition of
an assault which meets unanimous acceptance. The more
generally received definition is that of Hawkins,! to wit:
“An attempt or offer with foree and violence to do a corporal
hurt to another.” We have already seen,? that to constitute
an attempt there must be some overt act in part execution of
a design to commit a crime; and upon the theory that an
assault is but an attempt, it is held that a mere purpose to
commit violence, unaccompanied by any effort to carry it into
immediate execution, is not an assault. The violence which
threatens the “corporal hurt” or, as it is frequently ex-
pressed, “ personal injury,” or “ bodily harm,” must be set in
motion? It is the beginning of an act, or of a series of acts,

11P. C. (8th ed.) 110.

2 Ante, § 183.
8 P. v. Yslas, 27 Cal. 680; Smith v. S., 39 Miss, 521.
Srcts. 206, 207.] ASSAULT. 197

which, if consummated, will amount to a battery, which is
‘the unlawful application of violence to the person of another.
One, therefore, who, within such proximity to another that he
may inflict violence, lifts his hand, either with or without a
weapon, with intent to strike,.or lifts a stone with intent to
hurl it, or seizes a loaded gun with intent to fire it,.is, pe
all the authorities,! guilty of an assault.

The better view would seem to be that an aeseutt includes
any putting of another in reasonable fear of immediate
personal violence.? a

§ 206. Battery. —A battery is the unlawful touching of
another, or of the dress worn by another, with any the least
violence. An act which begins as an assault ordinarily ends
as a battery, and merges in it; and since on an indictment
for battery the defendant may be found guilty of a simple
assault, it is an invariable rule to indict for assault and
battery. For this reason, the two crimes are not carefully
distinguished; the general name assault being applied in-
differently to both. No useful end would be served by insist-
ing on a distinction not made by the courts. In the following
discussion, therefore, the term assault will be used indiffer-
ently to designate true assault and the completed battery.

§ 207. Authority. — The force to constitute an assault
must be unlawful. A parent, or other person standing in loco
parentis, may use a reasonable amount of force in the cor-
rection of his child.6 So a schoolmaster may correct his
pupil; or a master his apprentice ;® but the master’s authority

1 U.S. v. Hand, 2 Wash. (U. S. C. Ct.) 435, Fed. Cas. No. 15,297;
accord: 8. v. Morgan, 8 Ired. (N. C.) 186; Higginbotham v. S., 23 Tex.
574. The Penal Code of Texas defines an assault as “ Any attempt to
commit a battery, or any threatening gesture, showing in itself, or by
words accompanying it, an immediate intention, coupled with an ability,
to commit a battery.’’ Art. 476.

2 Steph. Dig. Cr. Law, art. 241; Reg. v. St. George, 9 C. & P. 483;
S. v. Davis, 1 Ived. (N. C.) 125; posi, §§ 212, 213.

® Steph. Dig. Cr. Law, art. 241; Reg. v. Day, 1 Cox C. C. 207.

4 Ante, § 62.

5 §. v. Alford, 68 N. C. 322; Thompson v. S. (Tex.), 80 8. W. 628.

® Gardner v. S., 4 Ind. 632.
198 CRIMINAL LAW. [Secr. 208.

is personal, and cannot be delegated to another, as can that
of a parent! An officer may also use such force in making
an arrest ;? and so, generally, may all persons having the
care, custody, and control of public institutions, and charged
with the duty of preserving order and preventing their wards
from self-injury, such as the superintendents of asylums
and almshouses.? So the conductor of a railway train may
forcibly put from his train any person guilty of such mis-
conduct as disturbs the peace or safety of the other passengers,
or violates the reasonable orders of the company.* And so
may the sexton of a church® in a like way protect a lawful
assembly therein. This right, however, must be exercised
with discretion, and must not, in degree or in kind of force,
surpass the limits of necessity and appropriateness.® The
modern tendency is to construe strictly against the person
using the force. It was formerly held that a husband might
correct his wife by corporal chastisement; but this is now
denied to be law in some of the States, and it is doubtful if
the practice would be upheld by the courts of any State.7
The mere relationship of master and servant, the former
not being charged with any duty of education or restraint,
will not now, whatever may have been the law heretofore,
authorize the use of force.®

§ 208. Consent.— When a person sui juris, without fraud
or coercion, consents to the application of force, certainly, if
the foree be such as may be lawfully consented to, there can
be no assault. It has been accordingly held that, if a woman

1 Pp. v. Phillips, 1 Wheeler C. C. (N. Y.) 155.

2 Ante, § 59 et seq.; Golden v. §., 18. C. 292.

8 8. v. Hull, 34 Conn. 182.

48.0. Goold, 53 Me. 279; P. v. Caryl, 8 Park. C. C. (N. Y.) 326.

5 C. v. Dougherty, 107 Mass. 243.-

6 C.,v. Randall, 4 Gray (Mass.), 36.

7 Fulgham »v. S., 46 Ala. 148; Moody v. S., 120 Ga. 868, 48 S. E.
340; S. v. Washington, 104 La. 443, 29 So. 55; C. v. McAfee, 108 Mass.
458; S. v. Ross, 26 N. J. L. 224; S. ». Oliver, 70 N. C. 60, M. 399;
Gorman v. S., 42 Tex. 221. See also Mr. Green’s note to C. v. Barry,
2 Green’s Cr. Law Rep. 285.

5 Matthews v. Terry, 10 Conn. 455.
Sect. 208, ASSAULT. 199

consents to her own dishonor,! or to the use of instruments
whereby to procure an abortion,? or one requests another to
lash him with a whip,? these several acts do not constitute as-
saults, because they are assented to by the parties upon whom
the force is inflicted; and the same has been held where two
men privately spar together.*

But consent to the doing of one kind of physical act does
not authorize the doing of another, and the second one is an
assault. Thus consent to eat an apple is not consent to have
administered poison concealed in the apple;® so consent
to intercourse is not consent to the administration of animal
poison.®

Again, as has been seen,’ no one has a right to consent to
an act which is liable to cause severe bodily harm to himself
or another, or to lead to a breach of the peace. Though con-
sent in such a case may be shown to negative a putting in
fear, yet if there has been an actual battery the consent will
be no excuse. So, if two men publicly engage in a fight with
fists, each may be indicted for an assault and battery.

In the class of cases just discussed, the consent is not rec-
ognized so as to make the touching any the less.a battery be-
cause the common law regards such transactions as being too
dangerous to public peace and the welfare of its citizens at
large to allow it. A similar question arises under the statutes
forbidding intercourse with girls under the age of consent.
If the act is completed the consent is admittedly no defence.

1 Reg. v. Meredith, 8 C. & P. 589; P. v. Bransby, 382 N. Y. 525; Smith
v. §., 12 O. St. 466.

2 C. v. Parker, 9 Met. (Mass.) 268; S. v. Cooper, 2 Zabr. (N. J.) 52

8S. v. Beck, 1 Hill (S. C.), 3638, M. 68. ~

# Reg. v. Young, 10 Cox C. C. 871.

5 C. v. Stratton, 114 Mass. 308, C. 155.

® Reg. v. Clarence, 22 Q. B. D. 23, M. 514; Reg. v. Bennett, 4 F. & F.
1105.

7 Ante, § 23.

§ Reg. v. Lewis, 1 C. & K. 419; S. v. Lonon, 19 Ark. 577; C. ». Col-
berg, 119 Mass. 350, C. 160; S. v. Underwood, 57 Mo. 40. See, however,
contra, Duncan v. C., 6 Dana (Ky.), 295; Champer v. S., 14 O. St. 437,
M. 69.
200 CRIMINAL LAW. [Secr. 208.

A more difficult question arises when the indictment is for
assault with intent to commit the statutory rape. In this case
some courts, construing the statute as covering only the act of
intercourse, have held that where the indictment is for an as-
sault the consent of the girl makes the act permitted and hence
not criminal, and the fact that had the intercourse taken place
the consent would have been no defence is immaterial.1 On
the other hand, in most of the States the consent is held no de-
fence. In some jurisdictions this is put on the ground that as
the statute has made consent to the intercourse impossible,
therefore any act in the nature of an attempt must be crimi-
nal as an assault, a view that would seem doubtful on sound
principle. In other jurisdictions the same result has been
reached on the ground that it was the purpose of the statute
to make invalid the consent of the girl, not only to the act of
intercourse, but to any act in furtherance thereof which would
be, without consent, sufficient to amount to an assault.?
Another class of cases is where the defendant because of his
position is able to dominate the will of the person assaulted so
that no actual resistance is offered, as where a female pupil of
tender years, by the dominatitig power of her teacher, is in-
duced, without resistance, to permit improper liberties to be
taken.* It is well settled that this isan assault. For consent
obtained by threats of such a character as to overpower the
will is no consent. Consent is the affirmative act of an un-

1 Reg. v. Read, 2 C. & K. 957; Reg. v. Banks, 8 C. & P. 574; S. »v.
Pickett, 11 Nev. 255; Smith v. S., 12 O. St. 466; Hardin »v. S., 39 Tex.
Cr. Rep. 426, 46 S. W. 803.

2 P. y, Stewart, 85 Cal. 174, 24 P. 722; T. v. Keyes, 5 Dak. 244, 38 N.
W. 440; S. v. Grossheim, 79 Ia, 75, 44 N. W. 541 (semble); Hays v. P.,
1 Hill (N, Y.), 351.

® Murphy v. 8., 120 Ind. 115, 22 N. E. 106 (overruling Stephens v. S.,
107 Ind. 185, 8 N. E. 94); S. v. Roosnell, 143 Mass, 82,8 N. E. 747; P.
v. McDonald, 9 Mich. 150; P. v. Courier, 79 Mich. 866, 44 N. W. 571;
Davis v. §., 31 Neb. 247, 47 N. W. 854; S. v. Johnston, 76 N. C. 209; S.
v. Wheat, 63 Vt. 678, 22 Atl. 720 (semble) ; Fizell v. S., 25 Wis. 364.

4 Reg. ». Nichol, R. & R. 180; Reg. x. Lock, 12 Cox . C. 244.

5 Reg. v. Saunders, 8C.& P. 265; Reg. v. Williams, 8 C. & P. 286;
Reg. v. Hallett, 9 C. & P. 748; Reg. v..Woodhurst, 12 Cox C. C. 443; C.
v. Burke, 105 Mass. 376; P. v. Quin, 50 Barb. (N. Y.) 128.
Sects. 209, 210.] ASSAULT. 201

constrained will, and is not sufficiently proved by the mere ab-
sence of dissent, and is therefore to be distinguished from mere
submission. A mere submission, as of an idiot, or of a child,?
or of a person asleep,* or otherwise unconscious, or unable to
understand what is going on, is not equivalent to consent.

§ 209. Consent Secured by Fraud.—In some cases, it has
been said that there may be an assault when the injured party
apparently consents to the unlawful act, as where a female
patient is deceived by a physician into consenting that im-
proper liberties should be taken with her These cases may
be rested either on the ground that there was no intelligent
assent to the act done, or on the ground that the fraud vitiates
the consent.

§ 210. Degree of Force. Mode of Application.— The degree
of force used is immaterial, provided it be unlawful. The
least intentional touching of the person, or of that which
so appertains to the person as to partake of its immunity, if
done in anger, or rudely, or insultingly, is sufficient. Thus
to embrace ® or kiss? a woman against her will; so to throw
water upon the clothes,’ to spit upon, push, forcibly detain,
falsely imprison, and even to expose to the inclemency of the
weather, are all acts which have respectively been held to con-
stitute an assault.2 So any forcible taking of property from
the possession of another, by overcoming the slightest resist-

1 Reg. v. Lock, 12 Cox C. C. 244.

2 Reg. v. McGavaren, 6 Cox C. C. 64; Reg. v. Fletcher, 8 Cox C. C.
131; Reg. v. Woodhurst, ante. Compare Reg. v. Connolly, 26 U. C. Q. B.
317.

8 Reg. v. Lock, ante.

4 Reg. v. Mayers, 12 Cox C. C. 811.

5 Reg. v. Case, 4 Cox C. C. 220, 1 Den. C. C. 580; Rex v. Rosinski, 1
Moo. 19, M. 74; Bartell v. S., 106 Wis. 342, 82 N. W. 142.

® Balkum v, S., 115 Ala. 117, 22 So. 582; Stripling v. S. (Tex.), 80
S. W. 376.

7 Chambless v. S. (Tex.), 79 S. W. 577. ,

8 P: vy. McMurray, 1 Wheeler C. C. (N. Y.) 62.

® 1 Russ. on Crimes (5th ed.), 957; Long v. Rogers, 17 Ala. 540;
S. v. Philley, 67 Ind. 304; C. ». McKie, 1 Gray (Mass.), 61; S. v. Baker,
65 N. C. 332; Wilson v. S. (Tex.), 74 8. W. 315,
202 CRIMINAL LAW. [Secr. 211,

ance, is an assault.!_ Nor need the application of force be direct.
If the force unlawfully set in motion is communicated to the
person, whether directly, by something attached to the person,
as a cane or a cord, or indirectly, as where a squib is thrown
into a crowd, and is tossed from one to another, it is sufficient.?
But the mere lifting of a pocket-book from the pocket of another,
or snatching a bank-bill from his hand, without overcoming
any resisting force, is not an assault. But setting a dog or
a crowd upon another, or urging a horse against  him,® or
driving against the carriage in which he is seated, or striking
the horse he is riding or driving, in either case to his injury,
will constitute an assault.®

§ 211. Mode of Application — It was formerly held that to
put a deleterious drug into the food of another, if it be eaten
and take effect, was an assault.? Upon subsequent consider-
ation, it was held in England that the direct administration of
a deleterious drug, without force, though ignorantly taken, is
not an assault,’ — overruling the previous case. A contrary
result, however, has been reached in this country by a court
of high authority, and with the reasoning of the two just cited
cases before it, the doctrine of the earlier case being ap-
proved; and it is said that it cannot be material whether the
force set in motion be mechanical or chemical, or whether it

acts internally or externally.® .

S. v. Gorham, 55 N. H. 152.
S. v. Davis, 1 Hill (S. C.), 46, M. 527.
Hill v, §., 63 Ga. 578.
C. v, Ordway, 12 Cush. (Mass.) 270.
S. v. Lewis, 4 Penne. (Del.) 332, 55 Atl. 8.

® 1 Russ. on Crimes (5th ed.), 958; 2 Greenl. Ev., § 84; Kirland v.
S., 43 Ind. 146, 2 Green’s Cr. Law Rep. 706; P. v. Moore, 50 Hun (N. Y.),
356, 3 N. Y. 8.159; Johnson v. Tompkins, 1 Bald. C. Ct. 571, Fed. Cas.
No. 7,416. :

7 Reg. v. Button, 8 C. & P. 660.

® Reg. v. Hanson, 2 C. & K. 912, and notes.

® C. v. Stratton, 114 Mass. 303, C. 155; accord: Carr v. S., 135 Ind.
1, 34 N. E. 533; S. ». Monroe, 121 N. C. 677, 28 S. E. 547. So the com-
munication of venereal disease: Reg. v. Clarence, 22 Q. B. D. 23, M.
514; Reg. v. Bennet, 4 F. & F. 1105; Reg. v. Sinclair, 13 Cox C. C. 28.

ae OS
Sect. 212] ASSAULT. 208

The detention or imprisonment of a person by merely con-
fining him in a place where he happens to be, as by locking
the door of the room where he lies asleep, without the use of
any force or fraud to place him there, though illegal, does not
come within any definition of assault, although the language
of some of the old text-writers is broad enough to cover it.
Mr. Justice Buller! says: “ Every imprisonment includes a
battery, and every battery an assault,” citing Coke upon
Littleton, 253, — where it is merely said that an imprisonment
‘is a “corporall dammage, a restraint upon personal liberty, a
kind of captivity,”— obviously no authority for the proposi-
tion that every imprisonment includes an assault, though it is
authority for the proposition that an imprisonment may be a
cause of action. Itis probable that such an imprisonment only
as follows unlawful arrest was in the mind of that great judge
and common lawyer.2 And in one case at least in this coun-
try? the court has gone very near to that extent. But it
would not be safe to say that such is the law. There may be
an imprisonment by words without an assault.4

§ 212. Putting in Fear.— Although the threatened force be
not within striking distance, yet if it be part of an act or
series of acts which, if consummated, will, in the apprehension
of the person threatened, result in the immediate application
of force to his person, this will amount to an assault, without
battery; as where one armed with a weapon rushes upon
another, but before he reaches him is intercepted and pre-
vented from executing his purpose of striking ;® or rides after
him, upon horseback, and compels him to seek shelter to
escape a battery ;® or a man chases a woman through a piece
of woods, crying, “ Stop!” until she arrives at a house, when

1N. P. 22.

2 See note to Bridgman’s edition of Buller, p. 22. In Emmett v. Lyne,
1B. & P. N. R. 235, the proposition is said to be absurd, and the fact
that it is unsupported by the authority of Coke or Littleton pointed out.

% Smith v. S., 7 Humph. (Tenn.) 43.

4 Bird v. Jones, 7 Q. B. 742; Pike v. Hanson, 9 N. H. 491; Johnson v.
Tompkins, 1 Bald. C. Ct. 571, Fed. Cas. No. 7,416.

5 Stephens v. Myers, 4 C. & P. 349; S. v. Davis, 1 Ired. (N. C.) 125.

6 Mortin v, Shoppee, 3 C. & P. 873; S. v. Sims, 3 Strobh. (S. C.) 187.
204 CRIMINAL LAW. {Secr. 213,

he turns back, and gives up the chase.! The force of fear,
taking effect, supplies the actual violence?

Mere words, however menacing, it seems long to have been
universally agreed, do not amount to an assault. Though the
speaking of the words is an act, it is not of such importance
as to constitute an attempt to commit violence. It is not
“violence begun to be executed.” Consequently, mere words
can never constitute a justification for an attack on the person
using them.4. But words accompanied by acts which indicate
an intent to commit violence, and threaten application of force
to the assaulted party unless the assailant be interrupted,
constitute an assault.®

It is none the less an assault where the words of the de-
fendant show the person assailed that he will not be injured,
if the price of his safety is doing something he is under no
obligation to do or refraining from doing something that he has
a right to do; as where the defendant says he will shoot the
person assailed if the latter goes any further along a public
road, or if he does not give up certain property. On the other
hand, where the acts of the defendant, though threatening, are
accompanied by words that show there is no present danger, no
assault has been committed ; as where the defendant shakes
his fist and says, “ If it were not for your years I would hit
you.” 7

§ 218. Menace, but no Intent to Commit a Battery. — It has
been recently held that, if there is menace of immediate per-
sonal injury such as to excite apprehension in the mind of a

1S. v. Neely, 74 N. C. 425.

2 Balkum v. §., 40 Ala. 671; C. v. White, 110 Mass. 407, C. 153.

8 1 Hawk. P. C. (8th ed.) 110.

4S. v. Burton, 2 Penn. (Del.) 472, 47 Atl. 619; Rauck v. S., 110 Ind.
584, 11 N. E. 450; S. v. Leuhrsman, 123 Ia. 476, 99 N. W. 140; S. ».
Griffin, 87 Mo. 608.

5 P. v. Yslas, 27 Cal. 630.

" Keefe v. S., 19 Ark. 190; S. v. Sears, 86 Mo. 169; S. v. Morgan, 3
Tre. (N. C.) 186; S. v. Horne, 92 N. C. 805; U. S. v. Myers, 1 Cranch
C. C. 310, Fed. Cas. No. 15,845, M. 506. :

7 C. v, Eyre, 1S. & R. (Pa.) 317; accord: Tuberville v. Savage, 1
Mod. 3, M. 505; S. v. Crow, 23 N. C, 375.
Secr, 213.] ASSAULT. 205

reasonable man, although the person threatening intended
not to injure, as where one person, within shooting distance,
points an unloaded gun at another knowing that it is not
loaded, it is an assault,! adopting the following definition of
Mr. Bishop:? “ An assault is any unlawful physical force,
partly or fully put in motion, creating a reasonable apprehen-
sion of immediate physical injury.” And this seems to be the
doctrine of the Scotch law.? But no well-considered English
case has gone to this extent, though there is a dictum by Mr.
Baron Parke* which supports the doctrine, while other and
later cases are to the contrary.6 Nor has any other American
case been found which goes so far. Qn the contrary, there
are several which seem to imply that, if the gun be not loaded,
it may be shown by the accused in defence.6 A man who
menaces another with corporal injury, with intent to excite
his fears, may no doubt be guilty of an indictable offence ;7
but whether the offence constitutes an assault must be con-
sidered an open question. An intent to commit one crime
cannot make a party guilty of committing another which he
did not intend, unless the unintended one be actually com-
mitted. Nor does it follow, because a person may be justified
in availing himself of force to avoid or ward off apprehended
bodily harm, that bodily harm is intended. Not every sup-
posed assault is an actual one, nor does it seem logical or just
that the misapprehension of one can fix criminal responsibility
upon another, though the latter cannot be allowed to com-

1 C. v. White, 110 Mass. 407, C. 153.

22 Cr. Law, § 23.

8 Morrison’s Case, 1 Brown (Justic. Rep.), 394.

4 Reg. v. St. George, 9 C. & P. 483.

5 Blake v. Barnard, 9 C. & P. 626; Reg. v. James, 1 C. & K. 530.

6 See, in addition to the cases very fully collected by Mr. Bishop, 2 Cr.
Law, § 32, n. 1, p. 20: Tarver v. 8., 43 Ala. 354; Richels v. S., 1 Sneed
(Tenn.), 606; Burton v. S., 3 Tex. App. 408. See also Mr. Green’s note
to C. v. White, 2 Green’s C. L. R. 269, in which the doctrine of the prin-
cipal case is denied, and the cases upon which it is supposed to rest care-
fully examined.

7 8. v, Benedict, 11 Vt. 236.
206 CRIMINAL LAW. [Sxcr. 214.

plain that he has suffered the consequences of a misappre-
hension to which he has given rise.1

This apparent conflict in the decisions would seem to be
due to the fact that the word assault is used in two senses.
It may mean the doing of certain acts that will culminate in
a battery: thus the cases mentioned (ante, § 212) of attempted
injuries where the assailant was stopped before actually inflict-
ing them; so the case where mere exposure to the weather
of an infant child was held an assault (Reg. v. March,? contra
Reg. v. Renshaw 8). So in the statement that every battery
includes an assault. On the other hand the defendant may
engage in a course of action which, though he does not in fact
intend it to culminate in a battery, produces just as much
terror in the one against whom it is directed, and creates just
as much public disturbance. In this sense of the term assault
the essence of the wrong is. the injury and shock to the feel-
ings, as the battery is to the body. In this sense the defend-
ant both intended and accomplished his crime. The view of
the Massachusetts court prevails in several other jurisdictions.
On the other hand there are cases that hold not only that there
is an assault wherever there is an attempted battery,i. e., the
first meaning of the term, but that it is only then that there
can be an assault.®

§ 214. Self-defence.6— As every person has the right to
protect himself from injury, he may, when assaulted, use

1 McKay v. S., 44 Tex. 48, a case in which the point is elaborately
considered and the definition of Mr. Bishop ceases s.c. 1 Am. Cr.
Rep. 46.

210. & K. 496, M. 507.

8 2 Cox C. C. 285.

* S. v. Shepherd, 10 Ia. 126; S.'v. Acher. 8 Kan. App. 787,54 P. 927; S.
v. Liewellyn, 93 Mo. App. 469, 67S. W. 677; P. v. Morehouse, 53 Hun
(N. Y.), 638, 6 N. ¥. S. 763; S. v. Sims, 3 Strobh. (S. C.) 137, M. 509; S.v.
Lightsey, 13 S. C. 114, 20 S. E. 975; S. v. Smith, 2 Humph. (Tenn.) 457.

5 See in addition to the cases cited, ante, Chapman ». S., 78 Ala. 463,
M. 511; P. v. Sylva, 143 Cal. 62,76 P. 814; S.v. Burton, 2 Penne. (Del.)
472, 47 Atl. 619; Klein v. S., 9 Ind. App. 365, 36 N. E. 763; S. v. God-
frey, 17 Or. 300, 20 P. 625 ; S. v. Hunt, 25 R. I. 75, 54 Atl. 773 (semble).

6 Ante, §§ 63 et seq.
Secr. 215.] ASSAULT. 207

against his assailant such reasonable force in degree and kind
as may be necessary and appropriate for his protection. But
if he go beyond that limit, he becomes in his turn guilty of
assault.} .

There seems to be no necessity for retreating or endeavor-
ing to escape from the assailant before resorting to any means
of self-defence short of those which threaten the assailant’s
life. Nor where one has been repeatedly assaulted, and has
reason to believe that he will be again, is he bound to seek
the protection of the authorities. He may resist the attack,
and, if it comes, repel force with force.”

But before the assaulted party Will have the right to kill
his assailant, be must endeavor to avoid the necessity, if it can ;
be done with safety. If, however, there be reasonable appre-
hension of danger so imminent, or of such a character, that
retreat or delay may increase it, then the assaulted party is
justified in entering upon his defence at once, and anticipating
the danger?

Such force may also be used in defence of those whom it is
one’s right or duty, from relationship or otherwise, to protect,
and indeed in defence of any one unlawfully assailed.*

§ 215. Defence of Property.»— So force may be used in
defence of one’s house or his property. A man’s house is his
castle, for defence and security of himself and his family. And
if it is attacked, even though the object of the attack be to as-
sault the owner, he may, without retreating, meet the assailant
at the threshold, and prevent his access to the house, if need
be, even by taking his life® But here, as in other cases of
self-defence, if the intruder be driven off, following and beat-
ing him while on his retreat becomes in its turn an assault.’

1 Reg. v. Driscoll, C. & M. 214; C. v. Ford, 5 Gray (Mass.), 475; Gal-
lagher v. S., 3 Minn. 270; S. v. Gibson, 10 Ired. (N. C.) 214.

2 Gallagher v. S., ante; Evers v. P., 6 T. & C. (N. Y.) 156.

3 §. v. Bohan, 19 Kan. 28. See also post, Homicide.

4 1 Bish. New Cr. Law, § 877.

5 Ante, § 66.

6 Bohannon ». C., 8 Bush (Ky.), 481; Pond v. P., 8 Mich. 150; S. ».

Patterson, 45 Vt. 308; S. v. Martin, 30 Wis. 216.
7 §. v. Conally, 3 Or. 69.
208 CRIMINAL LAW. [Szcrs. 216, 217.

And in defence of property the resistance cannot extend to
taking the life of the intruder where there is a mere forcible
trespass, but-only, if at all, where it is necessary to prevent
the felonious taking or destruction of the property.

But though a man will be justified in such extreme measures
in defence of his property, this can only be to prevent it from
being taken away from him. He cannot resort to any force
which would amount to an assault or breach of the peace to
recapture his stolen property,’ as the preservation of the public
peace is of greater importance than the status of any man’s
private property. ‘

§ 216. Accidental Injury. ?— If a person doinga lawful act in
a proper manner, without intent to-harm another, sets in mo-
tion a force which by accident becomes hurtful, this is no as-
sault. Thus, where one throws an object in a proper direction,
and by striking some other object it is made to glance, or.is
driven by the wind out of its course, so that it strikes another,
or if, without being turned from its course, it hits a person not
known to be in the vicinity when the object is thrown, the act
is in no sense criminal. So one is not guilty of a criminal as-
sault when the horse he is driving runs away and injures a
man,’ or where he shoots in self-defence and accidentally in-
jures a bystander.®

MAYHEM,

§ 217. Mayhem is defined by Blackstone? as “the violently
depriving another of the use of such of his members as may
render him the less able, in fighting, either to defend himself
or to annoy his adversary.” Amongst these members were

1 1 East P. C. 402; 1 Bish. New Cr. Law, § 875; Carroll v. S., 23 Ala.
28; S. v. Patterson, 45 Vt. 308.

2 Hendrix v. S., 50 Ala. 148; 3 Bl. Com. 4, Compare ante, §§ 66, 168.

8 Ante, §§ 28 et seq.

4 Rex v. Gill, 1 Str. 190, M. 526; 1 Russ. on Crimes (5th ed.), 962.

5 Dickenson v. S., 24 Tex. App. 121, 5 S. W. 648.

8 Howard v. C., 26 Ky. L. R. 465, 81 S. W. 689 (semble),

7 4 Bl. Com. 205.
Srcr. 217.] MAYHEM. 209

included a finger,!.an eye? a foretooth, and those parts which
are supposed to give courage. But cutting off the ear or the
nose is not mayhem at common law, since the loss of these
tends only to disfigure, but not to weaken? It has been held
that a statutory mayhem, based on the common law offence,
is not committed by cutting the throat,* or breaking the
skull, there being no deprivation of any member. The injury
must be permanent in order to constitute the offence.6 Under
the statute, however, in Texas, the fact that the injured mem-
ber, having been put back, grew again in its proper place, was
no defence.’ The offence is now almost universally, in this
country, defined by statute, and generally treated as an aggra-
vated assault. "In many States the statutes cover cases not
embraced by the common law, as the biting off an ear or the
slitting of the nose, if the injury amounts to a disfigurement.®

Mayhem, at common law, was punishable in some cases as
a felony, — an eye for an eye, and a tooth for a tooth, —and
in others as a misdemeanor? But if the offence is made a
felony in this country, the punishment is defined by statute.
It is doubtless, generally, a misdemeanor, unless done with
intent to commit a felony.”

Under the statute in New York, the injury must have been
done by “ premeditated design” and “of purpose.” Hence,
if done as the result of an unexpected encounter, or of excite-
ment produced by the fear of bodily harm, the offence is not
committed. So under the statute 5 Henry IV, c. 5, malice

1 Bowers v. S., 24 Tex. App. 542, 7S. W. 247.

2 Chick v. S., 7 Humph. (Tenn.) 161.

8 4 BL. Com. 205. See also 2 Bish. New Cr. Law, § 1001, and notes.

* Rex v. Lee, 1 Leach, 3d ed. 61.

5 Foster v. P., 50 N. Y. 598, M. 529.

6 S. v. Briley, 8 Porter (Ala.), 472.

7 Slattery v. S., 41 Tex. 619.

8 §. v. Girkin, 1 Ired. (N. C.) 121; S. v. Ailey, 3 Heisk. (Tenn.) 8.

9 4 Bl. Com. 205; C. v. Newell, 7 Mass. 245, C. 109, 482. Compare
Adams v. Barratt, 5 Ga. 404; S. v. Thompson, 30 Mo. 470; Canada v.
C., 22 Grat. (Va.) 899.

10 Tbid. ; Stephen’s Dig. Cr. Law, cc. 25 and 26.

11 Godfrey v. P., 68 N. Y. 207.

14
210 CRIMINAL LAW. yy -TSEcr. 218.

prepense was said by Lord Coke to mean “ voluntarily and of
set purpose.”! But in North Carolina, where the statute pre-
scribes the act done “on purpose and unlawfully, but without
malice aforethought,” it has been held that the intent to dis-
figure is prima facie to be inferred from an act which does in
fact disfigure, and it is not necessary to prove a preconceived
intention to disfigure.?

HOMICIDE.

§ 218. Homicide is the killing of a human being. It may be
lawful, as when one shoots an enemy in war, or the sheriff ex-
ecutes another in pursuance of the mandate of the court, or
kills a prisoner charged with felony in the effort to prevent
his escape, and hence called justifiable homicide, in contradis-
tinction to exeusable homicide, or a homicide committed in
protecting one’s person or the security of his house.

Justifiable Homicide.?— In addition to the illustrations al-
ready given, it may be said, generally, that wherever, in the
performance of a legal duty, it becomes necessary to the faith-
ful and efficient discharge of that duty to kill an assailant or
fugitive from justice, or a riotous or mutinous person, or where
one interposes to prevent the commission of some great and
atrocious crime, amounting generally, though not necessarily,
to felony, and it becomes necessary to kill to prevent the con-
summation of the threatened crime, —in al] these cases the
homicide is justified on the ground that it is necessary, and in the
interest of the safety and good order of society. But homicide
can never be justifiable, except when it is strictly lawful and
necessary. The soldier who shoots his adversary must strictly

1 Coke, 3 Inst. 62. See also Godfrey v. P., ante; Molette v. S., 49 Ala.
18; S. v. Jones, 70 Ia. 505, 30 N. W. 750; S. v. Cody, 18 Or. 506, 23 P.
891, 24 P. 895.

28. v. Girkin, 1Ired. (N.C.) 121. See also S. v. Simmons, 3 Ala.
497; Carpenter v. P., 31 Col. 284,72 P. 1072; U. S. v. Gunther, 5 Dak.
234, 88 N. W. 79; S. v. Hair, 37 Minn. 351, 34 N. W. 893; Terrell v.
S., 86 Tenn. 523, 8S. W. 212.

8 See 16 Harvard Law Review, 567.

* U.S. v. Wiltberger, 3 Wash. C.C. 515, Fed. Cas. No. 16,738,
Sxcr. 219.] HOMICIDE. 211

conform to the laws of war;! and the sheriff who executes a
prisoner must follow the mode prescribed by his warrant.?

The distinction between justifiable and excusable homicide
rested, in the early common law, upon the fact that the latter
was punishable by the forfeiture of goods, while the former
was not punishable at ail.? It long since, however, became
very shadowy, and has now an interest rather historical than
practical, — the verdict of not guilty being returned whenever:
the circumstances under which the homicide takes place con-
stitute either a justification or an excusc.*

§ 219. Human Being. Time. Suicide. —In order to con-
stitute homicide, the killing must be of a person in being;
that is, born and alive. If the killing be of a child still an-
born, though the mother may be in an advanced state of
pregnancy,® or if the child be not wholly delivered,® or if the
child be born, and it is not made affirmatively to appear that
it was born alive, it is no homicide.” Death, however, con-
sequent on exposure, after premature birth alive, unlawfully
procured, is criminal homicide.®

It is also a rule of the common law, valid, no doubt, at the
present day, that the death must happen within a year and a
day after the alleged crime; otherwise it cannot be said, —
such was the reasoning, —to be consequent upon it. In the
computation of the time, the whole day on which the hurt was
received is reckoned the first.

Deliberate suicide is self-murder, and, though the person

1 §. v. Gut, 13 Minn. 341; 4 BL Com. 198.

21 Hale P. C. 433.

3 1 Hawk. P. C. (8th ed.) 79 et seq.

4 4 Bl. Com. 186.

5 1 Russell on Crimes (Sth ed.), 645; Evans v. P., 49 N. Y. 86.

6 Rex v. Poulton, 5C. & P. 329; Rex v. Sellis, 7 C. & P. 850. Com-
pare Reg. v. Reeves, 9 C. & P. 25; S. v. Winthrop, 48 Ia. 519.

7 Rex v. Brain, 6 C. & P. 319, M. 554; U.S. v. Hewson, 7 Law Re-
porter (Boston), 361, Fed. Cas. No. 15,860. :

8 Reg. v. West, 2 C. & K. 784, M. 565.

9 Coke’s Third Inst. p 33; P. v. Kelly, 6 Cal. 210; S. v. Shepherd,
8 Ired. (N. C.) 195.

10 1 Russell on Crimes (5th ed.), 673.

'
212 CRIMINAL LAW. [Secrs. 220, 221,

who commits suicide, is of course, not punishable, one who
advises, and, being present, aids and abets another to com-
mit suicide, is guilty of murder.! So, also, one who kills
another at his request is as guilty of murder as if the act
had been done merely of his own volition.?

§ 220. Murder.— Of unlawful homicides, murder is the
most criminal in degree, and consists in the unlawful killing
of a human being with malice aforethought; as when the deed
is effected by poison knowingly administered, or by lying in
wait for the victim, or in pursuance of threats previously made,
and, generally, where the circumstances indicate design, prep-
aration, intent, and hence previous consideration.®

§ 221. Malice, Express and Implied.t— This malice may be
express, as where antecedent threats of vengeance or other
circumstances show directly that the criminal purpose was
really entertained ; or implied, as where, though no expressed
criminal purpose is proved by direct evidence, it is indirectly
but necessarily inferréd from facts and circumstances which
are proved.

Where the killing can only be accounted for on the sup-
position of design or intent, the law conclusively implies
malice; or, in other words, the courts instruct the jury that,
certain facts being proved, malice is to be implied. And
malice is implied by the law when, though no personal enmity
may be proved, the perpetrator of the deed acts without prov-
ocation or apparent cause, or in a deliberately careless man-
ner, or with a reckless and wicked hostility to everybody’s
rights in general, or under such circumstances as indicate a
wicked, depraved, and malignant spirit;> and so where a
deadly weapon is used.? So one who is engaged in any felony

1 Rex v. Dyson, Russ. & Ry. 523; Rex v. Abbott, 67 J.P. 171; C.v
Bowen, 13 Mass. 356, K. 91, M. 555.

2 1 Hawk. P. C. (Sth ed.) 78; Blackburn », S., 23 O. St. 146.

5 4 BL Com. 195; C. v. Webster, 5 Cush. (Mass.) 295, 316.

4 Ante, § 38.

5 Rex v. Halloway, Cro. Car. 181, K. 1038, M. 593; S. ». Capps, 134
N. C. 622, 46 S. E. 730; S. v. Smith, 2 Strobr. (S. C.) 77; 4 Bl. Com.
198; 2 Bish. New Cr. Law, §§ 680 et seq. ,

6 S. v. Musick, 101 Mo. 260, 14 8. W. 212,
Sect. 222,] HOMICIDE. 213

or other crime of violence, or resisting a lawful arrest, where
he commits homicide even accidentally, is guilty of murder.
It is generally said in these cases that the law implies the
malice from the fact of the killing! It has, however, been
said, particularly in the cases of killing in the course of an-
other felony or by a dangerous weapon, that while the fact of
the kiiling under these circumstances is strong evidence from
which the existence of malice, in the legal sense, may be
found, it should be nevertheless a question of fact for the
jury?

Whatever view may be taken as to the sufficiency of the
evidence to establish. malice and who is the proper body to
determine its existence, it is generally agreed that under the
modern statutes defining murder in the first degree, as well
as at common law, this implied malice is effectual to constitute
murder in the first degree, all doubts as to guilt of the higher
degree being resolved in favor of the prisoner and of the
lower degree.®

§ 222. Malice Aforethought.—It is not necessary that the
design, preparation, or intent which constitutes malice afore-
thought should have been entertained for any considerable
period of time prior to the killing. It is enough to constitute
this sort of malice that a conscious purpose, design, or intent
to do the act should have been completely entertained, for

1 As to killing with dangerous weapon see, in addition to cases ante,
p. 212, notes 5 and 6: Grey’s Case, Kel. 64, K. 105, M. 400; Hadley v.5., 55
Ala..85 As to killing in resisting arrest see 1 Russ. Crimes, 5th ed. 723 et
seq., «ong’s Case, 4 Coke, 40a; Rex v. Tomson, Kel. 66; Rex v. Ford,
R. & R. 329 ; Reg.z. Porter, 12 Cox C. C. 444; Dilger v. C., 88 Ky. 550,
11S. W. 651; P. v. Carlton, 115 N. Y. 618, 22 N. E. 257; Brooks v. C., 61
Pa. 342; Angell v. S., 386 Tex. 542. As to killing in the course of a felony
of violence see Rex v. Plummer, Kel. 109 ; Errington’s Case, 2 Lewiny
217, K. 104; Rex v. Horsey, 3 F. & F. 287, K. 109, M. 599.

2 Reg. v Serné, 16 Cox, C. C. 311, C. 183, K. 106, M. 600; Farris v.
C., 14 Bush (Ky.), 362 ; S. v. Greenleaf, 71 N. H. 606, 54 Atl. 38. See
also 1 Wharton Cr. L., 10th ed., §§ 320, 321; 2 Bish. New Cr. L., 8th ed.,
§§ 680 et seq.; Reg. v. Greenwood, 7 Cox C. C. 404, M. 566.

8 Wharton, Homicide (2d ed.), §§ 660-664, and cases there cited. See
also P. v. Suesser, 142 Cal. 354, 75 P. 1093; Wheatly v. C., 26 Ky. L. R.
436, 81S. W. 687.
214 CRIMINAL LAW. [Sects. 223, 224,

however limited a period prior to its execution.1 Yet in
Pennsylvania, where deliberate premeditation is made a neces-
sary characteristic of murder in the first degree, it seems to
be held that those words imply something more than malice
aforethought.?

§ 223. Imputed Malice. — The malice required for murder
need not be actual malice against the victim. One who, in-
tending to kill A, kills B, is guilty of murder; as, for in-
stance, where he places poison in the way of an enemy, and a
friend takes it and dies. So one who has a murderous inten-
tion, not however directed against individuals, as one who
fires into a crowd intending to kill, is guilty of murder.é

§ 224. Presumptive Malice. —It was formerly held that
every homicide is to be presumed to be of malice aforethought,
unless it appears from the circumstances of the case, or from
facts shown by the defendant in explanation, that such malice
does not exist.6 But the better doctrine now is, doubtless, in
accordance with the dissenting opinion of Mr. Justice Wilde,
in the case just cited, that when the facts and circumstances
attendant upon the killing are equivocal, and may or may not
be malicious, it is for the government to show that they are
malicious; otherwise, the defendant is entitled to the most
favorable construction of which the facts will admit. If, for
instance, two persons are in a room together, and one is seen
to emerge therefrom holding a knife in his hand, leaving be-
hind him the other dead, and wounded in such a manner that
it is certain that the death must have been caused by the

1 Pp. v, Williams, 43 Cal. 344; P. v. Suesser, 142 Cal. 354, 75 P. 1093;
C. v. Webster, 5 Cush. (Mass.) 295; P. v. Clark, 3 Seld. (N. Y.) 385; S.
v. Hunt, 184 N. C. 648, 47 S. E. 49; Shoemaker v. S., 12 O. 43.

2 Jones v. C., 75 Pa. 403. Compare C. v. Drum, 58 Pa. 1, M. 607.
See also Leighton v. P., 88 N. Y. 117, C. 191; Atkinson v. S., 20 Tex.
522; Cupps v. §., 129 Wis. 504, 97 N. W. 210, 98 N. W. 546.

8 McGehee v. S., 62 Miss. 772.

* 4 Saunders’s Case, 2 Plowd. 473, C. 176, K. 81, M. 490 ; Gore’s Case,
9 Co. 81a, C. 182, M. 557.

5 S. v. Gilman, 6) Me. 163. See ante, §§ 28, 32, 34.

°C. vw. York, 9 Met. (Mass.) 93, Mr. Justice Wilde dissenting ; C. v.
Webster, 5 Cush. (Mass.) 295, 316.
Sect. 225.] HOMICIDE. 215

knife in the hand of the person who is seen to emerge, yet, as
the homicide may have been murder, manslaughter, or in self-
defence, it is for the government to produce evidence that it
was the former, before it will be entitled to a verdict of guilty
of murder; and it cannot rely for such verdict upon the
mere presumption that, the killing being shown without ex-
planation, it was malicious.!. The law does not presume the
worst of several possible solutions against the prisoner; it
rather presumes that that state of facts is the true one which
would be most favorable to him.?

§ 225. Degrees of Murder. — Formerly murder, the least as
well as the most atrocious, was punished by death. Now,
however, in many of the States, murder has by statute been
made a crime punishable with greater or less severity, accord-
ing to the circumstances of atrocity under which it is com-
mitted, — death being inflicted only in the most atrocious
cases. Hence the different degrees of murder of which the
books speak. Manslaughter has also, by the statutes of some
of the States, its several degrees, founded upon the same
principle of greater or less depravity, indicated by the attend-
ant circumstances. These several statutes are held not to

have changed the form of pleading at common law; but the
_ jury are to find the crime as of the degree which the facts
warrant, the court instructing them that such and such facts,
if proved, would show the crime to be of a particular degree.
Nor have those statutes ged the rules of evidence. Yet,
in considering cases decided in these-Sfates, it is worth while
to consider that in matters of definition the common law of
murder may have been modified, so that, in determining what
is murder and what manslaughter at common law, these cases
are not always safe guides.

1 See Bennett & Heard’s Leading Cr. Cas., Vol. I, p. 322; Whart. Hom.
(2d ed.), §§ 664, 669; P. v. Woody, 45 Cal. 289; S. v. Porter, 34 Ia. 131;
Stokes v. P., 53 N. Y. 164.

2 Read v. C., 22 Grat. (Va.) 924; U.S. v. Mingo, 2 Curtis C. C. 1,
Fed. Cas. No. 15,781.

3 Davis v. S., 39 Md. 855; Green v. C., 12 All. (Mass.) 155. In Ohio
there are no crimes at common law, Smith v. S., 12 O. St. 466.
216 CRIMINAL LAW. [Sucrs. 226, 227.

Where the statute makes punishable as murder in the first
degree a homicide occurring during the commission of another
felony of violence, it is sufficient if the killing is done during
any stage of the first crime.

§ 226. Manslaughter is any unlawful killing without malice
aforethought; as when one strikes his wife, and death results
from the blow, though not intended,? or kills another in a
fight arising upon a sudden quarrel, or upon mutual agree-
ment, or in the heat of passion, or upon great provocation.®

Every unlawful homicide is either murder or manslaughter,
and whether it is one or the other depends upon the presence
or absence of the ingredient of malice.®

Manslaughter may be voluntary or involuntary. Voluntary
manslaughter is when the act is committed with a real design
to kill, but under such circumstances of provocation that the
law, in its tenderness for human frailty, regards them as pal-
liating the criminality of the act to some extent.

Involuntary manslaughter is when one causes the death of
another by some unlawful act, but without the intention to
take life.”

§ 227. Mitigating Circumstances. What are the circum-
stances of provocation which reduce this crime from murder
to manslaughter it is not easy to define. It seems to be agreed
that no words, however opprobrious, and no trespass to lands
or goods, however aggravating, will be sufficient. To mitigate
a murder to manslaughter, the excited and angry condition of

1. v. Greenleaf, 71 N. H. 606, 54 Atl. 38; S. v. Brown, 7 Or. 186,
M. 611.

2 C. v. McAfee, 108 Mass. 458.

8S. v. Massage, 65 N. C. 480.

4 Gann v. S., 30 Ga. 67.

5 §. v. Murphy, 61 Me. 56; C. 7. Webster, 5 Cush. (Mass.) 295; Pres-
ton v. §., 25 Miss. 383; Holly v. S.,10 Humph. (Tenn.) 141; Maria v. S.,
28 Tex. 698.

® C. v. Webster, ante; Read v. C., 22 Grat. (Va.) 924.
| 7 C.v. Webster, ante.

® Reg. v. Mawgridge, 17 How. St. Tr. 57, Kel. 119, M. 618; Morley’s:
case, Kel. 53; Taylor v. S, 48 Ala. 180; Wilson v. S., 140 Ala. 43, 37
So. 93; P. v. Kelly, 113 N. Y. 647, 21 N, E. 122.
Scr, 227.] HOMICIDE. 217

the person committing the act must proceed from some cause
which would naturally and instantly produce in the minds of
men, as ordinarily constituted, a high degree of exasperation.
Otherwise, a high-tempered man, who habitually indulges his
passion, would be entitled to the same consideration as one
who habitually controls his passion. The law seeks to arrive
at such a result as will lead men to cultivate habits of restraint
rather than indulgence of ‘their passions. Hence the question
ordinarily is not so much whether the party killing is actually
under the influence of a great passion, as whether such a
degree of passion might naturally be expected had he exer-
cised such self-control as a due regard to the rights, and a
due consideration of the infirmities, of others, in the interest
of public safety, require. There must also be a reasonable
proportion between the mode of resentment and the provoca-
tion.!

On the other hand, a blow in the face may be a sufficient
provocation.2 So it is well settled that if the husband detects
the wife in adultery-a killing of either the woman or her para-
mour will be but manslaughter if done under the influence of
the passion aroused thereby ;? and it is enough if the circum-
stances are so suspicious that, the belief of the husband is
a reasonable one.* While it is the general rule, as stated
above, that words alone, no matter how insulting or oppro-
brious, will not amount to a sufficient provocation, yet it has
also been held that where the adultery of the wife is brought
home to the husband, not by sight, but by words, the provo-

1 Reg. v. Welsh, 11 Cox C. C. 336; Flanagan »v. S., 46 Ala. 703; P. v.
Butler, 8 Cal. 485; C. v. Webster, 5 Cush. (Mass.) 295; Preston v. S.,
25 Miss. 383; S. v. Starr, 38 Mo. 270; Fralich v. P., 65 Barb. (N. Y.) 48;
Nelson v. S.,10 Humph. (Tenn.) 518.

2 Reg. v. Stedman, Foster C. L. 292.

8 Rex v. Maddy, 1 Ventris, 158, K. 111; Pearson’s ease, 2 Lewin C. C.
216; Jones v. P., 23 Col. 276, 47 P. 275; Mays v. S., 88 Ga. 399, 14 8. E.
560; Rowland v. S., 83 Miss. 483, 85 So. 826. Compare Lynch v. C., 77
Pa. 205; 8. v. Hockett, 70 Ta. 442, 30 N. W. 742.

4 §. ». Yanz, 74 Conn. 177, 50 Atl. 87, M. 631; Canister v. S. (Tex.),
79 S. W. 24.
218 CRIMINAL LAW. [Secr. 228.

cation is equally great, since it is not the character of the
words in themselves but the information that they convey,
that arouses the anger.! Of course if there is a sufficient
cooling time between the receipt of the information and the
killing, the crime is murder.?

§ 228. Provocation.— The homicide is not entitled to this
reduction in the degree of its criminality, unless it be done
under the influence of the provocation. If it be done under
its cloak, it will not avail to excuse to any extent. If it can
be reasonably collected from the weapon made use of, or from
any other circumstances, that there was a deliberate attempt
.to kill, or to do some great bodily harm, such homicide will
be murder, however great may have been the provocation?
Nor does provocation furnish any extenuation, unless it pro-
duces passion. And seeking a provocation through a quarrel
or otherwise, or going into a fight dangerously armed and tak-
ing one’s adversary at unfair advantage, is such evidence of
malice as to deprive the guilty party of all advantage of the
plea of provocation.’ Where two parties, as in the case of a
duel, enter into a conflict deliberately, and death ensues to
either, it is murder by the other; while the same result, if the
conflict be sudden and in hot blood,.is but manslaughter.®

Upon this point, also, the fact that the injured party is
greatly the inferior of his assailant,—as if he be a child, or
woman, or a man physically or mentally enfeebled,—is an
important element in determining how much is to be de-

1 Reg. v. Rothwell, 12 Cox C. C. 145; Maher v. P., 10 Mich. 212; S.
v. Grugin, 147 Mo. 39, 47 8. W. 1058, M. 625; contra: Reed v. S., 62
Miss. 405; S. v. Neville, 6 Jones (N. C.), 423.

2 Sawyer v. S., 35 Ind. 80; Hardcastle v. 8., 36 Tex. Cr. R. 555, 38 S.
W. 186; post, § 228.

5 1 Russell on Crimes, 5th ed., 688, 690; Felix v. S., 18 Ala. 720; Hen-
ning v. S., 106 Ind. 386, 6 N. E. 803; 8. v. Hicks, 178 Mo. 433, 77 S. W.
539; P. ». Austin, 1 Parker C. C. (N. Y.) 154; S. v. Ellick, 60 N.C.
450; S. v. Cheatwood, 2 Hill (S. C.), 459.

4S. v. Johnson, 1 Tred. (N. C.) 354.

5 Price v. S., 86 Miss. 531; S. v. Hildreth, 9 Ired. (N. C.) 429.

* Rex v. Ayes, R. & R. 167, K. 113; S. ». Underwood, 57 Mo, 40;
U. S. v. Mingo, 2 Curtis C.C. 1, Fed. Cas. No. 15,781.
Secr. 229.] HOMICIDE. 219

ducted from the criminality of the offence on the score of
provocation.1

And however great may have been the provocation, if suffi-
cient time and opportunity have transpired to allow th
aroused passions to subside, or the heated passions to cool
death afterwards inflicted is murder, whether the passions have
subsided or the heated blood cooled or not; and it is a question
of law for the court to say whether that time has elapsed.2_ In
other jurisdictions, however, it has been said that the question
of the reasonableness of the provocation, and the question
whether the passions should have cooled, are in their na-
ture questions of fact, and, as such, should be left to the
decision of the jury?

$ 229, Provocation. Unlawful Arrest. — But there are cases
where the provocation does not produce that heated passion of
which we have just been speaking, and where, although the
homicide be deliberately committed, and is not shown to be
necessary, the act is held by the law to be manslaughter, and
not murder. Thus it has been held, in some cases, that, where
an unlawful arrest is attempted or made, the party pursued
or arrested may kill his assailant, either in resistance to the
arrest or in the attempt to escape, although the act be done
under such circumstances as would equal or surpass, in point
of atrocity and moral turpitude, many cases pect as
murder.

This doctrine, however, does not meet with universal ap-
proval, and it is held in other cases that the mere fact that an
attempted arrest is unlawful does not necessarily reduce the
killing of the officer to manslaughter. In this case, the

1 C. v. Mosler, 4 Barr (Pa.), 264.

2 Rex v. Hayward, 6C. & P. 157; Jarvis v. §., 188 Ala. 17, 34 So.
1025; Beauchamp ». §., 6 Blackf. (Ind.) 299; S. v. Moore, 69 N.C. 267;
S. v. McCants, 1 Speer (S. C.), 384, M. 621.

3 §. v. Gardner, 1 Houst. Crim. Rep. (Del.) 146; Ferguson v. S., 49
Ind. 83 (semble); Maher v. P., 10 Mich, 212; 8. v. Grugin, 147 Mo. 39,
47 S. W. 1058, M. 625; Small v. C., 91 Pa. 804.

* Rex v. Thompson, 1 Moo. C. C. 80, C. 174; Reg v. Carey, 14 Cox
C. C. 214; Rafferty v. P., 69 Ill. 111; C. v. Carey, 12 Cush. (Mass.) 246.
Compare Protector v. Buckner, Styles, 467.
220 CRIMINAL LAW. [Seer. 230,

assailed party may use such reasonable force, and only such,
in proportion to the injury threatened, as is necessary to effect
his escape. .This, however, does not warrant him in the tse
of a deadly weapon, if he has no reason to apprehend a greater
injury than a mere unlawful arrest Probably the killing in
such case, with express malice, would be held to be murder.”
And the better rule would seem to be that while, if he uses
only a reasonable amount of force to resist the arrest, or if
there are circumstances reasonably provoking him to hot
blood, and death results, it is manslaughter, the mere fact
that the arrest is unlawful is not sufficient so to reduce the
offence? So, a fortiori, when the illegal arrest is not of the
defendant but of a third person. So, in defence of one’s own
house, or his castle, the law will not justify a killing of the
assailant, unless the assault be of such a nature as to threaten
death or great bodily harm to the inmate. A mere threatened
injury to the house, which does not also threaten the personal
safety of the inmates, does not make ‘hecessary, and therefore
does not justify, the killing of the assailant to prevent the
possible injury. A mere trespass upon the property, without
a felonious purpose, cannot be repelled by taking the life of
the assailant

§ 230. The Death Must Be the Direct Result of the Unlawful
Act.— It was formerly held that if a witness by false testi-
mony, with the express purpose of taking life, procure the
conviction and execution of a prisoner, this would be murder
by the false witness.6 But, aside from the fact that the direct
connection between the testimony and the execution could in

1 Galvin v. 8, 6 Cold. (Tenn.) 283.

2 Roberts v. S., 14 Mo. 138.

5 Reg. v. Allen, 17 L. T. Rep. N.S. 222; Noles v. §., 26 Ala. 31; Keady
v. P. (Col.), 74 P. 892; Rafferty v. P., 72 Tl. 37; Brown v. S.,62 N. J. L.
666,42 Atl. 811; Vann v. 8S. (Tex.), 77 S. W. 813; Miller v. S., 32 Tex.
Cr. BR. 319, 20 S. W. 1103.

4 Hugget’s Case, Kel. 59. Compare Reg. v, Tooley, 11 Mod. 242;
Rex v. Adey, 1 Leach, 4th ed. 206.

5 S.-v. Patterson, 45 Vt. 208. See also Carroll v. §.,23 Ala. 28; 1
Russell on Crimes, 5th ed. 685; post, § 235.

® Rex v. McDaniel, 1 Leach, 4th ed. 44, C. 167, K. 97,
Secr. 230.] HOMICIDE. 221

few if any cases be shown with that certainty of proof required
in criminal cases, the perils of such a rule would tend to deter
-honest witnesses from testifying to what they believe to be
true. The injury to society, to say nothing of the injustice of
such a rule, is so out of proportion to any possible advantage,
that modern jurisprudence seems to have discarded it.

So, though one who owes a personal public duty may incur
criminal responsibility by neglecting it, yet where road com-
missioners, whose duty it was to keep a road in repair, with
power to contract, neglected to contract, and suffered the road
to become out of repair, it was held that, when injury resulted
from the want of repair, neglect to contract was not the cause
of the injury, in such a sense as to be imputable to their neg-
lect.1 So where the defendant kecps fireworks in his house
and they are, solely by the negligence of his servants, caused
to explode and so kill a person, he is not responsible for the
death.?

Where death follows a wound adequate to produce it, the
wound will be presumed to be the cause, unless it be shown
that the death was solely the result of some other cause, and
not of the wound. The wound being an adequate, primary,
or contributory cause of the death, the intervention of another
cause, preventing possible recovery or aggravating the wound,
will not relieve the defendant. If death be caused by a dan-
gerous wound, or from a disease produced by the wound, gross
ignorance or carelessness of the deceased and his attendants
in its treatment does not relieve the party who inflicted the
wound from responsibility. Death from a cause independent
of the wound will,5 as where A knocks B down and the latter
is killed, not by the blow, but by a horse kicking him.® But
it will be no excuse to show that, if proper treatment had been

1 Reg. v. Pocock, 17 Q. B. 34.

2 Reg v. Bennett, Bell 1, M. 567.

8 Parsons v. §., 21 Ala. 300; C. v. Hackett, 2 All. (Mass.) 186; Crum
v. 8., 64 Miss. 1, 1 So. 1; and see, ante, §§ 24 et seq.

4 Bowles v. S., 58 Ala. 385; Kee v. S., 28 Ark. 155.

5 C. v. Hackett, ante ; C. v. Costley, 118 Mass. 1; S. v. Scates, 5 Jones
(N. C.), 420.

6 P. v. Rockwell, 39 Mich. 503.
222 CRIMINAL LAW. [Secr. 280.

had, the death would not have ensued.! Mortal illness, cither
from a prior wound or other cause, is no excuse for one who
produces death by another independent wound or other source,?
though it has been said that, if death is the result of prior
fatal disease, hastened by a wound, the person inflicting the
wound is not responsible for the death. It.is also said that it
is not murder to work on the imagination so that death ensues,
or to excite the feelings so as to produce a fatal malady. But
it is apprehended that if the death be traceable to the acts
done as the direct and primary cause, and if it can he shown
that the acts done were done for the purpose of accomplishing
the result, it would be murder. The question must always be
whether the means were designedly, or, in the sense of the law,
maliciously and successfully used to produce the result. If
they were, then the guilt of murder is incurred ; otherwise,
life might be deliberately taken by some means, with impunity.
To frighten one to death deliberately is as much murder as to
choke or starve him.> The difficulty of proof that death results
from a particular cause constitutes sufficient reason for caution;
but if the truth be clear, the law should not fail to attach the
penalty §

The defendant is equally responsible for the death where it
results, not from the immediate application of force by him
but where he could reasonably have foreseen that as a result
of his act the second force would be applied. So where one
by threats or show of force compels another, acting reasonably,
to leap into a river or out of a window in the attempt to es-
cape, the assailant is criminally chargeable with the conse-
quences ;* and where a husband by threats or force causes

1 1 Hale P. C. 428.

2 P. v. Ah Fat, 48 Cal. 61; S. v. O’Brien, 81 Ia. 88, 46 N. W. 752;
Hopkins v. C., 25 Ky. L. R. 2117, 80 S. W. 156.

8 Livingston v. C., 14 Grat. (Va.) 592.

4 1 Hale P. C. 429.

5 See 2 Bish. New Cr. Law, §§ 642, 643, and note 2 to § 643; Reg. v.
Towers, 12 Cox C. C. 580, C. 163, K. 95.

® But see Whart. Hom., §§ 368-372, and notes.

7 Reg. v. Pitts, Car. & M. 284; Reg. v. Halliday, 61 L. T. Rep. 701;
Norman v. U. S., 20 App. Cas. D. C. 494.
1
Sect. 231.] HOMICIDE. 223

his wife, in reasonable fear of violence, to leave the house, aud
being unable to secure shelter, she is frozen to death, as might
have been foreseen, the husband is guilty of homicide.! So
where a mother exposes her child in such a way that it is
likely to be injured by wild beasts.2 An indictment charging
that the prisoner caused the death by some means unknown
to the grand jury, and therefore undescribed, is sufficient upon
which to find a verdict of guilty of murder, if the case will not
adinit of greater certainty in stating the means of causing the:
death?

Though it was formerly doubted by some distinguished
judges, it seems now to be settled that the mere omission to
do a positive duty, whereby one is suffered to starve or freeze,
or to suffocate or otherwise perish, is manslaughter, if merely
heedlessly done; while it is murder, if the omission is with
intent to bring about the fatal result.4
() § 231, Unlawfulness, — The unlawfulness which is a ncces-
sary ingredient in the crime of murder or manslaughter may
arise out of the mode of doing a lawful act. Thus, if one is
engaged in the repair of a building situated in a field away
from any street, and where there is no reason to suppose
people may be passing, and, being upon the roof, and in igno-
rance of the fact that any person is below, throws down a
brick or piece of timber, whereby one not known or supposed to
be there is killed, the act being in itself lawful and unattended
with any degree of carelessness, he is guilty of no offence.
The death is the result of accident or misadventure. If we
suppose the circumstances to be somewhat changed, and the
building to be situated upon the highway in a country town,
where passengers are infrequent, and the same act is done
with the same result, the precaution, however, being taken of

1 Anon., Y. B. 2 Ed. III, 18 b, K. 92; Hendrickson v. C., 85 Ky. 281,
3S. W. 166.

2 The Harlot’s Case, Cromp. Just. 24, K. 92. See also Rex v. Hick-
man, 5C. & P. 151, M. 564; S. v. Monroe, 121 N. C. 677, 28 S. E. 547;
Taylor v. S.,41 Tex. Cr, R. 564, 55S. W. 961, M. 575.

8 C. v. Webster, 5 Cush. (Mass.) 295.

4 Reg. v, Conde, 10 Cox C. C, 547, C. 165; ante, §§ 30, 31.
224 CRIMINAL LAW. [Srcr. 232,

first looking to see if any one is passing, and calling out to
give warning of danger, the killing would still be by misad-
venture, and free from guilt, because the act done is lawful
and with due care. Yet were the same act to be done ina
populous town, where people are known to be continually pass-
ing, even though loud warning were to be given, and death
should result, it would be manslaughter; and if no warning at
all were given, it would be murder, as evincing a degree of
recklessness amounting to general malice toward all.1 So
when a parent is moderately correcting his child, and happens
to occasion his death, it is only misadventure ; for the act of
correction is lawful. But if he exceeds the bounds of moder-
ation either in the manner, the instrument used, the quantity
of punishment, or in any other way, and death ensues, it is
manslaughter at least, and, under circumstances of special
atrocity, might be murder. The same act, therefore, which
under certain circumstances would be lawful and proper, and
involve no guilt even if death should ensuc, might under other
circumstances involve the guilt of manslaughter, or even
murder.

The condition of the person ill treated, as where, being in a
debilitated condition, he is compelled to render services for
which he is for the time being incompetent, is often a control-
ling circumstance in determining the guilt of the offender.*

So, though one is not in general criminally liable for the
death of a servant by reason of the insufficiency of food pro-
vided, yet if the servant be of such tender age, or of such bodily
or mental weakness, as to be unable to take care of himself, or
is unable to withdraw from his master’s dominion, the master
may be criminally responsible.®

§ 232. Negligence. Carelessness.6 — The point at which, in
the performance of a lawful act, one passes over into the

1 4 Bl. Com. 192. 2 4 Bl. Com. 182.

3 8. v. Vance, 17 Ia. 188; C. v. York, 9 Met. (Mass.) 93; S. v. Harris,
63 N. C.1; Ann v. S., 11 Humph. (Tenn.) 159.

4 C. v, Fox, 7 Gray (Mass.), 585; U.S. v. Freeman, 4 Mason C. C. 503,
Fed. Cas. No. 15,162, M. 561.

5 Reg. v. Smith, 10 Cox C. C. 82.

6 Ante, §§ 29-31.
Sxcr. 232.] HOMICIDE. 225

region of unlawfulness is so uncertain, the line of demarcation
is so shadowy, that it has been, and from the very nature of
the case must continue to be, a most prolific source of legal
controversy. It is often said that the negligence or careless-
ness must be so gross as to imply a criminal intent; but the
question still remains as to when it reaches that point, and no
rule by which to test it has been or canbe given. Hach particu-
lar case must be determined upon its particular circumstances ;
and precedents, though multitudinous, are so generally dis-
tinguishable by some special circumstance, that in a given
case they seldom afford any decisive criterion, though in
many instances they may afford substantial aid! Self-defence
is lawful, but, if carried beyond the point of protection, it
becomes in its turn an assault, unlawful and criminal. If a
man has a dangerous bull and does not tie him up, but leaves
him at liberty, according to some opinions, says Hawkins,
he is guilty of murder,? but certainly of a very gross misde-
meanor, if a man is gored to death by the bull.? On the
other hand, says Mr. Justice Willes, if the bull be put by the
owner into a field where there is no footpath, and some one
else let the bull out, and death should ensue, the owner
would not be responsible. Yet, doubtless, guilt or innocence,
and the degree of guilt, would depend upon what, under all
the circumstances, the owner had reason to believe might be
the result of his act, whether or not it would be inappreciably,
appreciably, or in a higher degree hazardous to the lives
of others. And this again would depend upon a variety of
circumstances ;— as the degree of viciousness of the bull;
the time, whether day or night, when he might be put in the
field; the probability that he might be let out, or that some
one would pass through the field; the size of the field; its
nearness to or remoteness from a populous neighborhood ;
and many others which might be suggested, but which cannot
be foreseen or properly estimated except in their relation to
other concomitant circumstances.4
1 See Reg. v. Shepherd, L. & C. 147.
21P. C. (8th ed.) 92.
8 Reg. v. Spencer, 10 Cox C. C. 525.
4 See, for cases illustrative upon this point, the valuable and elaborate
15
226 CRIMINAL LAW. [Secr. 233.

Carelessness in a physician, whether licensed or unlicensed,
may be criminal, if it be so gross and reckless as amounts to
a culpable wrong, and shows an evil mind; but if he make
a mistake merely, it is not criminal?

And it seems that gross ignorance may be criminal ;* and
that, though the intent be good, one who is not a regularly
educated physician has no right to hazard medicine of a
dangerous character unless it be necessary.* But this, doubt-
less, would depend upon the intent, degree of intelligence,
and other circumstances. Reckless disregard of consequences
would be criminal in a regularly educated physician, while
the best efforts of a pretender, made in good faith and in an
emergency, would be entirely free from fault.6 -And if a man
voluntarily undertakes to perform the duties of a position to
which he is unsuited by his ignorance, he cannot avail himself
of the plea of ignorance as an excuse. It was so held in the
case of an engineer of a steamboat.§

§ 233. Neglect of Duty. —The refusal or omission to atu
when legal duty requires, may be as criminal as an act posi-
tively committed. Thus, where it was the duty of a miner to
cause a mine to be ventilated, and he neglected to do it, and
as a consequence the fire-damp exploded, causing the death
of several persons, this was held criminal,’ and it would be
murder if the result was intended. So an engineer, by
whose omission of duty an explosion takes place ® or a railway
train runs off the track,!° or any person bound to protect,
note of Judge Bennett to Rex v. Hull, Kel. 40, K. 125, in 1 Leading Cr.
Cas. 50.

1 Reg. v. Spencer, 10 Cox C. C. 525; Rex v. Van Butchell, 3 C. & P.
629; Rice v. S., 8 Mo. 561.

2 Reg. v. Chamberlain, 10 Cox C. C. 486, C. 172; S. v. Hardister, 38
Ark. 605.

8 Rex v. Spiller, 5 C. & P. 383.

* Simpson’s Case, 1 Lewin, 172.

* C. v. Thompson, 6 Mass. 184; 1 Hawk. P. C. (8th ed.) 104.

6 U. S. v. Taylor, 5 McLean C. C. 242, Fed. Cas. No. 16,441.

U Reg, v. Haines, 2 C. & K. 368.

8 Reg. v. Conde, 10 Cox C. C. 547.

® U.S. v. Taylor, ante,

16 Reg. v. Benge, 4 F. & F. 504.
Sxcr. 234.] . HOMICIDE. 227.

\

succor, or support who neglects his duty, whereby death
ensues, is criminally liable.t

§ 234. Selfdefence.? Necessity. — The limitations to the
exercise of the right of self-defence have already been stated
under the title of Assault. To what has there been said it
should be here added that it was the ancient, and by the
-weight of authority it is the modern, doctrine that before the
assaulted party will be justified in availing himself of such
means of self-defence as menace the life of his assailant, he
must retreat, except perhaps in defence of his dwelling-.
house,’ if it can be done with safety. He must not avail
himself of the right to kill his assailant, if he can escape
the extreme necessity with safety to himself. The point of
honor, that retreating shows cowardice, is of less public
concern than would be the extension of the right to take the
life of another beyond the limit of clear necessity. Perhaps
the tendency of modern decisions is toward less strictness in
requiring the assailed party to retreat, and to hold that a man
who entirely without fault is feloniously assaulted may kill
his assailant, without first attempting to avoid the necessity
by retreating, it being possible to retreat with safety.®

But the necessity which excuses homicide in self-defence is
not a justification of the party who seeks and brings om the
quarrel out of which the necessity arises.6 He cannot excuse

1 Reg. v. Mabbett, 5 Cox C. C. 339; S. v. Shelledy, 8 Ia. 477; S. v.
Hoit, 23 N. H. 355; 8. v. O’Brien, 32 N. J. L. 169. See also Judge
Bennett’s note to Reg. v. Lowe (3 C. & K. 128, K. 182), in 1 Leading Cr.
Cas. 60, where the cases illustrative of this point are very polly collected
and stated.

2 Ante, §§ 68, 64.

3 See post, § 235.

41 Hale P. C. 481; Coffman v. C.,10 Bush (Ky.), 495; P. v. Cole,
4 Parker C. C. (N. Y.) 385; 8. v. Ferguson, 9 Nev. 106; S. v. ae
4D. & B. (N. C.) 865; Stoffer v. 8,15 O. St. 47; Vaiden v. C.,
Grat. (Va.) 717; U. 8. v. Mingo, 2 Curtis C. Ct. (U. 8.) 1, Fed. oe
No. 15,781 ; Whart. Hom., §§ 485 et seq.

5 Runyan v. S., 57 Ind. 80; Erwin v. S.,29 O. St. 186. Compare ante, -

§ 64.
6 S.v. Neeley, 20 Ia. 108; S.v. Underwood, 57 Mo. 40; 8. v. Smith,
10 Nev. 106; S. v. Hill, 4D. & B. (N. C.) 491; Vaiden v. C., ante.
228 CRIMINAL LAW. [Sxcr. 235.

himself by a necessity which he has himself created. Nome
can he be justified or excused for a homicide done upon
the plea of necessity, if the necessity arises from his own
fault.

§ 235. Self-defence.? Proper Mode. — And the defence must
be not only necessary, but also by appropriate means, — that
is to say, in order to excuse a homicide as done in self-defence,
it must be made to appear that the taking of the life of the
assailant in the mode adopted appeared, upon reasonable
grounds, to the person taking, and without negligence on his
part, necessary to save himself from immediate slaughter or
from great bodily harm, —the actual existence of the danger
being immaterial, if such were the appearances to him?

In defence of property merely as property, homicide is not
excusable. But where a man’s house, in so far as it is his
asylum or his property, is assailed, and in such a manner that
his personal security is threatened, or that of those whom he
has the right-to protect, and the assault may be said to be in
some sense an assault upon him, and to threaten his life, or to
do him, or those he has the right to protect, some great
bodily harm, it will be held excusable. But the excuse rests
upon the fact that personal injury is threatened. The law
does not allow human life to be taken except upon necessity.
You may kill to save life or limb; to prevent a great and
atrocious crime, —a felony open and. forcible; and in the dis-
charge of a legal public duty. But one man cannot be excused

1 Pp. v. Lamb, 17 Cal. 823; Cox v. 8., 64 Ga. 874; 1 Hawk. P.C. (8th
ed.) 79.

2 Ante, § 64.

* P. v. Lombard, 17 Cal. 316; Coffman v. C., 10 Bush (Ky.), 495; S.
v. Chopin, 10 La. Ann. 458; Hurd v. P., 25 Mich. 405; S. v. Sloane, 47
Mo. 604; S. v. Harris, 59 Mo. 550; Yates v. P., 382 N. Y. 509 ; Stew-
art v. 8., 1 O. St. 66; Darling v. Williams, 35 O. St. 58; C. v. Drum, 58
Pa. 9; Pistorius v. C., 84 Pa. 158; Munden v. S., 37 Tex. 353; U. S. »v.
Mingo, 2 Curtis C. C. 1, Fed. Cas. No. 15,781. This we think to be the
law, by the weight of authority. But there are cases to the contrary.
The cases are collected and thoroughly discussed in Wharton, Homicide,
§§ 493 et seq.

4 Ante, §§ 66, 67.
SEcTs. 236, 237:] HOMICIDE. 229

for intentionally killing another for a mere trespass upon his
property.}

It is said in some cases, that, if a man be assaulted in his
dwelling-house, he is not bound to retreat in order to avoid
the necessity of killing his assailant, and that an assault upon
one in his dwelling-house is thus distinguished from an as-
sault upon him elsewhere.? This assault in one’s dwelling-
house may be in some sense an assault upon the- person
actually in charge?

§ 236. Struggle for Life.t— Blackstone® approves the case,
put by Lord Bacon, of two persons being at sea upon a plank
which cannot save both, and one thrusting the other off, as a
case of excusable homicide. But it is difficult to see where
one gets the right to thrust the other off. The right of self-
‘defence arises out of an unlawful attack made on one’s per-
sonal security, not out of accidental circumstances, which,
whether threatening or not to the life of one or more persons,
are in no way attributable to the fault, or even the agency, of
either. Two men may, doubtless, under such circumstances
struggle for the possession of the plank until one is exhausted ;
but neither can have the right to shoot the other to make him
let go, because no right of him who shoots is invaded.

§ 237. Accident.—Homicide is also excusable where it
happens unexpectedly, without intention, and by accident, or,
as the old law has it, by misadventure in the performance of
a lawful act in a proper manner; as where one is at work
with a hatchet and its head flies off and kills a bystander ; ®
so if a physician, in good faith, prescribes a certain remedy,
which, contrary to expectation and intent, kills- instead of

1 §. v. Wanee, 17 Ja. 188; S. v. Underwood, 57 Mo. 40; S. vu. Pat-
terson, 45 Vt. 308; 1 Bish. Cr. Law, § 857, and cases there cited; anfe,
§ 229; post, § 239; Whart. Hom., §§ 414 et seq.

2 Bohannon v. C., 8 Bush (Ky.), 481; Pond v. P., 8 Mich. 150; S. v.
Martin, 30 Wis. 216.

8 §. v. Patterson, ante.

4 Ante, § 68.

5 4 Bl. Com. 186:

6 4 BI. Com. 182.
t

230 CRIMINAL LAW. [Szcrs. 288, 239.

curing! Butif the lawful act be performed in so improper a
manner as to amount to culpable carelessness, then the homi-
cide becomes manslaughter.”

§ 238, Accident in the Course of a Game. Where death
ensues from accident in the course of a lawful sport or recrea-
tion, it is excusable homicide.* But, this excuse will not avail
one who is playing a hazardous game, in which the danger of
injury is great.5 And ifa player deliberately goes outside the
rules of the game to do an injury, or if while within the rules
he does an act that he has reason to suppose will do injury,
the fact that he is playing a lawful game will not excuse him.®

§ 239, Prevention of Felony. 7 — Homicide in the prevention
of felony is not strictly homicide in self-defence, or in the de-
fence of property, but rests upon the duty and consequent
right which devolves upon every good citizen in the preserva-
tion of order, and is upon these grounds excusable.2 Yet not
every felony may be thus prevented, but only those open felo-
nies, accompanied by violence, which threaten great public
injury not otherwise preventable. Secret felonies, unaccom-
panied by force, such, for instance, as forgery or secret theft,
and offences generally sounding in fraud, cannot be thus pre-
vented.® Even if the crime about to be committed do not
amount to a felony, if it be of such forceful character as to be
productive of the most dangerous and immediate public conse-
quences, —a riot, for instance, — it is held that death may be
inflicted even by a private citizen, if necessary to prevent or
suppress it.0 Indeed, a riot is a sort of general assault upon

1 4 Bl. Com. 197.
2 Ibid. 192; ante, § 231.
3 Ante, § 23.
. 4 Foster, Crown Law, 8d ed. 259.
5 Foster, Crown Law, 3d ed. 260; Reg. v. Bradshaw, 14 Cox C. C. 83,
K. 181.
® Reg. v. Bradshaw, ante.
7 Ante, § 65.
8 Pond v. P., 8 Mich. 150.
9S.v. Moot; 31 Conn. 479; S. v. Vance, 17 Ta. 138; Pond ». P., ante ;
Priester v. Angley, 5 Rich. (S. C.) Law, 44.
10 Patten v. P., 18 Mich. 314.
Sects. 240-242.] FALSE IMPRISONMENT.— RAPE. 231

everybody, and so resistance may be made upon the ground
of self-defence.

FALSE IMPRISONMENT.

§ 240. False Imprisonment, which consists in the unlawful
restraint of the liberty of a person, is an indictable offence at
common law.’ No actual force is necessary. The force of
fraud or fear is sufficient. Thus, to stop a person on the
highway and prevent him by threats from proceeding, consti-
tutes the offence ;? though it has been held in England, by a
divided court, that the mere prevention from going in one
direction, while there remained liberty of going in any other,
is no imprisonment. The unlawful confinement of a child
by its parents is criminal ;4 and, no doubt, of a prisoner by a
jailer. -

Most of the States have now statutes upon the subject
under which prosecutions are had.

RAPE.

§ 241. Rape is the unlawful carnal knowledge of a woman
by force, without her consent.®

§ 242. Carnal Knowledge. — Carnal knowledge, it is now
generally held, both in this country and in England, is ac-
complished by penetration without emission,’ though it was
formerly doubted if both were not necessary, —a doctrine
still held in Ohio. And penetration is sufficient, however
slight. ’ !

1 Barber v. S., 13 Fla. 675; C. v. Nickerson, 5 All. (Mass.) 518; Red-
field v. S., 24 Tex. 1383; 3 Chitty Cr. Law, 835.

2 Searls v. Viets, 2 T. & C. (N. Y. 8. C.) 224; Moses v. Dubois, Dud.
(S. C.) 209; Bloomer v. S., 8 Sneed (Tenn.), 66.

8 Bird v. Jones, 7 Q. B. 742.

4 Fletcher v. P., 52 Ill. 395.

5 See Abduction, Kidnapping.

® See post, § 244.

7 Waller v. S., 40 Ala. 825; S. v. Hargrave, 65 N. C. 466; C. v. Sulli-
van, Add. (Pa.) 143; C. v. Thomas, 1 Va. Cas. 307; St. 9 Geo. IV, C. 31.

8 Blackburn v. S., 22 O. St. 102.

9 Reg. v. Hughes, 2 Moo. C. C. 190; P. v. Howard, 148 Cal. 316, 76
P. 1116; S. v. Hargrave, ante.
232 CRIMINAL LAW. [Sect. 248.

The conclusive presumption of the common law that a boy
under the age of fourteen is incapable of committing rape
may have been based upon the theory that emission as well as
penetration was necessary to the commission of the crime.t

§ 248. Force and Violence. — The force must be such as
overcomes resistance, which, when the woman has the power
to exert herself? should be with such vigor and persistence as
to show that there is no consent. Any less resistance than
with all the might gives rise to the inference of consent.?
But it would seem that this is only an inference of fact, and
that the real question is whether the intercourse was without
her consent; and so long as it is clear that such was the case, the
mere fact that she did not resist to exhaustion would not pre-
vent the crime from being rape. Where there is no resist-
ance, from incapacity, the only force necessary is the force
of penetration. And fraud does not here, as in some other
cases, supply the place of force. If the consent be procured,
although by fraud, there is no rape.

But here, as with assault, consent to one physical act is no
justification for a different one.6 So, also, the distinction

1 C. v. Green, 2 Pick. (Mass.) 380. See also the following cases hold-
ing the presumption to be conclusive: Reg. v. Waite, L. R. 2 Q. B. 600,
M. 549; Chism v. S., 42 Fla. 282, 28 So. 899; S. v. Pugh, 7 Jones (N. C.),
61; Foster v. C., 96 Va. 306, 31S. E. 503. In some States the presump-
tion has been held rebuttable by proof of puberty : Gordon v. S., 93 Ga.
531, 21 S. E. 54; Davidson v. C., 20 Ky. L. R. 540, 47 S. W. 213; P. ».
Randolph, 2 Park. C. R. (N. Y.) 174; Williams v. 8., 14 0. 222; Wagoner
v. S.,5 Lea (Tenn.), 352. Compare 8. v. Jones, 39 La. Ann. 935, 3 So. 57.

2 See § 244. ;

3 P. v. Brown, 47 Cal. 447; Taylor v. S., 50 Ga. 79; C. v. McDonald,
110 Mass. 405; S. v. Burgdorf, 53 Mo. 65; P. v. Dohring, 59 N. Y. 374.

4S. v. Shields, 45 Conn. 256, M. 547; Austine v. P., 110 Ill. 248; An-
derson v. S., 104 Ind. 467, 4 N. E. 63.

5 Reg. v. Saunders, 8 C. & P. 265; McNair v. S., 53 Ala. 453; Don
Moran »v. P., 25 Mich. 356, M. 589; S. v. Burgdorf, ante. Wyatt v.S.,
2 Swan (Tenn.), 394, C. 206; Clark v. S., 30 Tex. 448. See, however,
contra, Reg. v. Dee, 15 Cox C. C. 579 (Irish), C. 208. In some States inter-
course with a married woman by personating her husband has been made
rape by statute: S. v. Williams, 128 N. C. 578, 87 S. E. 952; Payne v.
8., 38 Tex. Cr. R. 494, 43 S. W. 515.

6 Reg. v. Flattery, L. R. 2 Q. B. D. 410, M. 546.
Sect. 244.] RAPE. 233

must be remembered between a mere submission on the one
hand, where the will is overpowered, and consent freely given
on the other, even though under a misapprehension as to the
facts. Where the willis overcome by the force of fear, though
there be no resistance, the offence may be committed.

§ 244. Without Consent.— According to the old definition,
the act must be against the will of the woman; but these
words are now held to mean without her consent.2 If the
woman be in a state of insensibility, so that she is incapable

_ of exercising her will, whether that incapacity is brought about
by the act of the accused, intentionally or unintentionally, or
by the voluntary act of the woman herself, and the ravish-
ment is effected with a knowledge of such incapacity, the.
offence is committed. And the same would be true if the
woman were idiotic, insane, or asleep. Against the will, or
without consent, means an active will. '

By the law of England, a child under ten years of age is
conclusively presumed to be incapable of consenting,® and the
same principle has been laid down in this country.6 In almost
all States the age of consent has been fixed by statute. If the
girl ig under age the question of her\consent is immaterial.7

1 Reg. v. Woodhurst, 12 Cox C. C. 443; Pleasant v. S., 13 Ark. 360;

P. v, Burwell, 106 Mich. 27, 63 N. W. 986; P. v. Dohring, 59 N. Y. 374;
ght v. S., 4 Humph. (Tenn.) 194; Croghan »v. S., 22 Wis, 444.

2 Reg. v. Fletcher, 10 Cox C. C. 248; Reg. v. Barrow, 11 Cox C. C.
191; C. v. Burke, 105,Mass. 376; compare post, § 247.

8 Reg. v. Champlin, 1 Den. C. C. 89; Reg. v. Barrett, 12 Cox C. C.
498; C. v. Burke, ante.

4 Ibid.; Reg. v. Fletcher, 8 Cox C. C. 181; Reg. v. Mayers, 12 Cox C.
C. 311, 1 Green’s Cr. Law Rep. 317, and note; Gore v. S., 119 Ga. 418,
46 S. E. 671; S. v. Cunningham, 100 Mo. 382, 12S. W. 376. Compare
Crosswell v. P., 18 Mich. 427.

5 1 Bl. Com. 212. f

6 Gosha v. S., 56 Ga. 36; P. v. McDonald, 9 Mich. 150. So a girl of
twelve, S. v. Miller, 42 La. Ann. 1186, 8 So. 309.

7 C. v. Roosnell, 143 Mass. 32, 8 N. E. 747, C. 212; P. v. Goulette, 82
Mich. 36, 45 N. W. 1124; S. v. Wright, 25 Neb. 38, 40 N. W. 596; Far-
rellv. S., 54 N. J. L. 416, 24 Atl. 723; Loose v. S., 120 Wis. 115, 97 N.
W. 526. Compare P. v. Wilmot, 189 Cal. 103, 72 P. 838, For assault
with intent to rape see ante, § 208.
234 CRIMINAL LAW. [Szcrs. 245, 246.

ROBBERY.

§ 245. Robbery is larceny from the person or personal

_presence by force and violence and putting in fear.
‘What constitutes larceny, what may be stolen, and what

constitutes ownership, that the taking must be felonious,
against the will or without the consent of the owner, and with
intent to deprive him of his property, will be shown under the
title of Larceny.2 We are now to consider the additional
circumstances which elevate larceny into robbery.

§ 246. Force and Violence.— There must be force and
violence or putting in fear, and this force and violence or
putting in fear must be the means by which the larceny is
effected, and must be prior to or simultaneous with it. If the
larceny is effected first, and the fear or force is applied after-
wards for the purpose of enabling the thief to retain possession
of his booty, or for any other purpose, there is no robbery.®

While mere snatching from the hand or picking from the
pocket of a person will be but larceny from the person,} if, in
addition to the force used in merely taking possession of the
property, any force is used to overcome the resistance of the
possessor, the crime is robbery.6 So it seems to be the law
that, if the article be attached to the person, and the force
be such as to break the attachment or to injure the person
from whom the property is taken, as where a steel or 4lk
chain attached to the stolen watch and around the neck was
broken,§ or a lady’s ear from which a ring was snatched was

1 C. v. Holland, 1 Duv. (Ky.) 182; C. ». Humphries, 7 Mass. 242;
S. v. Gorham, 55 N. H. 152.

2 Post, § 270..

8 Harman’s Case, 1 Hale P. C. 534; Rex v. Francis, 2 Str. 1015; Rex
v. Gnosil, 1 C. & P. 804; Thomas »v. S., 91 Ala. 34, 9 So. 81; Jackson
v. S., 114 Ga. 826, 40 S. E. 1001.

4 Post, § 2938; Colby v. S. (Fla.), 35 So. 189; S. v. Doyle, 77 Ga. 513;
Spencer v. S., 106 Ga, 692, 32 S. E. 849; contra, Jones v. C., 23 Ky. L.
R. 2081, 66 S. W. 633.

5 Williams v. C., 20 Ky. L. R. 1850, 50 S. W. 240.

6 Rex v. Mason, R. & R. 419; S. v. McCune, 5 R. I. 60; conira,
Bowlin v. S. (Ark.), 81 8. W. 8388.
Srcr. 247,] ROBBERY. 235

torn, the offence is robbery, and not merely larceny from
the person.! So, if there is a struggle for the possession of
the property between the thief and the owner.2 So, also, if
force be applied for the purpose of drawing off the attention
of the person being robbed.?

The force must be used with the intent of accomplishing
the larceny. Where a wound was unintentionally inflicted on
the hand of the owner of a basket, the intent being simply to
cut the basket from behind the owner’s wagon, the crime is
simple larceny, not robbery.*

§ 247. Putting in Fear.— Neither actual violence nor the
fear of actual violence is necessary to constitute the offence.
The putting in fear is using a certain kind of force, or con-
structive violence. Fear of personal injury is enough, as
where there is a threat to shoot, or strike with a dangerous
weapon, or in some other way inflict personal injury, even

though it be in the future.6 Time, place, and circumstance,
as by the gathering about of a crowd apparently sympathizing
with the thief, and showing that resistance would be vain,’
are to be taken into account in determining whether this fear
exists. But the fear induced by a threat to injure one’s
character, or to deprive him of a situation whereby he earns
his living, is also enough.® It is said, however, that the fear
ofginjury to character, and consequent loss of means of live-
lihood, has never been held sufficient, except in cases where

1 Rex v. Lapier, 2 East P. C. 557.
2 Davies's Case, 1 Leach Cr. L. (4th ed.) 290, n.; S. ». Broderick, 59
Mo. 318. But see 8. v. John, 5 Jones (N. C.), 163.
8 Anon., 1 Lewin, 300; Snyder v. C., 21 Ky. L. R. 1538, 55 S. W. 679;
Mahoney v. P.. 5T. & C. (N. Y.) 329; C. v. Snelling, 4 Binn. (Pa.)
379.
' 4 Reg. v. Edwards, 1 Cox C.C. 82.
5 Donnally’s Case, 1 Leach Cr. L. (4th ed.) 193; Long v. S., 12 Ga.
293.
' 6 §. v. Howerton, 58 Mo. 581.
7 Hughes’s Case, 1 Lewin, 301; Rex v. Taplin, 2 East P. C. 712.
8 Long v. S., ante.
9 Rex v. Egerton, R. & R. 375; Rex v. Gardner, 1 C. & P. 479; P. v.
McDaniels, 1 Park. C. R. (N. Y.) 198.
236 CRIMINAL LAW. [Sxcr. 247,

the threat was to charge with the crime of sodomy,’ and the
cases cited in the last preceding footnote are of this character?
So, also, it has been said that fear, induced by the threatened
destruction of a child, is sufficient.2 And there seems to be
no doubt that fear induced by threats to destroy one’s prop-
erty, as by threats of a mob to pull down one’s house, is suf-
ficient, this act being of a kind to threaten one’s bodily
safety. So with the exception of the sodomy cases, which
must be regarded as anomalous, it would seem that the fear
inspired must be, directly or indircetly, of a bodily harm.®
The same distinction exists in the cases of false arrests. If
A threatens to atrest B, and the latter, to buy him off, gives
the pretended officer money, this has been held not to be rob-
bery.6 But where the giving up of the property was because.
of fear of bodily harm induced by the defendant, the fact that
he was at the time pretending to be an officer would render it
none the less robbery.”

It is sometimes said that the element of fear must exist in
every case in order to constitute the crime of robbery.’ But
there may be cases where there seems to be no opportunity for
the action of fear; as where one is, without warning, knocked
senseless by a single blow,® or is not aware of the purpose
and has actually no fear, that being only a diversion of the
force which is used, or is already, when assaulted, in such a

1 Rex v. Wood, 2 East P. C. 782; Long v. S., 12 Ga. 293; Britt v. S.,
7 Humph. (Tenn.) 45.

2 Compare Rex v. Edwards, 5 C. & P. 518; Thompson ». S., 61 Neb.
210, 85 N. W. 62.

® Hatham, B.,in Donnally’s Case, 1 Leach Cr. L. (4th ed.) 193; Eyre,
C. J., Reane’s Case, 2 Leach Cr. L. (4th ed.) 616.

4 Rex v. Astley, 2 East P. C. 729; Rex v. Winkworth, 4 C. & P. 444.

5 See 2 Bish. New C. L., §§ 1171 et seq.

6 Rex v. Knewland, 2 Leach (3d ed.), 833 ; Simmons »v. S., 41 Fla.
316, 25 So. 881; Perkins v. S., 65 Ind. 317.

™ McCormick v. S., 26 Tex. App. 678, 9 S. W. 277; Williams v. S.
(Tex.), 55 8. W. 500. °

8 1 Hawk. P. C. (8th ed.) 214.

® Foster C. Iu. 128; McDaniel v. S., 8 S. & M. (Miss.) 401.
a Mahoney v. P.,5 T. & C. (N. Y.) 329; C. v. Snelling, 4 Binn. (Pa.)
Sect. 248.] ROBBERY. 237

state of insensibility as to be incapable of fear;} and the
weight of authority, both ancient and modern, is that it need
not be alleged in the indictment under the cominon law.?
And those courts which hold that fear is necessary make the
force which would ordinarily excite fear conclusive evidence
of it.8

The cases just cited also show that “against the will”
means without consent. Where three parties get up a pre-
tended robbery for the sake of obtaining a reward, the taking
is not against the will, or without consent.6 Nor is it where
the property is parted with for the purpose of making a case
for prosecution®

§ 248, The Taking must be from the person, or from the
personal presence. Thus, if a man assaults another, and,
having put him in fear, drives away his cattle from the pas-
ture’ in his presence, or picks up a purse from the ground,
where it had fallen or been thrown into a bush during the
scuffle, the taking is complete. The question is, whether the
chattel at the time it was taken was under the protection of
the person.® But the possession of the robber, if complete,
.need be only momentary; and if it be immediately taken
away from him, it is still robbery. Though the thief obtain
possession by delivery from the owner, as where he points
a pistol, and either directly demands money," or demands

1 Bloomer v. P., 1 Abb. Ap. Dec. (N. Y.) 146.

2 Donnally’s Case, 1 Leach Cr. L. (4th ed.) 193; Rex v. McDaniel,
Foster C, L. 121, K. 259; C. v. Humphries, 7 Mass. 242; S. v. Broderick,
59 Mo. 818; S. v. Gorham, 55 N. H. 152.

8 Reane’s Case, 2 Leach Cr. L. (4th ed.) 616; Long v. S., 12 Ga. 293.

# See also Larceny, post, § 270.

5 Rex v. McDaniel, ante.

6 Rex v. Fuller, R. & R. 408.

7 1 Hawk. P. C. (8th ed.) 214.

8 2 East P. C. 707; 1 Hale P. C. 533; Long ». S., ante ; Crews v. S., 3
Cold. (Tenn.) 850; U.S. v. Jones, 3 Wash. C. Ct. 209, Fed. Cas. No.
15,494.

9 Reg. v. Selway, 8 Cox C. C. 235; S. v, Kennedy, 154 Mo. 268, 55
S. W. 298.

10 Peat’s Case, 1 Leach Cr. L. (4th ed.) 228.

11 Norden’s Case, Foster C. L. 129.
238 CRIMINAL LAW. [Sxcr. 248.

it under pretence of asking alms,! even after having ceased to
resort to force,2 — the delivery in each case being induced by
fear, —it is a taking within the meaning of the law, and he
is in each case guilty of robbery. And so may a forced sale
be robbery, where the delivery is obtained by fear, if the full
value be not given in return for the property taken.4 And
where a man who is attempting rape, to whom the woman
gives money to induce him to desist, continues his assault, he
is guilty of robbery.

1 1 Hale P. C. 533.

2 Hawk. P. C. (8th ed.) 214, § 7.

8 Rex v. Simons, 2 East P. C. 712.

4 Fisherman’s Case, 2 East P. C. 661, M. 807; 4 BI. Com. 244.
5 Rex v. Blackham, 2 East P. C. 711.
Sects. 249, 250.] OFFENCES AGAINST A DWELLING-HOUSE. 239

CHAPTER VII.
OFFENCES AGAINST A DWELLING-HOUSE.
§ 250. Arson. | § 256. Burglary.

§ 249. Protection of a Dwelling-house. — The law gives a spe-
cial protection to a dwelling-house, as a man’s castle, within
which it is for the public interest that he should be protected.
We have already seen! that when attacked in his dwelling-
house, a man may take life to keep out the intruders. In ad-
dition to this measure of protection, the common law punishes
certain violations of the protection of a dwelling. Two im-
portant crimes are of this sort: arson and burglary.

ARSON,
{b

§ 250. Arson is the malicious burning of another’s dwelling-
house.

It is an offence against the security afforded by a man’s
dwelling-house ; and the law looks upon it in this light, rather
than as an injury to his property. It regards the violation of
the sanctity of one’s abode as a much graver offence than the
mere injury to his property, just as it regards the larceny of
a watch from the person or from a building as a graver offence
than the simple larceny of the watch without these attendant
circumstances.2— The property protected is the house, not its
materials; it is not arson to pull down a house and then set
fire to the pile of lumber.®

1 Ante, § 67.

2 P. v. Gates, 15 Wend. (N. Y.) 159.

8 Mulligan v. S., 25 Tex. App. 199; Landers v. S., 39 Tex. Cr. R.
671, 47 S. W. 1008.
240 CRIMINAL LAW. [Srorts. 251, 252.

§ 251. What “Dwelling-house” Embraces. — At common law
the term “ dwelling-house”” embraced all outhouses within the
same curtilage, and used as part and parcel of the residence,
though not under the same root.! Curtilage means an enclos-
ure of a piece of land around a dwelling-house, usually includ-
ing the buildings occupied in connection with the use of the
dwelling-house, whether the enclosure be made by a fence or
by the buildings themselves ;7 and a barn, the front of which
forms part of the division fence, is within the curtilage.’

§ 252. Dwelling-house. Ownership. — Simply burning one’s
own house is not arson, nor any offence, at common law, un-

less it be accompanied by a design to injure.4 So where the
property is burned by a third person at the request of the
owner the crime is not committed. But by statute in some
of the States the wilful and malicious burning of any building
is made punishable; and in such case the owner may be guilty
of the offence by burning his own barn.6 He may be said to
own the house who has the right of present possession, as the
lessee or mortgagor before foreclosure.’ A husband is not
guilty of the crime who burns the house which he jointly occu-
pies as tenant by the curtesy with his wife, who owns the fee;
nor the wife who sets fire to her husband’s house ;® though a
widow whose dower has not been assigned, and who has no)
present right of possession, the house being occupied by a
tenant, may be guilty of it. So of a reversioner, who burns.
the house before the tenant’s right of occupation has expired.®

14 Bl. Com. 221. 2

2 C. v. Barney, 10 Cush. (Mass.) 478; P. v. Taylor, 2 Mich. 250; post,
Burglary; Bishop, Stat. Crimes, §§ 277 et seq. :

8 Washington v. S., 82 Ala. 31,2 So. 356. Compare Curkendall v.
P., 36 Mich. 309.

4 Bloss v. Tobey, 2 Pick. (Mass.) 320.

5 Heard v. S., 81 Ala. 55, 1 So. 640; C. v. Makely, 181 Mass. 421.

6 §. v. Hurd, 51 N. H. 176. See also Shepherd v. P., 19 N. Y. 587.

7 Rex v. Pedley, 1 Leach Cr. L. (4th ed.) 242; Rex c. Spalding, 1
Leach Cr. L. (4th ed.) 218; P. v. Van Blarcum, 2 Johns. (N. Y.) 105.

8 Rex v. March, 1 Moo. 182, C. 484; Snyder v. P., 26 Mich. 106. But
in Indiana it is held that under the statute the wife is guilty of arson who

burns her husband’s house. Emig v. Daum, 1 Ind. App. 146, 27 N. E. 322,
® Reg. v. Harris, Fost. Cr. Law, 113, M. 928.
Sect. 253.] ARSON. 241

A servant, though living in the house, yet having no right of
possession, may commit the crime ;! but a tenancy for a year,
or any special ownership which carries with it the right of
possession at the time of the burning, is sufficient to exempt
from guilt.?

§ 253. Dwelling-house. Occupation.— The building will be
considered a dwelling-house within the meaning of the law, if
actually occupied as such, though it may not have been erected
for that purpose, and may also be occupied for other purposes,
as for a jail, or a building occupied in part as a lodging-
house.2 So where part of the building is used as a store,
if the rest is used as a dwelling-house, it may be the subject
of arson.* It must be in some substantial sense an occupied
house, and that, by the person alleged to be the owner. It is
not necessary that he should be actually present in the house
at the time of the burning. If the house contain the occu-
pant’s effects, and he has the design to return, after a tempo-
rary absence, this is a sufficient occupation to constitute it a
dwelling-house.6 Mere ownership, without occupancy by the
owner, is not sufficient. Nor is the fact that it is habitable,
and intended for occupancy, unless it is also in some sense
used as a place of residence.’ It must be a completed house,
ready for occupancy, and not an abandoned one, unfit for
habitation.®

1 Rex v. Gowen, 2 East P. C. 1027, M. 930.

° Holme’s Case, Croke Car. 376; S. ». Young, 189 Ala. 186, 36 So. 19;
S. v. Lyon, 12 Conn. 487; McNeal v. Woods, 3 Blackf. (Ind.) 485; P. v.
Gates, 15 Wend. (N. Y.) 159; 2 East P. C. 1022; contra: Kelley v. S.,
44 Tex. Cr. R. 187, 70 S. W. 20 (statutory). See also post, Burglary.

8 P. v. Orcutt, 1 Park. (N. Y.) C. R. 252; P. v. Cotteral, 18 Johns.
(N. Y.) 115; Smith v. §., 23 Tex. App. 357. See however, contra, Jenk-
ins v. S., 53 Ga. 33.

4 §. v. Jones, 171 Mo. 401, 71 S. W. 680.

5 §. v. Toole, 29 Conn. 342; Johnson v. S., 48 Ga. 116.

6 Hicks v. S., 43 Fla. 171, 29 So. 631; C. v. Barney, 10 Cush. (Mass.)
478.

7 §. v. Warren, 33 Me. 80; Hooker v. C., 18 Grat. (Va.) 763

8 Elsmore v. St. Briavels, 8 B. & C. 461; S. v. McGowen, 20 Conn.
245; P. v. Handley, 93 Mich. 46, 52 N. W. 1032. See also McGary »v. P.,
45 N. Y. 1538.

16
242 CRIMINAL LAW. [Szcr. 254.

§ 254. Malice. — The malice requisite to constitute the
crime is that general malice which accompanies a criminal
purpose. Carelessness or negligence, without a specific intent
unlawfully to burn or to do some other wrong, does not con-
stitute the malice which is an essential ingredient in the crime
of arson! But when, intending to burn the house of one, the
accused burns the house of another, the crime is committed.
Arson being intended and committed, it is not permissible that
the guilty party should escape the consequences by alleging
his mistake as to one of the varying incidents of the crime.
So far as the public offence is concerned, it is immaterial
whether the house burned be that of one person or another.?
And one may be guilty of arson by setting fire to his own
house, whereby the house of another is burned, if the proxim-
ity was such that the burning of the latter was the natural and
probable consequence of burning the former. If the burning
accomplished was not with a felonious intent, but for a pur-
pose which if accomplished would constitute a crime of a grade
below a felony, — as where a prisoner sets fire to the jail in
which he is confined with the purpose of thereby effecting his
escape, — this, it has been held is not arson, if the attempt to
escape is only a misdemeanor.* But the contrary has been held
in Alabama ;5 and in England a person who set the fire for the
purpose of getting the reward offered for the earliest infor-
mation of it was held guilty of arson®

The cases upon this point, however, seem to be wholly irrec-
oncilable. Where there is the intent to burn coincident with
the act of burning, the crime seems to be complete, upon gen-
eral and well-settled principles dnd according to every defini-
tion; and the fact that the burning was the secondary rather
than the primary purpose, — a felonious means to an unlawful

14 Bl. Com. 222.

? 1 Hale P. C. 569; 1 Hawk. P. C. (8th ed.) 189, § 15.

8 Rex v. Isaac, 2 East P. C. 1081.

4 P. v. Cotteral, 18 Johns. (N. Y.) 115; S. v. Mitchell, 5 Ired. (N.C.)
350; Delany v. S., 41 Tex. 601.

5 Luke v. S., 49 Ala, 30.

® Reg. v. Regan, 4 Cox C. C. 335, M. 141.
Sect. 255.] ARSON. 243

but not felonious end, — does not seem to relieve it in any re-
spect or degree of its criminality. It sounds strangely, and
seems not in accordance with sound reason or public policy
that one who ‘intentionally commits a felony and a misde-
meanor, the former, as a step toward the latter, shall be
deemed less guilty than he would have been if the commission
of the felony had been his sole purpose, and he had committed
no misdemeanor.! The failure to observe the distinction be-
tween intent and motive, the former of which qualifies the act,
while the latter moves to it,? has.doubtless led to the confu-
sion. The man who dalthonately sets fire to and burns a jail
intends to burn it, whether his motive be self-sacrifice, revenge,
escape, or reward.2 The case might be different if, while a
party is stealing in a building, he accidentally, by dropping a
match, sets fire to the building. It has been recently held in
Ireland that this, if done on board a vessel, would not come
within a statute punishing the malicious burning of a vessel.t
But it might be doubtful, in case of arson, if there is any malice
or evil intent in the crime intended, — if it be not a mere malum
prohibitum 6

§ 255. Burning means an actual combustion of some portion
of the house, so that the wood is actually on fire. It is suffi-7
cient if it is charred. It is not necessary that it be consnmed
or destroyed ;* but mere scorching is not enough,’

1 See 1 Bish. New Cr. Law, §§ 323-345; 2 ibid., §§ 14, 15.

2 Ante, §§ 26, 32.

8 Reg. v. Regan, 4 Cox C. C. 335, M. 141.

* Reg. v. Faulknér, 18 Cox C. C. 550, C. 106, K. 152.

5 2 Russ on Crimes (Sth ed.), 906.

6 Reg. v. Parker, 9 C. & P.45; Mary v.S., 24 Ark. 44; P. v. Haggerty,
46 Cal. 354; S. v. Spiegel, 111 Ia. 701, 83 N. W. 722; C. v. Tucker, 110
Mass. 403; P. v. Butler, 16 Johns. (N. Y.) 203; S. v. Sandy, 3 Ired.
(N. C.) 570. The statutes of most if not all of the States have modified
the common law of arson to a greater or less extent; and while decisions
will be found apparently inconsistent with the pitneiplles stated in the
text, it will doubtless be found that such decisions depend upon the
peculiarities of the respective statutes.

7 Reg. v. Russell, C. & M. 541, M. 981; Woolsey v. S., 80 Tex. App.
846, 17 S. W. 546.
244 CRIMINAL LAW. [Secrs. 256, 257.

BURGLARY.

§ 256. Burglary is the breaking and entering of another’s
dwelling-house in the night-time, with intent to commit a
felony therein.! The breaking may be actual or constructive.
If there is neither force nor fraud there is no burglary.?

§ 257, Actual Breaking takes place when any apartment of

“the house is broken into by force; as by lifting a latch, or

snail

sliding a bolt,? or turning a lock or a button,’ or the fastening
of a window, or breaking or removing a pane of glass, or
lifting up or puliing down an unfastened window-sash® or
trap-door, or pulling open a sash which swings on hinges,
or opening a door whether held in place by friction® or by a
spring,’ or removing a piece of wood which keeps the door in
place § or cutting out a netting of twine which is fastened over
an open window, or removing a screen,® or opening the outside
shutters. The offence consists in violating the common se-
curity of the dwelling-house. It is immaterial whether the
doors and windows are fastened or unfastened, provided the
house is secured in the ordinary way, and is not left so care-
lessly open as to invite an entry. But leaving the door or
window ajar, or unclosed even to a slight degree, and not so
far as to admit the body, would constitute such an invitation,
so that opening them further would not amount to a burglari-
ous breaking ;14 and entry through an open transom is not a

1 1 Hawk. P. C. (8th ed.) 129.

2 St. Louis v. 8. (Tex.), 59 S. W. 889.

3S. v. O’Brien, 81 Ta. 93, 46 N. W. 861.

4S. v. Helms, 179 Mo. 280, 78 S. W. 592.

5 Rex v. Hyams, 7 C. & P. 441, M. 909; S. v..Boon, 13 Ired. (N. C.)
244.

® S. v. Reid, 20 Ia. 413; Finch v. C., 14 Grat. (Va.) 643.

7 §. v. Connors, 95 Ta. 485, 64 N. W. 295.

8 S. v. Powell, 61 Kan. 81, 58 P. 968.

9S. v. Herbert, 63 Kan, 516, 66 P. 235. ,

10 Rex v. Haines, R. & R. C. C. 451; Rex v. Russell, 1 Moo. C. C. 377,
2 Lead. Cr. Cas. 48, and note; Pressley v. S., 111 Ala. 34, 20 So. 647; C.
v. Stephenson, 8 Pick. (Mass.) 354. Compare Minter v. S., 71 Ark. 178,
71S. W. 944.

u Rex v. Smith, 1 Mog. C. C. 178; Green v. §., 68 Ala. 539; C. v
Sects. 258, 259.] BURGLARY. 245

breaking * though lifting an unfastened transom which swings
upward is a breaking.? It is also held that entering a house
by way of the chimney, or even getting into the chimney, is a
breaking, though no actual force is used, since it is not usual
to secure such an opening, and the house is as much closed
as is reasonable or requisite.?

§ 258, Constructive Breaking.— A constructive breaking is
where fraud or threats are substituted for force, whereby an
entry is effected ; as where entrance is procured by conspiring
with persons within the house; or by pretence of hiring
lodgings, obtaining refreshment, or other business ;® or under
color of legal process fraudulently obtained ;® or by enticing
the owner out of his house, if the entry be made immediately,
and before the owner’s family have time to shut the door.’
So where defendant secreted himself in a box, which he pro-
cured to be put in an express car by the agent of the express
company this was held a breaking of the car.8 és

§ 259. Breaking. Connivance or Consent.— But if the owner,
being apprised by his servant of a plan to rob the house, gives
his servant the keys, with instructions to carry out the plan,
and the servant and the prisoner go together into the house,
the servant unlocking the door, this is said to be no burglary,
as the act is by the owner’s consent ;® though if the owner,

Strupney, 105 Mass. 588. Compare P. v. Dupre, 98 Mich. 26, 56 N. W.
1046, M. 909.

1 McGrath v. S., 25 Neb. 780, 41 N. W. 780.

2 Timmons », S., 34 O. St. 426.

3 Rex v. Brice, R. & R. C. C. 450, M. 911; Walker v.8., 52 Ala. 376;
S. v. Willis, 7 Jones (N. C.), 199.

4 2 East P. C. 486; S. v. Rowe, 98 N. C. 629, 4S. E. 506.

5 2 East P. C. 486; Le Mott’s Case, Kel. 42, M. 913; S. v. Mordecai,
68 N.C. 207; S. v. Foster, 129 N. C. 704, 40 S. E. 209; Johnston v. C.,
85 Pa, 54.

6 Rex v. Farre, Kel. 48; S. v. Johnson, Ph. (N. C.) 186.

7 §. v. Henry, 9 Ived. (N. C.) 463. But see opinion of Ruffin, C. J.,
who dissented upon the point as to the necessity of immediate entry.
See also Breese v. S., 12 O. St. 146.

8 Nicholls v. 8., 68 Wis. 416, 32 N. W. 543.

9 Allen v. S., 40 Ala. 334. See also Reg. v. Hancock, C. C. R., 6 Reptr.
351.
246 CRIMINAL LAW. [Srcrs. 260, 261.

being so apprised, merely lies in wait for the purpose of de-
tecting the perpetrators, this is no consent, and they will be
guilty of the offence.}

§ 260. Dwelling-House.— The breaking must be of some
part of that actual enclosure which constitutes the dwelling-
house. The mere passage across that imaginary line with
which the law surrounds every man’s realty, and which con-
stitutes a sufficient breaking upon which to found the action
of trespass quare clausum fregit, is not sufficient. But where
part of a structure is occupied as a dwelling, it is burglary to
break into another part within the same walls and under the
same roof, as, for instance, a lower floor occupied by the same
person as a shop, though there is no internal connection be-
tween the two parts.?

§ 261. Breaking within the House.—The breaking of the
outer enclosure is not essential, if, after the entry through this,
the house or some parts of it be broken. Thus, the forcing of
the fastened outer shutters of a window would be a breaking;
if these happened to be open, then the forcing of the window
would be a breaking; and if both were open, and an entry
be effected through them, then a breaking open of an inner
door, a part of the house, would constitute the offence ;3 though
not the breaking open a chest, cupboard, clothes-press, or
other movable, not part of the honse* So if one guest at an
inn break and enter the room of another guest, it is burglary ;4
and so if done by a third person, and this whether the occu-
pant is a permanent dweller at the hotel ora transient.6 It
was formerly doubted whether an inn-keeper would be guilty

1 Rex v. Bigley, 1 C. & D. (Irish) C. C. 202; Thompson v. §., 18 Ind.
386. Compare also Alexander v. S.,12 Tex. 540, with Reg. x. Hancock,
ante. See ante, §§ 21, 22.

2 P. v. Griffin, 77 Mich. 585, 43 N. W. 1061; Hahn v. P., 60 Neb.
487, 83 N. W. 674; Quinn v. P., 71 N. Y. 561, M. 922. See post, § 264.

° S. v. Scripture, 42 N. H. 485; 8. v. Wilson, Coxe (N. J.), 439;
Rolland »v. C., 85 Pa. 66.

4 Ibid.

5S. v. Clark, 42 Vt. 629.

° Holland v. 8. (Tex.), 74S, W. 763; S. v. Burton, 27 Wash. 528, 67 P.
1097.
Sects. 262, 263.] BURGLARY. 247

of burglary by breaking and entering the room of his guest,
the doubt resting upon the question whether the room was
the guest’s for the time being! Under statutes making a
special or constructive ownership sufficient, the doubt can
hardly exist.?

§ 262, Breaking out.—It was early enacted,® to solve the
doubts which had theretofore prevailed, that the entry by day
or by night into a dwelling-house without breaking, with in-
tent to commit a felony, and the breaking out of the house,
should constitute the crime of burglary. And such, we be-
lieve, is the law in England to the present day. The indict-
ment should charge the breaking out; and if so charged, it
seems that in this country the prisoner may be convicted,
where the statute of Anne has been adopted as part of the
common law, or has been substantially followed by the statute
of the State,® but not’ otherwise. No case has been found of
a conviction under such an indictment; and it is at least
doubtful if it would now anywhere be held, unless under the
clearest evidence that the statute of Anne is obligatory, that
a breaking out to escape is a sufficient breaking to constitute
burglary.’

§ 263. Entry.—In order to constitute an entry, it is not
necessary that. the whole person should be within the house.
Thrusting in the hand or a stick, for the purpose of getting
possession of goods within, through an aperture broken for
‘the purpose, is an entry.® But the mere passage of the instru-
ment through in breaking, as an auger by which the break is
effected, or a bat by which the window is to be pried open,

1 2 Bish, New Cr. Law, § 106. Compare S. v. Moore, 12 N. H. 42, M.
918.

2 Post, § 265.

8 12 Anne, c. 1, § 7.

4 Steph. Dig. Cr. Law, art. 819; Rex v. McKearney, Jebb C. C. 99,
2 Lead. Cr. Cas. 62 and note.

5 §. v. McPherson, 70 N. C. 239.

6 White v, S., 51 Ga. 285.

7 Rolland ». C., 85 Pa. 66.

§ Rex v. Bailey, R. & R. 341; S. v. Boysen, 30 Wash. 338, 70 P.
740.
248 CRIMINAL LAW. [Secr. 264.

has been held not to be an entry ; 1 yet where the auger also
effects the entry, as where one bores through the floor of a
corn-crib and the corn runs down through the hole, that is a
sufficient entry.2 And the thrusting of the hand underneath
the window, to lift it, so that the fingers extend to the inside
of the window, has been held to be a sufficient entry.2 So the
sending in of a boy after breaking, the boy being an innocent
agent, to bring out the goods, is an entry by the burglar, who
all the while remains outside. The cases, in other words,
seem to establish this distin¢tion ; where the implement held
in the hands passes within the enclosure for the purpose of
breaking only,. there is no entry; but if the breaking is done
by the hand and that passes within the enclosure, even though
only as a part of the act of breaking, or if the implement
passes in for the purpose of committing the intended felony,
there is an euitry.6 And, upon principle, there seems to be no
doubt that one who shoots a ball or thrusts a sword through a
window with intent to kill, though he fail of. his purpose to
kill, is nevertheless guilty of breaking and entering.6 Simi-
larly, it is of course immaterial that the defendant found
nothing to steal, or was frightened away before he in fact
committed the intended substantive crime.” =
§ 264. Dwelling-house. Occupancy. — As in arson, the dwell-
ing-house comprehends all the buildings within the same curti-
lage or common fence, and used by the owner as part and
parcel thereof, though not contiguous; *® as, for instance, a

14 Bl. Com. 227; Rex v. Hughes, 1 Leach Cr. L. (4th ed.) 406; Rex
v. Rust, 1 Moo. C. C. 188.

2 Walker v. S., 63 Ala. 49; S. v. Crawford, 8 N. D. 539, 80 N. W.
193, M. 916.

5 Rex v. Davis, R. & R. C. C. 499, M. 914; Franco v. S., 42 Tex. 276;
Nash v. S., 20 Tex. App. 384.

4 1 Hale P. C. 555.

5 See in addition to the cases cited above Reg. v. O’Brien, 4 Cox C. C.
400, M. 915; compare S. v. McCall, 4 Ala. 648.

8 Ante, §§ 183, 184a.

7 Ragland v. &., 71 Ark. 65, 70S. W. 1039; Lanier v. 8.,76 Ga. 304;
S. v. McDaniel, 60 N. C. 245; S. v. Beal, 87 O. St. 108.

8 Ante, § 261.
Sect. 264.] BURGLARY. 249

smokehouse, the front part and doors of which were in the
yard of the dwelling-house, though the rear, into which the
break and entry were made, was not.? And it has been held in
this country that it is sufficient if the building entered be sit-
uated in proximity to the dwelling and in fact used in connec-
tion therewith for domestic purposes.? It must be a place of
actual residence or habitation, though it is not essential that
any one should be within at the very time of the offence. If
the occupants are away temporarily, but with the design of
returning, and it is the house where they may be said to live,
—their actual residence, — this constitutes it their dwelling-:
house.2 But if the occupation is otherwise than as a place of
residence, as for storage, or even casually for lodgings, or if
persons not of the family nor in the general service of the
owner sleep, but do not otherwise live there, and for the pur-
pose of protection only, it is not a dwelling-house in the sense
of the law. Nor is a temporary booth or tent erected at a
fair or market such a dwelling-house.* If, however, the house
be habitually occupied in part as a storehouse and in part as
the lodging place of the servants and clerks of the owner, it is
his dwelling-house6 And if it be habitually slept in by one of
the family, or one in the service of the owner, even if slept in
for the purpose of protection, it has been held to be a dwelling-
house within the sense of the law;® and by the same court,
that if the person so sleeping in the store for its protection be
not a member of the family, or in the service of the same, he

is but a watchman, and the store cannot be said to be the
dwelling-house of the owner.’

1 Fisher v. S.,48 Ala. 17; P. v. Griffith, 183 Mich. 607, 95 N. W. 719.

2S. v. Bugg, 66 Kan. 668,72 P. 236; contra: Rex v, Garland, 1 Leach
(4th ed.), 144, M. 920.

3 8. v. Weber, 156 Mo. 257, 56 S. W. 893; Alvia v. S., 42 Tex. Cr. BR.
424, 60S. W. 551.

4S. v. Jenkins, 5 Jones (N. C.), 480; C. v. Brown, 3 Rawle (Pa.), 207;
Armour v. S., 8 Humph. (Tenn.) 379; 8 Greenl. Ev. » §§ 79, 80.

5 Ex parte Vincent, 26 Ala. 145.

8 S. v. Outlaw, 72 N. C. 598; S. v, Williams, 90 N. C. 724.

7S. v. Potts, 75 N. C. 129; 20 Rex v. Harris, 2 Leach (4th ed.), 701,
M. 921.
250 CRIMINAL LAW. [SEcts. 265, 266.

§ 265. Dwelling-house. Ownership. — There may be many
dwelling-houses under the same roof; as where separate apart-
ments are rented to divers occupants, who have exclusive
control of their several apartments! If, however, the general
owner also occupies, by himself or his servant, the building in
part, exercising a supervision over it, and letting it to lodgers
or to guests, the house must be treated as his, unless, as in
some States is the case, a special or constructive ownership is
made by statute sufficient evidence of ownership.” But this
is rather a question of procedure, not pertaining to the defini-
tion of the crime?

A church being, as Coke says, the mansion-house of the
Almighty, is by the common law a dwelling-house, within
the meaning of the definition of burglary.* So also, under the
old law, was a walled town.5

§ 266. Time. — The time of both breaking and entering must
be in the night, and this, at common law, was usually held to
be the period during which the face of a person cannot be dis-
cerned by the light of the sun; though some authorities fixed
the limits more exactly as the period between sunset and sun-
rise.§ Now, by statute,’ in England, night begins at nine and
ends at six. In Massachusetts, the meaning of “ night-time”
in criminal prosecutions is defined to be from one hour after
sunset to one hour before sunrise ;8 and doubtless other States
have fixed the limit by statute. It may happen that the acts
culminating in the commission of the intended felony extend
through several days and nights, as where one is engaged day
and night in working his way through a substantial partition
wall. If the actual perforation be made during one night, and
the entry on the same or a subsequent night, the offence is

1 Mason »v. P., 26 N. Y. 200.

2 3 Greenl. Ev., §§ 57, 81; S. v. Outlaw, ante.

8 See also Arson, ante, § 253.

4 8d Inst. 64; Reg. v. Baker, 8 Cox C. C. 581.

5 4 Bl. Com. 224.

6 1 Hawk. P.C. (8th ed.) 180, § 2; S. v. Bancroft, 10 N. H. 105.
77 Wm. IV, & 1 Vict. c. 86, § 4.

8 C. v, Williams, 2 Cush. (Mass.) 582.
Sxcrs. 267, 268.] BURGLARY. 251

complete, both being in pursuance of, the same design.) In
some States, by statute, the question of time becomes immatcrial.

§ 267. Intent.— As the breaking and entry must be with
intent to commit a felony, the tent to commit a misdemeanor
only would not be sufficient to constitute the crime. Thus, a
breaking and entry with intent to commit adultery would or
would not. constitute the offence, according as adultery might
be a felony, misdemeanor, or, as in some States it is, no crime
at all;? and if the intent be to cut off the owner’s ears, this is
not a burglary, since the cutting off an ear does not amount to
felony, — mayhem, — at common law.® So if the person who
breaks is so intoxicated as to be incapable of entertaining any
intent.

§ 268. Statutory Breakings.— The crime of burglary has
been much extended by statute. Thus breaking and entering
in the day-time has been made criminal; and so has larceny
from a dwelling-house, though there has been no breaking.
Other buildings have been given protection, and in most ju-
risdictions it is made a crime to break and enter any building
for the purpose of committing felony therein.® An unfinished
building, which is, however, used for storing tools, is a build-
ing within such a statute,® and it is a sufficient breaking to
cut through canvas screens placed in the windows.’ But a
tomb is not a building within the meaning of such a statute.8
A building may be within the statutory definition, though of
a sort unknown when the statute was passed. Thus a rail-
road station is a warehouse, within the meaning of a statute
passed before the time of railroads.

1 Rex v. Smith, R. & R. 417; C. v. Glover, 111 Mass. 395.
2S. v. Cooper, 16 Vt. 551.

8 C. v. Newell, 7 Mass. 245, C. 482.

4S. v. Bell, 29 Ia. 816.

5 Compare P. v. Richards, 108 N. Y. 137, 15 N. E. 871, C. 474.
® Clark v. S., 69 Wis. 203, 33 N. W. 436.

7 Grimes v. 8. -, 77 Ga. 762; compare S. v. Petit, 32 Wash. 129, 72 P.
1021.

8 P. v. Richards, ante.
® S. v, Bishop, 51 Vt. 287. *
252 . CRIMINAL LAW. [Sxcr. 269.

CHAPTER VIII.

OFFENCES AGAINST PROPERTY.

§ 270. Larceny. § 321. Malicious Mischief.
298. Embezzlement. 324. Receiving Stolen Goods,
305. False Pretences. 329. Forgery.
318, Cheating. 336. Counterfeiting.

§ 269. The common law, as has been seen,! did not regard
every interference with the property of another as criminal.
In business transactions each person was left to protect him-
self. It was, to be sure, a crime to cheat by the use of false
tokens, such as would deceive the most careful ;. but ordinary
cheating by lies was not criminal. The only crime against
property of any importance was larceny; and this concerned
not the title, but the possession, of personal property.

In the progress of society and trade other similar offences
became of public concern; and statutes were’ accordingly
passed extending the crime of larceny in all directions.

Thus it was made criminal to obtain the title of property
by false pretences; or to embezzle property already in the
offender’s possession. Malicious injury to property, without
disturbing the possession, was made punishable; and, finally,
certain injuries to real property were punished as similar
injuries to personal property had been. Further, protection
was afforded by punishing one who received stolen goods
knowingly. - A

Besides larceny, there was an important common law crime
which affected property. This was forgery, which, together
with its special form of counterfeiting, was a common and
important crime in the Middle Ages.

1 Ante, § 17.
Sects. 270, 271.] LARCENY. 2538

LARCENY.

§ 270. Larceny is commonly defined to be the felonious
taking and carrying away of the personal goods of another.
Notwithstanding the frequency of the offence, neither law
writers nor judges are entirely agreed on its exact definition,
and, as in case of “assault,” it is still a matter of debate?
It seems to be agreed, however, that the definition given above
is accurate, so far as it goes.

Formerly, larceny was either petit, that is, larceny of prop-
erty the value of which did not exceed the sum of twelve pence;
or grand, that is, larceny of property the value of which
exceeded that sum; a distinction which was of consequence
only as determining the degree of punishment, grand larceny
being punishable with death, while petit larceny was only
punishable by fine and imprisonment. Now, however, as no
larceny is punishable with death, the distinction is practically
done away with. Still, the value of the property at the present
day determines, to some extent, the degree of punishment to
be inflicted for the commission of the offence, and also the
jurisdiction of the tribunal which is to take cognizance, and
hence continues to be a matter material to be stated’in the
indictment.

Larceny is also simple, or plain theft, without any circum-
stances of aggravation; or compound, usually termed aggra-
vated larceny, or larceny accompanied by circumstances which
tend to increase the heinousness of the offence, as larceny
from the person or larceny from the house, taking property
from under the protection of the person or house being justly
considered as indicating a greater degree of depravity in the
thief than the taking of the same articles when not under
such protection.

§ 271. Personal Goods. — Such property only is the subject
of larceny at common law as is properly described as “ goods
and chattels.” As soon as property is reduced into the form
of a chattel, and so long as it retains that form, it may be

1 4 Bl. Com. 229.
2 2 Bish. New Cr. Law, § 758, and note.
254 CRIMINAL LAW. [Secr. 271.

stolen. Thus the milking a cow and the plucking of wool
from a sheep are larcenies of the milk and wool. So turpen-
tine which has been collected from a tree,? illuminating gas
drawn from a pipe through which it is transmitted,’ or water
in the same condition,* ice collected in an ice-house,> a key in
the lock of a door,’ a coffin,’ and the grave-clothes in which
a, person is buried,’ are all subjects of larceny; but not a dead
body,® for it is not property. The dead body of a domestic.
animal may, however, be stolen. In short, all goods and
chattels reduced to possession and not abandoned, — such as
can be said to be the present property of some owner at the
time of the taking,— may be subject matters of larceny.
There can be no larceny of abandoned property. , Property is
abandoned, however, only if there is an intent so to do on the
part of the owner. A mere determination that no use shall
be made of the property is not an abandonment of it!8 And
the mere fact that property has been left untouched by the
‘owner for many years does not, in itself, constitute an aban-
donment thereof. ;

Upon the ground of non-reduction to possession, sca-weed
found floating on the shore between high and low water mark

1 Rex v. Pitman, 2 C. & P. 423.

2S. v. Moore, 11 Ired. (N. C.) 70.

8 Reg. v. White, 6 Cox C. C. 213; C. v. Shaw, 4 All. (Mass.) 308;
8. v. Wellman, 34 Minn. 221, 25 N. W. 395; Hutchison v. C., 82 Pa,

4 Ferens v. O’Brien, 11 Q. B. D. 21, C. 238.
Ward wv. P., 3 Hill (N. Y.), 395.
Hoskins v. Tarrence, 5 Blackf. (Ind.) 417, C. 240, K. 239, M. 6492.
S. v. Doepke, 68 Mo. 208.
Hayne’s Case, 12 Coke 113, M. 662; Wonson v. Sayward, 13 Pick.
(Mass.) 402.

9 2 Kast P. C. 652.

10 Reg. v. Edwards, 18 Cox C. C. 384, C. 239, K. 247, M. 652.

4 Thid.; McGoon v. Aukey, 11 Il. 558; U.S. v. Smiley, 6 Sawy. 640,
Fed. Cas. No. 16,317.

12 Hayne’s Case, ante; P. v. Campbell, Add. (Pa.) 232, M. 685.

18 Reg. v. Edwards, ante.

4 Livermore v. White, 74 Me, 452 (forty-three years) ; Sikes v. S. (Tex.),
28 S. W. 688 (nine years).

6
6
7
8
Szct. 272,] LARCENY. 255

cannot be claimed as belonging to the owner of the fee
between high and low water mark, and it is no larceny to
take it.t

§ 272. Instruments in Writing.— When a paper contains
writing which is of itself valuable, as, for instance, a promis-
sory note, bond, mortgage, policy of insurance, or other chose
in action or muniment of title, the character of chattel which
the paper formerly had is merged in its far more important
character of written obligation, and it is held to be no longer
a chattel. Written obligations are therefore not subjects of
larceny at the common law.?

A written instrument which does not contain an operative
obligation still remains mere written paper, and is therefore a
chattel and the subject of larceny.2 Such is a written obliga-
tion which has been performed, like a cancelled check,‘ or a
deed not yet delivered. But a written contract, although not
stamped as required by statute, is not larcenable.®

In the absence of statutes, the courts of this country have
been inclined to follow the common law. But statutes here,
as also indeed in England, have generally interposed, and
made not only goods and chattels, as by the common law, but
also choses in action and muniments of title, whether they
savored of realty or not, and in fact. almost everything which
constitutes personalty in contradistinction to the realty, sub-
ject matters of larceny.’ Indeed, in many if not most of the

1 Reg. v. Clinton, Ir. Rep. 4 C. L. 6. See also C. v. Sampson, 97
Mass. 407.

2 Calye’s Case, 8 Co. 33a; Reg. v. Powell, 5 Cox C. C. 396, C. 244;
Reg. v. Green, 6 Cox C. C. 296; Payne v. P., 6 Johns. (N. Y.) 103; S.
v. Wilson, 3 Brev. (S. C.) 196; U.S. v. Davis, 5 Mason (C. Ct.), 356,
Fed. Cas. No. 14,930. ;

3 Rex v. Walker, 1 Moo. C. C. 155, C. 246; Reg. ». Perry, 1C. & K.
725, K. 245.

4 Reg. v. Watts, 4 Cox C. C. 336.

5 P. v. Stevens, 88 Hun (N. Y.), 62.

6 Reg. x. Watts, 6 Cox C. C. 304, M. 647.

7 S. v. Stewart, 1 Marv. (Del.) 542, 41 Atl. 188 (trading order); C. ».
Lawless, 103 Mass. 425 (certificate of discharge) ; S. v. Scanlan, 89 Minn.
244, 94 N. W. 686. (voucher); S. v. Morgan, 109 Tenn. 157, 69 S. W.
256 CRIMINAL LAW. [Secrs. 273, 274.

States the felonious taking of parts of the realty may be in-
dicted as larceny.

The fact that the property is illegally held or can be used
only illegally does not make it any the less a subject of
larceny.1

§ 278. No Larceny of Real Estate. — At common law there
could be no larceny of the realty, or any part of it not de-
tached. Only chattels could be the subject of larceny, and
these, with few limitations, might be. Deeds of real estate
were regarded as so “savoring of the realty” as not to be
subjects of larceny.?

Manure was not larcenable if spread on the earth as ferti-
lizer; if not thus incorporated with the realty it could be
stolen?

§ 274. Wild Animals, in a state of nature, are not subjects
of larceny; but when such of them as are fit for food, or for
producing property, have been reclaimed, or brought into
control and custody, so that they can fairly be said to be in
possession, they then become property, and may be stolen.
Bees,! pea-fowl,® doves,® oysters,’ when reduced to possession,
belong to this category. And so, doubtless, would fish be, if
caught and kept in an artificial pond,® as they certainly are if
captured for food or for oil.® But they must be actually re-
duced to possession. If ‘they are only partially enclosed so
that they can still escape, even though escape is unlikely, they

970 (county warrant); Jolly v. U. S.,170 U. S. 402, 18 8S. C. R. 624
(postage stamps); Bishop Stat. Crim., 4th ed., §§ 325, and following.

1 Ante, § 25.

21 Hawk. P. C. 1425 Rex v. Wody, Y. B. 10 Ed. IV, 14 pl. 9, 10;
Rex v. Westbeer, 1 Leach C. C. (3d ed.) 14, C. 242, M. 640.

8 Carver v. Pierce, Style 66, K. 288, M. 639. See Ball v. White, 39
O. St. 650.

4 §. v. Murphy, 8 Blackf. ae ) 498.

5 Anon., Y. B. 19 H. VIII, 2, pl. 11, K. 250; C. v. Beaman, 8 Gray
(Mass.), 497.

6 Rex v. Brooks, 4 C. & P. 181; C. v. Chace, 9 Pick. (Mass.) 15.

7 §. v. Taylor, 3 Dutch. (N. J.) 117.

8 Rex v. Hundson, 2 East P. C. 611.

® Taber v. Jenny, 1 Sprague (C. Ct.), 315, Fed. Cas. No. 13,720.
Sect. 275.]_ LARCENY. 257

are not subjects of larceny.! So if wild animals fit for food
are shot, and thus reduced to possession, they become subjects
of larceny ;? but chasing, without capture, gives no right of
property.2 And where young partridges are reared from eggs
under a hen, they are subjects of larceny so long as they con-
tinue reclaimed.t

But dogs, cats, foxes, bears, and the like, fere nature, were
not by the common law, and are not in this country, subjects
of larceny, unless by some statute they are made so, or unless
by the bestowal of care, labor, and expense upon them, or
some part of them, they have by that treatment acquired value
as property, as by being stuffed or skinned.6 And it has been
generally held that, though they may by statute become prop-
erty and subjects of a civil action, and liable to taxation, they
are not subjects of larceny.7 Otherwise in New York,® where
it is held that, under a statute punishing the stealing of the
“personal property” of another, the larceny of a dog is
punishable.

§ 275. Conversion into Chattels by Severance from Realty or
by Killing. —If portions of the realty become detached, not
by natural causes, as blinds from a house,’ or a nugget of gold

1 Young v. Hitchins, 6 Q. B. 606; Sollers v. Sollers, 77 Md. 148, 26
Atl. 188. Compare S. v. Shaw, 67 O. St. 157, 65 N. E. 875.

2 Reg. v. Townley, 12 Cox. C. C. 59.

8 Buster v. Newkirk, 20 Johns. (N. Y.) 75.

* Reg. v. Shickle, L. R. 1 C. C. 158, C. 251, K. 251.

5 2 BL Com. 193; Rex v. Searing, R. & R. 350, C. 248, K. 244, Me
639; Ward v. 8., 48 Ala. 161; Norton v. Ladd, 5 N. H. 208.

® Reg. v. Cheafor, — Cox C. C. 867; Reg. v. Gallears, 1 Den. C. C.
501; S.v. House, 65 N. C. 315.

T Norton v. Ladd, ante ; Warren v. S., 1 Greene (Ia.), 106; S. v, Holder,
81 N. C. 527; S. v. Lymus, 26 O. St. 400.

8 P. vy. Maloney, 1 Parker C. C. 503; P. v. Campbell, 4 Parker C. C.
386; Mullaly v. P., 86 N.Y. 365, C. 248; accord, Hamby v. Sampson,
105 Ia. 112, 74 N. W. 918; Rockwell v. Judge, 183 Mich. 11, 94 N. W.
378; S. v. Langford, 55 S. C. 322, 33 8. E. 370; S.v. Brown, 9 Baxt.
(Tenn.) 53; Hurley v. 8., 30 Tex. App. 333,17 S. W. 455. See also
Haywood v. S., 41 Ark. 479, M. 644; 8. v. Butler, 2 Penne. (Del.) 127,
43 Atl. 480.

® Reg. v. Wortley, 1 Den. C. C. 162.

17
258 CRIMINAL LAW. [Szor. 275.

from the vein,! they may become the subject of larceny, unless
the detachment or severance be part and parcel of the act of
taking,? in which case the taking is but a trespass, — “a sub-
tlety in the legal notions of our ancestors.” 3

It was formerly held that a day must elapse between the
severance and the taking in order to constitute larceny ; but
it is now more reasonably laid down that the lapse of time be-
tween the act of severance and the act of taking need be only
so long as is necessary to make the two acts appreciably dis-
tinct, and the latter successive to the former.*

A difficult question, however, remains; namely, what is
necessary in order to make the acts of severance and taking
distinct. ‘The mere fact that there are physically two acts is
not enough. There must be something which will give an-in-
tervening possession to the owner of the soil; otherwise, there
is no taking out of the owner’s possession, for he has had no
possession of the chattel as an article of personal property prior
to its severance from the realty. If the owner, or a servant
for him, takes possession of the goods after severance, any
subsequent taking is no doubt larceny. If there is mere lapse
of time, it must, in order to justify conviction, be long enough
fcv the jury to find that possession has vested in the owner.
*-v doubt, such lapse of time as would indicate an abandonment
by the wrong doer of his intention to take the chattels would
be enough ; and if the chattels were so left on the owner’s land
that the wrong doer lost the power of control of them, the pos-
session would rest in the owner, and a subsequent taking
would be larceny. But where the possession of the wrong doer
is continuous from the time of severance to the time of taking
there is no larceny.5

1S. v. Berryman, 8 Nev. 262, 1 Green’s Cr. Law Rep. 335, and note;
S. v. Burt, 64 N. C. 619.

2 Reg. v. Townley, L. R. 1 C, C. 315, 12 Cox C. C. 59, C. 256, K. 255,
M. 654; 8. v. Hall, 5 Harr. (Del.) 492.

3 4 Bl. Com. 232. See P. v. Williams, 35 Cal. 671, C. 253.

4 P. v. Williams, ante; S.v. Berryman, ante; S. v. King, 98 N. C. 648,
48. E. 44; Jackson v. S., 11 O. St. 104; Bell v. S., 4 Baxt. (Tenn.) 426.

5 Reg. v. Foley, 26 L. R. (Ir.) 299, 17 Cox C. C. 142, K. 241. See
especially the dissenting opinion of Palles, C. B.
Srors. 276, 277.] LARCENY. 259

This distinction has not, however, always been kept in mind
by the courts; and the rule hag sometimes been laid down as
if it were a question of simply the physical acts.

The same principles apply where wild animals are reduced
into possessiun by a trespasser. The property in such animals
vests in the owner of the soil,? but the trespasser who takes
them is not guilty of larceny unless the possession vested in
‘the owner before the taking. If the trespasser conceals thie
animals on the land for a short time before removing thein,
he is not guilty of larceny when he takes them away.®

§ 276. Value.— The goods must be of some value, else they
cannot have the quality of property. The common law held
bills, notes, bonds, and choses in action generally, as of no in-
trinsic value, and therefore not subjects of larceny. Now, by
statute, most of the old limitations and restrictions are done
away with.. Many articles savoring of the realty, and most if
not all choses in action, are made subjects of larceny. The
value may be very trifling,’ yet no doubt must be appreciable
though perhaps not necessarily equal to the value of the small-
est current coin.’ It has been held, however, in Tennessec,
that the value of a drink of whiskey is too small to lay the
foundation for a complaint for obtaining goods by false pre-
tences, upon the ground that the severity of the penalty shov
that the legislature could not have intended that the statute
should apply to so trivial an act

§ 277. Taking and Carrying away.— The taking and carry-
ing away which constitute larceny must be the actual caption

1 C. v. Steimling, 156 Pa. 400, 27 Atl. 297, M 659; Bradford v. S., 6
Lea (Tenn.), 634; Jackson v. S., ante. In Texas the rule of the common
law is not in force, Alvia v. S., 42 Tex. Cr. R. 424, 60 S. W. 551; so in
Wisconsin by statute, Golonbieski v. S., 101 Wis. 333, 77 N. W. 189.

2 Blades v. Higgs, 11 H. L. C. 621.

® Reg. v. Townley, L. R. 1 C. C. 815, 12 Cox C. C. 59, C. 256, K. 255,
M. 654; Reg. v. Petch, 14 Cox C. C. 116, C. 260.

44 Bl. Com. 234; ante, § 272. a

5 P. v. Wiley, 3 Hill (N. Y.), 194.

6 Payne v. P., 6 Johns. (N. Y.) 103.

7 Reg. v. Bingley, 5 C. & P. 602.

8 Chapman v. S., 2 Head (Tenn.), 36.
260 CRIMINAL LAW. [Sucr. 277.

of the property by the thief into his possession and control, and
its removal from the place where it was at the time of the cap-
tion. The possession, however, need be but for an instant,
and the removal need extend no further than a mere change
of place. Thus, if a horse be taken in one part of a field and
led to another, the taking and carrying away are complete; or
if the goods be removed from one part of a house, store, or
wagon to another,! or if money in a drawer or in the pocket of
a person be actually lifted in the hand of the thief from its
place in the drawer or pocket, though not withdrawn from the
drawer or pocket, and though dropped or returned on discov-
ery to the place from which it was lifted or taken, after a
merely temporary possession, however brief,? the larceny is
complete. So where the defendant snatched A’s chain from
the buttonhole where it was fastened and it caught on a lower
button there was a sufficient possession by the defendant to
constitute larceny.? The lifting of a bag from its place would -
be a larceny,* while the raising it up and setting it on end,
preparatory to taking it away, would not.®

But if the property is not, at least for a moment, in the
entire control of the taker, there is no Jarceny. Thus where
the defendant compels A to lay down his bundle, but is
frightened away before he can scize it, or simply knocks
money from A’s hand,’ or attempts to steal an overcoat on a
dummy secured by a chain, and is arrested beforé he can
break the chain,’ there is no larceny. So where he attempts

15. v. Gazell, 30 Mo. 92; 8. v. Taylor, 186 Mo. 66, 37 S. W. 907;
Johnson v. P., 4 Denio (N. Y.), 361; S. v. Craige, 89 N. C. 475.

2 Rex v. Thompson, 1 Moo. C. C. 78, K. 221, M. 674; C. v. Luckis, 99
Mass. 481; Harrison v. P., 50 N. Y. 518; Eckels v. S., 20 O. St. 508;
S. v. Chambers, 22 W. Va. 779.

8 Rex v. Lapier, 2 East P. C. 557, K. 222; Reg. v. Simpson, 1 Dears,
C. C. 421, M. 675. |

4 Rex v. Walsh, 1 Moo. C. C. 14, C. 380, K. 220.

5 Cherry’s Case, 2 East P. C. 556, K. 218, M. 673; S. v. Jones, 65
N. C. 398.

® Rex v. Farral, 2 East P. C. 557.

7 Thompson »v. S., 94 Ala. 535, 10 So. 520.

5 P. v. Meyer, 75 Cal. 383, 17 P. 431; accord: Anon., 2 East P. C.
556; Wilkinson’s Case, ibid,
Secr. 277.] LARCENY. 261

to unscrew a shirt stud and is arrested before he has detached
it;} or simply touches the money in a person’s pocket.”

Similarly, if the defendant although having taken posses-
sion of the goods, has not moved them, there is lacking the
asportation necessary to constitute larceny. Thus where
A kills an animal and partly skins it, thereby taking pos-
session of it, but does not move it, he is not guilty of larceny.
So where A points out a horse in B’s yard as his, and pur-
ports to sell it to C, but is detected before C takes'it away.*
If C in good faith drives away the animal it is, of course,
larceny by A.®

Taking ordinarily implies a certain degree of force, such as
may be necessary to remove or take into possession the
articles stolen ; but the enticement or tolling away of a horse
or other animal by the offer of food is doubtless as much a
larcenous taking as the actual leading of it away by a rope
attached.§ So taking porter by making a hole in the barrel
through which the liquor runs out by gravity,’ or taking
goods from an automatic slot machine by dropping into it a
brass disk is larceny.2 So taking by stratagem, or through
the agency of an innocent party, or by a resort to and use
of legal proceedings, whereby, under forms of law, possession
is got by a person, with the intent of stealing, is a sufficient

1 Rodriquez v. S. (Tex.), 71S. W. 596.

2 Tarrango v. S., 44 Tex. Cr. R. 385, 71 S. W. 597. Compare with
the above, C. v. Barry, 125 Mass. 390.

_ 3 Molton v. S., 105 Ala. 18, 16 So. 795; S. v. Alexander, 74 N. C. 232,
M. 681. But the slightest moving will suffice: Kemp v. S., 89 Ala. 52,
7 So. 413; Lundy v. 8., 60 Ga. 143; S. v. Gilbert, 68 Vt. 185, 34 Atl.
697.

4 Long v. S., 44 Fla. 134, 32 So. 870; Hardeman v. §., 12 Tex. App.
207; Tokinsota, S., 34 Tex. Cr. R. 254, 30 S. W. 228.

5 §. v. Hunt, 45 Ia. 673; Cummins v. C., 5 Ky. L. Rep. 200, M.
682; Walls v. S., 43 Tex. Gr. R. 70, 63 S. W. 328. Compare Reg. v.
Jones, 1 C. & M. 611, M. 764; Rex v. Pitman, 2 C. & P. 423, K. 213.

6 S. v. Wisdom, 8 Porter (Ala.), 511; Edmonds v. §., 70 Ala. 8; S.v
Whyte, 2 N. & McC. (S. C.) 174.

7 Reg. v. Wallis, 3 Cox C. C. 67, M. 678; ante, § 263.

8 Reg. v. Hands, 16 Cox C. C. 188, C. 383.
262 CRIMINAL LAW. [Sxcr. 277a,

taking to make the act larcenous.!' In such cases the fraud
is said to supply the place of force. So it is larcency to take
gas by tapping a gaspipe and allowing the gas to flow to one’s .
burner without passing through the meter.? ~

The taking and carrying away must be without the oneeut "
of the owner. Where the owner does not, either personally
or by his agent, transfer possession to the defendant but
authorizes the latter to take possession for certain purposes
or upon complying with certain conditions, if the defendant
takes possession otherwise than in accordance with this
qualified consent, it is larceny. Thus the slot machine case
where consent to the taking of possession is conditioned on
the dropping in of a legal coin; so where the defendant as a
cotton sampler was authorized to take sufficient cotton for
a sample; the taking of more than was necessary for that™
purpose was larceny. So where A puts a box of matches on
the counter to be used for lighting pipes and B takes the
whole box.

§ 27Ta, Larceny by Trick. It is now well established that
if the consent of the owner to part with the possession is
secured by the fraud or deceit of the defendant, the taking,
if done animo furandi, will amount to larceny. Thus where
the defendant induces the prosecutor to entrust him with
funds for the prosecutor’s relatives ;° so where a person by
a trick gets himself appointed agent, which gives him posses-
sion of the goods, a misdealing with them animo furandi
constitutes larceny.6 So where defendant gets possession of
a deed for a pretended temporary purpose and then records

1 Rex v. Summers, 3 Salk. 194; Reg. v. Solomons, 17 Cox C. C. 93;
C. v. Barry, 125 Mass. 390.
= Reg. v. Firth, L. R. 1 C. C. 172; Reg. », White, 6 Cox C. C. 213,
\C. 381, M. 679; C. v. Shaw, 4 All. (Mass.) 308. ;

3S. v. MacRae, 111 N. C. 665, 16 S. E. 178.

* Mitchum v. S., 45 Ala. 29, M. 711. See also Washington »v. S., 106
Ala. 58, 17 So. 546; S. v. Meldrum, 41 Or. 380, 70 P. 526; ee vw S&S,
9 Tex. App. 70. Compare Carrier’s Case Y. B. 18 Ed. IV, 9, pl. 5, C.
296, K. 223, M. 734, opinion of Laicon, J.

5 Macino v. P., 12 Hun (N. Y.), 127.

® Case v. S., 26 Ala. 17.
Srcr. 278.] LARCENY. 263

it; this is larceny.!. So where defendant by falsely pretending
to be the person for whom a letter is sent induces the post-
master to deliver it to a third person at his order.?

Tt has also been said that where the bailee takes the prop-
erty animo furandi the offence of larceny is complete? If
the bailee has by word or act fraudulently induced the delivery,
the case is clear; if, however, he does nothing to deceive, it
would seem difficult to bring the case within the ordinary
principles of larceny. So where the defendant took a watch
from the owner who allowed him to do so under the belief
that he would keep it for him this was held no larceny.*
Ordinarily, however, the facts show that the consent of the
owner to the delivery of possession was due, either directly or
indirectly, to the deceit of the defendant, or that there was no
consent at all.

§ 278. Obtaining of Title. —The law holds, somewhat in-
consistently, that if possession only be obtained by fraud the

1S. v. Hall, 85 Mo. 669.

. ? Reg. v. Kay, 7 Cox C. C. 289, M. 690. For other instances of
larceny by trick see Rex v. Semple, 1 Leach, 4th ed. 420, M. 742; Rex v.
Hench, R. & R. 163, K. 264; Verberg v. S., 187 Ala. 73, 34 So. 848; P.
v. Campbell, 127 Cal. 278, 59 P. 593; Finkelstein v. S., 105 Ga. 617, 31
8. E. 589; Bergman v. P., 177 Ill. 244, 52 N. E. 363; Crum v. S., 148
Ind. 401, 47 N. E. 833; P. v. Woodruff, 47 Kan. 151, 27 P. 842; C. v
Flynn, 167 Mipes 460, 45 N. E. 924; S. v. Lindenthal, 5 Rich. Law (S. C.),
237. /

A fortiori it is larceny where the possession is taken by a combination
of fraud and force at once deceiving and overpowering the owner, Reg.
v. McGrath, L. R. 1 C. C. R. 205, 11 Cox C. C. 347, K. 262, M. 792.

And semble it is larceny if consent is fraudulently procured to any one
of the elements of the crime. Thus where the defendant, animo furandi,
took possession of a hog but the asportation was with the consent of the
owner, the fact that the consent was procured by fraud Tae the crime
larceny, Frazier v. S., 85 Ala. 17, 4 So. 691.

8S. v. Thurston, 2 McMull. (S. C.) 382. See also Reg. v. Evans, C.
& M. 632, M. 7382; Reg. v. Hey, 2C. & K. 983; Rex v. Stock, 1 Moo.
C. C. 87 ; Johnson vr. P., 113 1. 99.

4 Reg. v. Reeves, 5 Jurist (N. S.), 716, M. 708,

5 Shafer v. S. (Ala.), 8 So. 670; Fitzgerald v. §., 118 Ga. 855, 45 S. E.
666; S. v. Fisher, 106 Ia. 658, 77 N. W. 456 ; Harris vu. S. (Tex.), 65
S. W. 921.
264 ‘ CRIMINAL LAW. [Secr. 278.

offence is laiceny, but if possession and a title to the property
be obtained by fraud, it is not, as the fraud nullifies the con-
‘gent to the taking, but not the consent that the title should
pass! And this inconsistency arises out of the doctrine gen-
erally received that trespass is a necessary ingredient in lar-
ceny, and while a man may be a trespasser who holds goods!
by a possession fraudulently obtained, he cannot be a trespasser
by holding goods by a title fraudulently obtained? The con-
sent of the owner, procured by fraud, that he shall have title,
takes the case out of the category of larceny. But if by the
same fraud the possession and title to goods are obtained from
a servant, agent, or bailee of the owner, who has no right to
give either possession or title, as where a watch repairer de-
livers the watch to a person who personates the owner, it is
larceny.’ Itis difficult to see, except upon the technical ground
above stated, why a title procured by fraud is any more by
consent of the owner than a possession so procured. The
distinction is a source of confusion, not to say a ground of
reproach.

It follows, therefore, that in case of larceny by trick, the
question is whether or not the owner intended to pass title ; 4
if he did so intend, the offence is obtaining by false pretences ;
if he intended to pass only possession. the offence is larceny.
The following cases will illustrate the distinction. A, while
in B’s company, pretends to find a valuable object; he admits
B’s right to share therein and proposes: to sell B his (A's)
share; B agrees and pays A for his interest in what turns
out to be a worthless article ; this is obtaining money by false
pretences as A intended to part with the title to his money, as
well as the possession thereof;® so where A by pretending
to put 3 shillings into a purse induces B to pay him 1 shilling

1 Reg. v. Prince, L. R. 1 C. C. 150, 11 Cox C. C. 193, C. 270.

2 See 2 Bish. New Cr. Law, §§ 808-812.

3 Tbid.; C. v. Collins, 12 All. (Mass.) 181; S. v. Koplan, 167 Mo. 298,
66 S. W. 967; Hite v. S., 9 Yerg. (Tenn.) 198.

* Reg. v. Bunce, 1 F. & F. 523, C. 314; Reg. v. Buckmaster, 16 Cox
C. C. 339, C. 316; Reg. v. Middleton, L. R. 2 C. C. 88, K. 266, M. 794.

5 Reg. v. Wilson, 8 C. & P. 111, K. 348, M. 779.
Sect. 278.] LARCENY. 269
therefor ;! so where A, pretending to put money in B’s till,
deceives B into giving him a larger amount of money than is
really due him;? so where A by falsely pretending to B that
he can dispose of goods for him, induces B to ship the goods
to him and send him the bill of lading therefor ;? so where
the defendant, by falsely pretending to be ill, induces A to
give him money to buy medicine.* On the other hand, where
in the case of pretended finding of a valuable object, the
trickster left it with the victim and received from him certain
coins as a pledge for the safe keeping of the find till the next
day, this was larceny by trick, since the prosecutor did not
intend to part with his property in the coins, but only the
temporary possession ;° so where the defendant induces A to
deliver to him certain property, giving therefor worthless
notes, or promising to pay therefor at a given time; this is
larceny by trick where the contract provides that title shall
remain in A till the payment is actually made ;® so where,
although there was no express contract, the jury find that it
was in fact the intention of the owner not to part with the
title until he had received payment.’

1 Reg. v. Solomons, 17 Cox C. C. 93.

2 Reg. v, Williams, 7 Cox C. C, 855, M. 786.

8 Zink v. P., 77 N. Y. 114.

* Collins v. S., 15 Lea (Tenn.), 68. Compare Pease v. 8., 94 Ga. 615,
21S. E. 588.

5 Rex v. Patch, Leach, 3d ed. 273, M. 778; Rex v. Moore, Leach, 3d
ed. 354.

8 Rex v. Pratt, 1 Moo. C. C. 250; P. v. Rasche, 73 Cal, 378, 15 P. 18;
March v. 8., 117 Ind. 547, 20 N. E, 444; Weyman ». P., 4 Hun (N. Y.),
511; Martin v. Terr., 4 Okl. 105, 43 P. 1067.

7 Reg. v. Cohen, 2 Den. C. C. 249, M. 769. The same principles
apply to the gambling cases. If A is induced by B to deposit money
with B’s confederate as stakeholder, the latter gets custody, or, at most,
a possession by trick and his retention is larceny: Rex v. Robson, R. &
R. 418, M. 783; P. v. Shaughnessy, 110 Cal. 598, 43 P. 2; U.S. v. Mur-
phy, McArth. & M. (D.C.) 375; P. v. Stinson, 43 Ill. 897; Defrese v.
S.,3 Heisk. (Tenn.) 53; S. v. Skilbrick, 25 Wash. 555, 66 P. 53, M. 785;
so where the prosecutor is induced by a trick to “stake ’’ one of the con-
federates: Doss v. P., 158 Ill. 660, 41 N. E. 1093; Miller v. C., 78 Ky.
15; P. v. Shaw, 57 Mich. 403, 24 N. W. 121; P. v. Loomis, 67 N. Y.
322. On the other hand, if the prosecutor is induced by the fraud to
266 CRIMINAL LAW. [Secr. 2782.

§ 278a. Larceny by Trick from Servant. — In the case of lar-
ceny of goods in the custody of a servant the question is two-
fold: first, whether the servant had the power of passing title,
and second, whether he intended to doso. If a servant or
agent who has general control of the business of the master
with power to pass both possession and property in the ordinary
course of business, is tricked into disposing of the goods of
the master, meaning to pass both possession and property,
his act is as effectual in this regard as would be the act of the
master; and consequently the offence is not larceny but
obtaining by false pretences. Thus, where in one case, a
clerk in general charge of a pawnshop, and in another a teller
in a bank, were deceived into paying out money on worthless
securities or notes, the crime was held not to be larceny."

In principle, it would seem that the difference between a
servant with general power to pass title and one with limited
powers, was of degree rather than of kind. In either case,
the servant must determine when the circumstances, broad or
narrow, have arisen under which he can pass title. Hence,
although the states of fact under which a servant with limited
power can pass title may be few or even limited to a single
instance, if that particular state of facts seems to him, although
erroneously, to exist and he then acts for his master and with
intent to pass title, it would seem that he could do so as
effectually as could the servant with general powers had he
been similarly deceived. Consequently the crime would be
here, as before, not larceny but false pretences.?

Asa matter of decision, however, in the case of a servant

believe that he has lost the wager and consents to the passing of the title,
this is obtaining by false pretences: Rex v. Nicholson, Leach, 3d ed.
698, M. 781; Rex v. Moore, Leach, 3d ed. 354; compare S. v. Murphy,
90 Mo. App. 548; soif he is induced to lend one of the confederates
money, relying simply on his promise to pay back: Reg. v. Riley, 1 Cox
C. C. 98. These principles would seem to have been erroneously applied
in Reg. v. Buckmaster, 16 Cox C. C. 339, C. 316.

1 Rex v. Jackson, 1 Moo. C. C. 119; Reg. v. Prince, L. R. 1 C. C. 150,
11 Cox C. C. 193, C. 270; but compare Reg. v. Middleton, L. R. 2 C. C.
38, K. 266, M. 794 ; and C. v. Lawless, 103 Mass. 425.

2 Rex v. Parks, 2 East P. C. 671, M. 774.
Sect. 278a.] LARCENY. 267

with authority to pass title only under certain narrow condi-
tions, the rule appears to be that where he is tricked into de-
livering the goods and intends to pass both possession and
title, if in reality the circumstances were not those under
which he was authorized to pass title, the trickster will get
only possession and hence be guilty of larceny by trick. Thus,
where a servant is sent with a package and told to deliver it
only for cash or its equivalent, and the defendant, by tendering
him what the servant believes to be good money but is in reality
a counterfeit or a worthless check, persuades him to deliver
both possession and title, so far as he can, the crime has been
held to be larceny and not false pretences. Of course, if the
servant has no power under any circumstances to do any-
thing more than transfer the possession, it is clear that a
person receiving goods from him will acquire only possession,
and if that is obtained by trick and animo furandi, there is a
larceny. Thus where the servant of a carrier was induced to
leave goods at the wrong destination, it was held larceny.2 So
where a stable boy is sent to deliver a horse to a person who
has already purchased it, and is by trick persuaded to deliver
the horse to the defendant.2 The same principle applies to
a bailee who has only possession and no authority under any
circumstances to transfer the title.

If the servant, having power to pass title under certain cir-
cumstances, attempts to pass title not because he believes
those circumstances to exist, but entirely independently of
such authority, he can pass nothing but possession. Thus
where A has authority to sell grain only in the day-time, an
attempted sale at night, not being under even color of author-

1 Reg. v. Stewart, 1 Cox C. C. 174, K. 354, M. 776; Reg. v. Webb, 5
Cox C. C. 154, C. 825; Reg. v. Small, 8 C. & P. 46.

2 Reg. v. Little, 10 Cox C. C. 559; Rex v. Longstreath, 1 Moo. C. C.
137. "24g

3 C. v. Rubin, 165 Mass. 453, 43 N. E. 200. Compare Rex v. Pearce,
2 East P. C. 603; Rex v. Wilkins, 2 East P. C. 673 ; Reg. v. Simpson, 2
Cox C. C. 235. ;

* Rex v. Campbell, 1 Moo. C. C. 179; C. v. Collins, 12 All. (Mass.)
181; a fortiori when the servant or bailee has no power to pass ~even
possession. See § 278, ante.
268 CRIMINAL LAW. [Sxcr. 2782.

ity, passes only possession.! So where A is authorized to de-
liver certain money to B at three o’clock and C by trick induces
A to deliver it to him at one o’clock ;? so where A is sent with
a parcel for B with instructions to deliver it only for cash and
by collusion with B accepts a worthless check.? All that the
defendant can acquire in such cases is possession, and if the
person in charge of the goods had only custody, with not even
apparent authority to part with either possession or title under
the circumstances, the taking would be not larceny by trick,
but tnvito domino in the strict sense of the phrase.

Assuming the power of the servant to transfer the title to
the property under the given circumstances, his intent to do so
must also exist. For of course if the servant is tricked into
giving up the goods without intending to pass titie or possession
there is larceny. Thus where the servant of a warehouseman
delivers goods to a fellow servant upon his representation that
their master had sent for them, there was no intent to pass
even possession, and a felonious conversion was larceny.t So
where a servant is sent with clothing and the defendant per-
suades the servant to turn over the clothing for examination,
this is larceny tnvito domino, or by trick according as the ser-
vant meant to pass only custody or the possession. So also
when the possession is obtained by means of a combination of
trickery and force.6 In general, the same principles as to
whether possession or title is intended to pass apply as where
the owner himself is dealing with the property.’

In Iowa, and perhaps other States, the rule that there is no
larceny where there is no weep ane, and no trespass where there

1 S. v. McCarty, 17 Minn. 76; accord, Reg. v. Hornby, 1 C. & K. 305.

2 P. v. McDonald, 43 N. Y. 61, M. 701; accord, Rex v. Sheppard, 9 C.
& P. 121.

8 Shipply v. P., 86 N. Y. 375.

* Reg. v. Robins, Dears. C. C. 418, C. 321. '

° S. v. Hall, 76 Ia, 85, 40 N. W. 107; Gardiner v. S.,55 N. J. L. 17,
26 Atl. 30; St. Valarie v. P., 64 Barb. (N. Y.) 426, See also Rex v. Gil-
bert, 1 Moo. C. C. 185; Rex. v. Pratt, ibid. 250.

* P. v, Camp, 56 Mich. 548; C. v. Cruikshank, 138 Pa. 194, 20 Atl.
937.

7 See §§ 277a, 278, 285, 317.

wa
SEcts. 279, 280.] LARCENY. 269

ee

is consent obtained by fraud, has been abrogated by statute ;1
and in Tennessee it is said that the fraud constitutes a trespass,
such as it is.”

§ 279, Taking of Custody merely.— Where one takes the
custody of goods merely, as distinguished from possession,
the crime of larceny cannot be committed. So where one
moves the goods from one portion to another of the owner’s
shop, in order that they may be more easily stolen, it is not
larceny, for no possession is taken. This question will be
more fully considered later.®

§ 280. Taking. Finding Lost Property. — Lost property
found and appropriated may, under certain circumstances,
be said to be taken. Thus, if a person find a piece of per-
sonal property, about which there are marks or circumstances
which afford a clue to the ownership, and from which he has
reason to believe that inquiry might result in ascertaining the
ownership, and immediately upon finding, without inquiry,
appropriate it to his own use, this is a taking sufficient to
constitute the act larceny. And it is not necessary that the
means or circumstances which the finder should consider as
possible means of identification should be confined to marks
upon the object; the mere value of the article may be so great
that the finder should reasonably know it could be returned to
its owner.6 On the other hand, if there be no mark or circum-
stance giving any reason to suppose that the ownership can be
ascertained, an immediate appropriation is not a taking which
is larcenous.® If there is not a purpose at the time of finding

1S. v, Brown, 25 Ja. 561.

2 Defrese v. S., 3 Heisk. 53. See also S. v. Williams, 385 Mo. 229.

8 Post, § 289.

* Compare Milburne’s Case, 1 Lewin, 251.

5 Brooks v. S., 35 O. St. 46, M. 724. In general, to the effect that if
for any reason the finder has reasonable grounds for believing that the
property can be restored, the taking, animo furandi, is larceny, see Reg.
v. Christopher, 8 Cox C. C. 91; Reg. v. Moore, 8 Cox C. C. 416; S. v.
Levy, 23 Minn. 104; S. v. Clifford, 14 Nev. 72; Baker v. S., 290. St. 184;
McCarty v. S., 36 Tex. Cr. R, 135, 35 8. W. 994.

6 Reg. v. Thurborn, 1 Den. C. C. 887, C. 332, K. 276, M. 720; Griggs
v. S., 58 Ala. 425; Lane v. P., 10 Ill. 305; 8. v. Dean, 49 Ia. 73; C. v.
270 CRIMINAL LAW. [Secr. 280.

to appropriate, a subsequent appropriation will not amount to
larceny.?

For this reason, it becomes important to note not only when,
but of what, the person takes possession. The law seems to
be that a person takes possession of an object only when he
not only assumes physical control over it, but does so with the
intent to control that object either as a specific object or as
one of a class. Thus, where a defendant bought a bureau
simply as such, he did not thereby take possession of money
in a secret drawer; so that when he did later find the money
and assume control over it, animo furandt, he was guilty of
larceny.2, So where the defendant takes possession of what
he believes to be an empty trunk and later discovers clothes
therein.? On the other hand, where a canal company ordered
the canal to be cleaned with the intent of returning to the
owners the lost articles at the bottom thereof, a servant then
taking articles therefrom, animo furandi, was guilty of larceny
from the company;* so where a defendant received a letter
containing a draft and other enclosures and received it intend-
ing to take whatever was therein, a subsequent conversion of
the draft, animo furandi, was not larceny. So where defend-
ant robbed A of his overcoat in which there was, unknown to
A, a watch, an instruction that if the defendant did not know
at the time that the watch was in the pocket, he could not be
convicted of the robbery thereof was rightly refused as it did
not leave to the jury the question of his intent to take what-
ever might be in the coat.§

Titus, 116 Mass. 42,1 Am. Cr. Repts. (Hawley) 416, and note; Beatty
v. S., 61 Miss. 18 (semble); P. v. Cogdell, 1 Hill (N. Y.), 94; Reed v. S.,
8 Tex. App. 40. ;

1 Reg. v. Preston, 5 Cox C. C. 390, 2 B. & H. Lead. C. C. 25, and note;
Reg. v. Matthews, 12 Cox C. C. 489, M. 8833; Ransom ». S., 22 Conn. 153;
Baker v. S., 29 O. St. 181; P. v. Anderson, 14 Johns. Rep. (N. Y.) 294;
§.v. Arkle, 116 N.C. 1017, 218. E. 408; Gosler v. S. (Tex.), 56 S. W. 61.

2 Merry v. Green, 7 M. & W. 623, C. 217, M. 715; Cartwright v. Green,
8 Vez. 405, C. 215; Durfee v. Jones, 11 R. I. 588.

8 Robinson v. S., 11 Tex. App. 403. * Reg. v. Rowe, Bell C. C. 93.

5 Rex v. Mucklow, 1 Moo. C. C. 160.

® Stevens v. 8., 19 Neb. 647, 28 N. W. 304. Compare, on the general
question of possession, Holmes Common Law, ch. vi.
Sects. 281, 282.] LARCENY. 271

§ 281. Property Left by Mistake. — It is important to observe
the distinction between lost and mislaid property. In the
latter case, as where a customer unintentionally leaves his
purse upon the counter of a store,! and the trader takes it and
appropriates it to his own use without knowing whose it is, or
a passenger unintentionally leaves his baggage at a railway
station,? and a servant of the company, whose duty it is to re-
port the fact to his superior, neglects to do so, and appropri-
ates the baggage to his own use, the act in each case is larceny,
because there was a likelihood that the owner would call for
the property, and therefore in neither case at the time of ap-
propriation was the property strictly lost property. There
was a probability known to the taker in each case that the
owner might be found, i. e., would appear and claim property
which he had by mistake left. But the mere fact that the
servant has the duty of turning over the property to his master
will not make a taking thereof larceny, although it may impose
a civil liability.?

§ 282. Property Delivered by Mistake. — Where one receives
from another, — the delivery being by mistake and therefore
unintentional, —-a sum of money or other property, and the
receiver at the time knows of the mistake, yet intends to
keep it and appropriate it to his own use, this has been held
to be a taking sufficient to constitute larceny; as where a
depositor in a savings bank, presenting a warrant for ten
dollars, receives through a mistake of the clerk a hundred

1 Reg. v. West, 6 Cox C. C. 415; Lawrence v. S., 1 Humph. (Tenn.)
228, M. 728.

2 Reg. v. Pierce, 6 Cog C. C. 117, C. 834. See also Rex v. Wynne, 2
East P. C. 664; Reg. v. West, Dears. 402; S. v. McCann, 19 Mo. 249;
S. v. Farrow, Phillips (N. C.), 161; Pritchett v. S.,2 Sneed (Tenn.), 285 ;
Pyland v. S., 4 Sneed (Tenn.), 357.

8 Water Co. v.. Sharman [1896] 2 Q. B. D. 44. As to the respective
rights of finders of lost goods and the owner of the property whereon they
are found, see Amory v. Delamirie, 1 Str. 505; Elwes v. Gas Co., 33 Ch.
Div. 562; Bridges v. Hawksworth, 21 L. J. Q. B. 75; Bowen v. Sullivan,
62 Ind. 281; McAvoy v. Medina, 11 All. (Mass.) 548; Hamaker v.
Blanchard, 90 Pa. St, 377.
M712 CRIMINAL LAW. [Sucr. 283.

dollars! The objection to this view as a matter of principle
is that the person in possession of the coin does, as a matter
of fact, intend to transfer possession to the person before him,
and the latter intends to take possession; and though he may
do so animo furandz, it is difficult to see that it is done invito
domino?

If the receiver did not know of the mistake at the time of
taking, his intention to appropriate, formed later, will not
make the act larceny.2 So where a mail carrier delivers a
letter to the wrong person and the latter takes it in good
faith, and later, discovering the mistake, keeps it, there is no
larceny. This latter principle would seem to apply where
one receives a coin of large value by mistake for one of smaller
value, and afterwards, on discovering the mistake, appropriates
it. This should not be tield larceny. So where achild gave a
$20 gold piece to the defendant and he took it with no intent
to steal, although knowing what the coin was, and on dis-
covering that the child believed it was a dollar determined to
keep the coin, the offence was held not to be larceny.6 The
later discovery here was not of the nature of the coin but of
the mind of the owner, but the principle would seem to be the
same as in the other cases.

§ 283. Taking. Servant.— Where property is taken by a
servant, in whose custody it is placed by the master, as of
goods in a store for sale, or of horses in a stable for hiring,

“

1 Reg. v. Middleton, L. R. 2 C. C. 88, 12 Cox C. C. 260, 417, 1
Green’s Cr. Law Rep. 4, K. 266, M. 794; Wolfstein v. P., 6 Hun (N. Y¥.),
121; Thompson v. S. (Tex.), 55 S. W. 330.

* See the dissenting opinion of Bramwell, B., in Reg. v. Middleton,
ante.

5 Reg. v. Flowers, 16 Cox C. C. 33, C. 229.

4 Rex v. Mucklow, 1 Moo. C. C.160; Reg. v. Davies, Dears. C. C. 640.

5 Bailey v. S., 58 Ala. 414; accord, Reg. v. Jacobs, 12 Cox C. C. 151;
Reg. v. Hehier [1895] 2 Ir. 709, K. 800, M. 747; Cooper v. C., 22 Ky.
L. R. 1627, 60 S. W. 938; contra, S. v. Ducker, 8 Or. 894; Bergeron ».
Peyton, 106 Wis. 377, 82 N. W. 291 (statutory). See Reg. v. Ashwell,
L. R. 16 Q. B. D. 190, 16 Cox C. C. 1, C. 220, K. 292, where the English
judges were equally divided on the question.

8 Jones v. S., 97 Ga. 480, 25 S. E. 319.
Sect. 283.] LARCENY. 273

or of securities of a banker, or of money in a table, all the
property being still in the possession of the owner by and
through the servant, the act of taking by the servant is
larceny. The servant has custody merely for the owner, who
has the possession and’ property.!_ And the servant need not
be a general one; the possession still remains in the master
even though the relation be created only for a particular trans-
actidn.2 The question of possession is independent of any
actual control by the master. Thus where a master sends
his servant away with a bill to cash, or goods to deliver, the
property, though in the actual control of the servant, is still in
the possession of the master. But the property must be en-
trusted to the servant as such.*

If, however, the servant receives goods for his master from
a third person, he is held to get the possession, and not merely
the custody, and an appropriation of the goods is therefore not
larceny. And so where the servant receives goods from a

1 Crocheron v. S., 86 Ala. 64, 5 So. 649; Powell v. S., 84 Ark. 693;
’P. v. Perini, 94 Cal. 573, 29 P. 1027; Marcus v. S., 26 Ind. 101; Gill v.
Bright, 6 T. B. Mon. (Ky.) 130; C. v. Berry, 99 Mass. 428; P. v. Wood,
2 Park. C. C. (N. Y.) 22; S. v. Jarvis, 63 N. C. 556; Roeder v. S., 39
Tex. Cr. R. 199,458. W. 570. Compare Bismarck v. S., (Tex.), 73 S. W-
965.

2 Reg. v. Harvey, 9 C. & P. 353. See Reg. v. Jones, 1C. & M. 611, M.
764; Rex v. Hughes, 1 Moo. C. C. 370. Compare Reg. v. Goodbody, 8
C. & P. 665; Reg. v. Hey, 2 C. & K. 983; Reg. v. Gibbs, 6 Cox C. C.
455; post, § 300.

8 Rex v. Paradice, 2 East P. C. 565, M. 762; Rex v. Lavander, 2 East
P. C. 566; Reg. v. Heath, 2 Moo. C. C. 33; Reg. v. Perry, 1 Den. C. C.
69; S. v. Schingen, 20 Wis. 74. Compare Mobley v. 8., 114 Ga. 544, 40
S. E. 728.

The rule seems to have been formerly somewhat unsettled upon this
point, some of the cases making the question turn on the actual control
of the goods independently of the relation of master and servant. The
statute 21 H. VIII, ch. 7, which provided that where goods were delivered
by a master to his servant to keep, any embezzlement thereof by the ser-
vant was larceny, was said to be simply declaratory of the common law,
Rex v. Wilkins, 1 Leach, 4th ed. 520. See also Note, Y. B. 3 H. VIII.
12, pl. 9, M. 761; Note, Dyer 5a; Rex v. Watson, 2 East P. C. 562.

4S. v. Fann, 65 N. C. 317.

5 Reg. v. Masters, 1 Den. C. C. 832, C. 810, K. 319, M. 689; Rex v.
Bazeley, Leach, 4th ed. 835, K. 305; Rex v. Sullens, 1 Moo. C. C. 129,

18
274 CRIMINAL LAW. [Szcr. 284.

fellow servant, the latter having possession and not transfer-
ring the goods to the former as the “ultimate destination ”
thereof. But if one servant receives goods from another ser-
vant having custody, only custody passes; the goods are still
in the master’s possession, and the servant may steal them.?
Still further, if the servant who has taken possession of the
goods puts them in the place appropriated for their reception
by the master, the latter comes at once into possession, and
the servant taking the goods thereafter is guilty of larceny.
Such is the case where money is put by a clerk into the till,
or documents into the file provided for them ;* and so where
a servant, sent with a cart to get goods of the master, has put
them in the cart. But where the goods are put into the
master’s receptacle, not in the course of employment, but
merely as a place of temporary concealment until they can
finally be taken away, the possession is still in the servant,
and the taking is not larceny.6 So where a servant who has
received money for his master, deposits it in his own room in
his master’s house, and later takes it away, this is not larceny.®
§ 284. Taking. Bailee.— The appropriation by a carrier,
however, or other bailee, of property of which he has posses-
sion, and in which he has therefore a quasi property, is em-
bezzlement, and not larceny.’ And it is immaterial whether
the possession has been given by the owner or simply taken
without objection by him and in good faith. Unless at the

K. 320, M. 688; Rex v. Hawtin, 7 C. & P. 281; C. v. King, 9 Cush.
(Mass.) 284.

1 Reg. v. Masters, ante. Compare Reg. v. Watts, 2 Den. C. C. 14, C.
312.

2 Rex v. Murray, 1 Moo. C. C. 276, C. 310, K. 318.

® Reg. v. Watts, ante.

4 Reg. v. Reed, 6 Cox C. C. 284, Dears. C. C. 257, C. 232, M. 692; Reg.
v. Hayward, 1C. & K.518, K. 321; Reg. v. Norval, 1 Cox C. C. 95; Rex v.
Mallison, 86 L. T. 600.

5 Rex v. Bull, 2 East P. C. 572, M. 686; C. v. Ryan, 155 Mass.
523, 30 N. E. 364.

6 Rex v. Dingley, Show. 53, M. 684.

7 Rex v. Raven, Kel. 24; Rex v. Banks, R. & R. 441; Reg. v. Thristle,
3 Cox C. C. 578, C. 291; P. v. Dalton, 15 Wend. (N. Y.) 581.
Sucr. 284.] LARCENY. aq5

moment of taking the felonious intent exists there can be no
larceny.! Thus where A in good faith, in rescuing goods from
a fire, took possession of them without objection by the owner,
a subsequent keeping of them animo furandi was held not
larceny.2. So where A made a conveyance of certain goods to
trustees but they were not removed, a felonious conversion of
them by him was no larceny, since they had throughout re-
mained in his possession.? The possession of a servagt is
different from that of a bailee. That of the former is mere
custody, while, that of the latter is a real possession. Thus,
as has been seen, money in the till is in the possession of the
master, but in the custody of the clerk. But where property
is delivered to another, who is not the servant of the person
so delivering, to be kept, the possession is in the employee as
a trustee, and if he fraudulently converts it, it is embezzle-
ment, and not larceny.t

But it has been held that, if the bailee do any act which
violates the trust, as where a carrier breaks open a package
delivered to him for transportation, and abstracts a part of
its contents, he thereby terminates the bailment, and the act
is larceny.5

This is on the principle that by the breaking of bulk and
consequent termination of the bailment the property passes
into the constructive possession of the original bailor and the
then misdealing with it by the carrier amounts to a new and

1 Rex v. Holloway, 5 C. & P. 524, M. 707.

2 Leigh’s Case, 2 East P. C. 694, M. 731. See Reg. v. Reeves, 5 Fur.
N.S. 716, M. 708; Noyes v. S., 65 Ga. 754. Compare Harris v. S. (Tex.),
65 S. W. 21.

8 Reg. v. Pratt, 6 Cox C. C. 378, C. 293.

+ Rex v. Raven, Kel. 24; Rex v. Meeres, 1 Show. 40, M. 780; Rex v.
Banks, R. & R. 441; Reg. v. Saward, 5 Cox C. C. 295, M. 771; Still-
well ». S., 155 Ind. 452, 58 N. E. 709; Ennis v. 8., 3 Greene (Ta.), 67;
P. v. Taugher, 102 Mich. 598, 61 N. W. 66; Abrams v. P.,6 Hun (N. Y.),
491, M. 733; S.v. Fann, 65 N.C. 817; Mangum v. §., 88 Tex. Cr. R..
231, 42 S. W. 291. :

> Rex v. Brazier, Russ. & Ry. 337, C. 300, M. 941; S. v. Fairclough,
29 Conn. 47; C. v. Brown, 4 Mass. 580; Nichols v. P., 17 N. Y. 114.
See also C. v. James, 1 Pick. (Mass.) 375, C. 804; and a valuable note
of Mr. Heard to the same case, 2 Bennett & Heard Lead. Cr. Cas. 139.
276 CRIMINAL LAW. [Secr. 284,

larcenous taking.! But where, instead of breaking bulk, the
carrier disposes of the entire object bailed to him, then the
very act that violates the terms of his bailment passes
the possession to a third person ; so that at no time is there
a felonious taking from even the constructive possession of
the owner, and there is consequently no larceny. The rule
is technical and has been doubted in principle. It being,
however, well established, it follows that what amounts to
a breaking of bulk must be distinguished with some care.
Opening a letter or bundle and removing any of the contents
is clearly such ;8 so where the property is delivered in bulk,
as wheat.4

Where the bailment consists of a number of separate units
the rule has been said to be that if, although the bailment is
thus capable of being resolved into its integers, it was in fact
intended to be delivered and treated as a single mass of indis-
tinguishable units a felonious conversion of any single unit
will be larceny as amounting toa breaking of bulk. Thus a
taking from a cargo of: pig iron or staves of some of the pigs
or staves was held larceny.2 But where so many sheep are
delivered, or so many bundles of hay, the taking of a single
sheep ® or bundle? is not a breaking of the mass but a con-
version of one entire thing and hence no larceny. In other
cases it has been held that though the bailment be of separate
units a wrongful opening of the enveloping body is a sufficient
breaking of bulk to make a taking larceny8

1 The view on which the earliest carrier’s case seems to have been
based, so far as it bears on this point (compare p. 262, n. 4) was that the
carrier acquired no possession of the contents of the parcel by the bail-
ment but only of the wrapping: Carrier’s Case, Y. B. 13 Ed. IV. 9,
pl. 5, C. 296, K. 223, M. 734; see also Robinson v. S., 1 Coldw. (Tenn.) 120.

2 Rex v. Fletcher, 4 C. & P. 545; Reg. v. Cornish, 1 Dears. 425.

8 Rex v. Jones, 7 C. & P. 151; Reg. v. Jenkins, 9 C. &P. 88; Reg. v.
Colhoun, 2 Crawf. & Dix. 57; S.v. Fairclough, 29 Conn. 47; Cheadle v.
Buell, 6 O. 67.
~ 40. vo, James, ante.

5 Rex v. Howell, 7 C. & P. 325; Nichols v. P., ante.

/ 6 Rex v. Reilly, Jebb. 51.
7 Rex v. Pratley, 5 C. & P. 533.
8 Rex v. Madox, R. & R. 92, C. 301, M. 788; Rex v. Brazier, ante ; Reg.

Z
Sucr. 285.] LARCENY. 277

That the carrier was not a common carrier or was acting
gratuitously does not affect his liability.?

§ 285. Taking. Temporary Delivery upon Conditions. — If,
however, the property be delivered merely for a temporary
purpose, without intention to part with it or the possession
except upon certain implied conditions, as where a trader
hands a hat over his counter to a customer for the purpose of
examination, and the customer walks off with it, or a cus-
tomer hands to a trader a bill out of which to take his pay for
goods bought, and to return the change, and the trader re- .
fuses the change, it is in each case larceny. The possession
is in each case fraudulently obtained, which is equivalent to a
taking without the consent of the owner, in the view of the
law. If the possession be fraudulently obtained with intent
on the part of the person obtaining it, at the time he receives
it, to convert it to his own use, and the person parting with it
intends to part with his possession merely, and not with his
title to the property, the offence is larceny.’.

Perhaps it might justly be said that in’such cases the pos-
‘session is not parted with, the property being in such prox-
imity to the owner that he still has dominion and control
over it. This would seem to be the better view, both as a
matter of principle and on the facts. So long as the property
remains under the control of the owner and he intends to let
another person take possession only after complying with
certain conditions, a taking of possession otherwise is ob-
viously invito domino. The mere fact that the owner permits
manual custody to be taken while he still keeps the object in
such close proximity that it is still under his control, and

v. Poyser, 2 Den. C. C. 233, C. 808. C. +. Brown, 4 Mass. 580, seems
irreconcilable with either of the above rules.

1 Reg. v. Jenkins, ante ; Rex v. Fletcher, ante; S. v. Fairclough, ante.

2 Reg. v. Thompson, 9 Cox C. C. 244. See S. v. Hall, 76 Ia. 85,
40 N. W. 107 ; C. v. O'Malley, 97 Mass. 584; P. v. Call, 1 Denio (N. Y.),
120, M. 767.

8 Rex v. Robson, Russ. & Ry. 413; Farrell v. P., 16 Ill. 506; C. v.
Barry, 124 Mass. 325; Loomis v. P., 67 N. Y. 822; Hildebrand »v. P.,
56 N. Y. 394; Lewer v. C., 15S. & R. (Pa.) 93.

4 Hildebrand »v. P., ante; 2 East P. C. 683.
278 CRIMINAL LAW, [Szcr. 2852.

hence in his possession, cannot affect the case. Thus where
a silk manufacturer delivers raw silk to workmen who work
under his eye;! so where he allows the defendant to take
goods a few feet to examine them,? or money to count it,’ or
a note to endorse a payment thereon.‘ In all such cases the
defendant having acquired only custody, if he takes possessicn
does so invito domino, and if there is a felonious intent,
larcenously.2 Thus where defendant acted as attorney for A
in buying certain land. He bought it for $125, but informed
A that the price was $325, of which $10 was to go to de-
fendant. The parties having met, A laid the money on a
table ; defendant took it into the next room, paid the seller
$125, and retained the balance. This was held larceny; and
it was said that A never gave up the possession to defendant,
even though the latter had a right to select $10 and keep it.é

Where the transaction is intended by the owner of the
property stolen to be a single one, as where A puts down
bills expecting to get gold, the defendant does not acquire
even custody, and a taking of possession without complying
with the terms proposed is larceny.?. So where the owner of
goods puts them at defendant’s door but intends to keep
the entire control of them until he receives his money.

§ 285a. Bailment for Special Purpose.—If, however, the
possession is voluntarily transferred even though for a speci-
fied purpose, a conversion by the bailee is not larceny. Thus
where A gives material to B to work on in his own home and
return, and B then feloniously converts.2 So where A en-

1 Anon., Kel. 35, M. 761.

2 Rex v. Chissers, T. Ray. 275, K. 217.

8 C. v. O'Malley, ante.

4 P. v. Call, ante.

5 See also Reg. v. Johnson, 5 Cox C. C. 872, C. 284; Reg. v. Rod-
way, 9C. & P. 784; S. «. Walker, 65 Kan. 92, 68 P, 1095.

6 C. v. Lannan, 153 Mass. 287, 26 N. E. 858.

7 8. v. Huber, 57 Ind. 341; Grunson »v. S., 89 Ind. 583; S. »v. Anderson,
25 Minn. 66; S. v. Watson, 41 N. H. 533.

8 Reg. v. Slowley, 12 Cox C. C. 269.

® Reg. v. Saward, 5 Cox C. C. 295, M. 771; Abrams v. P., 6 Hun
(N. Y.), 491, M. 788. .
Sect. 286.] LARCENY. 279

trusts a sovereign to B to take away and get changed; the
transaction not being intended to take place under A’s
control, B has possession of the coin anda later conversion
is not larceny! Some cases, however, apparently lay down
the rule that where the property is delivered for a special pur-
pose possession does not pass even though the parties do not
occupy the relation of master and servant and the property is
not so under the direct control of the owner as to bein his
possession. Thus where A delivered to B,a hack driver, a
bundle to take home for him, a felonious taking by B was
held larceny.2, So where a bank delivered to a broker a
check on which he was to endeavor to raise money, a felonious
conversion of the check was held larceny on the ground that
the broker had only custody, although he was not a servant.
This doctrine can be sustained only by an extension of the
technical rule of possession in the case of master and serv-
ant.2 The cases actually resting on this ground are too few
to make it clear just what is meant by a “special purpose.”
Many cases apparently resting on this ground are really sus-
tainable on other well-established principles, as larceny by
trick 4 or delivery to a servant, general ® or special.®

§ 286. Taking by Owner. — A general owner may be guilty
of larceny of his own goods, if at the time of taking he has no
right to their possession, as where one whose property has
been attached takes it away with intent to deprive the attach-
ing creditor of his security,’ or a part owner of property in

1 Reg. v, Thomas, 9 C. & P. 741, M. 763; Reg. v. Reynolds, 2 Cox
C. C. 170; and see in general § 284, and cases.

2 Holbrook v. S., 107 Ala. 154, 18 So. 109.

8 P. vy. Abbott, 53 Cal. 284. See also Reg. v. Smith, 1 C. & K. 423;
Murphy v. P., 104 Ill. 528; Justices v. P., 90 N. Y. 12; Richards v. C.,
13 Grat. (Va.) 803.

4 Welsh v. P., 17 Ill. 339; Smith v. P., 53 N. Y. 111; and see § 277a,
and cases.

5 Reg. v. Low, 10 Cox C. C. 168; Reg. v. Beaman, C. & M. 595;
C. v. Hutchinson, 2‘Pars. Eq. Ca. (Pa.) 884; U. S. v. Strong, 2 Cranch
C. C. 251, Fed. Cas. No. 16,411.

6 Reg. v. Goode, 1 C. & M. 582, M. 766; and see § 283, and cases.

7 C. v. Greene, 111 Mass. 392. See also P. v. Thompson, 34 Cal. 671;

~
280 CRIMINAL LAW. [Secr. 287.

the possession of another takes it feloniously.1 Soin any case
where the possessor of the property has a right in it which he
can enforce against the owner and the taking is with the in-
tent to deprive him of that right. Thus where a pledgor takes
from his pledgee,? or a tenant takes his property from the
landlord after the latter has acquired a special property therein
by levy.2 And so where the bailees are under a liability to
third persons.4 So where they were liable for duties upon goods
unless exported from the country. So if they are taken by
the owner with the intent to charge the bailee therefor.®.

§ 287. Taking by Wife.— The wife of an owner of property
cannot commit larceny by taking it from her husband’s pos-
session,’ even if she is about to elope with an adulterer,®
though the latter might be guilty ; fora wife cannot have pos-
session of property apart from her husband.®

For the same reason, a third person, taking property of the
husband jointly with the wife or with her consent, is not guilty
of larceny.!° If, however, the third person takes possession of
the property of the husband, as aforesaid, being at the time an

Palmer v. P., 10 Wend. (N. Y.) 165. But if the taking is for the pur-
pose, not of defeating the levy, but to prevent other creditors from at-
taching, or is under a belief that the owner has the right to the goods as
against the officer, the taking is not felonious: C. v. Greene, ante ;
Whiteside v. Lowney, 171 Mass. 431, 50 N. E. 931; Clarke v. S.,41 Neb.
870, 59 N. W.785; Adams ». S., 45 N. J. LL. 448.

1 Rex v. Wilkinson, Russ. & Ry. 470, C. 273, K. 258; Reg. v. Webster,
9 Cox C. C, 138.

2 Henry v. S., 110 Ga. 750, 36 S. E. 55, M. 665; Bruley v. Rose, 57 Ia.
651, 11 N. W. 629.

® C. v. Shertzer, 3 Lack. Leg. N. (Pa.) 8; accord, Tumalty v. Parker,
100 Ill. App. 382; P. v. Long, 50 Mich. 249, 15 N. W. 105.

* Rex v, Bramley, R. & R. 478, C. 276, M. 670.

5 Rex v. Wilkinson, ante. :

6 P. v. Thompson, ante ; 8. v. Fitzpatrick, 8 Houst. (Del.) 385, 32 Atl.
1072; Palmer v. P., ante.

™ Thomas v. Thomas, 51 II. 162; S. v. Banks, 48 Ind. 197.

§ Reg. v. Kenny, 2 Q. B. D. 307, 18 Cox C. C. 897, C. 359, M. 669;
Reg. v. Glassie, 7 Cox C. C. 1.

® Rex v. Willis, 1 Moo. C. C. 375, C. 360, M. 672.

10 Harrison’s Case, 2 Hast P. C. 559, K. 274; Lamphier v. S., 70 Ind.
317.
SEcT. 288.] : LARCENY. » 281

adulterer or in contemplation of adultery he is guilty of lar-
ceny.! This is sometimes put on the ground that under the
circumstances the adulterer must know the wife has not the
husband’s consent to any dealing with the property. This
reason, however, hardly seems satisfactory, and the true ex-
planation of the doctrine is probably historical. If the adul-
terer does not in fact take possession of the goods, the fact
that they are in his room does not make him guilty.?

Under the married woman’s acts it would seem that the’
husband may be guilty of larceny of his wife’s property .®

§ 288. Intent to Steal. Claim of Right.— The taking must
also be felonious; that is, with intent to deprive the owner of his
property, and without color of right or excuse for the taking.*
Therefore a taking under a claim of right, if the claim be
made in good faith, however unfounded it may ‘be, is not larce-
nous. And it is immaterial whether the claim is on behalf
of the defendant himself or some third person for whom he is
acting.6 But a custom to take fruit, as from boxes of oranges
on board a vessel in transitu, is neither good in itself, nor as a
foundation for a claim of right.’ And in general, the claim

1 Rex v. Clark, 1 Moo. C. C. 376, n.; Reg. v. Tollett, C. & M. 112;
Reg. v. Featherstone, 6 Cox C. C. 376, K. 274; Reg. v. Glassie, ante; Reg.
v. Berry, 8 Cox C. C. 117; Reg. v. Harrison, 12 Cox C. C. 19; P. »v.
Schuyler, 6 Cow. (N. Y.) 572; contra, as to the wife’s wearing apparel,
Reg. v. Fitch, D. & B. C. C. 187 (semble).

2 Reg. v. Rosenberg, 1 C. & K. 2338.

® Hunt v. S. (Ark.), 79 S. W. 769; Beasley v. S., 188 Ind. 552, 38
N. E. 35. Compare Overton v. S., 43 Tex. 616.

4 Reg. v. Holloway, 2 C. & K. 942, 3 Cox C. C. 241, 1 Den. C. C. 370,
C. 263, K. 285; S.v. South, 4 Dutch. (N. J.) 28; S. v. Ledford, 67 N. C.
60; Johnson v. S., 36 Tex. 375.

5 Reg. v. Halford, 11 Cox C. C. 88; Blair v. S. (Ark.), 71 S. W.
482; P. v, Carabin, 14 Cal. 438; S. v. Main, 75 Conn. 55, 52 Atl. 257; S.
v. Pullen, 3 Penne. (Del.) 184, 50 Atl. 538; Dean v. S., 41 Fla. 291, 26 So.
638; Hall v. S., 84 Ga. 208; James v. 8., 114 Ga. 96, 39 S. E. 946 ; S. v.
Homes, 17 Mo. 379; Severance. v. Care, 43 N. H. 65; S. v. Higher, ‘70
N. C. 78; and see note in 57 Am. Dec. 271.

® Rex v. Knight, 2 East P. C. 510, C. 484; P. v. Hoagland, 138-Cal.
838, 71 P. 359; S. v. Waltz, 52 Ia. 227; Chambers v. S., 62 Miss. 108;
Tyler v. S. (Tex.), 70 S. W. 750. Compare Reg. v. Gardner, 9 Cox
C. C. 253, C. 365.

7 C. v. Doane, 1 Cush. (Mass.) 5.
282 CRIMINAL LAW. [Srcr. 289. |

must be bona fide. Thus where the defendant secreted A’s
horse to extort a further payment for some land purchased by
A, the jury having found that the defendant knew he was not
entitled to the money, he was held guilty of larceny of the
horse.!

Taking property with the intent to compel a payment of a
debt would seem not to be larceny on the principles above
stated, there being no intent to steal.? It has been said, how-
ever, that since the law does not allow a person to collect his
debt in that way, the taking is larcenous. In accordance with
the former and apparently better view, it would seem that
where A compels B to sell him property, although A may
under some circumstances be guilty of an assault or civilly
liable, there is no such intent to steal as will make the act
larceny. The question of fact as to the intent of course
always remains open and if the price left is less than the value
of the goods taken a felonious intent may be found.®

§ 289. Permanent Taking. —The intent to steal does not
exist unless the object of the wrong doer is permanently to de-
prive the possessor of property of his present interest in it. If
the purpose is only a temporary use, the owner’s rights in the
chattel not being permanently infringed, the purpose is not
larcenous.6

The distinction is clearly brought out in a series of English
cases. In the first, a workman in a tannery was paid accord-

1 Reg. v. O’Donnell, 7 Cox C. C. 387, M. 815; accord, Higginbotham
v. §., 42 Fla, 573, 29 So. 410; Currier v. S., 157 Ind. 114, 60 N. E. 1028;
S. v. Hunt, 45 Ia. 673; S. v. Jones, 19 N. C. 544.

2 Reg. v. Hemmings, 4 F. & F. 50; Reg. v. Wade, 11 Cox C. C. 549,
K. 288; P. v. Vice, 21 Cal. 844; P. v. Walbrun, 132 Mich. 24, 92 N. W.
494.

8 Farrell v. P., 16 Ill. 506; C. v, Stebbins, 8 Gray (Mass.), 492; Butler
v. §., 3 Tex. App. 403.

* Fisherman’s Case, 2 East P. C. 661, M. 807; Anon., 2 East P. C. 662,
M. 807; Beckham ». S. (Tex.), 22S. W. 411; Young v. S., 87 Tex. Cr, R.
457, 36 S. W. 272.

5 Compare Mason v. 8., 32 Ark, 238; Kirk v. Garrett, 84 Md. 388, 35
Atl. 1089.

® Reg. v. Gurnsey, 1 F. & F. 394, C. 850,
Sect. 289.] LARCENY. 283°

ing to the number of skins he dressed. He took a number of
dressed skins from the master’s storehouse and handed them
;to the foreman, in order to secure the compensation for dress-
| ing them. This was held not to be larceny of the skins; for
the workman never even pretended that the skins were not
the master’s, or that the master had not an immediate right
to the possession.!_ In the second case, a workman at a tallow
chandler’s took some fat from the storehouse and put it in the
scales, pretending that it had been brought in for sale. Here
the intention was to deprive the master of all his right in the
fat, and that he should procure a new right only by purchase ;
and it was therefore larceny.?
According to this distinction, taking a chattel to be used as
a means of escape and then left,? or for the purpose of induc-
ing the owner to follow it*-or to refrain from leaving the
house,® or to facilitate the commission of another theft, does
not constitute larceny.£ Taking property, however, with a
design to apply it on a note due to the taker from the owner,
is depriving the owner of the specific property.’? So is the
taking of a railway ticket, with’ intent to use it, though coupled
with the intent to return it after use.8 To conceal it from the
owner until the latter shall offer a reward for its recovery, or
to sell it at a reduced price, is depriving him of apart. But

1 Reg. v. Holloway, 3 Cox C.C. 241,2C. & K. 942, C. 263, K. 285;
Rex v. Webb, 1 Moo. 481, M. 811; Reg. v. Poole, 7 Cox C. C.873. Com-
pare Rex v. Richards, 1 C, & K. 532, M. 818. See, contra, Fort v. S., 82
Ala. 50, 2 So. 477.

2 Reg. v. Hall, 3 C. & P. 409, 3 Cox C. C. 245, C. 282, K. 280;
accord, Reg. v. Manning, 6 Cox C. C. 86, C. 268.

3 Rex v. Phillips, 2 East P. C. 662, M. 808; S. v. York, 5 Harr. (Del.) 493.

* Rex v. Dickinson, Russ. & Ry. 420.

5 Cain v. S., 21 Tex. App. 662. s

® Rex v. Crump, 1 C. & P. 658, K. 284. See also Rex v. Phillips,
ante; Re Mutchler, 55 Kan. 164, 40 P. 283; Mitchell v. Terr., 7 Okl. 527,
54 P. 782; Mahoney v. 8., 33 Tex. Cr. R. 388, 26 S.-W. 622; Lucas ». S.,
83 Tex. Cr. R. 290, 26 S. W. 213.

™ C. v. Stebbins, 8 Gray (Mass.), 492.

8 Reg. v. Beecham, 5 Cox C. C. 181, C. 385.

9 Reg. v. Peters, 1 C. & K. 245; Reg. v. Spurgeon, 2 Cox C. C. 102;
Reg. v. O’Donnell, 7 Cox C. C. 387, M. 815; C.v. Mason, 105 Mass. 163;
284 CRIMINAL LAW. [Secr. 290.

simply to withhold for a time property one has found, in the
hope of a reward, is not larceny.

Taking goods of another in order to pawn them is larceny,
even if the intention is ultimately to redeem and restore
them.2 A man who takes an execution from an officer who is
about to levy upon his goods, and keeps it, under the mistake
that he can thereby prevent the levy, hopes to reap an advan-
tage; but such an act is no more larceny than the taking a
stick out of a man’s hand with which to beat him.*

§ 290. Taking. Concealment.— Although the taking be
open, and without secrecy or concealment, it may still be
theft; and that the act is furtively done is only evidence of
the criminal intent. Yet there is undoubtedly in the popular,
if not in the legal, idea of theft, —furtum,—an element of
secrecy in the taking. But if the act be fraudulent, and
known to the taker to be without right or against right, it is
immaterial whether the taking be open or secret. Nor does it
seem to be essential that the taker should be animated by any
motive of mere pecuniary gain.6 And the fraudulent purpose,
—the element without which there can be no theft, the act, in
the absence of fraud, being only a trespass, — must exist at
the time of the taking. The taking must be with a fraudulent
intent. The taking without a fraudulent intent, and a conver-
sion afterwards with a fraudulent intent, do not, in general,
constitute larceny.’

Berry v. S, 31 O. St. 219; Dunn». S., 34 Tex. Cr. R. 257, 30 S. W.
227.

1 Reg. v. Gardner, 9 Cox C. C. 253, C.365; Reg. v. York, 8 Cox C.C.
181; S.v. Arkle, 116 N. C. 1017, 21S. E. 408; Micheaux v. S., 30 Tex.
App. 660, 18 S. W. 550.

2 Reg. v. Trebilcock, 7 Cox C. C. 408, C. 339; Reg. v. Phetheon, 9 C.
& P. 582, C. 337; Fields v. 8., 6 Coldw. (Tenn.) 524; Truslow v. S., 95
Tenn. 189, 831 8S. W. 987; contra, but semble overruled: Rex. v. Wright,
9C. & P. 554, n., M. 10.

3 Reg. v. Bailey, L. R. 1 C. C. 347, M. 824.

4S. v. Fenn, 41 Conn. 590.

5 §. v. Ledford, 67 N. C. 60.

® Reg. v. Jones, 1 Den. C. C. 188; post, § 291.

7 Rex v. Banks, Russ. & Ry. 441, C. 864; S. v. Shermer, 55 Mo. 83;
Wilson v. P., 39 N. Y. 459.
Sect. 290a.] LARCENY. ‘Bags

_ It is held in some cases, however, that while, if the original
taking be rightful, a subsequent fraudulent conversion will
not make it larceny, yet if the original taking be wrongful, as
by a trespass, it will, Thus, if a man hires a horse in good
faith to go to a certain place, and afterwards fraudulently
converts him to his own use, this is no larceny. If he takes.
the horse without leave, and afterwards fraudulently converts
him, this is larceny! So if, under color of hiring, he gets.
possession with intent to steal.2 And it has even been held
by very high authority, that if possession, without intent to
steal, be obtained by @ false pretence of hiring for one place,
when in fact the party intended to go to another and more
distant place, and the property be subsequently converted with
a felonious intent, this is larceny. So if, after a hiring and
completion of the journey without felonious intent, instead of
delivering the horse to the owner, the hirer converts him to
his own use. This case proceeds upon the ground that the
bailment is terminated. And it may be said, generally, that
a bailee who receives or gets possession with intent to steal, or
fraudulently converts to his own use after his right to the
possession as bailee has terminated, is guilty of larceny. In
neither case does he hold possession by consent of the owner.®

§ 290a. Continuing Trespass. — These cases, where the orig-
inal taking of possession, though wrongful, was not felonious
are put on the ground of “ continuing trespass” or “ continu-
ing taking” i. e., that where the possession is tortiously ac-
quired every moment of detention is a new taking from the
owner, and hence at the moment when the felonious intent
does arise, that, with the then new -constructive taking, fur-
nishes all the elements of larceny.6 The statement of the

1 Reg. v. Riley, 6 Cox C. C. 88, Dears. C. C. 149, C. 279, K. 289; C.
v. White, 11 Cush. (Mass.) 483, M. 708.

2 P. v. Smith, 23 Cal. 280; S. v. Williams, 35 Mo. 229.; S. v. Gorman,
2 Nott & McCord (S. C.), 90. See also S. v. Fenn, 41 Conn. 590.

8 §. v. Coombs, 53 Me, 477.

* Reg. v. Haigh, 7 Cox C. C. 403.

5 See 2 Bish. Cr. Law, §§ 834, 835. See also ante, § 284.

6 Reg. v. Riley, ante ; Weaver v. §., 77 Ala. 26; Dozier v. S., 130 Ala.
57, 30 So. 396; S. v. Coombs, ante; C. v. White, anie; Beatty v. S., 61
286 CRIMINAL LAW. [Secr. 291.

doctrine shows its highly artificial character, and the cases
are not uniform.! Another aspect of the same principle is.
involved in the question of jurisdiction in one State or country
over larcenies committed in another.?

§ 291. Taking Lucri Causa.—The taking need not be for
pecuniary gain or advantage of the thief, if it is with design
wholly to deprive the owner of his property. Logically, tak-
ing to one’s self the absolute and permanent control and
disposition of the property of another, with no intention of
returning it to him, is an addition to the property of the taker,
and in that sense necessarily a gain or advantage, without ref-
erence to the mode of control or subsequent disposition. The
larceny is complete, and is not the less a larceny because it is
committed as a step in the accomplishment of some other act,
criminal or otherwise. It was formerly laid down, that unless
it appears that it would be of some sort of advantage,* as to
enable the offender to make a gift, or to destroy evidence
which might be used against him,® the offence would more
properly be malicious mischief. But even those courts which
laid down the rule held that this advantage might be of a very
trifling character. Thus, it was held in England,’ that where
it was the duty of a servant to take such beans as were doled
out to him by another servant, and split them and feed them

Miss. 18. In Reg. v. Riley there would seem to have been no taking of
possession until the discovery of the animal, and then clearly animo furandi.
See § 280.

1 In accord with what seems the better principle see: S. v. Riggs, 8
Ida. 630, 70 P. 947; Cady v. S., 89 Tex. Cr. R. 236, 45 S. W. 568; com-
pare Rex v. Holloway, 5 C. & P. 524, K. 288. M. 707; Nightengale v. S.,
94 Ga. 95,21 S. E. 221. :

2 Ante, § 80.

8 Reg. v. Jones, 2 C. & K. 236, 1 Den. C. C. 188, C. 346, M. 818; P.v.
Juarez, 28 Cal. 380; Hamilton v. S., 35 Miss. 214.

4 Reg. v. White, 9 C. & P. 344.

5 Reg. v. Jones, ante; Reg. v. Wynn, 8 Cox C. C. 271, 1 Den. C. C.
865, C. 852; Rex v. Cabbage, Russ. & Ry. 292, C. 344, M. 809.

6 Reg. v. Godfrey, 8 C. & P. 563; S.v, Hawkins, 8 Porter (Ala.), 461;
P. v. Murphy, 47 Cal. 103.

U Rex v. Morfit, Russ. & Ry. 807, C. 345; Reg. v. Privett, 2 C. & K.
114, 1 Den. C. C. 193, C. 849, M. 814.
Sects. 292, 293.] LARCENY. 287

to the horses, and the former clandestinely took a bushel of
the beans and fed them to the horses whole, whereby he possi-
bly injured his employer’s horses, and saved labor to himself,
this was a sufficient taking to constitute larceny. This was
an extreme case of doubtful law, and it was immediately
changed by statute.1

But by the better view there is no need of the motive of
gain in order to convict of larceny. The permanent injury
to the owner is enough.”

§ 292. Ownership. — A general or special ownership by an-
other is sufficient to sustain the allegation that the property is
his.2 Even a thief has sufficient ownership to support the
allegation as against another thief.*

§ 298. Larcenies from the person, from a vessel, and, under
special circumstances, from a building, are but seonaated
forms of larceny, of statutory growth, ‘and by statutes gener-
ally similar, but in particulars different, are specially defined,
and made speutally punishable, and are, so far as the larceny
is concerned, to be tried by the tests heretofore stated. They
are sometimes called compound larcenies, as being made up of
two or more distinct crimes, — as in case of larceny from the
person, which, technically at least, includes an assault upon
the person, —and are said to be agyravated, because it indi-

1 26 & 27 Vict. c. 103, § 1.

2 Reg. v. Guernsey, 1 F. & F. 894, C. 350; Williams v. §., 52 Ala. 411;
P. v. Juarez, 28 Cal. 380; S. v. Wellman, 34 Minn. 221, 25 N. W. 395;
Hamilton v. 8., 35 Miss. 214; Warden v. S., 60 Miss. 638; S. v. Ryan,
12 Nev. 401; S. v. Slingerland, 19 Nev. 1385; 8. v. Davis, 88 N. J. L. 176;
S. v. Brown, 3 Strobh. (S. C.) 508. Compare S. v. Palmer, 4 Penne. (Del.)
126, 53 Atl. 259. See, contra, Pence v. S., 110 Ind. 95, 10 N. E. 919; P.
v. Woodward, 31 Hun (N. Y.), 57, An axtollent discussion of the question
may be found in the dissenting opinion of Learned, P. J., in the last case.

5 Reg. v. Bird, 9 C. & P. 44; Kennedy ». S., 31 Fla. 428, 12 So. 858 ;
Quinn v. P., 123 Ill. 833, 15 N. E. 46; S. v. Mullen, 30 Ia. 203; S. ».
Furlong, 19 Me. 225 ; C. v. O’Hara, 10 Gray (Mass.), 469; S. v. Gorham,
535 N. H. 152; P. v. Bennett, 87 N. Y. 117; S.v. Allen, 103 N. C. 433,
9 S. E. 626; S. v, Williams, 2 Strobh. (S. C.) 474; Owen v. S., 6 Humph.
(Tenn.) 330; U.S. v. Foye, 1 Curtis C. C. 364, Fed. Cas. No. 15,157.

4 C.v. Finn, 108 Mass. 466; Ward-v. P., 3 Hill (N. Y.), 395, 6 Hill,
144, M. 663.
288 CRIMINAL LAW. [Szors. 294, 295.

cates a higher degree of depravity to take property from
under the protection of the person or of the building, than
to take the same property when it is found not under such
protection. There is, however, the violation of the security
of the person and of the building, which enhances, in the
estimation of the law, the gravity of the offence. But these
subdivisions of the law of larceny have become so general,
that a few observations will be of use.
_ § 294. Larceny from the Pei «on, though it can be perpetrated
only by force, is nevertheless an offence requiring no other
than the mere force of taking the thing stolen, and is distin-
guishable from robbery, in that the latter is an offence com-
pounded of two distinct offences, — assault and larceny, —
the assault being, as it were, preparatory to and in aid-of the
larceny.! If, for instance, a thief,—for instance, a pick-
pocket, —in passing another person snatches a pocket-book
from his hand or from his pocket, this is larceny from the
person; while if the thief knocks the person down or seizes
him, and then takes the pocket-book from his possession, this
is robbery.2_ Technically, no doubt, larceny from the person
involves an assault, but it is the mere force of taking the
thing. In robbery, the force or fear is prior to the larceny,
and preliminary to and distinct from the taking3 And a
thing is said to be on the person if it is attached, as a watch
by a chain, or is otherwise so related to the person as to par-
take of its protection.£ We have already seen that the actual
taking of a thing on the person in the hand, and removing it
from contact or connection with the person, is a sufficient
taking.

§ 295. Larceny from Building.6 — Taking property in or

14 Bl. Com. 248.

2 Reg. v. Walls, 2 C. & K. 214; C. v. Dimond, 3 Cush. (Mass.) 235.

8 Rex v. Harmon, 1 Hawk. P. C. (8th ed.) 214, § 7; 2 Russ. on Crimes
(5th ed.), 89 et seq.

* Reg. v. Selway, 8 Cox C. C. 235, C. 386. See also post, § 295.

5 Ante, § 277. See also Flynn v. S., 42 Tex. 301, and compare as to
larceny from building, Hicks v. S., 101 Ga. 581, 28 S. E. 917.

6 Just what is a building within the statute often depends on the par-
ticular word employed. See Bishop Stat. Cr, (4th ed.) §§ 277 et seq. ;

. A
Scr. 295.] LARCENY. 289

from a building is not necessarily larceny in a building. To
constitute larceny in a building, the property taken must be
in some sense under the protection of the building, and not
under the eye or personal care of some one in the building?
Thus, if a pretended purchaser, having got manual possession
of a watch in a store for the purpose of looking at it, leaves
the store with the watch, he is not guilty of larceny in a
building. The watch, having been delivered into his custody
for a special purpose, cannot be said to be under the protec-
tion of the building. And even though it had not been so
delivered, but had been merely placed on the counter for
inspection, it then might be more properly said to be under
the personal protection of the owner, than that of the build-
ing So the snatching of property hung out upon the front of
a store for the purpose of attracting customers is not larceny
from a building. The goods are not under the protection of
the building.® But where meat was hanging in its regular
place on a hook inside a shop whence it was stolen, this was
larceny from the building; and ine fact that an officer was
there to watch for the suspected thief made no difference.*
The distinctions are very fine. Thus, if a person on retiring
to bed places his watch upon a table by his bedside, even
within his reach, the taking of it while he is aslecp is larceny
from the building. The taking of it while he is awake would
probably amount to simple larceny only,® the property not
being so related to the person as to be under his protection ;
while if taken from under the pillow of the owner while he is
asleep, especially if the taking involved a disturbance of the

Williams v. S., 105 Ga. 814, 32 S. E. 129; S. v. Hanlon, 32 Or, 95, 48 P.
353. Compare Willis v. S., 102 Ga. 572, 28 S. E. 917.

1 Rex v. Campbell, 2 Leach (8d ed.), 942, C. 387.

2 Rex v. Owen, 2 Leach (3d ed.), 652, M. 829; C. v. Lester, 129 Mass.
101; S. v. Patterson, 98 Mo. 283,11 S. W. 728; contra, Simmons »v. S.,
73 Ga. 609.

8 Henry v. S., 39 Ala. 679; Martinez v. 8., 41 Tex. 126. Compare
Burge v. S., 62 Ga. 170.

4 C. v. Nott, 185 Mass. 269.

5 Rex v. Hamilton, 8 C, & P. 49.

® Rex v. Taylor, R. & R. 418, C. 389; C. » Smith, 111 Mass. 429.

19
290 CRIMINAL LAW. [Sxcr. 296.

person, it might be larceny from the person.! The question
in all cases is whether the property is so situated that it may
be taken without a violation of the, protection supposed by
the law to be-afforded by being kept in a building, or being
within the personal custody of the owner. If so, then simple
larceny only is committed. If, on the other hand, the protec-
tion afforded by the building or by personal custody be vio-
lated, then the larceny is from the building or from the per-
son, as the case may be.2 The personal custody need not be
actual, but may be constructive, as the cases just cited show.
And perhaps a case might be supposed where the protection
of the building would be constructive also. The old notion
that in order to constitute larceny from the person the larceny
rust be by stealth, privily or clandestinely, and without the
knowledge of the owner, which was embodied in some early
statutes, is probably not now recognized by the law of any
State.

Since the building is not meant to be a protection against
the owner of it, a larceny by the owner of the house is not
larceny from the building.6 And for the same reason a lar-
ceny by the owner’s wife is not a larceny from the building.®
But this is not so where the thief is simply a lodger or
boarder ; a larceny by him may be larceny from the building.”

§ 296. Place.— That larceny in one jurisdiction of goods

1 Contra, P. v. McElroy, 116 Cal, 588, 48 P. 718.

2 Reg. v. Selway, 8 Cox C. C. 235, C. 386.

5 See also U.S. v. Jones, 3 Wash. C. Ct. 209, Fed. Cas. No. 15,494,
and ante, Robbery.

* Rex v. Francis, 2 Str. 1015; Reg. v. Walls, 2 C. & K. 214; Reg. v.
Selway, ante ; Higgs v. &., 118 Ala. 36, 21 So. 853; C. v. Dimou, 3
Cush. (Mass.) 285; 2 Bish. New Cr. Law, §§ 895 et oe 3 contra, Moye
v. 8., 65 Ga, 754. tn Texas the taking may be either secret or so sudden
that there is no opportunity for resistance: Green v. S., 28 Tex. App. 493,
13S. W. 784; Dukes v. 8., 22 Tex. App. 192, 2 S. Ww. 590.

5 Rex v, Gala, Leach C. C. (4th ed.) 217, C. 390; C. »v. Hartnett, 3
Gray (Mass.), 450. But see Reg. v, Bowden, 2 Moo. C. C. 285, C. 390;
so as to larceny from a vessel, Rex v. Madox, R. & R. 92, C. 301, M. 738..

® Rex v. Gould, ante.

7 Rex v. Taylor, R. & R. 418, C. 889, M. 830; Rex v. Hamilton, 8 C,
& P, 49,
Sects. 297-299.] EMBEZZLEMENT. 291

thence transported to another jurisdiction may be larceny in
the latter has already been shown.!

§ 297. The larceny at the same time of property of differ-
ent owners, though sometimes held to be separate larcenies
of the property of the different owners, is but a single act;
and, both upon the reason of the thing and the tendency of
the modern authorities, constitutes but a single offence. The
act as an offence is against the public, and not against the
several owners, with reference to whom it is but a trespass.
The allegation of ownership is for the purpose of identifica-
tion of the property, and is but matter of pleading.?

EMBEZZLEMENT.

§ 298. Embezzlement, though not an offence at common
law, is naw so universally made such by statute as to be of
general interest, subject to special statutory differences or
limitations. It may be defined generally as the fraudulent
appropriation of another’s property by one who has the lawful
possession ; and is distinguished from larceny by the fact that
in the latter the possession is not given but is wrongfully taken.
The statutes creating the crime of embezzlement, it has been
well said, “ have all been devised for the purpose of punishing
the fraudulent and felonious appropriation of property which
had been entrusted to tle person by whom it was converted to
his own use in such a manner that he could not be convicted
of larceny for appropriating it.” If the property at the time
it is taken is in the possession, actual or constructive, of the
owner, it is larceny ; if it is not, it is embezzlement.’

§ 299. Possession and Custody Distinguished.— Nice ques-
tions have arisen as to what constitutes the possession which
is violated in larceny, but which in embezzlement is in the al-

1 Ante, § 80.

2 Lowe v. 8., 57 Ga. 171; Bell v. S., 42 Ind. 335; Nichols v. C., 78
Ky. 180; S. v. Morphin, 37 Mo. 373; S. v. Merrill, 44 N. H. 624; S. v.
Hennessey, 23 O. St. 339; Wilson v. §., 45 Tex. 76.

8 Rex v. Bazeley, 2 Leach C. C. (4th ed.) 835, K. 805; C. v. Berry,
99 Mass. 428; C. v, Hays, 14 Gray (Mass. ), 62.
292 CRIMINAL LAW. [Secr. 299,-

leged delinquent. Where there is no general relationship, as
that of principal and agent, or employer and employee, other
than that of a special and particular trust, little difficulty
arises. The party trusted has the possession by delivery for
a purpose, and having the right to the possession, violates the
trust by fraudulently converting the property to his own
use, whereby the crime of embezzlement becomes complete.
Where, however, this general relationship of employer and
employee exists, it often becomes a question of some difficulty
to determine which party has the possession, —a difficulty
which can be best illustrated by reference to a few decided
cases. Thus, if a teller in a bank, to whom the funds of the
bank are intrusted during business hours for the purpose of
transacting the business of the bank, abstracts the funds from
the vault after business hours, and after they have been with-
drawn from his possession and put under the control of the
cashier,! this is larceny, because the funds were in the posses-
sion of the bank. So if a clerk ordinarily intrusted with the
sale of goods, after the store is closed, enters the store and
takes away the goods.2, Money taken from the till of the
master by a servant is stolen, because it is taken from the
possession of the master, the servant having only the custody.
Money taken from a customer by the servant, and put in his
own pocket before it reaches the till, is embezzled, the servant
having possession for delivery to the master,—the latter,
however, never having possessed it.? The distinction is very
fine, though clear, and seems to be supported by the authori-
ties. In some States, however, the peculiarities of the statute
seem to authorize an indictment for embezzlement where the
possession has reached the master, and the servant holds for
him,’ by what is elsewhere generally regarded as a mere cus-

1 C. v, Barry, 116 Mass. 1.

2 ©. v. Davis, 104 Mass. 548.

8 Rex v. Murray, 5 C. & P. 145, 1 Moo. C. C. 276, C. 310, K. 818;
Reg. v. Watts, 4 Cox C. C. 336, 2 Den. C, C. 14, C. 312; Reg. v. Hawkins,
1 Den. C. C. 584; C. v. King, 9 Cush. (Mass.) 284; C. v. Berry, 99 Mass.
428; P.v. Hennessey, 15 Wend. (N. Y.) 147; U. S. v. Clew, 4 Wash.

C. Ct. 790, Fed. Cas. No. 14,819.
4 Lowenthal v. S., 82 Ala. 589; P. v. Hennessey, ante.
Sect. 300.] EMBEZZLEMENT. 293

tody or bare charge! The theory of constructive possession
was early carried to a great length, in order to make the law
of larceny apply to acts which as yet no statute of embezzle-
ment had covered. Thus, a watch placed in the hands of a
watchmaker to be cleaned was held to be in the possession of
the owner, so that the conversion of it was larceny in the
watchmaker?

§ 300. Clerk. Servant. Agent. Officer.— What constitutcs
the several relationships of master and servant, employer
and clerk, principal and agent, and the exact meaning of
the several terms, has also been the subject of much dis-
cussion. There scems to be little or no distinction, so far as
the law of embezzlement is concerned, between the words
“elerk” and “servant,” though in popular parlance they
would hardly be confounded; but between them and the word
“agent” there is a distinction made. Just where the line is
drawn, however, as between the one and the other, is not very
well defined. Though, in general, the idea of continuity of
service underlies the relation of clerkship or service, yet
this is by no means necessary ; and an agency may be general
and continuous as well; so that such continuity is not deci-
sive as a criterion, though doubtless of some importance. In
fact, continuity is not essential to the quality of servant or
clerk. And it would seem that the same principle would ap-
ply here as with larceny, that if the relation, whether of master
and servant or otherwise, has in fact been constituted, it is
immaterial that it is temporary, if the property is obtained as
a result thereof. Thus where A farmed the tolls in X and Y
and regularly employed B to collect them in X, and on one
occasion requested him to receive the tolls from Y from the
collcctor for that district, an embezzlement of them by B when
so received was held within the statute Perhaps the idea of

11 Hawk P. C. (8th ed.) 144, § 6.

2 Ibid., § 10. :

3 Reg. v. Negus, L. R.2C. C. 34, K. 806; Reg. v. Spencer, R. & R. 299.

4 Rex v. Smith, 1 Lewin C. C. 86, M. 836; Reg. v. Hughes, 1 Moo. C.
C. 870; Wynegar v. S., 157 Ind. 577, 62 N. E. 38; S. v. Costin, 89 N.
C. 511; Campbell v. §., 85 O. St. 70; Goodwyn v. 8. (Tex.), 64 S. W.
251.
294 CRIMINAL LAW. [Secr. 300,

control is more distinctly characteristic of the relationship of
master and servant than of that of principal and agent.1 Yet
even here the agency may be such as to give the principal as
full control of his agent as if he were a servant. An agent is
always acting for his principal, with authority to bind him to
the extent of his agency ; while a servant, though in a certain
sense acting for his master, has not the representative charac-
ter of an agent, and has no authority, as servant, to bind his
master. His negligence, however, may be imputed to the
‘master. Personal presence and supervision also belong more

especially to the idea of mastership.? Still it is only the cir-
cumstances of each particular case which will determine under
which ‘category a particular person comes; and no better aid
in this particular can be given than by a reference to cascs
which involve special circumstances. Thus, although an ap-
prentice is not technically a servant, he may, under special
circumstances, be one within the meaning of the statute of
embezzlement.’ Buta general agent of an insurance company
resident abroad is not a servant;* and though a person em-
ployed to sell goods on commission and collect the purchase
money is not a clerk,® a commercial traveller, who does not
live with his employers, or transact business at their store,
may be;® while one who receives material to be wrought upon
in his own shop, and to be returned to the owner in the shape
of manufactured goods, is neither a clerk, servant, nor agent.’
Neither is a constable who receives a warrant to collect, with
instructions to have it served if not paid. He is rather a pub-
lic officer’ So the keeper of a county poorhouse stands
rather in the relation of a public officer than of servant to the
superintendent who appoints him.®

1 Reg. v. Bowers, L. R. 1 C. C. 41, C. 402,

2 Rex v. Squire, Russ. & Ry. 349.

8 Rex v. Mellish, Russ. & Ry. 80.

4 Reg. v. May, L. & C. 18.

5 Reg. v. Bowers, ante.

® Rex v. Carr, Russ. & Ry. 198,

7 C. v. Young, 9 Gray (Mass.), 5

8 P. v. Allen, 5 Den. (N. Y.) 76,

9 Coats v. P., 22 N.Y. 245.
Secr. 301.] EMBEZZLEMENT. 295

§ 301. Agency. — But not all agencies come within the
purview of this statute. ;

One whose business is that of a general agent for divers
persons, which from its very nature carries with it the implied
permission to treat the moneys received as a general fund out
of which all obligations are to be paid, such fund to be used
and denominated as his own, is not held to be an agent within
the meaning of the statute of embezzlement. Thus, an
auctioneer, who is the agent of the buyer and the seller for
effecting the sale, would find it wholly impracticable to carry
on his business if he were obliged to keep separate the funds
of each particular seller.1 Soa general collector of accounts
is not such an agent of those for whom he collects,? nor is a
general insurance agent receiving premiums for divers com-
panies.2 Nor would a gerieral commission merchant be; nor
any person who, from the nature of his business or otherwise,
has authority to confound aud deposit in one account, as his
own, funds received from divers sources.t But if the de-
fendant, although having a general authority to confound,
holds money under a special contract forbidding this he
would be liable.6 But in general, wherever it was the inten-
tion of the parties to create only a relation of debtor and
creditor, it is clear that a failure to pay the amount due can
not be embezzlement.§

The word “ officer,” as used in statutes of embezzlement,
has been held to apply to the sheriff of a county,’ the treasurer

1 C. v, Stearns, 2 Met. (Mass.) 343.

2 C. vy. Libbey, 11 Met. (Mass.) 64; accord, Reg. v. Hoare, 1 F. &
F. 647. Compare 8. ». Thomson, 155 Mo. 300, 55 S. W. 1018.

8 P. v. Howe, 2 T. & C. (N. Y.) 383.

4 C. v. Foster, 107 Mass. 221; Mulford v. P., 139 Ill. 586, 28 'N. E.
1096; P. v. Wadsworth, 63 Mich. 500, 30 N. W. 99. Otherwise, by
statute in Illinois, as to commission merchants, warehousemen, etc.,
Wright v. P., 61 Ill. 382.

5 C. v. Foster, ante; S. v. Cunningham, 154 Mo. 161, 55 8. W. 282.
Compare C; v. Smith, 129 Mass. 104.

® See, in addition to cases ante, S. v. Brown, 171 Mo. 477, 71 8. W.
1081; S. v. Barton, 125 N. C. 702, 34 8. E. 533.

7 §. v. Brooks, 42 Tex. 62.
296 CRIMINAL LAW. [Sxcr. 302.

of a town, of a county,? of a State,’ a selectman,* a justice of
the peace,® the directors of a bank,§ and the treasurers of
railroads and other bodies politic.? And it is immaterial
whether the corporation is de jure, or simply de facto. So it
is enough if the defendant is a de facto officer Perhaps
“servant”? would aptly describe such persons, if the word
“ officer,” was not in the statute!

§ 302. Employment. — Embezzlement, as we have seen, is
substantially a breach of trust; and is the peculiar crime of
those who are employed or trusted by others. Hence, if there
is no employment of A by B there can be no embezzlement
by A of money or property which he may have acquired even
though with a duty to deliver it to B. Thus, where it
was A’s business to carry gloves from X to Y, receive the
money for them and deliver it to the glove makers at X,
he was held to be a carrier and his duty to the glove makers
to arise from that fact, not from any peculiar relation of con-
fidence or trust between themselves and him; consequently,
a felonious conversion by him of money thus received was
not embezzlement! So where a bankrupt made an assign-

¢

1 C. v. Este, 140 Mass. 279, 2 N. E. 769; Bork v. P., 91 N. Y. 5.

2S. v. King, 81 Ia. 587, 47 N. W. 775; S. v. Smith, 138 Kan. 274;
S. v. Czizek, 88 Minn. 192, 36 N. W. 457.

3S. v- Archer, 73 Md. 44, 20 Atl. 172; P. v. McKinney, 10 Mich. 54;
Hemingway v. S., 68 Miss. 371, 8 So. 317. See also S. v. Parsons, 54 Ia.
405, 6 N. W. 579; S. v. Walton, 62 Me. 106; S. v. White, 66 Wis. 343,
28 N. W. 202.

4S. v. Boody, 58 N. H. 610.

5 Crump v. §., 23 Tex. App. 615, 5 S. W. 182.

6 C. v. Wyman, 8 Met. ( Mass.) 247.

7 Reeves v. 8., 95 Ala. 31, 11 So. 158; C. v. Tuckerman, 10 Gray
(Mass.), 173. ,

§ Kossakowski v. S., 177 Ill. 563, 53 N. EB. 115; P. v. Hawkins, 106
Mich. 479, 61 N. W. 736; P. v. Carter, 122 Mich. 668, 81 N. W. 924;
S. v. Reynolds, 65 N. J. L. 424, 47 Atl. 644.

9 §. v. Findley, 101 Mo. 217, 14 S. W. 185.

1 Rex v. Squire, Russ. & Ry. 349; Reg. ». Welch, 2 C. & K. 296.
The term ‘officer’? does not include clerks, S. v. Denton, 74 Md. 517,
22 Atl. 305; U. S. v. Smith, 124 U. 8, 525.

1 Reg. v. Gibbs, 6 Cox C. C. 455. See also Colip v. S., 153 Ind. 584,
Sect. 302.] EMBEZZLEMENT. 297

ment of his property, a conversion by him of debts which he
collected was no embezzlement; since the legal title to them
was still in him and he neither received the money nor owed
the duty of paying it to the assignees because of any employ-
ment.! So where the teller of a bank misread a draft and
intentionally paid $200 where only $100 was called for, the felo-
nious retention of the balance by the payee was not emrbezzle-
nent, since it had not come to him through any trust reposed
in him by the teller? Many of the statutes limit the crime
to cases where the fraudulent commission is by one who gets
possession of the money or property “by virtue of his em-
ployment.” Under this limitation it has been held, by a very
strict construction, that if a servant employed to sell goods
at a fixed price sells them at a less price, and embezzles the
money, —that money not being the master’s, but the pur-
chaser still remaining bound for the full fixed price, — the
servant docs not come in possession of his master’s money
by virtue of his employment.? So, when a servant receives
money for the use of his master’s property, but in a manner
contrary to his right or authority, and in violation of his
duty, it is said not to be his master’s money, but rather his
own! But this strictness of interpretation has not been
followed in this country, where it has been held that, if an
agent obtains money in a manner not authorized, and in
violation of his duty, yet under the guise of his agency, he gets
it by virtue of his employment;® thus, where an agent for
the sale of land fraudulently had notes made payable to
himself he was guilty of embezzlement of the funds so ob-

55 N. E. 739; Reed v. S., 16 Tex. App. 586. In many States bailees
are included within the embezzlement statutes.

1 Reg. v. Barnes, § Cox C. C. 129, C. 394.

2 C. v. Hays, 14 Gray (Mass.), 62, C. 407.

8 Reg. v. Aston, 2 C. & K. 413, M. 838; Rex v. Snowley, 4 C. & P.
390, M. 887.

4 Reg. v. Harris, 6 Cox C. C. 363, C. 397; Reg. v. Cullum, L. R. 2
C. C. 28, C. 398, K. 311, M. 839; Reg. v. Read, L. R. 3 Q. B. D. 131;
Brady v, S., 21 Tex. App. 659, 1 S. W. 462; Loving v. S., 44 Tex. Cr.
R. 373, 71 S. W. 277.

5 Ex parte Hedley, 31 Cal, 108.
298 CRIMINAL LAW. [Sects. 303, 304.

tained ;! so where a clerk after being discharged, received
moneys paid in the belief that he was still clerk, they were
held to be obtained by him in the course of his employment.?
Later English cases seem now in accord with this view.®

§ 303. Subject Matter of Embezzlement. — It is generally pro-
vided that all matters which may be subjects of larceny may
also be subjects of embezzlement. Some statutes, however,
are not so comprehensive. Save these differences, which can-
not here be particularized, it may be said that whatever may
be stolen may be embezzled; and what may be stolen has
been considered under the title Larceny. And as is also the
case in larceny, it is not necessary that the person from whom
the property is embezzled should have a title good against all
the world. It is enough that as between him and the defend-
ant the latter owes the duty of delivering as stated above.*

§ 304. Intent to Defraud is an essential element of the case.
And if the money is taken under a claim of right, as where a
cashier of a mercantile establishment intercepts funds of his
employers, and without their knowledge and against their
wish appropriates them to the payment of his salary, by
charging them to his account, this is no embezzlement. So
if the use of money was made in good faith, with no intention
of depriving the owner of it, the mere inability to return the
money does not make the act embezzlement.6 But the mere

1S. v. Rue, 72 Minn. 296, 75 N. W. 235; S. v. Schlib, 159 Mo. 180,
60 S. W. 82.

2 §. v. Jennings, 98 Mo. 493, 11 S. W. 980. See also S. v. Patterson,
66 Kan. 447, 71 P. 860; P. v. Butts, 128 Mich. 208, 87 N. W. 224.

8 Reg. v. Beechey, Russ. & Ry. 319; Rex v. Salisbury, 5 C. & P. 155;
Reg. v. Wilson, 9 C. & P. 27, K. 3138.

4 Rex v. Beacall, 1 C. & P. 454; Reg. v. Stainer, L. R. 1 C. C. 230;
8. v. Sienkiewicz, 4 Penne. (Del.) 59, 55 Atl. 346; S. v. Tumey, 81 Ind.
559; S. v. Cunningham, 154 Mo. 161, 55 S. W. 282; S. ». Hoshor, 26
Wash. 643, 67 P. 386.

5 Ross v. Innis, 35 Ill. 487; Kirby v. Foster, 17 R. I. 437, 22 Atl. 1111.

® Henderson v. S.,129 Ala. 104, 29 So. 799; S.v. O’Kean, 35 La. Ann.
901; P. v. Hurst, 62 Mich. 276, 28 N. W. 838; P. v. Wadsworth, 63
Mich. 500, 80 N. W. 99; S. v. Cowdery, 79 Minn. 94, 81 N. W. 750; Myers
v. §., 4 O. Cire. Ct. 570.
Scr. 305.] FALSE PRETENCES. 299

hope or intention of making good the loss at some future day
will not prevent the crime from being embezzlement.

FALSE PRETENCES.

§ 305. Mere verbal lying, whereby one is defrauded of his
property without the aid of some visible token, device, or
practice, as when one falsely pretends that he has been
sent for nioney,? or falsely states that goods sold exceed the
amount actually delivered,? or falsely asserts his ability to
pay for goods he is about to buy,t— was not formerly an
indictable offence. But as many frauds were practised in this
way which were mere private frauds, and which the court,
with every disposition to punish, could not stretch the law of
larceny to cover, it was at length enacted® that designedly
obtaining money, goods, wares, or merchandise by false pre-
tences, with intent to defraud any person, should be indictable,
The provisions of this statute have been so generally adopted
in this country, that, if it cannot be said to be strictly part of
the common law, it may be considered as the general law of
the land. And though the terms in which the enactment is
made may slightly differ in the different States, yet they are
so generally similar that in most cases the decisions in one
State will serve to illustrate and explain the statutes in others.
And as the words of the statute cover cheats as well by words
as by acts and devices, indictments under the statute are now
usually resorted to, unless special circumstances or special
provisions compel a resort to the old form of pleading. Under
the statutes, in order to constitute the offence, it must appear
(1) that the pretence is false; (2) that there was ai intent
to defraud; (8) that an actual fraud was committed; (4)
that the false pretences were made for the purpose of perpe-

1 P. v. Jackson, 138 Cal. 462, 71 P. 566; P. v. Warren, 122 Mich. 504,
81 N. W. 360; P. v. Butts, 125 Mich. 208, 87 N. W. 224.

2 Reg. v. Jones, 1 Salk. 379.

8 Rex v. Osborn, 3 Burr. 1697.

4 C. v. Warren, 6 Mass. 72.

5 30 Geo. II, c. 24.
800 CRIMINAL LAW. [Sxcr. 306.

trating the fraud; (5) and that the fraud was accomplished by
means of the false pretences.!

§ 806. .(1.) Pretence Must Be False. — A false pretence is a
false statement about some past or existing fact, in contradis-
tinction from a promise, an opinion, or a statement about an
event that is to take place. Thus, a pretence that one has a
warrant to arrest, if false, is within the statute,? while a pre-
tence that his goods “ are about to be attached” is not. Nor
is a statement that something could, would, or should be
done ;* thus a representation that a person will not be able to
meet a note when it becomes due is not a pretence within the
statute.6

The shades of distinction are sometimes very nice. Thus
“JT can give you employment” is no pretence ;® but “I ‘have
a situation for you in view” is.? And it seems that the false
statement of an existing desire or intention to accomplish
some present purpose, may be a false pretence. Thus, a
promise may be considered as a statement of an intention to
carry out the promise; and if there was no such intention, it
isa false pretence.® But on the other hand, in many cases the
promise has apparently been considered by the courts to be,
not so much a statement of the present frame of mind on the
part of the promisor as a declaration as to his action in the
future. For this reason it is generally said that a promise,
since it looks primarily to future action, cannot be a sufficient
false pretence. Thus, where the defendant got money on the
strength of a statement that he was going to pay his rent,! or

1 C. v. Drew, 19 Pick. (Mass.) 179.

2 C. v. Henry, 22 Pa. 253.

8 Burrow v. §., 12 Ark. 65.

4 Ryan v. S., 45 Ga. 128; S. v. Magee, 11 Ind. 154; S. v. Evers, 49°
Mo. 542; Jebusca-e. S., 41 Tex. 65.

5 C, v. Moore, 99 Pa. 570.

® Ranney v. P., 22 N. Y. 418.

7 C. v. Parker, "Thatcher Cr. Cas. (Mass.) 24.

8 §. v. Rowley, 12 Conn. 101; S. v. Sarony, 95 Mo. 349, 8 S. W. 407;
C. v. Walker, 108 Mass. 309.

® Reg. v. Jones, 6 Cox C. C. 467; S. v. Dowe, 27 Ia. 273.

10 Reg. v. Lee, L. & C. 309, K. 323, M. 851.
Sect. 306.] FALSE PRETENCES. 3801

that he would marry the prosecutrix,! or that he was going to
erect a soap factory near the prosecutor’s residence,” or was
going to buy cattle with the money advanced him,? it was held
that the statements were not false pretences within the meaning
of the criminal law.*

The same distinction exists as to opinions. Mere opinions
as to quality, value, quantity, amount, and the like, are held
not to be false pretences.> The fact, however, that one does
or does not hold an opinion is as much an existing fact as
any other; and if it is falsely stated with intent to defraud,
and does defraud, it is in every particular within both the
letter and spirit of the law.6 It may be difficult to prove that
an opinion is known by the person who asserts it to be false,
and that it was falsely asserted with intent to defraud. But
this is a question of procedure.

The belief by the party making the statement that it is
false is of no moment, if it is in fact true? Thus where A
mortgaged land to B, and then in the presence of B mortgaged
it to C with the statement that there was no mortgage on the
land ahead of ©’s, B by acquiescing in the statement was held
to have waived his priority ; consequently A’s statement was
in fact true, and no false pretence. On the contrary, if the
statement be false, yet he believes it to be true, this is not
within the statute, as in such case there is no intent to
defraud.

1 Reg. v. Johnston, 2 Moo. C, C. 254. as

2 P. v. Wheeler, 169 N. Y. 487, 62 N. E. 572.

8 Cook v. S. (Neb.), 98 N. W. 810. >

* See further Rex v. Douglas, 1 Moo. C. C. 462; Rex v. Goodhall,
R. & R. 461; Reg. v. Gordon, L. R. 23 Q. B. D. 354, K. 826; Calhoun v. S.,
119 Ga. 312, 46 S. E. 428; S. v. Colly, 39 La. Ann. 841, 2 So. 496; S. v. De-
Lay, 93 Mo. 98,5 8. W. 607; P. v. Blanchard, 70 N. Y. 314; P. v. Roth-
stein, 95 App. Div. (N. Y.) 292, 88 N. Y. S. 622,

5 Reg. v. Williamson, 11 Cox C. C. 328; Reg. v. Oates, 6 Cox C. C.
540; Reg. v. Bryan, 7 Cox C. C. 312; Reg. v. Goss, 8 Cox C. C. 262;
Reese v. Wyman, 9 Ga. 430; S.v. Estes, 46 Me. 150; Scott v. P., 62 Barb.
(N. Y.) 62. :

6 Reg. v. Ardley, L. R.1C. C.301; S. v. Tomlin, 5 Dutch. (N. J.) 13.

7 Rex v. Spencer, 3 C. & P. 420, M. 850.

8 §. v, Asher, 50 Ark. 427, 8S. W. 177.
802 CRIMINAL LAW. [Secr. 307.

The pretence must be false at the time when the property
is obtained. If it be false when made, but becomes trne at
the time when the property is obtained, — as where one states
“that he has bought cattle, when in fact he had not at the
time of the statement, but had when he obtained the money,
—there is no offence.1 Vice versa, however, if the statement
be true when made, but becomes false at the time of obtain-
ing the property, —as if, in the case supposed, the cattle
had been bought, but had been sold at the time when the
property was obtained, —then the offence would no doubt be
committed.

§ 3807. Subject Matter. — Any lie about any subject matter,
by word or deed, —as by showing a badge, or wearing a uni-
form, or presenting a check or sample or trade-mark, or by a
look or a gesture, — subject to the foregoing limitations, is a
false pretence. Thus, if one falsely assert as an existing fact
that he possesses supernatural power,? or that he has made a
bet, or that he is pecuniarily responsible ¢ or irresponsible,® or is
acertain person,’ or that he is agent for or represents a certain
person,’ or belongs to a certain community ° or military organ-
ization,’ or is married,!° or unmarried," or engaged in a certain
business,” or that a horse which he offers to sell is sound,® or
that a flock of sheep is free from disease, or any other lie about
any matter where money is fraudulently obtained, — the offence

1 In re Snyder, 17 Kan. 542; P.v. Wheeler, 169 N. Y. 487, 62 N. E.
572.

2 Reg. v. Giles, 10 Cox C. C. 44; Reg. v. Bunce, 1 F. & F, 528.

8 Young v. Rex, 3 T. R. 98.

4 §. v. Pryor, 30 Ind. 350.

5 §. v. Tomlin, 5 Dutch. (N. J.) 18.

° C. v. Wilgus, 4 Pick. (Mass.) 177; P. v. Cook, 41 Hun (N. Y.), 167.
P. v. Johnson, 12 Johns. (N. Y.) 292.
Rex v. Barnard, 7 C. & P. 784.
Hamilton v. Reg., 9 Q. B. 271; Thomas v P., 34 N. Y. 351.

10 Reg. v. Davis, 11 Cox C. C. 181.

11 Reg. v. Copeland, C. & M. 516; Reg. v. Jennison, 9 Cox C. C. 158,
L. & C. 157, K. 824.

12 Pp. v. Dalton, 2 Wheeler Cr. Cas. (N. Y.) 161.

18S. ». Stanley, 64 Me. 157.

14 Pp. v. Crissie, 4 Den. (N. Y.) 525.

Ce
Sxcr. 308.] FALSE PRETENCES. 803

is complete. ‘Why should we not hold that a mere lie about
any existing fact, told for a fraudulent purpose, should be a
false pretence?”

§ 808. “ Puffing.” — The ordinary “ puffing” of the quality
of an article, such as is to be expected in the course of trade,
though perhaps immoral, is not criminal; because it is a
mere expression of opinion such as the purchaser should ex-
pect and be on the lookout against. Thus, a statement that
certain plated spoons were equal to “ Elkinton’s A” (a par-
ticular sort of plated goods), and had as much silver as those
goods, was held not to be a criminal false pretence ;? an ex-
treme case, however, and one with which dissatisfaction has
been expressed.2 But the principle was clearly correctly ap-
plied in cases where it was held that statements that land
was “nicely located,” * or ‘well wooded and with valuable
timber,” ® were mere business puffing.

This principle, however, will not excuse a positive state-
ment as to a fact, made falsely ; as, for instance, a statement
that certain goods are silver, when in fact they are of base
metal Nor will it excuse a false representation of sound-
ness upon the sale of a horse.’ So where a dealer sold as
“goood tea” a mixture of other substances, containing only a
small proportion of tea, this was held to be a false pretence ; 8
so where bonds were sold under a false statement as to their
market value.® “A statement may be a mere commendation
or expression of opinion, by which the seller seeks to enhance
the price of the property, and justifiable ; but when it is made
and intended as an assertion of a fact material to the negotia-

1 Alderson, B., Reg. v. Woolley, 1 Den. C. C. 559.

2 Reg. v. Bryan, 7 Cox C. C. 312, Dears. & B. 265, M. 855,

8 Erle, C. J., in Reg. v. Goss, 8 Cox C. C. 262.

£ P. v. Jacobs, 385 Mich. 36. :

5 S. v. Paul, 69 Me. 215. See also P. v. Morphy, 100 Cal. 84, 34 P.
623; S. v. Young, 76 N. C. 258.

® Reg. v. Roebuck, 7 Cox C, C. 126; Reg. v. Ardley, L. R.1C. C. 301,
M. 864.

7 S. v, Stanley, 64 Me. 157; Jackson »v, P., 126 Il. 189, 18 N. E. 286.

8 Reg. v. Foster, L. R. 2Q. B. D. 301.

® P, v. Jordan, 66 Cal. 10, 4 P. 773.
804 CRIMINAL LAW. (Sects. 309, 310.

tion, as a basis on which the sale is to be made, if it be false,
and is known to the seller to be so, the seller is guilty of the
offence, if he thereby induces the buyer to part with his
property.” ?

§ 309. Implied Representations. —There may be an obtain-
ing by false pretences, though all defendant’s statements were
true, if a falsehood was implied. Thus where one sold cer-
tain goods to another, having previously given a bill of sale
of them to a third party, this was an obtaining by false
pretences.?

The pretence need not be in words; the falsity may consist
entirely in acts. Thus where the defendant, not being a mem-
ber of the University, went to purchase goods in Oxford
wearing a sort of cap worn only by the students of a certain
College, it was held to be an obtaining by false pretences.?
So where a coal miner, who was paid according to the number
— of tubs of coal he mined, put two tickets instead of one into a
tub, and thus secured double pay, it was held an obtaining by
false pretences.*

The giving of a check by a person who has no bank account
isa false pretence.® But if he has an account, and a reason-
able belief that the check will be good when presented, it is
not a false pretence, though at the time the check is drawn
there is no money in the bank to meet it.

§ 310. (2.) Intent to Defraud.—If the money be obtained
by the false pretence, the intent being to obtain it thereby, as
where one obtains a loan upon a forged certificate of stock in
a railroad company, the offence is complete, though the party

1 Jackson v. P., 126 Tl. 139, 149, 18 N. E. 286.

2 Reg. v. Sampson, 52 L. T. 772. See also Reg. v. Randell, 16 Cox
C. C. 335.

8 Rex v. Barnard, 7 C. & P. 784, K. 333; see also Reg. v. Bull, 13
Cox C. C. 608.

4 Reg. v. Hunter, 10 Cox C. C. 642. See also Reg. v. Murphy, Irish
Rep. 10 C. L. 508, K. 338, M. 852 ; Reg. v. Cooper, L. R. 2 Q. B. D. 510,

5 Rex v. Parker, 7 C. & P. 825; P. v. Wasservogle, 77 Cal. 173, 19 P.
270; Barton v. P., 185 Ill. 405, 25 N. E. 776.

® Reg. v. Walne, 11 Cox C. C. 647; C.v. Drew, 19 Pick. (Mass.) 179.
Secr. 311.] FALSE PRETENCES. 305

obtaining the money fully intended and believed he should
be able to pay the note at maturity and redeem the stock.}
But where the representation is made, not to get property at
all, but for some other purpose, the crime is not committed?
Tf the object in getting possession of the propersy be not to
defraud, but to compel payment of a debt, —as when a ser-
vant gets possession of the goods of his master’s debtor, to
enable his master to collect his debt,— the offence is not
committed? So if the object be merely to get one’s own
property from the possession of another.

But where the defendant having an unliquidated claim
against a railroad for injuries, by false representations in-
duced the company to pay a large sum, the fact that he might,
in the opinion of the jury, have recovered that amount in an
action against the railroad was held no defence.®

§ 311. (8 and 4.) Actual Perpetration of the Fraud. — If the
fraud be not actually accomplished by obtaining the goods,
money, etc., as the charge may be, it is but an attempt, and
only indictable as such. And if a person is merely induced
by the false pretence to pay a debt which he previously owed,
or to indorse a note which he had agreed to indorse, it is no
offence under the statute.6 Soit has been held in New York,’
that parting with money for charitable purposes is not within
the statute. But thiscase rests upon the supposed restraining
force of the preamble of the statute; and elsewhere the law
has been held to be the reverse.§ So obtaining a promissory

1 Reg. v. Naylor, 10 Cox C. C. 149, M. 880; C. v. Schwartz, 92 Ky.
510, 18S. W. 338 ; C. v. Coe, 115 Mass. 481; S v. Thatcher, 35 N. J. L.
445.

2 Rex v. Wakeling, R. & R. 504; Reg. v. Stone, 1 F. & F. 311, M.
880 ; Hunter v. S. (Tex.), 81 S. W. 730.

3 Rex v. Williams, 7 C. & P. 354, M. 879; C. v. McDuffy, 126 Mass.
467; S. v. Hurst, 11 W. Va. 54; post, § 311.

4 In re Cameron, 44 Kan. 64, 24 P. 90. |

5 C. v. Burton, 183 Mass. 461, 67 N. E. 419. .

6 P. v. Getchell, 6 Mich. 496; P. v. Thomas, 3 Hill (N. Y.), 169;
ante, § 310.

7 P. v. Clough, 17 Wend. 351.

8 Reg. v. Jones, 1 Den. C. C. 551; Reg. v. Hensler, 11 Cox C. C. 570;

20
806 CRIMINAL LAW. [Secr. 312,

note from a minor has been held to be no actual fraud, as the
minor is not bound to pay ;! though it may well be doubted
if the paper upon which the note is written is not “ goods,”
within the meaning of the statute.2 So where the defendant
sells by false pretences a promissory note which in fact is
perfectly good, the crime is not committed.?

From the rule that the false pretence must be the induce-
ment for parting with the property, it follows that after
possession and property, — though under a voidable title, — is
obtained, a false representation, whereby the owner is induced
to permit the property to be retained, does not amount to the
offence; as where a vendor, suspecting the solvency of the
vendee, proposes to retake his goods, but is induced by false
pretences to abandon his purpose; though it might be other-
wise if the right to the property had not passed.*

§ 312. Fraud in Both Parties. — When in a transaction each
party makes false pretences, and each defrauds the other, —
as when two parties exchange watches, each falsely pretending
that his watch is gold of a certain fineness, — each is indict-
able, and neither can defend on the ground of the other’s
deceit.2 It is held in New York, however, that if the money
parted with is for the purpose of inducing the false pretender
to violate the law, as, for instance, a pretended officer not to
serve a warrant, the indictment will not lie.6 But this case
proceeds upon the ground that the object of the statute is to
protect the honest, while the better view is that the law is for
the protection of all, by the punishment of rogues. The ap-
plication of the principle that one man may escape punishment
for crime because the person upon whom he committed it was

C. v. Whitcomb, 107 Mass. 486. So in New York now by statute, 1851,
c. 144, § 1.

1 C. v. Lancaster, Thatch. Cr. Cas. (Mass.) 428,

2 Reg. v. Danger, 7 Cox C. C. 303.

8 P.v. Wakely, 62 Mich. 297, 28 N. W. 871.

4 P. v. Haynes, 14 Wend. (N. Y.) 546.

5 C. v. Morrill, 8 Cush. (Mass.) 571.

® McCord v. P., 46 N. Y. 470, C. 148, Peckham, J., dissenting, with
whom is the weight both of reason and authority ; C. v. Henry, 22 Pa.
253 ; 2 Bish. Cr. Law, § 469. See ante, § 25.
Sect. 313.] FALSE PRETENCES. 307

guilty of the same or a different crime, would paralyze the law.
The true rule is to punish each for the crime he commits.

§ 313. Delivery with Knowledge. Ozdinary Prudence. — If
the party who delivers the goods is not deceived by the false
pretence, but is aware of its falsity, the offence is not com-
mitted, though there would be an attempt ;1 and so, perhaps,
if he has the means of knowledge, —as when one falsely
represented that on a former occasion he did not receive the
right change, and thereby obtained additional change.? Yet
if the change thus obtained is through actual deceit, operating
on the mind of the party who delivers, it is within both the
letter and the spirit of the law,? and for this reason and those
mentioned in the next paragraph the doctrine of the last-
mentioned case would seem unsound.+

The false pretence, it was once generally and is now some-
times said, must be of such a character as is calculated to
deceive a man of ordinary intelligence and caution.2 One
man, it has been intimated by high authority, is not to be
indicted because another man has been a fool. But in the
practical application of the rule the courts seem to have been
guided, in determining whether the false pretence was an
indictable one, more by the fact that the deceit and fraud
were intended and actually accomplished, than that they were
calculated generally to deceive. And the doctrine which
formerly obtained, that if the party from whom the goods
were obtained is negligent, or fails in ordinary prudence, the
offence is not committed, seems now to be generally discarded,
as a doctrine which puts the weak-minded and the incautious
at the mercy of rogues. The tendency of the more recent

1 Reg. v. Mills, D. & B. C. C. 205; Reg. v. Hensler, 11 Cox C. C. 570;
S. v. Young, 76 N. C. 258.

2 C. v. Drew, 19 Pick. (Mass.) 179; C. v. Norton, 11 All. (Mass.)
266.

3 Reg. v. Jessop, D. & B. C. C. 442; 2 Bish. Cr. Law, § 432a.

4 C. v. Mulrey, 170 Mass. 103, 49 N. E. 91.

5 S. v. Hood, 3 Penne. (Del.) 418, 53 Atl. 437 ; Jones v. S., 50 Ind.
473; C. vw. Grady. 13 Bush.. (Ky.) 285; S.’v. Lawrence, 178 Mo, 350, 77
S. W. 497; S. v. De Hart, 6 Baxt. (Tenn.) 222.

® Per Lord Holt, Reg. v. Jones, 2 Ld. Raym. 1018, M. 845.
308 CRIMINAL LAW. [Szcr. 313.

authorities is to establish the rule that, whatever the pretence,
if it be intended to defraud, and actually does defraud, the
offence is committed. The shallowness of the pretence, and
its obvious falsity, may be evidence that the party must have
had knowledge, and so was not deceived or defrauded by the
pretence; but it is only evidence upon the question whether
in fact the person parting with his property was deceived.
If, in fact, the party is induced by the pretence to part with
his money, —if the pretence takes effect, —then the money
is obtained by it. Thus, it was held that a pretence that
a one-pound note, reading so upon its face, was a five-pound
note, to a party who could read, was a false pretence.1 It was
also held an indictable false pretence to represent to a person
who could not read, as a Bank of England note the following
‘instrument :

“ £5.] Bank OF ELEGANCE. [No. 230.

“T promise to pay on demand the sum of five Rounds,
if I do not sell articles cheaper than anybody in the whole
universe.

“ Five. For Myseur & Co.
“ Jan. 1. 1850. M. CarRo.u.” 2

So where the defendant obtained money on the pretence that
he could communicate with spirits, it was held an obtaining by
false pretences.2 So where the misrepresentation is in regard
to the title to land, the fact that the person deceived could
have protected himself by consulting the records is no
defence.t

1 Reg. v. Jessop, D. & B. C. C. 442.

2 Reg. v. Coulson, 1 Den. C. C. 592. See also Reg. v. Woolley, 1 Den.
C. C. 559; Elmore v. S.,138 Ala. 50, 385 So. 25; Cowen »v. P., 14 Ill. 348;
Lefler v. S., 153 Ind. 82, 54 N. E. 439; S. v. Mills, 17 Me. 211; P. v. Bird,
126 Mich. 631, 86 N. W. 127, M. 869; Oxxv.S., 59 N. J. L. 99, 35 Atl.
646; P. v. Cole, 65 Hun (N. Y.), 624, 20 N. Y. S. 505; Colbert v. S.,
1 Tex. App. 314; Harrison v. S., 44 Tex. Cr. R. 243, 70 S. W. 421;
In re Greenough, 81 Vt. 279; 2 Bish. Cr. Law, § 464; Steph. Diz. Cr.
-Law, art. 330; Roscoe’s Cr. Ev. (9th ed.) 498.

5 Reg. v. Lawrence, 36 L. T. Rep. 404.

4 Crawford v, §., 117 Ga. 247, 43 8S. E. 762; Keyes v. P., 197 Ill. 638,
64 N. E. 730.
Sects. 314, 315.] FALSE PRETENCES. 309

§ 314. (5.) The Fraudulent Pretence as the Means. —The false
pretence must have been the means whereby the defrauded
party was induced to part with his property! It is not meant
by this that the false pretence should have been the sole in-
ducement which moved the promoter. It is enough if, co-
operating with other inducements, the fraud would not have
been accomplished but for the false pretence.2 Thus where
the defendant falsely represented that he had an order for
six thousand cloaks, that he could pay for the cloth, and would
give an order on the person ordering them, the fact that by
statute no representation as to solvency was binding unless in
writing, and that the statement as to giving the order was.
purely promissory, did not invalidate the conviction when it
appeared that the prosecutor, though relying. on both these,
also relied on the representation that the defendant had this
large order. So when property is sold with a written cove-
nant of title and against encumbrances, and at the same time
it is also fraudulently represented verbally that the property
is unencumbered, the offence is committed if the verbal:
representation was the inducement.! It is doubtful, however,.
whether a written covenant of title, or against encumbrances
merely, can be fairly regarded as a representation that the
property sold is unencumbered, so as to be the foundation of
an indictment. It would seem to be only an agreement which
binds the party civilly in case of breach.®

§ 815. Remoteness of the Pretence.— The pretence must be
reasonably near to the obiating if too remote, the crime is
not committed.

It is clear that where, as a step toward getting the money,
the defendant enters into a contract with the prosecutor or

1 Reg. v. Mills, D. & B. 205, K. 340.

2 Reg. v. Lince, 12 Cox C. C. 451; In re Snyder, 17 Kan. 542; S. v.
Thatcher, 35 N. J. L. 445; P. v. Haynes, 11 Wend. (N. Y.) 557; Fay v.
C., 28 Grat. (Va.) 912.

3 P. v. Rothstein, 95 App. Div. (N. Y.) 292, 88 N. Y. S. 622. See
‘ also S. v. Fooks, 65 Ia. 196, 21 N. W. 561.

4 Reg. v. Abbott, 1 Den. C. C. 273; S. v. Dorr. 33 Me. -498; C. v
Lincoln, 11 All. (Mass.) 233.

5 Rex v. Codrington, 1 C. & P. 661; S. v. Chunn,.19 Mo. 2838.
310 CRIMINAL LAW. [Secr. 315.

sells an article to him and he pays on the sale, it is none the
less an obtaining by false pretences. The sale of a cheese by
false “ tasters,” } or of a horse by false representations as to lis
soundness,” is an illustration of this class of case. So where
the defendant induced the prosecutor by false pretences to
agree to build him a wagon, his purpose being from the outset
to get the wagon by this means, the court held that the pretence
was a continuing one, not too remote and that he might right-
fully be convicted? On the other hand, where the defendant by
false representations secured a contract for board and lodging,
and afterward borrowed sixpence of his landlord, there being
no new representation, and no evidence that he had this
scheme in mind when he contracted, it was held that the loan
was induced, not by the original misrepresentations, but by
the fact that he was a lodger;* although it was said in a
later case® that the question whether the prosecutor was not
in fact partially influenced by the original misrepresentations
should have been left to the jury. It was at one time held in
England that where the defendant obtained admission to a
swimming-race by a false representation, and won the prize,
the prize was not obtained by false pretences. This case has
since been overruled, the court proceeding on the ground that
as the pretences were made for the very purposes of bringing
about the result actually achieved, and the intervening chain
of events was just that intended by the defendant and natu-
rally following from his act, they could not be held too remote
to be a partial effective cause in obtaining the property.’ In
this country, where, to induce one to buy certain shares in the
stock of a corporation, the defendant falsely stated that their

1 Reg. v. Abbott, 1 Den. C. C. 273. ‘

2 Reg. v. Kenrick, 5 Q. B. 49. See also S. v. Newell, 1 Mo, 248;
C. v. Hooper, 104 Mass. 549.

8 Reg. v. Martin, L. R. 1 C. C. R. 56, K. 344. See also Reg. v. Great-
head, 14 Cox C. C. 108.

4 Reg. v. Bryan, 2 F. & F. 567. See also Reg. v. Gardner, D. & B.
41, M. 870.

5 Reg. v. Martin, ante.

6 Reg. v. Larner, 14 Cox C. C. 497.

7 Reg. v. Button [1900] 2 Q. B. D. 597, K. 342, M. 878.
Srcrs. 316, 317.] FALSE PRETENCES. 811

purchase was necessary in order to participate in the drawing
of certain lots, the falsehood was held too remote.! So where
the defendant by false representations induced a city to agree
that judgment should be entered against it, and the judgment
was paid, it was held by the majority of the court not to be
an obtaining by false pretences,” the dissenting minority adopt-
ing the view taken in the English cases above mentioned, that
the test was the “direct connection between the pretence and
the payment of the money.” 8

§ 316. Property Obtained.—-In general, the property ob-
tained must be such as is the subject of larceny. The obtain-
ing a credit on account, for instance, is not within the statute,
- unless its scope is sufficient to embrace such a transaction ;
nor is the procurement of an indorsement of payment of a
sum of money on the back of a promissory note,® nor obtain-
ing land,’ or board and lodging.8 The statutes of the several
States must control in this particular.

§ 317. False Pretences. Larceny.’— The distinction between
the crimes of obtaining money by false pretences and larceny
is fine but clear. Ifa person by fraud induces another to part
with the possession only of goods, this is larceny; while to
constitute the former offence the property as well as the pos-
session must be parted with.” In larceny the owner has no
intention to part with his property, and the thief cannot give
a good title. If the owner delivers his property under the in-
ducement of a false pretence, with intent to part with his

1 C. v. Springer, 8 Pa. Co. Ct. 115. ;

2 C. v. Harkins, 128 Mass. 79.

8 See also Musgrave v. S., 138 Ind. 297, 82 N. E. 885; C. v. Mulrey,
170 Mass. 103, 49 N. E. 91. Compare Hunter v. S. (Tex.), 81 S. W.
730.

* Reg. v. Robinson, Bell C. C. 34, K. 357; P. v. Cummings, 114 Cal.
437, 46 P. 284, M. 847.

5 Reg. v. Eagleton, Dears. 515.

® §. v. Moore, 15 Ia. 412.

7 §. v. Burrows, 11 Ired. (N. C.) 477.

8 §. ». Black, 75 Wis. 490, 44 N. W. 635.

9 Ante, §§ 278, 278a.

0 Reg. v. Kilham, L. R. 1 C. C. 261, C. 411, K. 347; P. v. Johnson,
91 Cal. 265, 27 P. 663; S. v. Vickery, 19 Tex. 326.
312 CRIMINAL LAW. [Szcr. 317.

property, the person who obtains it by fraud may give a good
title! If the owner is tricked out of the possession, and does
not mean to part with the property, it is larceny; but if he
is tricked out of both, yet means to part with his property, it
is obtaining property by false pretences.”

Tt would seem that the same principle should apply even
though the prosecutor was induced to part with the title to
his property only because of a mistake as to the identity of
the person, if it was in fact his intention, although caused by
this mistake, to pass title to the individual then before him. ©
It is an obtaining by false pretences if there is in fact an
intent to pass title; and the crime seems complete even
though the mistake may render the title voidable® The same
principle has been applied to a somewhat different cuse, viz.,
where the defendant obtained goods by pretending to be sent
by the purchaser. This latter case differs from the former
cases in that there the prosecutor did in fact intend, through
error, to pass title to the person to whom he delivered the
chattel or money; here he did not so intend, and there are
decisions that in this latter case the crime is larceny and not
false pretences.5

1 Zink v. P., 77 N. Y. 114.

2 Reg v. Prince, L, R. 1 C. C. 150, 11 Cox C. C. 198, C. 270. See also
the very elaborately considered case of Reg. v. Middleton, L. R. 2 C. C.
38, 12 Cox C. C. 260, 417, 1 Green’s Cr. Law Rep. 4, K. 266, M. 794.

8 Cleasby, B., in Reg. v. Middleton, ante ; Williams v. S., 49 Ind. 367 ;
contra, 8. v. Brown, 25 Ta. 561 (statutory). See C. v. Jeffries, 7 All.
(Mass.) 548.

* Rex v. Coleman, 2 East P. C, 672; Rex v. Atkinson, 2 East P. C. 673;
Rex v. Adams, Russ. & Ry. 225, C. 410; P. v. Johnson, 12 Johns. (N. Y.)
292; Lewer v. C., 15 S. & R. (Pa.) 98. See Reg. v. Butcher, 8 Cox C.
C. 77.

5 Harris'v. §., 81 Ga. 758, 7 S. E. 689; Collins v. Ralli, 20 Hun (N. Y.),
246; P. v. Jackson, 3 Park. (N. Y.) Cr. R. 590; Mitchell x. S., 92 Tenn.
658, 23 S. W. 68. A further distinction has sometimes been attempted:
viz., that though there was no error as to the identity of the parties, and
though there was an intent to transfer title to the person then present, if
the intent of the owner in transferring it was to accomplish one end and
the defendant took it for another and dishonest end, the title never

passed inasmuch as there was no meeting of minds, Reg. v. Buckmaster,
16 Cox C. C. 339, C. 316. See also Reg. v. Russet [1892], 2 Q. B. D. 312,
Sect. 318.] CHEATING. 313

CHEATING.

§ 818. Cheating is the fraudulent pecuniary injury of an-
other by some token, device, or practice of such a character
as is calculated to deceive the public! Thus, selling bread for
she army, and marking the weight falsely upon the barrels ;?
or selling by false weights? or measures;* or playing with
false dice ;® or arranging the contents of a barrel so that the
top shall indicate that it contains one thing, while in fact it
contains another and worthless thing, coupled with the asser-
tion that the contents are “just as good at the bottom as at
top” ;® or selling a picture or cloth falsely marked with the
name or trade-mark of a well-known artist * or manufacturer ;8
or the use of false papers,®— have been held to be cheats at
common law. So has obtaining release from imprisonment
by a debtor by means of a forged order from the creditor upon
the sheriff.1° So it has been held that obtaining from an illit-

erate person a signature to a note different in amount from
that agreed on, by false reading, is a cheat. So, doubtless,

K. 349; P. v. Miller, 169 N. Y. 339, 62 N. E. 418. This principle would
seem to bé extensive enough to make almost every case of false pretences
larceny; and seems opposed to the great weight of authority. See, in
addition to cases cited ante, Kellog v. S.,26 O. St. 15; Pitts v. S., 5 Tex.
App. 122.

1 1 Hawk. P. C. (8th ed.) 318, § 1. See also Rex v. Wheatly, 2 Burr.
1125, 1 Benn. & Heard’s Lead. Cr. Cas. 1, and notes, as to distinction
between mere private cheats and those which affect the public so as to
become criminal.

2 Resp. v. Powell, 1 Dall. (Pa.) 47.

3 Young v. Rex, 3 T. R. 98.

* Rex v. Osborn, 8 Burr. 1697; P. v. Fish, 4 Park. (N. Y.) Cr. R.
206.

5 Leeser’s Case, Cro. Jac. 497; Rex v. Maddocke, 2 Rolle, 107.

6S. v. Jones, 70 N. C. 75.

7 Reg. v. Closs, D. & B. C. C. 460.

-8. Rex v. Edwards, 1 Trem. P. C. 103.

® Serlested’s Case, Latch 202; C. v. Boynton, 2 Mass. 77; Lewis v. C.,
258. & R. (Pa.) 551; S. v. Stroll, 1 Rich. (S. C.) 244; C. ». Speer, 2 Va.
Cas. 65.

10 Rex v. Faweett, 2 East P. C. 862.

u Hill v. S., 1 Yerg. (Tenn.) 76; 1 Hawk. P. C. (8th ed.) 218, § 1.
314 CRIMINAL LAW. [Szcr. 319.

would be obtaining money by begging, under the device of
putting the arm ina sling, for the purpose of making it ap-
pear that it had been injured when it had not. It is an
indictable offence to maim one’s self whereby the more suc-
cessfully to beg,! or to disqualify one’s self for service as a
soldier.?

Mere lying by words, although successful in fraudulently
obtaining the goods of another, without the aid of some visible
sign, token, device, or practice, has never been held at com-
mon law to be a cheating?

§ 319. Token. Device.—A token is a thing which denotes
the existence of a fact, and if false,,and calculated to deceive
generally, it will render the person who knowingly uses it for
the purpose of inducing the belief that the fact denoted does
exist, to the pecuniary injury of another, guilty of the crime
of cheating. A business card, in common form, purporting
to be the card of an existing firm, which is not genuine, and
asserts as fact what is not true, is a false token.*

A forged order for the delivery of goods is held to be a
token, and obtaining goods in this way a cheat, while obtain-
ing them by the mere verbal false representation that the
person purporting to be the signer of the order had sent for
them would not be so. Andso is the forged check of another
than the person who presents it;® but not, it is said, his own
worthless check upon a bank where he has never had a
deposit,’ this being merely a false representation in writing,
But it is difficult to see why the writing is a token in one case
and not in the other. Such subtle distinctions have now very
generally been obviated by statutes making the obtaining of
money by false pretences criminal.®

11 Inst. 127.

2 3 Burn’s J. P. (18th ed.) 741, s. v. Maim.

8 Rex v. Grantham, 11 Mod. 222; Rex. v. Osborn, 3 Burr. 1697; C.
v. Warren, 6 Mass. 72; P. v. Babcock, 7 Johns. (N. Y.) 201; S. v. Delyon
1 Bay (S. C.), 853.

4 Jones v. S., 50 Ind. 473.

5 Rex v. Thorn, C. & M. 206 ; Rex v. Grantham, ante.

6 C. v. Boynton, 2 Mass. 77.

7 Rex v. Jackson, 3 Camp. 370.
8 See False Pretences.
Sects. 320, 321.] MALICIOUS MISCHIEF. 815

False personations were formerly held to be cheats,! and
even falsehoods as to personal identity, age, or condition ; and
perhaps would now be,? where statutes do not provide for
such frauds. There seems to be no reason, upon principle,
why one who falsely asserts that he is what he naturally or
by device falsely appears to be, should not be held guilty of
cheating, as availing himself of a visible sign.?

§ 320. Swindling.— In South Carolina, the subject of
cheating was early made a matter of statutory regulation,
providing for the punishment of ‘‘any person who shall over-
reach, cheat, or defraud by any cunning, swindling acts and
devices, so that the ignorant or unwary may be deluded
thereby out of their money or property,” under which obtain-
ing horses from an unsophisticated person by means of threats
to, prosecute for horse-stealing, and that the pretended owner
would have his life if he did not give them up, was held in-
dictablet And in Georgia, obtaining money by false pre-
tences is a form of swindling® '

MALICIOUS MISCHIEF.

§ 321. Malicious Mischief, at common law, was confined to
injuries to personal property. Injuries to the realty were
held to be matters only of trespass. And such, perhaps, were
all injuries to personal property, short of their destruction.®
But such injuries, both to personal and real property, came to
be of such frequency and seriousness that they were made
matters of special statute regulation, for the purpose of pro-
viding a more adequate remedy and a severer punishment
than was permitted by the common law. And from the time
of Henry VIII, down to the present time, both in England

1 Rex v. Dupee, 2 Sess. Cas. 11.

2 Rex v. Hanson, Say. 229.

3 1 Gab. Cr. Law, 204.

4S. v. Vaughan, 1 Bay (S. C.), 282.

5 Code, § 4587.

6 S. v. Beekman, 27 N. J. L. 124; S. v. Manuel, 72 N.C. 201. But
see P. v. Smith, 5 Cow. (N. Y.) 258; Loomis v. Edgerton, 19 Wend.
CN. Y.) 419.
316 CRIMINAL LAW. [Szcr. 322,

and in this country, a great number of statutes have been
passed touching the subject, covering such forms of mischief
as then existed and from time to time grew out of the chang-
‘ing circumstances of society, till now almost every form of
such mischief is made the subject of statute regulation, and
but few cases arise which are cognizable only by the common
law. Nevertheless, the common law is looked to, so far as
it is applicable, in aid of the interpretation of the statutes.
In many cases the dividing line between malicious mischief
-and larceny is very shadowy, as where there is a total de-
struction of the property without any apparent advantage to
the destroyer! Indeed, it has been held that the same facts
might support an indictment for either offence.?
. § 3822. Malice, in all that class of crimes included under
the general category of “ malicious mischief,” is not adequately
interpreted by the ordinary legal definition of malice; to wit,
the voluntary doing of an unlawful act without lawful excuse.®
But it is a more specific and less general purpose of evil. It
is defined by Blackstone as a “spirit of wanton cruelty, or
black and diabolical revenge.”# And, in a case where the
prosecution was for wilfully and maliciously shooting a certain
animal, the court held that to constitute the offence the act
must be not only voluntarily unlawful and without legal
excuse, but that it must be done in a spirit of wanton cruelty
or wicked revenge.

And such has been held to be the true interpretation of a
statute which punishes mischief done “wilfully o7 mali-
ciously,” ® and even where it punishes mischief “ wilfully ” done,
— the history of the legislation of which the statute formed a

1 Ante, § 290.

2 Snap v. P., 19 Ml. 80; Parris v. P., 76 Ill. 274; S. v. Leavitt, 32
Me. 183; P. v. Moody, 5 Park. (N. Y.) Cr. R. 568; S. v. Helmes,
5 Ired. (N. C.) 364.

3 Ante, § 33.

44 Bl. Com. 244.

5 C. v. Walden, 3 Cush. (Mass.) 558. See also Duncan v. S., 49
Miss. 331 ; Goforth v. 8., 8 Humph. (Tenn.) 37; Branch v. S., 41 Tex.
622.

6 C. v. Williams, 110 Mass. 401.
Secor, 322.] MALICIOUS MISCHIEF. 317

part showing that such was the intent of the legislature.t
Doing or omitting to do a thing, knowingly and wilfully,
implies not only a knowledge of the thing, but a determina-
tion, with a bad intent or purpose, to do it, or omit doing it.

There is, undoubtedly, in most cases, an element of per-
sonal hostility and spite, of actual ill will and resentment
toward some individual or particular community, and in
some cases this is held to be essential ;? but, unless restricted
to these by statute, there seems to be no reason to doubt that
wanton cruelty or injury to or destruction of property, com-
mitted under such circumstances as to indicate a malignant
spirit of mischief, indiscriminate in its purpose, as where
one goes up and down the street throwing a destructive acid
upon the clothes of such as may be passing to and fro, for no
other purpose than to-do the mischief, would be held to
constitute the offence. Yet it has been held that proof of
malice toward a-son is not admissible on an indictment for
malicious injury to the property of the father;® while, on the
other hand, it has been held that proof of malice toward'a
bailee is admissible on an indictment for injury of property
described in the indictment as belonging to the bailor.® Mere
malice toward the property injured, however, as where one
injures a horse out of passion or dislike of the horse, is not
sufficient to constitute the offence;’ but wanton and cruel
mischief to an animal from a bad mind, without personal ill
feeling, is malicious mischief ;& and so, it has been held,

18. v. Clark, 5 Dutch (N. J.) 96.

2 C. v. Kneeland, 20 Pick. (Mass.) 206 ; Felton v. U. 8., 96 U.S. 699.

8 Hobson v. S., 44 Ala. 380; S. v. Pierce, 7 Ala. 728; S. v. Robinson,
3 Dev. & Batt. (N. C.) 130; s. v. Newby, 64 N. C. 23.

4 Mosely v. S., 28 Ga 190; Duncan v. S., 49 Miss. 331; S. v. Landreth,
2 Car. L. R. 446.

5 Northcot v. S., 43 Ala. 380.

6 Stone v. §., 3 Heisk. (Tenn.) 457.

7 2 East P. C. 1072; Shepherd’s Case, 2 Leach (4th ed.), 539; S. vu.
Wilcox, 3 Yerg. (Tenn.) 278. Compare Terr. v. Olsen, 6 Utah, 284,
22 P. 163.

8 Mosely v. S., ante; accord, Terr. v. Crozier, 6 Dak. 8, 50 N. W.
124; S. v. Williamson, 68 Ia. 351, 27 N. W. 259 ; 8. v. Avery, 44 N. H.
392.
818 CRIMINAL LAW. [Secr. 323.

is the wanton destruction of a dwelling-house! or other
building.”

In order to bring the act within the purview of the law
against malicious mischief, it must appear that the mischief is
done intentionally, and perhaps it is not too much to say for
the purpose of doing it, and not as incidental to the perpetra-
tion of some other act, or the accomplishment of some other
purpose, however unlawful. Thus, where one breaks a door
or window to gratify his passion for theft, or his lust, or while
he is engaged in an assault, or if the injury be done in the
pursuit of pleasure, as in hunting or fishing, or for the protec-
tion of his crops, or in any other enterprise, lawful or unlaw-
ful, where the injury is not the end sought, but is merely
incidental thereto, the act does not constitute the offence of
malicious mischief. And where the injury is done under a
supposed right, claimed in good faith, there is no malice in
the sense of the law.*

There must be an actual destruction of, or injury to, the
property. Thus merely throwing down a pile of goods is not
within the statute.®

§ 323. Malice Inferable from Circumstances. — Direct proof
of express malice by actual threats is not necessary, but it
may be inferred from the attendant facts and circumstances.®

1 §. v. Gilligan, 23 R. I. 400, 50 Atl. 844.

2S. v. Boies, 68 Kan. 167, 74 Pac. 630.

8 Reg. v. Pembliton, L. R. 2 C. C. 119, 12 Cox C. C. 607, 2 Greene’s
C. L. R. 19, C. 120, K. 157, M. 171; Wright v. S., 30 Ga. 325; S. v. Bush,
29 Ind. 110; S. v. Clark, 5 Dutch. (N. J.) 96; Duncan v. S., 49 Miss.
331; contra, P. v. Burkhardt, 72 Mich. 172, 40 N. W. 240; Funderburk
vu. 8., 75 Miss. 20, 21 So. 658.

* Reg. v. Langford, C. & M. 602; S. v. Foote, 71 Conn. 737, 43 Atl.
488; Satter v. P., 59 Ill. 68; Palmer v. S., 45 Ind. 388; S. v. Fuynn, 28
Ta. 26; S. vu. Newkirk, 49 Mo. 84; S. v. Hause, 71 N. C. 518; Goforth v.
S,8 Humph. (Tenn.) 37; Woodward v. S., 33 Tex. Cr. R. 554, 28 S.
W. 204.

5 Pollet v. S., 115 Ga. 234, 41 S. E. 606; Rose v. S.,19 Tex. App.
470.

° S. v. Pierce, 7 Ala. 728; S. v. McDermott, 36 Ia. 107. Compare
Porter v. §., 83 Miss, 23, 35 So. 218. :
Sxcrs. 324, 825.) RECEIVING STOLEN GOODS. 319

RECEIVING STOLEN GOODS.

§ 324. Receiving Stolen Goods, knowing them to be stolen,
was originally an accessorial offence, of which the receiver
could only be convicted after the conviction of the thief; but
it long since became, both in England and in this country, a
substantive offence, triable separately, and without reference
to the crime of the principal.

Receiving stolen goods, knowing them to be stolen, for the
purpose of aiding the thief in concealing them or in escaping
with them, is as much an offence as if the receiving be done
with the hope of obtaining a reward from the owner, or other
pecuniary gain or advantage.? But there must be a fraudulent
intent to deprive the true owner of his interest in them.

§ 325. Receiving. — To constitute one a receiver, the stolen
goods need not have come into his actual manual possession.
It is enough if they have come under his observation and con-
trol, as where a person allows a trunk of stolen goods to be
placed on board a vessel as part of his luggage. So where the
thief puts money in the hands of a bank teller to count and
the defendant then directs the teller to credit the sum to his,
the defendant’s account, the defendant, after the sum has been
so credited, is liable as a receiver.5 But there must be such
control as is at least equivalent to constructive possession.®

1 Reg. v. Caspar, 2 Moo. C. C. 101, 2 Leading Cr. Cas. 451, and note;
Reg. v. Hughes, 8 Cox C. C. 278; S. v. Weston, 9 Conn. 527; Loyd v. S.,
42 Ga. 221; C. v. King, 9 Cush. (Mass.) 284; S. v. Coppenburg, 2 Strobh.
(S. C.) 278.

2 Rex v. Richardson, 6 C. & P. 335, C. 465; Rex v. Davis, 6 C. & P.
177, M. 903; C. v. Bean, 117 Mass. 141, C. 465; P. v. Caswell, 21 Wend.
(N. Y.) 86; P. v. Wiley, 3 Hill (N. Y.), 194, C. 438, M. 904; S. v. Rush-
ing, 69 N. C. 29; S. o. Hazard, 2 R. I. 474.

8 Pelts v. S., 3 Blackf. (Ind.) 28; Goldsberry v. S., 66 Neb. 312, 92

. W. 906; P. v. Johnson, 1 Park. (N. Y.) Cr. R. 564; Rice v. §., 3
ae (Penn 215.

4 Reg. v. Smith, 6 Cox C. C. 554; Reg. v. Rogers, 37 L. J. n. 8. M. C.
83, C. 458; S. v. St. Clair, 17 Ia. 149; S. v. Scovel, 1 Mill (S. C.), 274.

5 P.v, Ammon, 92 App. Div. (N. Y.) 205, 87 N. Y. S. 358.

6 Reg. v. Wiley, 4 Cox C. Gs 412, 2 Den. C. C. 87, C. 445, K. 361,
M. 895.
320 - CRIMINAL LAW. [Srcrs. 326, 327.

If one finds property which he has reason to believe was sto-
len, and sceks to turn it to his pecuniary advantage, he may
be convicted of receiving stolen goods.1 The owner may be a
receiver as well as a thief, if the goods be received from one
who stole them from the owner’s bailee.? But as the wife
cannot under any circumstances steal from the husband, one
who receives from her cannot be convicted of receiving stolen
goods.3
§ 326. When Goods Cease to Be Stolen Goods. — The crime can
be committed so long only as the goods continue to have the
character of stolen goods. Where they have come back into
the control of the owner, but he, in order to detect the thief
or the receiver, takes measures to have them offered to the
receiver, they have ceased to be stolen goods, and the receiver
cannot be convicted. Nor are the goods to be treated as sto-
len except in a jurisdiction where the larceny can be inquired
into; consequently, where goods are stolen in one jurisdiction
and brought into another, the receiver cannot be convicted in
the latter jurisdiction.’ In those jurisdictions, however, where
a thief who himself brings into the State goods stolen outside
it may be convicted of larceny, one who receives from the
thief goods stolen outside may be convicted of receiving,
since the goods continue to be stolen goods.é
-§ 827. Knowledge. — The receiver need not have been abso-
lutely certain that the goods were stolen; it is enough if he
had reasonable grounds for believing them to be stolen.’ And

1 C. v. Moreland, 27 Pitts. L J. (Pa.) No 45.

2 P. v, Wiley, 3 Hill (N. Y.), 194, C. 438, M. 904; ante, § 155.

3 Reg. v. Kenny, 2 Q. B. D. 307, 18 Cox C. C. 397, C. 359; Reg. v.
Streeter [1900] 2 Q. B. D. 601, 19 Cox C. C. 570, K. 367, M. 892.

* Reg. v. Dolan, 6 Cox C, C. 449, 1 Dears. 436, C. 417; Reg. v.
Schmidt, L. R. 1 C. C. C. 15, 10 Cox C. C. 172, C. 421, M. 885; U.S. v.
De Bare, 6 Biss. (U. S. Dist. Ct.) 358, Fed. Cas. No. 14,985, C. 426.

5 Rex v. Prowes, 1 Moo. C. C. 349, C. 379; Reg. v. Madge, 9 C. & P.
29, C. 428.

6 C.v. Andrews, 2 Mass. 14, C. 436; P. v. Wiley, ante.

7 Reg. v. White, 1 F. & F. 665, C. 469; Birdsong v. S., 120 Ga. 850,
48 S. EK. 329; Huggins v. P., 185 Ill 248, 25 N. E. 1002; Frank v. S., 67
Miss. 125, 6 So. 842, M. 901; S. ». Druxinman, 34 Wash. 257, 75 P, 814.
Sects. 828, 329.] FORGERY. , 821

if he had knowledge of the circumstances, he need not have
known that in law they were sufficient to constitute larceny.1
But if, knowing the circumstances, he believed them not to
constitute a crime at all, the element of guilty knowledge is
lacking, and the receiver cannot be convicted.”

The guilty knowledge must exist at the time of taking pos-
session. Where the goods are received in good faith a subse-
quent knowledge that they were stolen and intent to keep will
not constitute the crime of receiving, though it will render
the defendant liable under a statute that also punishes the
concealing of stolen goods.*

§ 328. Evidence. — Recent possession, without any evidence
that the property stolen had been in the possession of some
person other than the owner before it came to the alleged re-
ceiver, or other circumstances to rebut the presumption of
larceny, is rather evidence of larceny than of receiving stolen
goods And evidence of the possession of other stolen goods
cannot be given to show that the receiver knew the particular
goods in question to be stolen.®

FORGERY.

§ 829, Forgery is “the fraudulent making or altering of a
writing to the prejadiae of another man’s right,’ 7? — the ¢
word “writing” including printed and cuigied matter as
well,’ but not a painting with the name of the artist falsely
signed,’ nor a wrapper about a box of baking-powder.” The

Compare Cohn v. P., 197 Ill. 482, 64 N. E. 806; S. v. Goldman (N. J.),
47 Atl. 641.

1 C. v, Leonard, 140 Mass. 473, 4 N. E. 96, C. 466.

2 Reg. v, Adams, 1 F. & F. 86, C. 468; C. v. Leonard, ante.

5 Pat v, S., 116 Ga. 92, 42 8. E. 389. Compare Reg, v. Woodward,
9 Cox C. C. 95, C. 457, M. 898. '

* Rowland v. S., 140 Ala, 142, 37 So. 245. :

5 Rex v. Cordy, cited in note to Pomeroy’s edition of Archbold Cr. Pr.
& Pl. vol. ii, p. 479; Reg. v. Langmead, 9 Cox C. C. 464.

6 Reg. v. Oddy, 5 Cox C. C. 210, C. 469.

7 4 Bil. Com. 247.

8 C. v. Ray, 3 Gray (Mass.), 441.

® Reg. v. Closs, 7 Cox C. C. 494, D. & B. 460, K. 184.

10 Reg. v. Smith, 8 Cox C. C. 32, D. & B. 566, K. 186, M.

21
822 CRIMINAL LAW. (Secr. 329,

instrument forged, it is generally held, must purport upon its
face in some way to prejudice the legal rights or pecuniary in-
terest of the supposed signer, or of the person defrauded.
Thus, a recommendation of one person to another as a person
of pecuniary responsibility may be the subject of forgery.
And it has been held in England that the false making of
a letter of recommendation, whereby to procure an appoint-
ment as school teacher? or as constable,’ — or a certificate of
good character, whereby to enable the person in whose favor
it is made to obtain a certificate of qualification for a particular
service, — is an indictable forgery at common law ;*— ex-
treme cases, no doubt, and founded perhaps on an old statute
(83 Hen. VIII, c. 1, — not, however, so far as appears by the
reports, referred to in either case), whereby cheating by false
“ privy tokens and counterfeit letters in other men’s names”
is made an indictable offence. But the false making of a
mere recommendation of one person, to the hospitalities of an-
otber, with a promise to reciprocate, has been held in this coun-
try to be no forgery.5 Whether, in a case precisely analogous
to the English cases just referred to, our courts would follow
them, remains to be seen. Undoubtedly they would, wherever
a substantially similar statute may be found.® The “ prejudice
to another man’s right” may apply as well to the party imposed
upon as to the person whose name is forged. As to the latter,
no doubt the writing must import his legal liability in some
way. But as to the former, if he is defrauded or imposed
upon, or the forgery is made with fraudulent intent, the act
seems to come clearly within the definition. It is certainly to
be questioned whether the law will allow a man to live upon
the hospitalities of his fellows, which he has obtained by forged
letters of recommendation. The forgery is not the less a for-
gery because it is made use of as a false pretence.’

1S. v, Ames, 2 Greenl. (Me.) 365.

2 Reg. v. Sharman, Dears. C. C. 285.

3 Reg. v. Moah, D. & B. C. C. 580.

4 Reg. v. Toshack, 1 Den. C. C. 492.

5 West v. S. (Fla.), 83 So. 854; Waterman v. P., 67 Ill. 91.
® C. v. Hartnett, 3 Gray (Mass.), 450.

TC. v. Coe, 115 Mass. 481, 2 Green’s C. L. BR. 292.
Sect. 330.] FORGERY. 823

§ 330. Forgery Must Be Material. — The false making, how-
ever, must be of some instrument having pecuniary impor-
tance, or its alteration in some material respect.

A very slight alteration, however, may be material. It has
been held in England that the alteration of the name of the
person to whom a note is payable, the alteration being from
the name of an insolvent to a solvent firm,! and in this coun-
try, that the alteration of the name of the place where payable,
is material. And alteration by erasure constitutes the offence?
So does any other erasure, or detachment from or leaving
out, as from a will, of a material part of the instrument
whereby its effect is changed.? If the instrument do not pur-
port to be of any legal force, whether its invalidity be matter
of form or substance, —as if it be a contract without con-
sideration,‘ or a copy of a contract,® or a will not witnessed
by the requisite number of witnesses,° or a bond or other in-
strument created and defined by statute, but not executed
conformably to the statute,’ — then the false making or al-
teration is not a forgery. The addition, moreover, of such
words as the law would supply,’ or of a word or words other-
wise immaterial, and such as would not change the legal effect
of the instrument, — as where the name of a witness is added
to a promissory note, in those States where the witness is im-
material, — would not constitute the offence ;9 though, doubt-
less, in those States where such addition would be material,
by making, as in Massachusetts, the security good for twenty

1 Rex v. Treble, 2 Taunt. 328; S. v. Robinson, 1 Harr. (N. J.) 507.

2 White v. Hass, 32 Ala. 480.

3 Combe’s Case, Noy, 101; 8. v. Stratton, 27 Ia. 420.

4 P. v. Shall, 9 Cow. (N. Y.) 778.

5 C. v. Brewer, 24 Ky. L. R. 72, 67 S. W. 994.

6 Rex v. Wall, 2 East P. C. 953, M. 937; S. v. Smith, 8 Yerg. (Tenn.)
150.

7 Cunningham v. P., 4 Hun (N. Y.), 455; Crayton v. 8S. (Tex.),
80 S. W. 839. Compare Pearson v. C., 25 Ky. L. R. 1866, 78 S. W.
1112.

§ Hunt v. Adams, 6 Mass. 519.

® Turnipseed v. S. (Fla.), 33 So. 851; S. v. Gherkin, 7 Ired. (N. C.)
206.
324 CRIMINAL LAW. [Srcr. 331.

instead of six years, such an alteration would be held a for-
gery. Nor, it seems, would the alteration of the marginal
embellishments or marks of a bank-note, not material to the
validity of the note, constitute forgery.1

If the instrument forged does not appear upon its face to
have any legal or pecuniary efficacy, it must be shown by
proper averments in the indictment how it may have.”

§ 831. Legal Capacity. Fictitious Name. — It is not essen-
tial that the person in whose name the instrument purporting
to be made should have the legal capacity to act, nor that-the
person to whom it is directed should be bound to act upon it,
if genuine, or should have a remedy over. Indced, the forged
name may be that of a fictitious person,‘ or of one deceased 5
or of an expired corporation. But signing to a note the name
of a firm which in fact does not exist, one of the names in the
alleged firm being that of the signer of the note, is not forgery.”
Even the signing of one’s own name, it being the same as that
of another person, the intent being to deceive and defraud, by
using the instrument as that of the other person,® may consti-
tute the offence. But the alteration of one’s own signature to
give it the appearance of forgery, though with a fraudulent
intent, is not forgery.2 And where two persons have the
same name, but different addresses, and a bill is directed to
one with his proper address, but is received by the other, who
accepts it, adding his proper address, the acceptance is not a
forgery.

1 §. v. Waters, 3 Brey. (S. C.) 507.

2 P. v. Tomlinson, 35 Cal. 503; S. v. Pierce, 8 Ia. 231; C. v. Ray, 3
Gray (Mass.), 441; S. v. Wheeler, 19 Minn. 98; France v. S., 83 Miss.
281, 35 So. 313; post, § 334.

8 S. v. Kimball, 50 Me. 409; P. v. Krummer, 4 Park. (N. Y.) Cr. R. 217.

4 Rex v. Bolland, 1 Leach C. C. (4th ed.) 83; Rex v. Marshall, Russ.
& Ry. 75; P. v. Davis, 21 Wend. (N. Y.) 309; Sasser v. S., 13 O. 453.

5 Henderson v. S., 14 Tex. 503.

® Buckland »v, C., 8 Leigh (Va.), 732.

7 C. v, Baldwin, 11 Gray (Mass.), 197, M. 940.

8 Mead v. Young, 4 T. R. 28, K. 197; C. v. Foster, 114 Mass. 311; P.
v. Peacock, 6 Cow. (N. Y.) 72.

® Brittain v. Bank of London, 3 F. & F. 465.

19 Rex v. Webb, 3 B. & B. 228,
Sect. 332. FORGERY. 825

§ 332, The Alteration may be by indorsing another name on
the back of a promissory note,! or by falsely filling up an
instrument signed in blank, as by inserting or changing the
words of acomplete instrument,? or by writing over a signature
on a piece of blank paper, or by tearing off a condition from
a non-negotiable instrument, whereby it becomes so altered as
to purport to be negotiable,* or by pasting one word over
another,® or by making a mark instead of a signature,® or
by photographing.” So the alteration of an entry, or making
a false entry, by a clerk in the books of his employer, with
intent to defraud, is a forgery.2 And so is the obtaining by
the grantee from the grantor his signature to a deed different
from that which had been drawn up and read to the grantor,
or by the promisee from the promisor his signature to a note
for a greater amount than had been agreed upon.!? And in
England it has been quite recently held, upon much considera-
tion, that where a man who had deeded away his property
afterward, by another deed falsely antedated, conveyed to
his son a part of the same property, he was guilty of forgery ; 1
—a doctrine which, however, has not only not been adopted,
but has been doubted, in this country, where the received
doctrine is, that a writing in order to be the subject of forgery
must in general be, or purport to be, the act of another; or it
must at the time be the property of another; or it must be
some writing under which others have acquired rights, or
have become liable, and in which these rights and liabilities

1 Powell v. C., 11 Grat. (Va.) 822.

2 S. v. Kroeger, 47 Mo. 552; S. v. Donovan, 75 Vt. 808, 55 Atl. 611;
Lawless v. S., 114 Wis. 189, 89 N. W. 891.

8 Caulkins v. Whisler, 29 Ia. 495.

4 S. v. Stratton, 27 Ia. 420; Benedict v. Cowden, 49 N. Y. 396.

5 §. v. Robinson, 1 Harr. (N. J.) 507.

6 Rex v. Dunn, 2 East P. C. 962.

7 Reg. v. Rinaldi, 9 Cox C. C. 391.

8 Reg. v. Smith, L. & C. C. C. 168; Biles v. C., 32 Pa. 529.

® S. v. Shurtliff, 18 Me. 368.

10 C. v. Sankey, 22 Pa. 390, M. 948.

1 Reg. v. Ritson, L. R. 1 C. C. 200, K. 188.

12 2 Bish. New Cr. Law, §§ 584, 585.
326 CRIMINAL LAW. [SEcTs 333, 334.

are sought to be changed by the alteration, to their prejudice,
and without their consent. Under this rule it seems that the
maker of an instrument may be guilty of forgery by altering it
after it has been delivered and becomes the property of an-
other ;? but the alteration of adraft by the drawer, after it has
been accepted and paid and returned to him, is no forgery,
but rather the drawing of a new draft.2 But where the draft
was also a receipt, an alteration of that by the drawer of
the draft so as to make it read as a receipt in full was held
forgery.*

§ 333. Filling Blanks. — One may be guilty of forgery by
merely filling up blanks without authority. Thus, if an em-
ployer leaves with a clerk checks signed in blank, with authority
to fill them only for a certain purpose, and he fills them for
another purpose, he is guilty of forgery ; but if there is general
authority to fill the blanks, it is no forgery, even if they are
filled for an illegal purpose.®

§ 334, Intent to Defraud is a necessary element in the crime
of forgery. But it is not necessary that the fraud should be-
come operative and effectual, so that some one is in fact
defrauded, nor need the intent be to defraud any particular
person, or other than a general intent to defraud some person
or other. Nor is it necessary that the fraud should have been
perpetrated in just the way the defendant had in mind, if it
does in fact operate to the prejudice of another and there
was the intent to defraud.’ Nor is the fact that he intended
later to make reparation any defence.8 But there must be at

1 C. v. Baldwin, 11 Gray (Mass.), 197, M. 940; S. v. Young, 46 N. H.
266.

2 C. v. Mycall, 2 Mass. 136; S. v. Young, ante.

8 P. v. Fitch, 1 Wend. (N. Y.) 198.

* Gordon v. C., 100 Va. 825, 41 S. E. 746.

5 Wright’s Case, 1 Lewin, 135, M. 943; P. v. Reinitz, 6 N. Y. S. 672;
P. v. Dickie, 62 Hun (N. Y.), 400,17 N. Y. S. 51.

6 Rex v. Ward, 2 Ld. Raym. 1461, M. 982; C. v. Ladd, 15 Mass. 526;
Henderson v. S., 14 Tex. 503.

™ King v. S., 48 Fla. 211, 81 So. 254; Brazil v. S., 117 Ga. 82, 43 S. E.
460.

5 Reg. v. Hill, 2 Moo. 80, K. 208; C. v. Henry, 118 Mass. 460.
Secr, 334.] FORGERY. 327

least the general intent to defraud. Hence where defendant
forged a medical diploma merely for the purpose of giving
himself a better standing, it was held that there had been no
forgery.1 But where the forging of the certificate was to get
a particular appointment,” or a payment that could not other-
wise be obtained,’ the crime wascommitted. So an alteration
by one party to an instrument, to make it conform to what was
mutually agreed upon, being without fraudulent intent, lacks
the essential quality of fraud So an endorsement by the
defendant of the name of the payee, when he believed that he
had a right so to do.®

The lack of similitude between a genuine and a forged sig-
nature is immaterial, except as bearing upon the question of
intent. The fact of no resemblance at all gives rise to the
inference that there was no fraudulent intent. But if the sig-
nature be proved, the presumption of fraud arises, whether
there is any resemblance or not between the genuine and
forged signatures.®

And even if the resemblance be close and calculated to de-
ceive, the act may be shown to have been done without any
fraudulent intent.’ As the essence of forgery is the intent to
defraud, the mere imitation of another’s writing, or the altera-
tion of an instrument whereby no person can be pecuniarily
injured, does not come within the definition of the offence.
And if this probability of injury does not appear on the face
of the instrument, it must be shown in the indictment, by
proper averments, how the injury may happen. Thus, the

1 Reg. v. Hodgson, D. & B. 3, K. 202, M. 946; Maddox v. S., 87 Ga.
429, 13 S. E. 559.

2 Reg. v. Toshack, 1 Den. C. C. 492; Reg. v. Sharman, Dears. C. C.
285.

3 Arnold v. §., 71 Ark. 367, 74 S. W. 518.

4 Pauli v. C., 89 Pa. 482. :

5 §. v. Bjornaas, 88 Minn. 301, 92 N. W. 980.

6 Mazagora’s Case, R. & R. 291; Reg. v. Jessop, D. & B. C. C. 442;
Reg. v. Coulson, 1 Den. C. C. 592; S. v. Anderson, 30 La. Ann. 537;
C. v. Stephenson, 11 Cush. (Mass.) 481.

7 Reg. v. Parish, 8 C.& P. 94; Rex v. Harris, 7 C. & P. 428; C. v.
Goodenough, Thatch. Cr. Cas. (Mass.) 182.
_ 828 CRIMINAL LAW. [Szors. 835, 336.

alteration of the date of a check in a check-book does not of
itself import injury to any one, and in order to make it the
foundation of an indictment, it must be set forth in the indict-
ment how this may happen.1 Nor does an alteration of an
instrument to the prejudice alone of him who alters consti-
tute forgery ; as when the holder and payee of a promissory
note alters the amount payable to a smaller sum.?

§ 385. Uttering.— A forgery is uttered when there is an
attempt to make use of it by bringing it to the knowledge of
an innocent person.? This use may be of any sort; pledging
is uttering,* and so is merely showing a receipted bill to gain
credit.© But showing to an accomplice is not uttering.®

Where a forgery is sent into another jurisdiction by mail or
other innocent agent, and is shown there, there would seem to
be an uttering in both jurisdictions.’

COUNTERFEITING.

§ 336. Counterfeiting is the making of a false coin in the
similitude of the genuine, with intent to defraud. It is ‘a
species of forgery, and its distinguishing characteristic is that
there must be some appearance of similitude to the thing
counterfeited ;® whereas in forgery no such similitude is
requisite,® and no genuine instrument may have ever existed.
Whether there is such similitude seems to be a question of
fact for the jury. .

Before the adoption of the Constitution of the United States
the offence of counterfeiting was punishable in the several

1 C. v. Mulholland (Pa.), 5 Weekly Notes of Cases, 208.

? 1 Hawk. P. C. (8th ed.) 264, § 4. See also Counterfeiting.

3 Reg. v. Radford, 1 Den. C. C. 59.

* Thurmond v. 8., 25 Tex. App. 366, 8 S. W. 473.

5 Reg. v. Ion, 2 Den. C. C. 475.

® Reg. v. Heywood, 2 C. & K. 352.
Z v. Taylor,, 4 F. & F. 511; Reg. v. Finkelstein, 16 Cox C. C. 107,

8 Rex v. Welsh, 1 East P. C. 164; Rex v. Varley, 2 W. Bl. 682; U.S.
v. Marigold. 9 How. (U. 8S.) 560, per Daniel, J.; U.S. v. Morrow, 4 Wash.
C, Ct. 733, Fed. Cas. No. 15,819.

9 See ante, Forgery.
Scr. 336.] COUNTERFEITING. 399

Colonies under the common law; but by the adoption of that
Constitution the power to coin money was prohibited to the
States, and reserved to the United States. Strictly speaking,
therefore, there is no such offence as counterfeiting at common
law in this country; but it is wholly an offence created by
the statutes of the United States. But the offence is punish-
able as a cheat, or an attempt to cheat, by the States as well;
and, in point of fact, most of the States, if not all, have stat-
utes against the making and uttering of counterfeit coin.?

Punished at common law as a cheat, it is a misdemeanor,
unless clearly made a felony by statute.?

1 Fox v. Ohio, 5 How. (U. 8.) 410; U.S. v. Marigold, 9 How. (U. 8.)
560; Moore »v. Illinois, 14 How. (U. 8.) 18. See also S. v. McPherson, 9

Ta. 53; Martin v, S., 18 Tex. App. 224.
2 Wilson v. S., 1 Wis. 184.
330 CRIMINAL LAW. [Sects. 337, 338.

2 CHAPTER IX.
MARITIME OFFENCES.
§ 338. Piracy. | § 339. Barratry.

§ 387. The common law punishes certain acts committed
upon the high seas, when, if committed upon land, the acts
would not be criminal, or would be crimes of a different
nature. The most important crimes of this nature are piracy
and barratry.

PIRACY.

§ 338. “ Piracy at the common law consists in committing
those acts of robbery and depredation upon the high seas
which, if committed on the land, would have amounted to
felony there.”! It was originally punishable at common law
as petit treason, but not as a felony ; and later, by statute, it
is made triable according to the course of the common law,
subject to the punishment, — capital, — provided by the civil
law.2 Under the law of nations (which is part of the common
law), it may be committed by an uncommissioned armed
vessel attacking another vessel,‘ or by feloniously taking from
the possession of the master the ship or its furniture, or the
goods on board, whether the taking be done by strangers, or
by the crew or passengers of the vessel.5

1 1 Russ. on Crimes, bk. 2, c. 8, § 1.

2 28 Hen. VIII, c. 15.

3 1 Russ. on Crimes, bk. 2, c. 8, § 1. This statute has been repealed
by Stat. 1 Vict. c. 88, § 1.

4 Savannah Pirates, Warburton’s Trial, 370.

§ Attorney General v. Kwok-a-Sing, L. R. 5 P. C. 179; Rex v. Dawson,
13 How. St. Tr. 451. See also U. S. v. Tully, 1 Gall. C. Ct. 247, Fed.
Cas. No. 16,545; U. S. v. Jones, 3 Wash. C. Ct. 209, Fed. Cas. No. 15,494;
Sect. 339.] PIRACY, BARRATRY. 831

Robbery on board a vessel sailing under a foreign flag is
not piracy,! but the category of piratical acts has been much
extended by statute?

As the offence, if committed at all, is committed on the high
seas, that is, out of the jurisdiction of the States, the adjudi-
cations and judicial decisions in this country have been mostly
confined to cases arising under the statutory jurisdiction of
the courts of the national government.®

A pirate is an outlaw, and may be captured and brought to
justice by the ship of any nation.+!

A commission purporting to be issued by an unknown gov-
ernment, or by a province of an unacknowledged nation, affords
no protection ;® and in an action for the condemnation of a
vessel engaged in piratical practices under such commission it
has been held to be no defence. But as regards the personal
liability of those engaged in the act it would seem clear as a
matter of principle that their belief in the validity of their
commission, like any other fact bearing on the question of good
faith, could be received in evidence to show that they were
not in fact engaged in committing the depredations piratically
but under a belief that by the laws of war they were justified
in so doing.6

BARRATRY.

§ 339. Barratry is a maritime offence, and consists in the
wilful misconduct of the master or mariners, for some unlaw-

ful purpose, in violation of their duty to the owners of the
vessel.

U. S. v. Gibert, 2 Sumner C. Ct. 19, Fed. Cas. No. 15,204; U. S. ».
Pirates, 5 Wheat. (U. 8.) 184; The Antelope, 10 Wheat. (U. 8.) 66.

1 U.S. v. Palmer, 3 Wheat. (U. S.) 610.

2 U. S. v. Brig Malek Adhel, 2 How. (U. 8.) 210. On the question of
jurisdiction of a crime committed on board a foreign vessel see the very
learned and eleborate case of C. v. Macloon, 101 Mass. 1.

8 For the statutory law upon this subject see U. S. Revised Statutes,
§ 5368.

4 The Marianna Flora, 11 Wheat. (U. 8S.) 1.

5 U.S. v. Klintock, 5 Wheat. (U. S.) 144.

§ See U. S. v. Klintock, ante ; The Ambrose Light, 27 Fed. 408, at 416.
382 CRIMINAL LAW. [Szcr. 339.]

Thus, stealing from the cargo,! wilful deviation in fraud of
the owner,” or delay for private gain,’ or for any unlawful pur-
poset have severally been held to constitute barratry. So
has the unlawful resistance to the search of a belligerent.
And negligence may be so gross as to amount to fraud, just
as at common law it may be so gross as to amount to crimi-
nality.6 It is not necessary that there should be fraud, in the
sense of an intention on the part of the accused to promote his
own benefit at the expense of the owners, but any wilful act of
known illegality, every gross malversation or criminal negli-
gence in the discharge of duty, whereby the owner of the ves-
sel is damnified, comes within the legal definition of barratry.’
But the negligence must be so gross as to be evidence of a
fraudulent intent.$

1 Stone v. National Ins. Co., 19 Pick. (Mass.) 34.

2 Vallejo v. Wheeler, Cowp. 148.

8 Ross v. Hunter, 4 T. R. 33.

4 Roscow v. Corson, 8 Taunt. 684.

5 Brown v. Union Ins. Co., 5 Day (Conn.), 1.

6 Patapsco Ins. Co. v. Coulter, 3 Pet. (U. S.) 222.

7 Lawton v. Sun Mut. Ins. Co., 2 Cush. (Mass.) 500.

8 Fayerweather v. Phenix Ins. Co., 54 N. Y. Super. Ct. 545,
INDEX.
INDEX.

[REFERENCES ARE TO SECTIONS.]

A.

ABDUCTION,

by the common law, what is, 198.

distinguished from kidnapping, 198.

now mostly a statutory offence, 198.

‘¢ for purpose of prostitution,’”’ what is, 198.

forcible, may be by fraud or threats, 198.

distinguished from seduction, 197.

mistake as to age no defence to, 28, 56.
ABORTION,

not an offence at common law, 200.

consent of woman no excuse, 200.

both parties to, guilty, 200.

attempt to commit, indictable, 200.
ACCESSORY,

not present at commission of crime, 70, 75.

how far responsible for unintended crime, 71.

none in treason, 69.

none in misdemeanor, 69, 72.

in manslaughter, when, 73.

mere tacit approval not enough to constitute, 70, 75.

after fact, wife cannot be to husband, 74.

accessory to an, 70.

cannot be tried till after principal, 79.

See PRINCIPAL,

ACCIDENT,

how far a defence, 28, 29, 238,
ACCOMPLICE,

evidence of, 130.

who is, 76, 203.

who is not, 76, 200.
ACCUSATION OF CRIME,

how made, 90.
836 INDEX.

[References are to sections. ]

ACQUIESCENCE,

for detection, effect of, 22.
ACT,

must co-exist with intent, 5.

effect of failure of, 20.

criminal, what is, 12.
ADULTERY, DEFINED, 195.

no offence at common law, 195.

not everywhere a crime, 69.

original idea of, 195.

“ open and notorious,” what, 195.

“living in,’? what, 195.

killing in, detected by husband, manslaughter, 227.
AFFIRMATION, DEFINED, 147.
AFFRAY, DEFINED, 164.

two persons requisite in an, 164.
AGENT IN EMBEZZLEMENT,

who is, 300, 301.
AGREEMENTS,

what may amount to conspiracy, 186, 187.
AIDING AND ABETTING,

one guilty of, is principal, 69.
ALLEGATIONS IN INDICTMENT,

what are necessary, 98.
ALLEGIANCE TO GOVERNMENT,

who owe, 1387.
AMENDMENT OF INDICTMENT,

how made, 91.
ANIMALS,

cruelty to, when criminal, 15.
APOSTASY,

not an offence in this country, 193.
ARRAIGNMENT, 92.
ARREST,

when may kill to make, 59.

when may kill to resist unlawful, 64.

how made, 87.

without warrant, 88.

when legal and when not, 161, 239.

unlawful, as provocation, 229,

resistance to, as affecting degree of homicide,
ARSON, DEFINED, 250.

“¢ dwelling-house,” meaning of, in, 251.

ownership in, what, 252.

occupation in, what, 253.
INDEX. 337
7 [References are to sections.] |
ARSON — Continued.
motive and intent in, 254.
Siero - “burning ”’ defined, 255.
ASPORTATION,
necessary for larceny, 277.
ASSAULT, DEFINED, 205.
used in two senses, 213.
force in, must be unlawful, 207.
fraud vitiates consent in, 209.
consent to, how far an excuse, 208, 209.
consent to, distinguished from submission, 209.
degree of force, necessary, 210.
application of force, mode of, ia, 210, 211.
imprisonment not necessarily an, 211.
fear supposes force in, 212.
threat of personal injury in, 212.
mere words no justification for, 212.
threat, but no intent to injure in, 213.
self-defence against, how far permissible, 63, 214.
in defence of property, when, 66, 67, 215.
accidental, 216.
ASSEMBLY, |
unlawful, what, 165.
ATTEMPT,
criminal, defined, 18, 183, 185.
offer to bribe an, 140, 188.
offer to accept a bribe an, 140, 185.
distinguished from preparation, -183.
distinguished from solicitation, 185.
impossible of success, 184.
desisting before crime completed, 184 a.
relation of, to conspiracy, 186.
ATTORNEY,
duty of prosecuting, before grand jury, 91.
punishable as an officer of court, 155 a.
AUTHORIZATION OF ACT BY GOVERNMENT,
how far valid, 60.
AUTREFOIS CONVICT AND ACQUIT,
plea of, 117 ff.

B.
BAIL, 59.
BARRATRY,
(as a common law offence) defined, 143.
is a habit, 143.
22
338 INDEX.
[References are to sections. ]
BARRATRY — Continued.
by whom it may be committed, 143.
common law of, not generally adopted in this country, 145.
BARRATRY, i
(as a maritime offence) defined, 339.
fraud, what amounts to, in, 339.
BATTERY, DEFINED, 205, 206.
BELIEF,
false oath as to, may amount to perjury, 150.
BENEFIT OF CLERGY,
what, 95.
to public no defence to criminal act, 26.
BESTIALITY DEFINED, 203.
BETTING,
larceny in pretended, 278.
BIGAMY, DEFINED, 196.
gist of the offence, 196.
effect of divorce in, 196.
may be unintentional, 57, 196.
BILL BECOMES INDICTMENT,
when, 91.
BLASPHEMY,
defined, 194.
criminal at common law, 15.
instances illustrative, 194.
a form of nuisance, 181.
BODY,
exhuming, criminal, 15.
BOYCOTTING,
indictable when, 187.
BRAWLER,
common, 181.
BRIBERY AT COMMON LAW,
is criminal, 18.
defined, 140.
an offer to bribe, or accept a bribe, an attempt, 140, 185.
modern tendency to extend the scope of, illustrations, 140.
payment of expenses, how far, 140.
BUGGERY, DEFINED, 203.
not an offence in some States, 203.
not regarded as criminal by some Christian nations, 203.
penetration only necessary to, 208.
must be per anum, 203.
' BURDEN OF PROOF,
in criminal cases, 124.
INDEX. 839
[References are to sections, ]

BURGLARY,

defined, 256.

breaking, actual, in, 257,

breaking, constructive, in, 258.

effect on, of consent, 259.

must be of some part of house, 260,

may consist of interior breaking, 261.

breaking out, 262.

entry in, what, 263.

can be only of occupied house, 264.

what is a dwelling-house in, 265.

time, effect of, in, 266.

intent in, 267.

statutory breakings, 268.

effect on, of admission by servant, 22.
“BURNING,”

defined, 255.
BY-LAWS,

require intent when, 55.

CARELESSNESS,
criminal, 232, 238.
“ CASTLE,”’
defence of, 67, 247 ff.
CHALLENGE,
to fight a duel, indictable, 185.
inviting a, indictable, 185.
CHAMPERTY,
defined, 148.
modern tendency to restrict the common law definition of, 145.
‘“ CHARACTER UNCHASTE,”’
and “ good repute for chastity,” distinguished, 197, 198.
evidence of, 129.
CHASTITY, :
burden of proof of, in seduction, 197.
CHEATING,
defined, 318.
mere lying insufficient in, 318.
must be token or device, 17, 319.
swindling, form of, 320.
CHILD,
unborn, not subject of homicide, 219.
340 INDEX.
[References are to sections.]
CHRISTIANITY,
part of the common law, 2, 194.
crimes aginst, 192 ff.
CHOSES IN ACTION.
larceny of, 272.
CLERGY,
benefit of, whai, 5.
CLERK,
in embezzlement, who is, 300.
CODES,
repeal of common law by, 2.
COERCION,
excuses crime when, 37, 68, 69.
COHABITATION,
lascivious, what, 15, 201.
COMMITMENT, 89.
COMMON LAW,
supplies punishment when not otherwise provided, 3.
COMMON SCOLDS, 181.
COMPLAINT,
what is, 90.
evidence of fresh, 181.
COMPOUNDING,
itself a crime, 23 c.
CONDITIONAL PARDON, 97.
CONDONATION,
effect of, 20, 23 a, 184 a.
by public officers, 23 d.
CONFESSION,
when admissible in evidence, 128.
what is, 128.
CONFLAGRATION,
destruction of property to stay, 61.
CONSENT,
prevents act from being crime when, 21, 22a, 23.
distinguished from acquiescence, 22.
when invalid, 23, 208.
by third person, of no effect, 22 a.
whether necessary, in seduction, 197.
obtained by frand or fear, nugatory, 209.
and submission distinguished, 28, 209, 244.
in abortion no excuse, 200.
in buggery no excuse, 208.
in burglary no excuse, 259,
INDEX. 341
{References are to sections.]

CONSPIRACY,

defined, 186

relation of, to attempt, 186.

various elements in, 186.

what amounts to, 187.

agreement the gist of, 188.

merger in substantive felony when committed, 188.

aliter as to misdemeanor, 188.

intent necessary in, 189.

all participators in, equally guilty, 190.

effect of local laws on doctrine of, 191.
CONSTRUCTION OF CRIMINAL AND PENAL LAW,

strict, 125.
CONSTRUCTIVE INTENT, 28, 34.
CONTEMPT OF COURT,

punishable by indictment, and summarily by the court, 154.

by officers of court, 155 a.

what acts constitute, 155.

of process, 156.

of jury, 157.

proceedings upon, 158.

only where court has jurisdiction, 156.
CONTINUING CRIME,

jurisdiction of, 80.
CONTRACTS,

allegation of, in indictment, 108.

breach of, when may involve criminal responsibility, 30.
CONTRIBUTORY NEGLIGENCE,

effect of, 24.
CONVICTION OF LESSER OFFENCE, 93.
CORPORATIONS,

indictable, when, 38.
CORPSE,

casting in river, criminal, 15.
CORPUS DELICTI,

necessity of proof of, 126, 128,
CORRUPTION,

in public office criminal, 13.

of morals, act tending to, criminal, 15.
COUNTERFEITING,

defined, 336.

and forgery distinguished, 336.

how punishable, 336.

COUNTS OF INDICTMENT,
joinder of, 98, 111-113.
342 INDEX.
{References are to sections. ]

COURT,
is custos morum populi, 15.
CRIME,
defined, 1.
by whom, defined, 2.
how prosecuted and punished, 3.
difference between wrong and, 6.
what acts amount to, 12.
not affected by later condonation or restitution, 28 a.
none at common law, under United States government, 4.
elements of, 5, 99.
what not indictable or punishable, 8.
moral obliquity not essential to constitute, 7.
in one jurisdiction not necessarily crime in another, 7.
jurisdiction of continuing, 80.
ignorance of fact, when no excuse for, 51, 53.
when under indictment for, conviction may be had of another, 112.
when several commit, all principals, 69.
against two sovereignties, 83, 119.
duty to suppress, 59, 65.
locality of, 79.
on the high seas, jurisdiction of, 78, 338.
CRIMES,
classification of, 9, 10.
CRIMINAL,
who may become a, 35.
CRIMINAL CAPACITY,
infants, presumption as to, 36.
married women, presumption of coercion, when, 37.
of corporations, 38. /
insanity, as affecting, 39-46. —
. drunkenness as affecting, 46-49.
burden of proof as to, 36, 47 b.
of boy under fourteen to attempt rape, 184.
CRIMINAL CASE,
test of, 124.
CRIMINAL INTENT,
when not necessary to constitute crime, 53.
CRIMINAL LAW,
effect on, of statutes, 2, 3, 10.
may supply punishment for statutory crimes, 3.
construed strictly in favor of accused, 11, 125.
CRIMINAL NEGLIGENCE,
what is, 31,
may supply place of general criminal intent, 29.
not so as to specific intent, 34.
INDEX. 843
[References are to sections. ]

CRIMINAL RESPONSIBILITY,

effect on, of mistake of fact, 50,

effect on, of mistake of law, 51, 52-

See CRIMINAL CAPACITY.

CRIMINALITY,

test of, 6.
CRIMINALS,

classification, 69-76.
CRUELTY TO ANIMALS,

when criminal, 15.
CULPABLE NEGLIGENCE,

what is, 31.
CUMULATIVE SENTENCE, 115.
CURSING,

habitual, 181.
CURTILAGE,

meaning of, 251.
CUSTODY AND POSSESSION,

distinguished, 299.

taking of, not larceny, 279.
CUSTOMS,

local, influence of, on law, 2, 191.
‘Custos morum populi,

court is, 15.

DANGEROUS DRIVING,

indictable, 13.
DECENCY,

offences against, 15, 192 ff.
DECLARATIONS,

dying, 132.
DEEDS,

larceny of, 273.
DEFENCE,

of person or property, when justifiable, 63.

of one’s self, 64, 68.

of another, 65.

of property, 66, 67.
DEFENDANT,

testimony of, 127.
344 INDEX.
[References are to sections.]

DEFENDANTS,

joinder of, 116.
DEGREE OF STATUTORY CRIME,

how determined, 10.

if doubtful, should be in favor of accused, 11.
DELIRIUM TREMENS,

its effect on criminal responsibility, 48.
DESCRIPTION IN INDICTMENT,

what sufficient, 106.
DETAINER,

forcible, what, 168.
DETECTION,

effect of acquiescence for, 22.
DETECTIVE,

effect of instigation by, on criminal act, 22, 22a.
DEVICE IN CHEATING,

what, 319.
DIPSOMANIA, 48.
DISEASE,

intentional communication of, criminal, 16.
DISORDERLY HOUSE, .

doctrine of coercion not applied to keeping of, 37.
DIVORCE,

remarriage after, when bigamy, 196.
DOCUMENTS,

larceny of, 272.
DOUBT,

reasonable, when prisoner to have benefit of, 47, 124, 125.
DRUNKARD,

common, 181.
DRUNKENNESS,

in general no excuse for crime, 46.

right of self-defence, how affected by, 47 a.

how malice and intent affected by, 47-49.

burden of proof as to, 47 0.

involuntary, releases from responsibility, 49.

when criminal, 15.
DUCKING-STOOL,

punishment by, not recognized in some States, 2.
DUPLICITY,

of indictment, 111.
DUTY,

public, what is, 30.
INDEX. 345
[References are to sections. ]
«“ DWELLING-HOUSE,”
_in arson, meaning of, 251-253.

‘‘ malicious burning ”’ of, 252.

meaning of, in burglary, 260, 261.

defence of, 67, 249 ff.
DYING DECLARATIONS,

evidence of, 132.

EAVESDROPPING,
a form of nuisance, 171, 181.
ECONOMY,
public, offences against, 163 ff.
ELECTION,
fraudulent voting at, 13.
EMBEZZLEMENT,
not an offence at common law, 298.
formerly only a breach of trust, 7.
distinguished from larceny, how, 298, 299.
breach of trust, 298, 302.
made criminal by statute, 17.
of public moneys, 13.
clerk, servant, agent, officer, meaning of, in, 300, 301.
employment, what, in, 302.
what may be embezzled, 303.
intent to defraud essential, 304.
EMBRACERY,
defined, 146.
ENFORCEMENT OF LAW,
act done by way of, 59.
ENGROSSING, FORESTALLING AND 'REGRATING,
what, 177.
ENTRY,
forcible, what, 168.
ESCAPE,
defined, 161.
ESCAPING CRIMINAL,
when killing of, lawful, 59.
EVIDENCE,
in criminal cases, 124 ff.
burden of proof, 124.
of corpus delicti, 126, 128.
of defendant, 127.
of accomplice, 130.
346 INDEX.
[References are to sections.]
EVIDENCE — Continued.
confession of defendant as, 128.
of character, 129.
of fresh complaint, 131.
of dying declarations, 132.
of receiving stolen goods, 328.
in perjury, 152.
in subornation of perjury, 153.
in treason, 139.
of insanity, burden of proof, 45, 124.
of an accomplice, 130.
EX POST FACTO LAW,
what, 3.
EXECUTION OF LAW,
act done in, 59.

EXHIBITION,
maintaining indecent, criminal, 15.
EXPLOSIVES, -

keeping of, may be indictable, 14.
EX POST FACTO LEGISLATION,

forbidden, 3.

defined, 3.
EXPOSURE,

indecent, 15.
EXTORTION,

defined, 141.

must be intentional, 141.
EXTRADITION,

general purpose of, 84.

foreign, 85.

interstate, 86.

FACT,
ignorance of. See Ignorance.
FAILURE,
of criminal act, effect of, 20.
FALSE IMPRISONMENT,
what, 240.
FALSE PRETENCES,
what, 305.
made criminal by statute, 17.
none of statements in fact true, 5.
cheating by words or acts, 305.
INDEX. 347
[References are to sections.]
FALSE PRETENCES — Continued.
implied representations in, 309.
essential elements of, 305.
opinions, how far included in, 306.
trade puffing not, 308.
what may be subject matters of, 307.
intent to defraud necessary, 310.
and actual fraud, 311.
must be made before obtaining goods, 306, 311.
where both parties cheat, how, 25, 312.
no deceit, no cheating, 313.
imprudence in cheated party immaterial, 313.
whether must be sole means of deceiving, 314.
remoteness of pretence, 315.
property subject matter of, 316.
and larceny distinguished, 317.
FEAR,
when it amounts to force, 198, 199, 209, 212, 213, 240, 248, 247.
putting in, what, 247.
FELONIES,
joinder of, in indictment, 114.
FELONY,
what, 10. '
right and duty to prevent, 59, 239.
how far doctrine of coercion applicable to, 37.
when may kill to prevent, 64, 65.
arrest of one guilty of, 59.
“FIGHTING,”
meaning of, 164.
and self-defence distinguished, 164.
FORCE,
when lawful, 208.
when fraud or fear supplies the place of, 198, 199, 209-213, 240,
248, 247, 248, 277.
when not, 197.
and violence in rape, 248.
FORCIBLE ENTRY AND DETAINER,
defined, 167.
criminal at common law, 17.
degree of force in, 168.
what may be entered or detained, 169.
FORCIBLE TRESPASS,
to personal property, 170.
FOREIGNER,
not excused for ignorance of law, 51.
when may be guilty of treason, 187.
848 INDEX.

[References are to sections. ]

FORESTALLING,
what, 177.
FORGERY,
defined, 329.
must be of a material matter, 330.
may be of fictitious name, 331.
alterations by addition or erasure construed, 331, 332.
signing one’s own name may be, 331.
filling blank may be, 333.
must be intent to defraud, 334.
lack of similitude in, immaterial, 334.
uttering, 335.
FORGIVENESS BY INJURED PARTY,
effect of, 21.
FORMER ACQUITTAL AND CONVICTION,
plea of, 117 ff.
FORNICATION,
defined, 202.
offence of ecclesiastical origin, 202.
pure and simple, not an offence at common law in this country, 202.
FRAUD,
when it is equivalent to force, 198, 199, 208, 209, 240, 277.
when not, 248.
when it excuses crime, 37, 49, 69.
what amounts to, in barratry, 389.
FRESH COMPLAINT, 131.
FRIGHTENING PERSONS,
may be indictable, 16.
FUGITIVES FROM JUSTICE,
surrender of, 84-86.

GAME,
injury in course of, 23, 238.
GOODS,
personal, subjects of lareony, 271, 275,
GOVERNMENT,
offences against, 18, 133 ff.
GRAND JURY,
how constituted, 91.
GUILTY PARTICIPATION,
by injured party, 25.
INDEX. 349

H.

[References are to sections.]

HATRED,
distinguished from malice, 33.
HEALTH,
public, offences against, 14, 163 ff.
HIGH SEAS,
jurisdiction over, 78, 338.
within three-mile limit, 77.
HIGHWAY,
obstructing, when indictable, 14, 179.
HOMICIDE,
evidence of dying declarations in, 182.
defined, 218. :
may be lawful, when, 218.
justifiable and excusable, when, 218.
suicide, form of, 219.
consent no defence, 23.
must be of human being, born and alive, 219.
death must be within a year and a day, 219.
defendant’s act must be the legal cause thereof, 24, 30, 280.
murder, highest degree of, 220.
malice in, express and implied, 34, 221.
malice aforethought and presumptive, 222-224.
manslaughter, degree of, 226.
accidental, 30, 237.
in prevention of felony, 289.
unintended, when criminal, 28, 30, 34.
See MuRDER AND MANSLAUGHTER.
HOUSE,
every man’s, his castle, meaning of, 67, 215. _
HUSBAND,
accessory to wife, and wife to husband, when, 74.
coercion of wife by, 37.
duty to provide for wife, 30.
right of marital control, 62.
how far larceny by one from other, 287.

ty
IDEM SONANS, 103, 107.

IDENTICAL OFFENCES,
what are, 120.

IDIOTS IRRESPONSIBLE FOR ACTS.
when, 39; 40.
300 INDEX.
[References are to sections. ]

IGNORANCE,
of fact, when no excuse for crime, 50, 57.
of law no excuse for crime, 51-57.
may show lack of specific intent, 52.

IMMORAL ACT,

one engaging in, takes risk of criminality, 28, 56.
IMMORALITY,

when criminal, 15, 181.

IMPRISONMENT,
what, 162.
false, 240.
on the high seas, 60.

IMPUTED MALICE, 223.

INDECENCY,
when criminal, 15, 201.

INDECENT,
exhibition, criminal, 15.
proposal, libel, 172.

INDICTMENT,

what is, 90.
how bill becomes, 91.
arraignment on, 92.
quashing, 94.
amendment of, 91.
form of, 98.
requisites of, 98.
particularity, 100.
surplusage, 101.
variance, 101, 103, 107.
laying jurisdiction, 102.
names in, 103.
time, 104.
place, 105.
description in, 106.
allegation of words in, 107.
allegation of contract or writing in, 108.
upon statute, 109.
statutory form of, whether constitutional, 110.
joinder of counts in, 98, 111-118.

of offences in, 114.

of defendants in, 116.
conviction of lesser offence than charged by, 112.
cumulative sentence on, 115.
duplicity in, 111.
INDEX. 351

[References are to sections. ]

INDIVIDUAL.NOT ALWAYS PROTECTED BY PUBLIC, 17.

INDIVIDUALS,
offences against, 16.

INFANTS,
when criminal and when not, 36.
when failure to provide for criminal, 30.

INFECTION OF DRINKING WATER CRIMINAL, 16.

INFORMATION,
what is, 90.

INSANE PERSON,
cannot be tried or punished, 44.
INSANITY,
defined, 39-43.
knowledge of right and wrong as test of, 40.
irresistible impulse as element of, 41.
emotional, what, 42.
moral, 43.
prevents trial and punishment, 44.
proof of, 45.
relation to delirium tremens, 48.

INSTRUMENTS IN WRITING,
larceny of, 272.
INTENT,
criminal, how far necessary to constitute crime, 26, 53, 55.
a question of interpretation in statutory crimes, 54.
distinguished from malice, 26.
distinguished from attempt, 183.
distinguished from motive, 26, 32, 254.
presumed from unlawfulness of act, when, 27.
constructive, 28, 34.
when, must be proved, 27, 32, 200.
may be supplied by negligence, 29.
how affected by drunkenness, 47, 267.
to defraud, 170, 334.
and act must co-exist, 5.
constructive, 28.
specific, 32, 34.
in extortion, 141.
in statutory crimes, when necessary, 52-57.
attributable to corporations, 38.
See CRIMINAL CAPACITY.
INTERNATIONAL LAW,
offence against, 338.
part of the common law, 2.
352 INDEX.
[References are to sections.]
INTERPRETATION,
rules of, 125.
INTOXICATION.
See DRUNKENNEsS.
INVASION,
entry on land to repel, 61.
IRRESISTIBLE IMPULSE, 41.

J.
JEOPARDY,
no one to be put twice in, meaning and scope of rule, 117-122.
JOINDER,

of counts in indictment, 111-115.
of defendants, 116.

“JUDICIAL PROCEEDING,”
what, 149.
JURISDICTION,
territorial limits of, 77.
all persons in, subject to, 51, 137.
personal, 77 a.
over accessory in one State to crime in another, 70.
on high seas, 78.
in continuing crime, 80, 296.
where force set in motion outside State, 79.
where force applied outside State, 79, 81.
of United States courts, 82.
concurrent jurisdiction, 77 a, 83.
over person forcibly brought in State, 85.
none by consent of parties, 77.
of a county, what included in, 77, 80.
authorization by government, ineffective beyond, 60.
over receiver of stolen goods, 75, 326.
over pirates, 78, 338.
over marriages of citizens outside the State, 196.
JURY,
grand, 91.
libels against, 157.
JUSTIFICATION,
what is, 58.
enforcement of law, how far a, 59.
authorization by government, when a, 60.
authority of master, when a, 62.
self-defence, when a, 64.
INDEX. 353

[References are to sections.]

JUSTIFICATION — Continued.
defence of others, when a, 65.
defence of property, when a, 66.
defence of ‘‘ castle” when a, 67.
necessity, how far a, 68.
burden of proof of, 67 a.

K.

KIDNAPPING,

of defendant in foreign country no defence, 86.

and abduction distinguished, 198.

defined, 199.
KNOWLEDGE,

of the law, when presumed, 51.

when not, 52.

carnal, what, 242.

L.

LARCENY,
distinguished from embezzlement, 284, 299.
false pretences, 278, 317.
defined, 270.
petit and grand, 270.
simple, compound, and aggravated, 270, 293.
conversion, of realty into chattels, 275.
taking and carrying away in, 277.
by trick, 277 a, 278 a.
taking, degree of force necessary in, 277.
not, when both possession and title obtained, 278,
servant, larceny from, by trick, 278 a.
not, when only custody taken, 279.
possession, what amounts to a taking of, 280.
taking by finding in, 280.
taking of property left by mistake, 281.
taking of property given by mistake, 282.
taking by servant or bailee, 283, 284.
temporary delivery upon condition in, 285.
taking by bailee for special purpose, 285 a.
taking by owner in, 286.
taking, what is felonious, 288, 289.
taking by wife from husband, not, 287.
intent to steal, what is, 288.
non-felonious taking, may have larceny based on, 290.

continuing trespass in, 290 a. 5
3
354 INDEX.
{References are to sections.]
LARCENY — Continued.
and malicious mischief distinguished, 291.
taking lucri causa, use under claim of right, 288-291.
concealment as evidence of intent in, 290.
what may be subject matter of, 271-275.
wild animals domesticated, 274.
value of property as an element in, 276.
ownership in, 292.
from person, from a vessel, 293.
from a building, 293-295.
place and jurisdiction of, 80, 296, 328.
different simultaneous taking, 297.
trespass as an element of, 278.
to preserve life, 68.
LASCIVIOUSNESS,
what, 201.
behavior and carriage, what, 201.
cohabitation, what, 201.
LAW,
ex poste fucto, what, 3.
enforcement of, 59.
penal and criminal, strictly construed, 11, 125,
ignorance of, 51, 52.
LESSER OFFENCE,
conviction of, 98, 112, 121.
LIBEL,
definition of, what, 172.
malice in, 173.
publication of, what, 174.
privileged communication in, 175.
LUNATICS,
irresponsible, when, 39, 40.
MAINTENANCE,
defined, 148.
intervention by person having interest is not, 144.
must be an officious intermeddling, 145.
tendency to relax law of, 145.
See BARRATRY, CHAMPERTY.

M.

MALA PROHIBITA AND MALA IN SE,
distinguished, 53.

MALICE,
defined, 33, 1738, 221-224, 254, 322.
is a form of specific intent, 32,
INDEX. 355
[References are to sections. ]
MALICE — Continued.
how affected by intoxication, 47.
aforethought, express, implied, imputed, presumptive, 221-224.
in arson, 254.
express, inferred from circumstances, 823.

MALICIOUS MISCHIEF,
distinguished from larceny, 291,
defined, 321.
malice in, 322.
MALPRACTICE,
effect of, on criminality, 24.
MANSLAUGHTER,
defined, 226,
voluntary and involuntary, 226.
mitigating circumstances in, 227,
provocation in, 228, 229.
death in, must be direct result of unlawful act, 230.
unlawfulness in, 231.
negligence and carelessness in, 232, 233.
self-defence, how far an excuse, 234.

MARRIAGE,
when bigamous, 196.
when subsequent, a defence to indictment for seduction, 23 a.

MARRIED WOMAN,
when excused for crime, 37, 125.
not liable as accessory after fact to husband, 74.
cannot commit larceny from husband, 287.
MARITIME CRIMES, 337 ff.
MASTER, ;
right of, to correct, 62.
cannot by ratification become criminally liable for servant’s act, 5.
MATERIALITY,
what sufficient to make false testimony perjury, 151.
MAYHEM,
at common law defined, 217.
consent no defence, 23.
now generally defined by statutes, 217.
generally a misdemeanor, 217.
MEETING,
town, disturbance of, 18.
MISDEMEANANT,
may not kill to arrest, 59.
MISDEMEANOR,
what, 11.
356 INDEX.
[References are to sections.] ©
MISDEMEANORS,
joinder of, in indictment, 114.
MISPRISION, 19.
of treason, 138.
MISTAKE,
when it relieves from responsibility, 50, 57, 141.
and specific intent, 34.
as to identity of person, assault under, 34.
as to necessity of defending self, induced by drunkenness, 47 a.
must be reasonable, 64, 214, 235.
See IGNORANCE.
MORALITY,
offences against, 15, 181, 192 ff.
MORAL OBLIQUITY,
not essential to crime, 7, 26.
whether sufficient to amount to constructive intent, 28.
criminal liability while engaged in act involving, 56.
MOTIVE,
distinguished from intent, 26, 254.
MURDER,
defined, 220.
degree of, 225.
malice in, 47, 221-224.
trial for, after former trial for assault, 122.
See HomIciDE.
MUTE,
standing, 92.

N.
NAME,
allegation of, in indictment, 103.
NATIONS,

law of, part of the common law, 2.

offences against, 337 ff.
NAVIGABLE STREAM,

obstruction of, indictable, 14, 26, 179.
NECESSITY,

whether a justification for crime, 68, 236.
NEGLIGENCE,

what is, 29.

of what duties, 30.

what is culpable, 31, 232, 233.

effect of contributory, 24.

evidence of fraud, when, 339.

cannot take place of specific intent, 34.

 
s

INDEX. 357
[References are to sections.]
NOLLE PROSEQUT, 94.
NOLO CONTENDERE,
plea of, 93.
NONCONFORMITY,
no offence in this country, 193.
NOTE,
taking of, not extortion, 141.
NUISANCE,
defined, 178.
corporations liable for, 38.
illustrations of, 178-181.
no prescription for right to maintain, 182.
public benefit no excuse, 182.
no act authorized by law a, 180.
hindrance to a public right a, 179.
and interference with enjoyment of a, 179.
an established lawful business may become a, 182.
time and place sometimes decisive of, 180.
justified by public policy when, 61.
principals and accessories in, 69. ‘
NUISANCES,
common scolds, drunkards, barrators, profane persons, keepers of
tippling-shops and houses of ill fame, promoters of lotteries, dis-
seminators of disease or of offensive odors, and persons annoy-
ing the public, indictable as, 14, 181.

0.

OATH,

defined, 147.

form of administration of, not essential, 147.

to be valid, must be required by law, 148.

must be wilful and false to amount to perjury, 150.

must be on a material point, 150, 151.

whether materiality of, a question of law or fact, 151.

whether voluntary or compulsory, immaterial, when, 150.

according to knowledge and belief, may be perjury, 150.

so if no knowledge or belief, 150. =
OATHS,

of officer not within the law against perjury, 150.
OBSCENE WORDS,

whether necessary to state, in indictment, 107.
OBSCENITY,

when criminal, 15.

publication of, when justifiable, 61.

c
858 INDEX.

. [References are to sections.}

OCCUPATION OF DWELLING-HOUSE,
what, 253, 264.
OFFENCES,
joinder of, in indictment, 114.
OFFICE,
corruption in public, 18.
misconduct in, 142a.
oath of, not within the law of perjury, 150.
OFFICERS,
public corruption by, indictable, 13, 142a.
libels or slanders against, indictable, 13.
condonation of crime by, 23 8.
extortion and oppression by, 141, 142.
bribery of, what amounts to, 140.
may be guilty of barratry, 143.
of court, summarily punishable for contempt, 155 a.
who are, in embezzlement, 300, 301.
OPPRESSION, 142.
OUTCRIES IN PUBLIC STREET,
criminal, 14.
OWNERSHIP,
in arson, meaning of, 252.
in burglary, meaning of, 265.
in larceny, meaning of, 292.
allegation of, in indictment, 106.

PP.
PARDON, 97.
PARLIAMENT,
Acts of, when extended to colonies, 2.
PARENT,

right of, to correct child, 62.
PARTICIPATION OF INJURED PARTY IN CRIME,
effect of, 25.
PARTICULARITY OF INDICTMENT, 100.
PEACE,
disturbance of public, indictable, 14.
PENAL LAW,
strictly construed, 125
PERJURY,
defined, 147.
only where oath administered by authorized person, 148.
oath must be required by law, 148.
must be in a judicial proceeding, 149.
INDEX. 809

[References are to sections.]

PERJURY — Continued. @
must be wilfully false, 150.
must be on a material matter, 151.
evidence, amount of, required, 152.
subornation of, defined, 13, 153.
evidence in, 153.
oath of office not within law of, 150.
similar offences less than, 153 a.
PERSON,
injury to, when criminal, 16, 204 ff.
PERSONAL PROPERTY,
forcible trespass against, 17, 170.
when realty becomes, in larceny, 275.
PESTILENCE,
destruction of property to stay, 61.
PIRACY,
defined, 338.
robbery on board a vessel, when not, 338.
how triable and punishable, 338.
jurisdiction of, 78, 338.
PLACE,
public, what, 164.
allegation of, in indictment, 105.
PLEA,
form of, 92.
PLEADING, .
criminal. See Indictment.
POLICE REGULATIONS,
when intent required in, 55.
POLYGAMY.
See BIGAMY.
POSSESSION,
and custody distinguished, 284, 299.
and title distinguished, 278.
recent, of stolen goods, proves larceny rather than receiving, 328.
must be taken to constitute larceny, 277.
PREMEDITATION, :
a form of specific intent, 32.
PRESUMPTION,
that person intends the consequences of his act, meaning of, 27.’
of malice, from conscious doing of unlawful act, 33, 322.
PREPARATION,
intent and attempt distinguished from, 183.
PRESCRIPTION,
no justification for nuisance, 182.
360 INDEX,
[References are to sections. ]
PRESENCE OF PRISONER, 92, 98, 96.
PRESENTMENT, 91.
PRESSURE OF CIRCUMSTANCES, 68, 236.
PRINCIPAL,
in the first degree, is the actual perpetrator of crime, 69.
all are in treason, 69.
all are in misdemeanors, 69, 72.
in second degree, need not be actually present, 69.
must give personal assistance, 75. ;
how far responsible for crime not contemplated, 71.
when liability terminates, 69.
See ACCESSORIES,
PRISON,
what, 162.
PRISON BREACH,
defined, 162.
PRISONER,
to be brought before magistrate, 89.
presence of, at trial, 92, 93, 96.
PRIVILEGED COMMUNICATIONS,
what, 175.
PROCESS,
contempt of, 156.
PROFANITY,
form of nuisance, 181.
PROOF,
burden of, general principles, 124,
of age, 36.
of coercion, 37.
of insanity, 45.
of lack of specific intent caused by drunkenness, 47 3.
of justification, 67a.
of intent in statutory crimes, 57.
PROPERTY,
how far it may be defended by force, 66, 67, 215, 234.
offences against, 17, 269 ff.
recapture of, 66.
‘“PROSTITUTION ’ AND “ILLICIT INTERCOURSE,”
distinguished, 198.
PROVINCIAL LEGISLATION,
effect on common law of, 2.
PUBLIC POLICY,
when a justification, 61.
PUBLIC ECONOMY,
offences against, 163 ff.
INDEX, 361
. [References are to sections. }
PUBLIC LANDS,
destruction of trees on, 13.
PUBLIC OFFICE,
corruption in, 18.
failure to discharge duties of, 13.
PUBLIC PLACE,
what, 164.
PUBLIC POLICY,
when excuse for crime, 61, 68.
PUBLICATION OF LIBEL,
what, 174.
“PUFFING,”
whether false pretences, 308.
PUNISHMENT,
twice for same offence, when, 83, 119.
fixed by common law when statute fails to provide, 3.

Q.
QUASHING INDICTMENT, 94.

R.
RAILERS,
common, 181.
RAPE,
defined, 241.

carnal knowledge in, what, 242.

force and violence in, 243.

infant male incapable of, when, 36.

evidence of fresh complaint in, 181.

attempt to commit, by boy under fourteen, 184.
RATIFICATION,

by master, does not make him primarily responsible criminally, 5.

when may make him responsible as accessory, 10.
REAL PROPERTY,

injury to, not criminal, 17.
REBELS,

adhering to, may be treason, 136.
RECEIVING STOLEN GOODS,

substantive offence, 324.

what constitutes, 324, 325.

jurisdiction in cases of, 328,
362 INDEX.
[References are to sections.]
REGRATING,
what, 177.
RELIGION,
motives of, no excuse for crime, 26.
offences against, 15, 192 ff.
RENT,
defined, 165.
REPEAL OF STATUTE PENDING TRIAL,
effect of, 3.
REPENTANCE,
does not lessen responsibility for criminal act, 5, 23 a.
REPRIEVE, 97.
RESCUE,
of prisoner, criminal, 8, 159.
attempted, may be a riot, 166.
RESTITUTION,
effect of, 21.
RETREAT,
necessity of, before killing, when, 64, 214, 215, 234.
RIGHT AND WRONG,
knowledge of, as test of insanity, 40.
RIOT,
defined, 165, 239.
violence necessary to constitute, 166.
disturbance of public peace, gist of offence, 166.
provoking, 14.
ROBBERY,
defined, 245.
force and violence necessary in, 246.
putting in fear in, what, 247.
taking of property in, what, 248.
on board a vessel not piracy, when, 338.

-

8.
SAFETY,
of individual, injury to, criminal, 16.
SCHOLAR,
may be punished, 62.
SCOLDS,

common, 181.

SECOND OFFENCE, .
form of charging, 99.

SECURITY,
offences against public, 14, 163 ff,
INDEX. - 363
[References are to sections.]

SEDUCTION,

whether indictable at common law, 197.

what constitutes, 197.

burden of proof of chastity in, 197.

and abduction distinguished, 197.

and prostitution distinguished, 198.

effect of subsequent marriage, 23 a.
SELF-DEFENCE,

how affected by intoxication, 47 a.

when may kill in, 64, 214, 232, 234-236.

how involved in defence of castle, 67.

and killing from necessity, 68.

burden of proof of, 67 a.
SENTENCE, 96.

cumulative, 115.

after plea and demurrer, when, 123.
SERVANT,

admission of burglar by, 22.

larceny by trick from, 278 a.

in embezzlement, who is, 300.
SHIPWRECK, c

rights of survivors of, to save themselves, 68, 236.
SHOOTING,

so as to cause fright, when indictable, 16,
SLANDER,

when indictable, 176.
SODOMY,

defined, 203.

how punishable at common Jaw, 203.
SOLDIER,

killing by, when justified, 60.
SOLICITATION,

an attempt, when, 19, 184, 185.

distinguished from acquiescence, 21, 22.

by person affected takes away criminality when, 22.

by third persons, 22a.
SPECIFIC INTENT, 32.

not supplied by negligence, 34.

how affected by drunkenness, 47.

when requisite in statutory crimes, 52.
SPORT,

injury in course of, 23, 238.
STATE’S EVIDENCE,

effect on criminal liability of becoming, 23 6.
364 INDEX.
[References are to sections. ]

STATUTE,

relating to crime, 3.

to be interpreted in light of common law, 3, 6.

repeal of, pending trial, effect of, 3.

expiration of, 3.

most minor offences defined by, 12.

how far jurisdiction may be conferred by, 81.

indictment upon, 109.
STATUTORY CRIME,

degree of, how determined, 10.

whether intent an element in, 53-57.

when doctrine of constructive intent applicable to, 28, 34.

form of indictment, whether constitutional, 110.

principal and accessory in, 69.

specific intent, when requisite in, 51.
SUBMISSION,

distinguished from consent, 209.
SUBORNATION OF PERJURY, 13, 153.

See Persury.

SUICIDE, j

criminal, 185.

attempt at, punishable, 185.
SURPLUSAGE,

indictment, 101.
SWEARING,

when criminal, 15.

habitual, a nuisance, 181.
SWINDLING,

what, 320.

a,

TABULA IN NAUFRAGIO, 68.
TAKING,
temporary, not larceny, 289,
TESTIMONY,
of defendant, 127.
of accomplice, 130.
THEF BOTE,
defined, 23 c.
THEN AND THERE,
in indictment, 105.
THIRD PERSONS,
defence of, 65.
TIME,
allegation of, in indictment, 104.
INDEX. 865
[References are to sections. ]

TOKEN,

cheating by, what, 319.
TRANQUILLITY,

offences against public, 14, 163 ff.
TREASON,

at common law, what, 134.

high and petit, 9, 184,

defined, 135.

levy of war in, 186.

insurrection against private person not, 156.

who may commit, 137.

misprision of, 138, ©

evidence in, 139.
TRESPASS,

on real estate, not criminal, 17.

forcible, what, 170.

ab initio, not recognized in criminal law, 5.
TRIAL,

criminal, how conducted, 93.

by jury, after demurrer, 170.
TRICK,

larceny by, 277 a, 278, 278 a.
TRUST,

breach of, not criminal under old common law, 17.
TRUTH,

how far a defence in criminal libel, 173.

U.
UNITED STATES,
courts of, jurisdiction of, 82.
no common law of crimes of, 4.
“UNLAWFUL ASSEMBLY,
defined, 165.

VARIANCE,
in indictment, 101, 103, 107.
VENUE,
in indictment, how laid, 102.
VERDICT, 93.
VESSEL AT SEA,
partof the jurisdiction of the sovereignty under whose flag she sails, 78.
366 INDEX.
[References are to sections. ]
VIOLENCE TO PERSON, .
criminal, 16, 204 ff. ‘
what sufficient in riot, 166.
VOLUNTARY CONFESSION,
what is, 128.
VOLUNTEER,
when failure of, to continue to act may be criminal, 30.
VOTING,
fraudulent, 13.

WAR,
levy of, what, 136.
WARRANT,

to be shown- on demand, 87.

arrest without, 88.
WATER,

infection of drinking, criminal, 16.
WEAPON,

openly carrying dangerous, criminal, 14.
“ WILFULLY”

meaning of, 322.
WILL,

against, meaning of, 244, 247.
WITNESS,

defendant may be, 127.
WITNESSES,

in perjury, 152.

in subornation of perjury, 153.

in treason, 139.
WORDS,

how alleged in indictment, 107.

no justification per se for assault, 212.

ordinarily will not reduce murder to manslaughter, 297.
WORSHIP,

cisturbing public, criminal, 15.
WRITING,

allegation of, in indictment, 108.

larceny of instrument in, 272.
WRONG,

difference between crime and, 6.
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