Mi ; fa it HA B. agian Whi in feta i Gurvell Gam School Library Cornell Talia Library KF 9619.C59 1918 TTL 020 200 8 The Hornbook Series Of elementary treatises on all the principal subjects of the law. The special features of these books are as follows: 1. A succinct statement of leading principles In black-letter type. 2. A more extended commentary, elucidating the principles. 3. Notes and authorities. Published in regular octavo form, and sold at the uniform price of $3.75 per volume, including delivery. Bound in Standard Law Buckram, Barrows on Negligence. Black on Construction and Interpretation of Laws (2d Ed.). Black on Constitutional Law (3d Ed.). Black on Judicial Precedents. Burdick on Real Property. Chapin on Torts. ; Childs on Suretyship and Guaranty. Clark on Contracts (3d Ed.). Clark on Corporations (8d Ed.). Clark on Criminal Law (38d Ed.). Clark on Criminal Procedure (2d Ed.). Cooley on Municipal Corporations. Costigan on American Mining Law. Croswell on Executors and Administrators. Dobie on Bailments and Carriers. Eaton on Equity. Gardner on Wills (2d Ed.). Gilmore on Partnership. Hale on Damages (2d Ed.). Hopkins on Real Property. Hughes on Admiralty. Hughes on Federal Jurisdiction and Procedure (2d Ed.). Jaggard on Torts. 2 Vols. McKelvey on Evidence (2d Ed.). Norton on Bills and Notes (4th Ed.). Shipman on Common-Law Pleading (2d Ed.). Shipman on Equity Pleading. Smith’s Elementary Law. Tiffany on Agency. Tiffany on Banks and Banking. Tiffany on Persons and Domestic Relations (2d Ed.). Tiffany on Sales (2d Ed.). Vance on Insurance. Wilson on International Law. In preparation: Handbooks of the law on other subjects to be an- nounced later. Published and for sale by WEST PUBLISHING CO., ST. PAUL, MINN. Note: For a full description of the different books see cata- logue at the end of this volume. C11517--h HANDBOOK OF CRIMINAL PROCEDURE ane f BY WM. L. CLARK, JR. AUTHOR OF CLARK'S HANDBOOK OF CRIMINAL LAW AND CLARK'S HANDBOOK OF THE LAW OF CONTRACTS SECOND EDITION BY WILLIAM E. MIKELL, B.S., LL.M. PROFESSOR OF LAW IN THE UNIVERSITY OF PENNSYLVANIA “ ST. PAUL WEST PUBLISHING CO. 1918 A BY 78. CopyrianutT, 1895 BY WEST PUBLISHING COMPANY CoPyYRIGHT, 1918 BY WEST PUBLISHING COMPANY (CLABK CR.PROC.2D ED.) PREFACE It 1s twenty-two years since the first edition of Clark’s Crimi- nal Procedure was published. Since that time a great stream of decisions has gone under the legal bridge. The law governing criminal procedure has undergone consid- erable change in these two decades. This change has been brought about partly by statutory enactment, and partly by judicial legislation. The change wrought by both of these agencies has been in the same direction—toward a more ra- tional system of procedural law. The super-technicalities once dominating criminal procedure are yearly being at- tacked by Legislatures, and daily meeting with less respect by courts. Naturally some jurisdictions have progressed much faster than others, but all are informed with the new spirit. The present editor has endeavored in this edition, as far as the limited space permitted, to represent the existing law, both by changes in the text and by the addition of new notes and citations of recent important cases. W. E. MIKELL. PHILADELPHIA, June, 1917. (v)* TABLE OF CONTENTS. INTRODUCTION (Pages 1-3) CHAPTER I Section JURISDICTION AND VENUB Page 3. En Generall ins vinded: hice sane oa Newel sok Reh 4-10 8a. Jurisdiction as Determined by Locality of Crime, or Venu? icngait cage ncainereaiaesakesee aka ba eehdes 10-23 CHAPTER II APPREHENSION OF PERSONS AND PROPERTY 4, Arrest in General.......... ccc cece eect ceceevees 24-26 5. Arrest by Warrant.......0..cccecccucccsecece 27 6. Issuance of Warrant—Complaint Siew Be wee . 27-382 7. Sufficiency of Warrant........... epeuavas “evevate/« 32-38 8. Execution of Warrant...........ceecceeeee 388-41 9. Warrant as Protection to Officer............ 41-44 10-12. Arrest Without a Warrant.............ceceeee 45-54 13. Assisting Officer. .......cc cece cece nce cc eeeeee 54-56 14. Hue and) Crys vdieo a detete.cie wows 6 Gauls eaannd oe Weas 56-57 15. Time of Arrest: ec ¢ sc sieds cc aeig scan os neeiss wears 57 16. Notice of Purpose and Authority.............0. 58-59 17. TU SONOf Moree. dass saisiaeiow tigaare ales Ges eabaves 60-62 18. Breaking Doors, ete.......cccccecsccccccceteve 63-65 19. What Constitutes Arrest..........ssseeesee eee ©65-6T 20. Duty: after sArrestsc2scosaw os vieetaedias Seo aieiers » 67-68 21. Authorized Arrest in Unauthorized Manner...... 68-69 22, Fugitives from Justice............0cc ec ceweee ‘ 69 23-25, International Extradition................ -. 69-72 26-29. Interstate Extradition.............0eee-ee. 72-80 30-83. Searches and Seizures of Property.......... saedees 80-85 34. Taking Property from Person Arrested.........0.. 85-86 CHAPTER III PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT 35. Preliminary HWxamination.................c eeu eeve 87-99 36. Bail—In ‘Gerieralks isco coccinea gece bs aes eevanaeend 99-102 37-38. Right to Release on Bail... ........ cece eee ees 102-104 39. Sufficiency of Bail... ... ce ee eee ec eens 105-106 40. Remedy of Accused on Denial of Bail.......... 107 41. The Bond or Recognizance..............000008 108-113 42, Release of Sureties....... 0.0... . 0. cece eee eeeee 118-115 43. Breach of Bond or Recognizance, or Forfeiture of Bail | te 5c) ceaiten nx acyoiar ow Wyiasa do SYNE Aerated 115-118 AA. -COmmitment sc siccoxv eseied 2 e A warrant may issue to bring a person before a magistrate for examination, and determina- tion of the question whether he should be held to await action by the grand jury. But, to enable a magistrate to issue a warrant in the first instance—that is, before indict- ment—it is necessary, not only under the constitution and by statute in most jurisdictions, but also at common law, that a proper complaint under oath or affirmation shall be laid before the magistrate, in order that he may determine that a crime has been committed, and that there is probable cause to suspect the accused. Without such a showing, a warrant should never be issued.1® The Constitutions of the United States and of most of the states declare that the peo- ple shall be secure from unreasonable arrests, and that no warrant shall issue to arrest any person without describing him as nearly as may be, nor without probable cause sup- 144 Inst. 176; 2 Hawk. P. C. 182; 1 Chit. Cr. Law, 12. 152 Hale, P. C. 108; 4 Bl. Comm. 290; 1 Chit. Cr. Law, 18. And see cases hereafter cited. 164 Bl. Comm. 290; Caudle v. Seymour, 1 Q. B. 889; State v. Wimbush, 9 S. C. 309; Wells v. Jackson, 3 Munf. (Va.) 479; State v. Mann, 27 N. C. 48. § 6) ARREST BY WARRANT 29 ported by oath or affirmation. This is substantially a decla- ration of what has always been the common law. Sufficiency of the Complaint A form for a complaint made before a justice of the peace to procure the issuance of a warrant is given below.*” At common law, as well as by stattfte in most states, the complaint must be made under the oath or affirmation of the complainant, or of some other witness on his behalf. The oath or affirmation is essential.® By statute in many of the states it is also required to be reduced to writing. In some it is expressly required that the magistrate, after examining on oath the complainant and any witness pro- duced by him, shall reduce the complaint to writing, and cause it to be subscribed by the complainant... It seems, however, that this provision is merely directory, in so far 17 State (or Commonwealth) of , County of , to wit. A. B., upon oath, complains that on the day of , A. D. , ©..D., in the county of , in said state (or common- wealth), (or in the county aforesaid), did feloniously steal, take, and carry away one overcoat, of the value of twenty-five dollars, of the goods and chattels of the said A. B. (or of any other person who may have been the owner). The said A. B., therefore, prays that the said C. D. may be apprehended, and held to answer the said complaint, and to be further dealt with according to law. Dated this the day of _ A, D. ——. [Signed] A. B. State (or Commonwealth of ,» County of , to wit. I, X. Y., a justice of the peace, of the county aforesaid, do certify that on this day, in said county, personally appeared before me the said A. B., whose name is signed to the foregoing complaint, dated on this day of , A.D. , and, being duly sworn, de- poses and says that the facts stated in said complaint are true. Given under my hand this day of , A. D. Wig Se Be The forms will differ in some respects, under the practice or stat- utes of the various states. 18 State v. Wimbush, 9 S. C. 309; Caudle v. Seymour, 1 Q. B. 889; Daniels v. State, 2 Tex. App. 353. But see State v. Killet, 2 Bailey (S. C.) 289. It has been held that the oath cannot be administered by the magistrate’s clerk, but must be administered by the magistrate himself. Lloyd v. State, 70 Ala. 32; Poteete v. State, 9 Baxt. (Tenn.) 261, 40 Am. Rep. 90. But see, contra, State ex rel. Bryant v..Lauver, 26 Neb. 757, 42 N. W. 762. X. 30 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 as it provides for reduction to writing by the magistrate him- self, and that the writing may be done by the complainant or any other person.?® In other states it is merely provided that the magistrate shall examine the complainant and his witnesses on oath; the complaint is not required to be re- duced to writing.® Writing is not necessary at common law.?+ Ordinarily, any person is competent to make a complaint if he is capable of understanding the nature of an oath or affirmation, and so competent to testify, for it is the wrong against the public, and not against the individual, that is to be considered and punished.?? It is no objection to a com- plaint, therefore, that it was made by a convict.2* An in- sane person or a child of very tender years would no doubt be incompetent, as he could not understand the nature of an oath or affirmation.?* By statute, in some jurisdictions, it is provided, on grounds of public policy, that a com- plaint for adultery can only be made by the injured husband or wite.?> as 19 Gen. St. Mass. c. 170, § 10; Rev. St. Ill. 1874, p. 401, § 348. As to subscription and jurat, see Com. v. Wallace, 14 Gray (Mass.) 382; Webb v. State, 21 Ind. 236; Com. v. Quin, 5 Gray (Mass.) 478. A complainant who cannot write may subscribe by making his mark. Com. v. Sullivan, 14 Gray (Mass.) 97; Sale v. State, 68 Ala. 530. 20 People v. Lynch, 29 Mich. 278; People v. Becktel, 80 Mich. 623, 45 N. W. 582. 21 See cases above cited. 22 People v. Stokes (Gen. Sess.) 24 N. Y. Supp. 727; State v. Killet, 2 Bailey (S. C.) 289. 23 State v. Killet, supra; People v. Stokes, supra. But see Walker. v. Kearney, 2 Strange, 1148, and Rex y. Moore, Cas. t. Hardwick, 176. In the case last cited, where a statute required the complaint to be made on oath, it was held that a warrant should not issue on a com- plaint made by an “informer” who would have henefited by the con- viction, as such informer was not competent to take the oath re quired. Statutes in some jurisdictions require the information at least in certain cases to be sworn to by a person competent to take an oath. See State v. Downing, 22 Mo. App. 504; Taulman v. State, 37 Ind. 353. In the case last cited the court held that, as a wife was not competent to testify against her husband, she could not swear to an information against him for carrying concealed weapons. 24 Whart. Cr. Ev. §§ 366-376. 25 State v. Roth, 17 Iowa, 336; State v. Brecht, 41 Minn. 50, 42 N. W. 602. § 6) ARREST BY WARRANT 31 “Complaint” is a term which is applied, not only to the accusation made for the purpose of procuring a warrant, but also to the accusation upon which an offender is put up- on his trial before a magistrate, or other inferior court, for offenses within the latter’s jurisdiction to punish.2* The latter complaint is more in the nature of an indictment or information, and is very different from a complaint for the purpose of procuring a warrant. What would suffice in the latter may not be sufficient in the former, so the distinc- tion must be borne in mind.?” Some of the text-books con- fuse the two.?8 The complaint for the purpose of an arrest and examination need not be as specific as an indictment, information, or complaint on which the accused is to be tried and punished.?® It should, however, contain a full description of the offense charged with a reasonable degree of certainty.*° It has been said that it need not allege pos- itively that the accused has committed the crime; that it will be sufficient to state that there are reasonable grounds to suspect that he has committed it;*+ but by the weight of authority it is not enough to aver suspicion merely, or belief on information received from others. There must be an averment of personal knowledge and belief.*? 26 Post, p. 149. 27 Com. v. Phillips, 16 Pick. (Mass.) 211. 28.This caution is deemed necessary, for the reason that some of the books virtually ignore the distinction, and assume that there is no difference in their requisites. A complaint on which a person is to be put upon his trial before a magistrate, and possibly upon a trial de novo on appeal to the district or circuit court, requires the same certainty of allegation as an indictment, and we shall consider its sufficiency when we come to treat of the indictment. We are here concerned only with the complaint necessary for the purpose of arrest and commitment. 29 Com. v. Phillips, 16 Pick. (Mass.) 211. 30 State v. Burrell, 86 Ind. 313; Housh v. People, 75 Ill. 487; In re Way, 41 Mich. 299, 1 N. W. 1021. 81 Com. v. Phillips, 16 Pick. (Mass.) 214; Housh v. People, 75 Ill. 487, 32 Smith v. Boucher, Cas. t. Hardw. 69; Com. v. Lottery Tickets, 5 Cush. (Mass.) 369; People v. Recorder of Albany, 6 Hill (N. Y.) 429; In re Way, 41 Mich. 299, 1'N. W. 1021; Swart v. Kimball, 43 Mich. 443, 5 N. W. 635; People v. Heffron, 53 Mich. 527, 19 N. W. 32 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 Evidence to Authorize Issuance Under the constitutional provision which we have al- ready mentioned, and which is merely declaratory of the common law, a warrant of arrest cannot be issued except on probable cause, supported by oath or affirmation. In other words, the complaint or evidence adduced before the magistrate must show that the crime charged has been eommled, and that there is probable cause to suspect the accused. It is also very generally so provided by statute in the different states. If a warrant is regular on its face, however, and was issued by a magistrate having jurisdic- tion, it is not rendered illegal by the fact that the proof be- fore the magistrate was not sufficient to justify its issu- ance.3% SAME—-SUFFICIENCY OF WARRANT 7. The warrant, to authorize an arrest— (a) Must have been issued by a magistrate having juris- diction. (b) It may, in the absence of statutory restriction, be issued on Sunday, and at any time of the day or night. (c) It must in some, but not all, jurisdictions be under seal, (d) It must state the offense, and an offense for which an arrest may be made. (e) It must show authority to issue it, as that a complaint on oath or affirmation was made. (f) It must correctly name the person to be arrested, or, if his name is unknown, so describe him that he may be identified. (g) It must show the time of issuance. (h) It must be directed to a proper officer, either by name or by description of his office. (i) It must direct, and not merely authorize, the arrest. 170; State v.’ Hobbs, 39 Me. 212; Conner v. Com., 3 Bin. (Pa.) 38; Welch v. Scott, 27 N. C. 72; Comfort v. Fulton, 39 Barb, (N. Y.) 56. 38 State v. James, 80 N. C. 370; post, p. 41. § 7) ARREST BY WARRANT 33 (j) It must command the officer to bring the accused be- fore the issuing magistrate or some other magis- trate having jurisdiction. (k) Clerical errors and formal defects will not render it insufficient. The form of a warrant of arrest is given below.** Jurisdiction The magistrate or judge issuing the warrant must have jurisdiction of the subject-matter. A warrant issued with- out any jurisdiction at all, or in excess of jurisdiction, or a warrant issued by a person not a magistrate, as where a blank warrant is filled up by a private person, is illegal and void.*5 Time of Issuance A warrant may be issued on Sunday as well as on any other day, in the absence of statutory provision to the con- trary;°® and it may be issued at any time of the day or 34 State (or Commonwealth) of , County of . to wit. To the Sheriff or Any Constable of Said County: Whereas, A. B. has this day made complaint and information on oath before me, X. Y., a justice of the peace of the county aforesaid, that C. D., on the day of , A.D. , in said county, did feloniously steal, take, and carry away one overcoat, of the value of twenty-five dollars, of the goods and chattels of the said A. B.: These are therefore to command you (or now, therefore, you are commanded) forthwith to apprehend and bring before me, or some other justice of said county, the body of the said C. D., to answer said complaint, and to be further dealt with according to law. Given under my hand and seal, this day of , A. Dz X. ¥., J. P. [Seal.] 35 Wells v. Jackson, 3 Munf. (Va.) 479; Rafferty v. People, 69 Il. 111, 18 Am. Rep. 601; Id., 72 Ill. 87; State v. Bryant, 65 N. C. 327; State v. Shelton, 79 N. C. 605. The warrant need not state the of- fense with the particularity of an indictment, however. Thus a warrant to arrest for larceny is not invalid for not containing the word “feloniously,” or because it does not allege the ownership of the property. State v. Jones, 88 N. C. 671. 36 Pearce y. Atwood, 13 Mass. 347; post, p. 57. A warrant may be issued on Sunday, whenever an arrest may be made on Sunday, CLARK Cr.PrRoc.(2D Ep.)—3 34 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 night. As we have already seen, it may be issued before the accused has been indicted.°7 Form and Contents of Warrant Not only must the warrant be issued by a magistrate or judge having jurisdiction to issue it, and on a sufficient complaint, but it must be sufficient in form. By the weight of authority, it must be not only under the hand of the magistrate or judge, but also under his seal.?* In some jurisdictions, however, a seal is not deemed nec- essary, even at common law,*® and in others it has been de- clared unnecessary by statute. The warrant must state shortly the offense for which the arrest is to be made, or recite the substance of the accusa- tion, and, of course, it must state an offense for which an arrest may lawfully be made.*® It should state the time “for, if the arrest is authorized by law, the order to make such ar-. rest must likewise be lawful.’ Pearce v. Atwood, supra. 87 Ante, p. 28. 384 Bl. Comm. 290; Tackett v. State, 3 Yerg. (Tenn.) 393, 24 Am. Dec. 582; Welch v. Scott, 27 N. C. 72; State v. Worley, 33 N. C. 242; State v. Drake, 36 Me. 366, 58 Am. Dec. 757; State v. Coyle, 33 Me. 427; People v. Holcomb, 3 Parker, Cr. R. (N. Y.) 656; Beekman vy. Traver, 20 Wend. (N. Y.) 67; State v. Goyette, 11 R. I. 592; Lough vy. Millard, 2 R. I. 4836; State v. Weed, 21 N. H. 268, 53 Am. Dec. 188; State v. Curtis, 2 N. C. 471; Somervell v. Hunt, 3 Har. & McH. (Md.) 1138; State v. Caswell, T. U. P. Charlt. (Ga.) 280. A wafer or scroll sufficient, if intended as a seal. State v. McNally, 34 Me. 210, 56 Am. Dec. 650; State ex rel. West v. Thompson, 49 Mo. 188. 39 Padfield v. Cabell, Willes, 411; Burley v. Griffith, 8 Leigh (Va.) 447; Davis v. Clements, 2 N. H. 390; Thompson v. Fellows, 21 N. H. 430. In some of these cases, the warrant was not for arrest, but for commitment. See State v. Drake, 36 Me. 366, 58 Am. Dec. 757. 40 Money v. Leach, 1 W. Bl. 555; Caudle v. Seymour, 1 Q. B. 889; People v. Phillips, 1 Parker, Cr. R. (N. Y.) 104; People y. Mead, 92 N. Y. 415; Duckworth v. Johnston, 7 Ala. 578; Brazleton v. State, 66 Ala. 96; Johnson v. State, 73 Ala. 21; In re Booth, 3 Wis. 1; State vy. Hobbs, 89 Me. 212; Brady vy. Davis, 9 Ga. 73; State v. Rowe, 8 Rich. (S. C.) 17; State v. Leach, 7 Conn. 452, 18 Am. Dee. 1138; State v. Whitaker, 85 N. C. 566; State v. Jones, 88 N. C. 671; Floyd v. State, 12 Ark. 48, 54 Am. Dec. 250; State v. Hverett, Dud. (S. C.) 295; Moore v. Watts, 1 Breese (Il].) 42. The place where the crime was colomitted must be stated with a reasonable degree of certainty § 7) ARREST BY WARRANT 35 of commission of the offense. It has been held, however, that a statement that the offense was committed on a day later than the date of the warrant, as where a warrant issued in March, 1878, stated the offense to have been commit- ted on May 20, 1878, instead of May 20, 1877, does not ren- der the warrant invalid, where the complaint gives the cor- rect date previous to its issuance, as the mistake is merely clerical, and not misleading.** It must contain recitals showing authority to issue it, as, for instance, that a complaint under oath or affirmation has been made.*? This is probably not necessary under the statutes in some jurisdictions. It must be specific, and correctly name the person to be arrested, giving his surname and his Christian name, or at least the initial letter of it; or, if his name is unknown, it must so state, and must describe him so that he may be identified.*? This is not only required by the common law, Price. v. Graham, 48 N. C. 545. A warrant for larceny must state the value of the stolen property, so that it may appear whether the lower or the higher court hag jurisdiction. People v. Belcher, 58 Mich. 325, 25 N. W. 308. 41 Heckman v. Swartz, 64 Wis. 48, 24 N. W. 473. 42 Caudle v. Seymour, 1 Q. B. 889; Smith v. Bouchier, 2 Strange, 998; Brady v. Davis, 9 Ga. 73; Grumon v. Raymond, 1 Conn. 40, 6 Am. Dee. 200; State v. Wimbush, 9 8. C. 309; Bissell v. Gold, 1 Wend. (N. Y.) 213, 19 Am. Dec. 480; Tracy v. Williams, 4 Conn. 107, 10 Am. Dec. 102; Com. v. Ward, 4 Mass. 497; Conner y. Com., 8 Bin. (Pa.) 38; Halsted v. Brice, 13 Mo. 171. 43 Com. v. Crotty, 10 Allen (Mass.) 408, 87 Am. Dec. 669; West v. Cabell, 153 U. S. 78, 14 Sup. Ct. 752, 38 L. Wd. 643 (collecting au- thorities); Rex v. Hood, 1 Moody, Crown Cas. 281; Mead v. Haws, 7 Cow. (N. Y.) 332; Money v. Leach, 1 W. BI. 555; Alford v. State, 8 Tex. App. 545; Miller,v. Foley, 28 Barb. (N. Y.) 680; Brady v. Da- vis, 9 Ga. 73; Nichols v. Thomas, 4 Mass, 232; Wells v. Jackson, 3 Munf. (Va.) 458; Hoye v. Bush, 1 Man. & G. 775; Griswold v. Sedgwick, 6 Cow. (N. Y.) 456; Gurnsey v. Lovell, 9 Wend. (N. Y.) 819; Melvin v. Fisher, 8 N. H. 407; Scott v. Ely, 4 Wend. (N. Y.) 555; Clark v. Bragdon, 37 N. H. 562; Johnston vy. Riley, 13 Ga. 97, 137; Scheer v. Keown, 29 Wis. 586; Wilks v. Lorck, 2 Taunt..400; Has- kins v. Young, 19 N. C. 527, 31 Am. Dec. 426. The arrest of a person by a wrong name cannot be justified, though he was the person in- tended, unless it be shown that he was known by one name as well as the other. Shadgett v. Clipson, 8 East, 328; Griswold v. Sedg- 36 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 but is also rendered necessary by the constitutional provi- sion to which we have referred, and a statute dispensing with the requirement would be void. A general warrant to apprehend all persons suspected of a crime, as, for in- stance, to apprehend the authors, printers, and publishers of a libel, without naming them, is void.** In England, un- der statutes which are old enough to have become a part of our common law, general warrants to take up loose, idle, and disorderly persons, such as prostitutes, vagrants, drunk- ards, and the like, are an exception to this rule.*® With us, under our constitutional provisions, such a warrant would no doubt be void, but there are in most jurisdictions stat- utes and ordinances allowing such arrests without any warrant at all. This, it is held, does not violate the con- stitution.*® The warrant, it has been held, must state, or at least show, the time of issuance; *? must be dirécted to a proper officer by name, or a proper class of officers by the descrip- tion of their office; 4® must direct, and not merely author- ize, the arrest; *® and must command the officer to bring wick, 6 Cow. (N. Y.) 456; Wilks v. Lorck, 2 Taunt. 400. The use of a fictitious name—such as “John Doe”’—without other description is not allowable. See Mead v. Haws, 7 Cow. (N. Y.) 332. The fact that a proper name is misspelled does not render the warrant in- sufficient, if the true name and the name as given are idem sonans. People v. Gosch, 82 Mich. 22, 46 N. W. 101. It has been held, how- ever, that, under statutes allowing amendments in criminal proceed- ings and process, where a person has been arrested under a complaint and warrant giving a wrong name, they may be amended so as to give his name correctly. It was so held where Mary E. Keehn had been arrested under a complaint and warrant against Jenny M. Keehn, and action was brought for false imprisonment. Keehn vy. Stein, 72 Wis. 196, 89 N. W. 3872. 44 Money v. Leach, 1 W. Bl. 555; 4 BJ. Comm, 291; Com. v. Crotty, supra. 45 Money vy. Leach, 3 Burrows, 1766. 46 Post, p. 46. 47 Donahoe v. Shed, 8 Mete. (Mass.) 326. 48 Wells v. Jackson, 3 Munf. (Va.) 458; Abbott v. Booth, 51 Barb. (N. Y.) 546; State v. Wenzel, 77 Ind. 428. But see Com, v. Moran, 107 Mass. 239. 49 Abbott v. Booth, 51 Barb. (N. Y.) 546. § 7) ARREST BY WARRANT 37 the accused before the proper magistrate, to be dealt with -according to law.®° Clerical errors and merely formal defects will not render the warrant insufficient.°? Variances between the warrant and complaint may be cured by amending the warrant, pro- vided that such amendment does not change the nature of the offense charged in the complaint. Thus a warrant for larceny may be amended so as to allege the correct name of the owner of the property.®? Before Whom Warrant Returnable The warrant must order the officer to bring the accused either before the issuing magistrate or judge, or some other magistrate or judge having jurisdiction of the subject-mat- ter? Though there was at one time some doubt on the subject, the propriety of making the warrant returnable be- fore a magistrate or judge, other than the one who issued it, is well settled,®* and is very generally expressly author- ized by statute. It must, however, be returnable before some magistrate or court having jurisdiction of the subject- matter.®® i 50 Reg. v. Downey, 7 Q. B. 281. Use in the mandate of a warrant of the phrase, “to be dealt with according to law,” instead of, “to answer such complaint,” as provided by statute, is a mere informality, which does not affect the validity of the warrant. Bookhout v. State, 66 Wis. 415, 28 N. W. 179. 51Com. v. Murray, 2 Va. Cas. 504; Heckman v. Swartz, 64 Wis. 48, 24 N. W. 473; Com v. Martin, 98 Mass. 4; Donahoe v. Shed, 8 Mete. (Mass.) 326; State v. Jones, 88 N. C. 671; Johnson v. State, 73 Ala. 21. But see State v. Lowder, 85 N. C. 564; State v. Whit- aker, 85 N. ©. 566. A warrant dated on the “twenty-third” day of a certain month is not invalid by reason of the word “third” being written above the word “second,” which has been obliterated by drawing a line of ink through it. Com. v. Martin, 98 Mass. 4. 52 People v. Hilderbrand, 71 Mich. 318, 38 N. W. 919. 58 Reg. v. Downey, 7 Q. B. 281. 54 Foster’s Case, 5 Coke, 59; 2 Hale, P. C. 112; Com. v. Wilcox, 1 Cush. (Mass.) 503. And the statutes, where they have not provided otherwise, are held not to have changed the common law in this re- spect. Com. v. Wilcox, supra. 55 Stetson v. Packer, 7 Cush. (Mass.) 562. 388 APPREHENSION 1F PERSONS AND PROPERTY (Ch. 2 Life of Warrant—Alteration Warrants are usually made returnable “forthwith,” but the warrant remains in force until it is returned. Until then, even though the accused has been arrested, it is still in force, so that, should he escape, it would justify his re- arrest.°® After it has been returned it is functus officio, and no longer of any validity.®” No alteration can be made in a warrant by any person other than the magistrate who issued it. Any material al- teration by another magistrate, before whom it is return- able, or by any other person, renders it invalid.** SAME—EXECUTION OF THE WARRANT 8. As regards the execution of the warrant by making the arrest— (a) It can only be executed by the officer to whom it is dirécted either by name or by description of office. (b) It cannot confer authority to execute it on one offi- cer, where a statute provides for its execution by another. (c) Unless a statute so allows, it cannot be executed out- side the jurisdiction of the issuing magistrate or court. (d) Perhaps it may be directed to and executed by a pri- vate person. As to this there is a conflict in the authorities. (e) Where the warrant is necessary, it must be in the possession of the officer at the time of the arrest. (f) It must be returned after the arrest. The person executing a warrant must be authorized to execute it, or the arrest will be illegal.°® When a warrant 56 Cooper v. Adams, 2 Blackf. (Ind.) 294; Com. ex rel. Schwamble v. Sheriff, 1 Grant, Cas. (Pa.) 187. 57 Com. v. Roark, 8 Cush. (Mass.) 210; Tubbs v. Tukey, 3 Cush. (Mass.) 438, 50 Am. Dec. 744. 58 Haskins v. Young, 19 N. C. 527, 31 Am. Dec. 426. 59 Reynolds v. Orvis, 7 Cow. (N. Y.) 269; Wood y. Ross, 11 Mass. 271. § 8) ARREST BY WARRANT 89 is directed to an officer by the description of his office, he can execute it only within his own precinct; but, when it is directed to an officer by name, he may execute it any- where within the jurisdiction of the magistrate or judge who issued it.6° A warrant at common law cannot confer au- thority to execute it outside of the jurisdiction of the issu- ing magistrate or judge.*? A warrant, therefore, issued by a justice of the peace or judge of one county, must be backed or indorsed by a justice of the peace or judge of an- other county before it can be executed in the latter.°? In some states, however, the statutes provide that a warrant, issued either by a judge of a court of record or by a justice of the peace of a county in which an offense is committed, shall extend all over the state, and may be executed in any county without having it indorsed, the officer to whom it is directed being given the same authority in any other county as he has in his own.®* Where a statute provides that certain arrests shall be made by a certain officer or class of officers, a warrant for such an arrest cannot confer authority to execute it upon any other officer or class of officers.%* A warrant is ordinarily directed to a sheriff, constable, or other peace officer, but, according to the weight of au- thority, it may at common law be directed to a private per- son by name, in which case, of course, he would in respect to its execution stand in the same position as an officer.®® 60 Blatcher vy. Kemp, 1 H. Bl. 15, note; Rex v. Chandler, 1 Ld. Raym. 545; Rex v. Weir, 1 Barn. & C. 288. 61 Krug v. Ward, 77 Ill. 603; Smotherman v. State, 140 Ala. 168, 87 South. 376. 624 Bl. Comm, 291. It is so provided by statute in some states. Peter v. State, 23 Tex. App. 684, 5 S. W. 228; Ledbetter v. State, 23 Tex. App. 247, 5 8S. W. 226; State v. Dooley, 121 Mo. 591, 26 S. W. 558. , 63 See Sturm v. Potter, 41 Ind. 181; State v. Dooley, 121 Mo. 591, 26 S. W. 558. / 64 Reynolds v. Orvis, 7 Cow. (N. Y.) 268; Wood v. Ross, 11 Mass. 271. 65 4 Bl. Comm. 291; 1 Hale, P. C. 581; 2 Hale, P. C. 110; 2 Hawk. P. C. ¢. 18, § 28; Meek v. Pierce, 19 Wis. 300; Rex v. Kendall, 1 Ld. Raym. 66; Kelsey v. Parmelee, 15 Conn. 265; Blatcher v. Kemp, 1 40 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 There are some cases which hold that it cannot be directed to a private person, at least if its execution by an officer is possible.®® The officer or person executing a warrant must have it in his possession at the time of the arrest,®’ and after he has made the arrest the warrant must be returned.*® When the function of a warrant has been performed—i. e., when the person has been arrested under it and been rec- ognized to appear—or has appeared and been discharged from arrest, the warrant is spent, and the prisoner cannot be again arrested without new process.®® An officer may call upon others to assist him in the ex- ectition of a warrant, and they are bound to obey the com- mand. The officer’s authority in this respect is not differ- ent from his authority in making a lawful arrest without a warrant, so we will postpone consideration of the ques- H. Bl. 15; Case of Village of Chorley, 1 Salk. 176; Com. ex rel. Simp- son v. Keeper of the Prison, I Ashm. (Pa.) 183; McConnell vy. Ken- nedy, 29 S. C. 180, 7S. E. 76. But a private person is not bound to execute it. 1 Hale, P. C. 581; 2 Hale, P. C. 110; 2 Hawk, P. C.c. 18, § 28. 3 66 Com. vy. Foster, 1 Mass. 488; Noles v. State, 24 Ala. 672. 67 Codd v. Cabe, 1 Exch. Div. 352; Webb v. State, 51 N. J. Law, 189, 17 Atl. 118; Cabell v. Arnold (Tex. Civ. App.) 22 S. W. 62. In the latter case an officer, to whom a warrant had been delivered, was held civilly liable because his deputy made the arrest without hav- ing the warrant in his possession. Ag to the officer’s liability, how- ever, the case has been reversed. Id., 86 Tex. 102, 23 S. W. 645, 22 L. R. A. 87. It was affirmed in so far as it held possession of the warrant by the officer mraking the arrest necessary. See, also, Smith vy. Clark, 53 N. J. Law, 197, 21 Atl. 491. 68 Slomer v. People, 25 Ill, 70, 76 Am. Dec. 786; Dehm v. Hinman, 56 Conn. 320, 15 Atl. 741, 1 L. R. A. 874. Failure of the officer in this respect will not render those lawfully assisting in the arrest lia- ble. Dehm v. Hinman, supra. 69 Doyle v. Russell, 30 Barb. (N. Y.) 300; State v. Queen, 66 N. C. 615; State v. Brittain, 25 N. C. 17. “If a constable, after he hath arrested the party * * * suffer him to go at large, upon his prom- ise to come again at such a time and find sureties, he cannot after- wards arrest him by force of the same warrant. However, if the party return and put himself again under the custody of the con- stable, the constable may lawfully detain him.” 2 Hawk. P, C. ¢. 13, § 9. § 9) ARREST BY WARRANT 41 tion. Other questions relating to arrests generally, wheth- er with or without a warrant, such as notice of purpose and authority, use of force, and the like, will also be here- aiter considered. SAME—WARRANT AS PROTECTION TO OFFICER 9. An officer is not liable for executing a warrant which is regular and valid on its face, and issued from a court or magistrate having jurisdiction of the sub- ject-matter, though the warrant may in fact have been voidable, or even void; but he is not pro- tected by a warrant void on its face. It is obvious that the administration of justice would be greatly retarded if an officer receiving a warrant which is regular and valid on its face should be compelled, at his peril, to examine into the circumstances under which it was procured, and determine the validity of the proceed- ings prior to its issuance. It is therefore universally held that an officer, to whom a warrant is directed and delivered is bound to execute it, so far as the jurisdiction of the mag- istrate or court and himself extends, if it was issued by a magistrate or court having jurisdiction, and is regular and valid on its face.7° Being charged with this duty, he can- not be held liable to the party arrested for executing the warrant, though it may have been irregularly or wrongfully issued.7* “It will not do to require of executive officers, be- 70 Stoddard vy. Tarbell, 20 Vt. 321, and cases hereafter cited. 71 Sandford v. Nichols, 138 Mass. 286, 7 Am. Dec. 151; State v. Weed, 21 N. H. 262, 538 Am. Dec. 188; Nichols vy. Thomas, 4 Mass. 232; Kennedy v. Duncklee, 1 Gray (Mass.) 65; Pearce v. Atwood, 13 Mass. 324; Wilmarth v. Burt, 7 Metc. (Mass.) 257; Parsons v. Lloyd, 8 Wils. 345; Boyd v. State, 17 Ga. 194; Allison v. Rheam, 3 Serg. & R. (Pa.) 139, 8 Am. Dec. 644; Warner v. Shed, 10 Johns. (N. Y.) 138; Parker v. Walrod, 16 Wend. (N. Y.) 514, 30 Am. Dec. 124; Savacool v. Boughton, 5 Wend. (N. Y.) 170, 21 Am. Dec. 181; Cooper v. Adams, 2 Blackf. Ind.) 294; Brother v. Cannon, 1 Scam. (Ill) 200; Robin- son v. Harlan, 1 Scam. (Ill) 287; State v. Kirby, 24 N. C. 201; Cody v. Quinn, 28 N. C. 191, 44 Am. Dec. 75; State v. Jones, 88 N. C. 671; Cooley, Torts, 459, and cases there cited. 42 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 fore they shall be held to obey precepts directed to them, that they shall have evidence of the regularity of the pro- ceedings of the tribunal which commands the duty. Such a principle would put a stop to the execution of legal pro- cess; as officers so situated would be necessarily obliged to judge for themselves, and would often judge wrong, as to the lawfulness of the authority under which they are re- quired to act. It is a general and known principle that exec- utive officers, obliged by law to serve legal writs and pro- cesses, are protected in the rightful discharge of their duty, if those precepts are sufficient in point of form, and issue from a court or magistrate having jurisdiction of the sub- ject-matter. If such a magistrate shall proceed unlawfully in issuing the process, he, and not the executive officer, will be liable for the injury consequent upon such act.” 7 It has been said that “it is the general rule that when the authority under which an officer acts is voidable only, he is justified by it, but not when the authority is void”; but the protection of the warrant extends further than this. An officer may even be justified by a void warrant, if the defect does not appear. “No doctrine is more firmly estab- lished than this, namely, that an officer may justify acts done by him under a process that is void, unless it appears on its face to be void, as well as acts done under a process that is voidable, and has been avoided.” 7* If the warrant is illegal and void on its face, the officer not only is not bound to execute it, but if he does so, or forcibly attempts to do so, he will be both civilly and crim- inally liable for the assault and battery or false imprison- ment, and all the other consequences of an illegal arrest or attempt to arrest will follow.7*> Amendable defects do not 72 Sandford v. Nichols, supra. 73 Nichols v. Thomas, supra. 74 Kennedy v. Duncklee, supra. And see Parsons y. Lloyd, supra; Allison v. Rheam, supra; People v. Warren, 5 Hill cN. Y.) 440. 75 Rafferty v. People, 69 Il. 111, 18 Am. Rep. 601; Parker v. Wal- rod, 16 Wend. (N. Y.) 514, 30 Am. Dec. 124; Grumon v. Raymond, 1 Conn. 40, 6 Am. Dec. 200; Griswold v. Sedgwick, 6 Cow. (N. Y.) 456; Rex v. Hood, 1 Moody, 281; Noles vy. State, 24 Ala. 672; Gurney v. Tufts, 37 Me. 180, 58 Am. Dec. 777; State v. McDonald, 14 N. C. § 9) ARREST BY WARRANT 43 avoid the warrant, and therefore do not render the officer liable; but he is liable if the magistrate or judge had no ju- risdiction of the subject-matter,”® provided the want of ju- risdiction is not latent;7’ or where the warrant does not state a specific offense for which an arrest may lawfully be made;7® or where a seal is omitted when required by law;7® or where the warrant does not name the accused when his name is known, or so describe Him when his name is unknown that he may be identified; ®° or, possibly, where no complaint under oath was made for the issuance of the warrant, and the warrant does not state that it was made.*? By the weight of authority, the mere fact that the officer knows that the warrant was obtained for an unlawful pur- pose, or was illegally issued, does not give him the right to 468; Moore v. Watts, Breese (Ill.) 42; State, to Use of Brown v. Crow, 11 Ark. 642. 76 State v. McDonald, 14 N. C. 471; Allen v. Gray, 11 Conn. 95; Sprague v. Birchard, 1 Wis. 457, 60 Am, Dec. 393; Camp v. Moseley, 2 Fla. 171; Barnes v. Barber, 1 Gilman (Ill.) 401; McDonald vy. Wil- kie, 18 Ill. 22, 54 Am. Dec. 423; Tefft v. Ashbaugh, 13 Ill. 602; State vy. Shelton, 79 N. C. 605; Tracy v. Williams, 4 Conn. 107, 10 Am. Dec, 102; Miller vy. Grice, 1 Rich. (S. C.) 147; Stephens v. Wilkins, 6 Pa. 260. 77 Pearce vy. Atwood, 13 Mass. 324; Savacool v. Boughton, 5 Wend. (N. ¥:) 170, 21 Am. Dec. 181; Churchill v. Churchill, 12 Vt. 661; Miller v. Grice, 1 Rich. (S. C.) 147; Rodman v. Harcourt, 4 B. Mon. (Ky.) 230; Barnes v. Barber, 1 Gilman (Ill.) 401. A constable is jus- tified in executing process regular on its face, though the officer is- suing it was but an officer de facto. Wilcox v. Smith, 5 Wend. (N. Y.) 231, 21 Am. Dec. 213; Com. v. Kirby, 2 Cush. (Mass.) 577, Knowl- edge by the officer of facts rendering the warrant void for want of jurisdiction does not render him liable, if the want of jurisdiction does not appear on the face of the warrant. -Beople v. Warren, 5 Hill (N. Y.) 440; post, p. 44. 78 Ante, p. 34. 79 Ante, p. 34. ‘ 80 Ante, p. 35. 61 Ante, p. 35. If there was a complaint under oath, the faet that it was false is immaterial. State v. James, 80 N. C. 370. Insuffi- ciency of the complaint not appearing upon the warrant does not ren- der the officer liable. Donahoe v. Shed, 8 Metc. (Mass.) 326; State vy. Mann, 27 N. C. 45; Welch v. Scott, 27 N. C. 72; Humes v. Taber, 1 RIT. 464. 44 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 refuse to execute it, and therefore does not render the war- rant any the less a protection to him, provided it is valid on its face. He must be governed by the warrant alone.*? If he acts without his jurisdiction, or the jurisdiction conferred by the warrant,®* or if the warrant is not directed to him, or, though it is directed to him, he is not authorized by law to execute it,** it will afford-him no protection. The fact that the accused is exempt from arrest does not render the officer liable, if the fact does not appear on the face of the warrant.§® It seems that under no circumstances is the warrant any protection to the officer if it is not returned.®® It is sufficient in all cases, to render the officer liable, that the warrant shows on its face facts or a form which ren- ders it insufficient in law, whether the officer knows of the insufficiency or not, for he is conclusively presumed to know the law.®? 82 Tarlton v. Fisher, 2 Doug. 671; State v. Weed, 21 N. H. 262, 53 Am, Dee. 188; Webber v. Gay, 24 Wend. (N. Y.) 485; People v. Warren, 5 Hill (N. Y.) 440; Watson v. Watson, 9 Conn. 140, 23 Am. Dec. 324; Gott v. Mitchell, 7 Blackf. (Ind.) 270; Wilmarth vy. Burt, 7 Metc. (Mass.) 257; Whitworth y. Clifton, 1 Moody & R. 5381. 83 Ante, p. 38; People v. Burt, 51 Mich. 199, 16 N. W. 378. 84 Ante, p. 89; Freegard v. Barnes, 7 Exch. 827; Russell v. Hub- bard, 6 Barb. (N. Y.) 654; Reynolds v. Orvis, 7 Cow. (N. Y.) 269; Wood v. Ross, 11 Mass. 271. : 85 Tarlton v. Fisher, 2 Doug. 671; Carle v. Delesdernier, 13 Me. 363, 29 Am. Dec. 508; Chase v. Fish, 16 Me. 132. 86 Slomer v. People, 25 Ill. 70, 76 Am. Dec. 786; Brock vy. Stimson, 108 Mass. 520, 11 Am. Rep. 390; Tubbs v. Tukey, 3 Cush. (Mass.) 438, 50 Amt. Dec. 744; Dehm v. Hinman, 56 Conn. 320, 15 Atl. 741,1L. R. A. 374. But see Com. v. Tobin, 108 Mass. 426, 11 Am. Rep. 375. Per- sons lawfully assisting the officer, however, will not be liable. Dehm vy. Hinman, supra. 87 Sandford v. Nichols, 13 Mass. 286, 7 Am. Dec. 151. §§ 10-12) ARREST WITHOUT A WARRANT 45 SAME—ARREST WITHOUT A WARRANT 10. BY OFFICER—Any peace officer may arrest without a warrant under the following circumstances: (a) By verbal direction of a judge or justice of the peace— (1) For a felony or breach of the peace committed in the presence of the judge or justice. (2) For any offense committed in the presence of the judge or justice in court. (b) Without any direction, but of his own accord— (1) For a felony committed or being attempted in his own presence or view. (2) For a breach of the peace committed in his own presence or view, provided the arrest is made during its commission, or, perhaps, immediate- ly afterwards. ; (3) On a reasonable charge by another that a fel- ony has been committed by the person ar- rested. (4) On his own reasonable suspicion that a felony has been committed, and that the person ar- rested is guilty, though in fact no felony has been committed at all. (5) He may recapture a prisoner who has escaped from lawful custody, whether before or after conviction. 11. BY PRIVATE PERSON—A private person has the same authority as an officer to arrest without a warrant, except that, where he arrests on suspi- cion for a felony, he must show that a felony had in fact been committed by some one.°8 88 This statement is in accordance with the great weight of au- thority, but, as we shall see, there is some conflict in the authorities. A few courts have held, for instance, that where an arrest is made on suspicion for a felony actual guilt of the person arrested must be shown; and there is some authority against his right to arrest for a breach of the peace. 46 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 12. STATUTES—The authority both of officers and of pri- vate persons to arrest without a warrant is very much extended by statute in many jurisdictions. It has been contended that the constitutional provision to which we have referred, declaring that the people shall be secure from unreasonable arrests, and that no warrant to arrest a person shall issue without describing him as nearly as may be, nor without probable cause supported by oath or affirmation, renders all arrests unlawful except upon a war- rant so issued; but it is well settled that the provision does not apply to reasonable arrests without a warrant, author- ized either by the common law or by statute.*® In many cases it would defeat the ends of justice if no arrest could be made without a warrant, for while a warrant is being procured the offender may escape. Under certain circum- stances, therefore, such arrests have been allowed from the earliest times. As we shall see, when an arrest is made without a warrant, the prisoner must be taken before a proper magistrate, and a complaint made. It is not neces- sary, however, that the magistrate shall issue his warrant. This would be unnecessary.*° Arrest by Officer without a Warrant In the first place, a judge or justice of the peace may him- self apprehend, or cause to be apprehended, without the is- suance of a warrant, any person committing a felony or breach of the peace in his presence.®? So, also, a judge or 89 Wakely v. Hart, 6 Bin. (Pa.) 318; North v. People, 189 Ill. 81, 28 N. EE. 966. 90 Hoggatt v. Bigley, 6 Humph. (Tenn.) 236. 914 Bl. Comm. 292; Com! v. McGahey, 11 Gray (Mass.) 194; State v. Shaw, 25 N. C. 20; Holcomb y. Cornish,.8 Conn. 875; Tracy v. Williams, 4 Conn. 107, 10 Am. Dec. 102; Lancaster y. Lane, 19 Ill. 242; O’Brian v. State, 12 Ind. 369. In some jurisaictions, the pow- er of a magistrate in this respect is extended by statute to all of- fenses committed in his presence. A magistrate has the same au- thority to command assistance in pursuing and retaking an offender whom he has so caused to be arrested for an offense committed in his presence, and who has escaped, which he had to command the original arrest. Com v. McGahey, supra. §§ 10-12) ARREST WITHOUT A WARRANT 47 justice of the peace, in whose presence in court an offense is committed, may direct the arrest of the offender without issuing a warrant, though the offense may be such as would require a warrant under other circumstances.” Dr. Wharton seems to lay down the proposition that “for all offenses committed or attempted in the presence of an officer,” whether a felony or merely a misdemeanor, he may arrest without a warrant,®* but this is not true at common law. The cases cited in support of the proposition are most of them cases in which there was a felony or breach of the peace, or else cases in which the arrest was expressly au- thorized by statute. It is well settled that a sheriff, con- stable, or other peace officer invested by statute with like powers, may arrest without a warrant for a felony,®* or for a misdemeanor, provided it amounts to breach of the peace,®® committed in his presence, and within his jurisdic- 92 Lancaster v. Lane, 19 Ill. 242. 98 Whart. Cr. Pl. & Prac. § 8; citing Reg. v. Mabel, 9 Car. & P. 474; Derecourt v. Corbishley, 5 El. & Bl. 188; Galliard v. Laxton, 2 Best & S. 363; Com. v. Deacon, 8 Serg. & R. (Pa.) 47; State v. Brown, 5 Har. (Del.) 505; Wolf v. State, 19 Ohio St. 248 (authorized by statute); People v. Wilson, 55 Mich. 506, 21 N. W. 905 (this was a case of felony, and the opinion assumes that, had it not been so, the arrest would have been unauthorized); State v. Bowen, 17 §. C. 58; Staples v. State, 14 Tex. App. 136. There are statutory provi- sions to this effect in many states. 94 Doering v. State, 49 Ind. 56, 19 Am. Rep. 669; Carr v. State, 43 Ark. 99; Cahill v. People, 106 Ill. 621. This includes statutory felonies. Firestone v. Rice, 71 Mich. 377, 38 N. W. 885, 15 Am. St. Rep. 266. 95 Taylor v. Strong, 3 Wend. (N. Y.) 384; Douglass v. Barber, 18 R. I. 459, 28 Atl. 805; City Council v. Payne, 2 Nott & McC. (S. C.) 475; Quinn v. Heisel, 40 Mich. 576; People v. Bartz, 53 Mich. 493, 19 N. W. 161; Crosland v. Shaw (Pa.) 12 Atl. 849; State v. Lewis, 50 Ohio St. 179, 33 N. HE. 405, 19 L. R. A. 449; Com. v. Tobin, 108 Mass. 426, 11 Am. Rep. 375; Com. v. Kennedy, 186 Mass. 152; State v. Brown, 5 Har. (Del.) 505; Knot v. Gay, 1 Root (Conn.) 66; Shanley v. Wells, 71 Ill. 78; Com. v. Deacon, 8 Serg. & R. (Pa.) 47; McCul- lough v. Com., 67 Pa. 30; State v. Bowen, 17 S. C. 58; Pow v. Beck- ner, 3 Ind. 475; Vandeveer v. Mattocks, 3 Ind. 479; Ross vy. State, 10 Tex. App. 455, 38 Am. Rep. 643; Staples v. State, 14 Tex. App. 136. It must be remembered that fighting, rioting, etc., is not necessary to constitute a breach of the peace. A breach of the peace is “a 48 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 tion; and, if committed within his view or hearing, it is committed in his presence.°* He may also arrest without a warrant on a reasonable charge of a felony having been committed,®’ or upon his own reasonable suspicion that it has been committed ; °® and the fact that it afterwards turns out that his suspicion was unfounded, or even that no of- fense had been committed at all, will not make the arrest unlawful.°® In this respect an officer stands on a different footing from a private person; for the latter, as we shall violation of public order,—the offense of disturbing the public peace. An act of public indecorum is also a breach of the peace.” Galvin v. State, 6 Cold. (Tenn.) 294. “The term ‘breach of the peace’ is generic, and includes riotous and unlawful assemblies, riots, affray, forcible entry and detainer, the wanton discharge of firearm's so near the chamber of a sick person as to cause injury, the sending of chal- lenges and provoking to fight, going armed in public without lawful occasion in such manner as to alarm the public, and many other acts of a similar character.” People v. Bartz, supra. In this case it was held that the wanton discharge of firearms in the streets of a city, being well calculated to alarm the public, was a breach of the peace. 96 People v. Bartz, supra; State v. McAfee, 107 N. C. 812, 12 S. E. 435, 10 L. R. A. 607. But it has been held that shouting in the streets of a village was not in the presence of an officer who was 150 feet away, on another street, and did not see the offender, and had no direct knowledge who committed the offense. People v. Johnson, 86 Mich. 175, 48 N. W. 870, 18 L. R. A. 163, 24 Am. St. Rep. 116. An officer may arrest without a warrant for wife beating, if he arrives at the scene during the progress of the beating, or immediately there- after, being attracted by the noise of the disturbance or the outcry of the woman. Ramsey v. State, 92 Ga. 53, 17 S. E. 613. 97 Samuel v. Payne, 1 Doug. 359; Hobbs v. Branscomb, 3 Cantp. 420; Holley v. Mix, 3 Wend. (N. Y.) 350, 20 Am. Dee. 702. It is not only the officer’s right, but it is his duty, to arrest under such cir- cumstances, and, if he refuses to do so, he is guilty of a misdemeanor. Cowles vy. Dunbar, 2 Car. & P. 565. 98 Ledwith v. Catchpole, Cald. 291; Doering v. State, 49 Ind. 56, 19 Am. Rep. 669; Wade v. Chaffee, 8 R. I. 224, 5 Am. Rep. 572; Beck- with v. Philby, 6 Barn. & C. 635; Rohan vy. Sawin, 5 Cush. (Mass.) 281; Danes v. State, 6 Humph. (Tenn.) 53, 44 Am. Dec. 289; Davis v. Russell, 5 Bing. 354; Lawrence v. Hedger, 3 Taunt. 14; Hobbs v. Branscomb, 3 Camp. 420; Lewis v. State, 3 Head (Tenn. )127; Rex v. Woolmer, 1 Moody, 334; Nicholson v. Hardwich, 5 Car. & P. 495, ®9 Rohan v. Sawin, 5 Cush. (Mass.) 281; Davis v. Russell, 5 Bing. 354; Com. v. Cheney, 141 Mass, 102, 6 N. E. 724, 55 Am. Rep. 448; Com. v. Presby, 14 Gray (Mass.) 65. §§ 10-12) ARREST WITHOUT A WARRANT 49 see, must show that an offense had actually been committed by some one. There must in all cases be a reasonable sus- picion to authorize the arrest; that is, a bona fide suspicion, and probable cause therefor.t_ Some courts have held that it must appear that the accused may escape if time is taken to procure a warrant,” but the great weight of authority is to the contrary. The right of an officer to arrest on an- other’s accusation, or on his own suspicion only, is limited to-cases of felony.* As a rule, at common law, an officer can under no circum- stances arrest without a warrant for a misdemeanor not 1 Davis v. Russell, 5 Bing. 364; Wade v. Chaffee, 8 R. I. 224, 5 Am. Rep. 572; Somerville v. Richards, 37 Mich. 299; Mure v. Kaye, 4 Taunt. 34; State v. Underwood, 75 Mo. 230; State v. Grant, 79 Mo. 118, 49 Am. Rep. 218; Boynton v. Tidwell, 19 Tex. 118; People v. Burt, 51 Mich. 199, 16 N. W. 378; Hogg v. Ward, 3 Hurl. & N. 417; Hobbs v. Branscomb, 3 Camp. 420; Firestone vy. Rice, 71 Mich. 377, 38 N. W. 885, 15 Am. St. Rep. 266; Hall v. Hawkins, 5 Humph. (Tenn.) 357; Lawrence v. Hedger, 3 Taunt. 14; Findlay v. Pruitt, 9 Port. (Ala.) 195; Sugg v. Pool, 2 Stew. & P. (Ala.) 196; Winebiddle y. Porterfield, 9 Pa. 187. An indictment for a felony is sufficient cause. 1 East, P. C. 301; Ex parte Krans, 1 Barn. & C, 261. So, also, is a proclamation by the Governor. Eanes y. State, 6 Humph. (Tenn.) 538, 44 Am. Dec. 289. The suspicion must have been bona fide. If it- was otherwise, the fact that there were reasonable grounds for suspicion is not enough. Roberts v. Orchard, 2 Hurl. & C. 769. Whether or not there was probable cause is to be determined by the facts as they were known to exist at the time of the arrest. Thomas vy. Russell, 9 Exch. 764; Swaim v. Stafford, 25 N. C. 289. In Wills v. Jordan, 20 R. I. 680, 41 Atl. 233, it was held that an of- ficer‘was not justified in arresting, without a warrant, a person on the mere statement of confessed principals in the felony that such person had been a principal in the felony, where there was no cor- roboration by trustworthy information by others, or by circumstances affording reasonable ground of suspicion against the person arrested. See, also, Isaacs v. Brand, 2 Starkie, 167. 2 See O’Connor v. State, 64 Ga. 125, 87 Am. Rep. 58; Ross vy. State, 10 Tex. App. 455, 88 Am. Rep. 643; Staples v. State, 14 Tex. App. 136. 3 Davis v. Russell, 5 Bing. 354; Wade v. Chaffee, 8 R. I. 224, 5 Am. Rep. 572; Burns v. Erben, 40 N. Y. 463; Rohan y. Sawin, 5 Cush. (Mass.) 281. 4Com. v. McLaughlin, 12 Cush. (Mass.) 615; Rex v. Curvan, 1 Moody, 132; Com. v. Carey, 12 Cush. (Mass.) 246; Griffin v. Coleman, 4 Hurl. & N. 263; Rex v. Ford, Russ. & R. 329; Bowditch v. Balchin, 5 Exch. 378. CLARK Cr.PR0c.(2D Ep.)—4 50 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 amounting to a breach of the peace;* nor, according to the overwhelming weight of authority, can he arrest for a breach of the peace after it is over, unless it was committed in his presence or view, and even then the arrest must be made within a reasonable time after the commission of the of- fense.® It is otherwise by statute in many states." In most, if not all, the states there are statutes and city ordinances, which are clearly valid, authorizing officers to arrest for cer- tain misdemeanors without a warrant, when committed in their presence.* An officer may and should, without a war- 5 Com. vy. Carey, 12 Cush. (Mass.) 246; Bright v. Patton, 5 Mackey (D. C.) 584; Com. v. McLaughlin, 12 Cush. (Mass.) 615; People v. Mclean, 68 Mich. 480, 86 N. W. 231; Drennan’ v. People, 10 Mich. 169; Quinn vy. Heisel, 40 Mich. 576; In re Way, 41 Mich. 299, 1 N. W. 1021; Scott v. Eldridge, 154 Mass. 25, 27 N. E. 677, 12 L. R. A. 879; Danovan v. Jones, 36 N. H. 246; Com. v. Wright, 158 Mass. 149, 33 N. E. 82, 19 L. R. A. 206, 35 Am. St. Rep. 475; Hopkins v. Crowe, 7 Car. & P. 873; Rex vy. Bright, 4 Car. & P. 387; Butolph vy. Blust, 5 Lans. (N. Y.) 84; State v. Grant, 76 Mo. 236; Coupey v. Henley, 2 Esp. 540; Reg. v. Walker, 1 Dears. Crown Cas. 358; Stocken v. Carter, 4 Car. & P. 477; Shanley v. Wells, 71 Ill. 78; Cahill v. Peo- ple, 106 Ill. 621. But see Roberts v. State, 14 Mo. 138, 55 Am. Dec. 97; State v. Roberts, 15 Mo. 28; State v. Brown, 5 Har. (Del.) 505; Hatton v. Treeby, [1897] 2 Q. B. 452. 6 See the cases heretofore cited, and see, more particularly, Taylor v. Strong, 3 Wend. (N. Y.) 384; State v. Lewis, 50 Ohio St. 179, 33 N. BE. 405, 19 L. R. A. 449; Quinn v. Heisel, 40 Mich. 576; People v. Haley, 48 Mich. 495, 12 N. W. 671; Webb v. State, 51 N. J. Law, 189, 17 Atl. 118; Reg. v. Walker, 6 Cox, Cr. Cas. 871; Reg. v. Mars- den, 11 Cox, Cr. Cas. 90; Cook v. Nethercote, 6 Car. & P. 741; Ster- nack v. Brooks, 7 Daly (N. Y.) 142. But see the dicta in Spalding v. Preston, 21 Vt. 9, 50 Am. Dec. 68; Reg. v. Light, Dears. & B. 332; State v. Sims, 16 S. C. 486. 7 The statutes of many of the states allow an officer to arrest without a warrant for any public offense comnritted in his presence, and this includes misdemeanors. Dilger v. Com., 88 Ky. 550, 11 S. W. 651. And in some states there are statutes allowing arrests without a warrant for certain misdemeanors, on information received from others. Jacobs v. State, 28 Tex. App. 79, 12 S. W. 408; Ex parte Sherwood, 29 Tex. App. 334, 15 8. W. 812 (carrying weapons). 8 Thomas v. Incorporated Village of Ashland, 12 Ohio St. 127; White v. Kent, 11 Ohio St. 550; Roberts v. State, 14 Mo. 188, 55 Am. Dec. 97; Mitchell v. Lemon, 34 Md. 176; Roddy v. Finnegan, 43 Md. 490; Danovan v. Jones, 36 N. H. 246; Bryan v. Bates, 15 Ill. 87; Main v. McCarty, 15 Ill. 441; Smith v. Donelly, 66 Ill. 464. §§ 10-12) ARREST WITHOUT A WARRANT 51 rant, interpose to prevent a breach of the peace, and ta ac- complish this object he may arrest the person menacing, and detain him in custody until the chance of the threat being executed is over It is true that an officer must always interfere to prevent an attempted felony, and, if necessary to prevent the felony, he may arrest the offender and take him before a magistrate, though an attempt.to commit a felony is only a misdemeanor. It will no doubt be found, however, that in every such case the attempt will amount to a breach of the peace. It is also true that if a person ob- structs an officer in his lawful attempt to arrest with or without a warrant, either by using force himself, or by en- couraging the person sought to be arrested to resist, the officer may arrest him without a warrant.’® It will be no- ticed, however, that, though the resistance is a misdemeanor only, it is a breach of the peace. The rule does not apply where the attempt to arrest is unlawful, for resistance is then justifiable. Where a prisoner, either before or sitet he has been con- victed, escapes from lawful custody, even with the consent of the officer having him in charge, he may be pursued and rearrested without a warrant."* Arrest by Private Person without a Warrant The right of a private person to arrest without a warrant is almost, but not quite, the same as that of an officer.‘ A judge or justice of the peace may cause to be appre- hended, without issuing a warrant, any person committing a felony or breach of the peace in his presence. He may cause the arrest to be made by a private person as well as - by an officer.” It is also well settled at common law that any private person who is present when a felony is committed, not only ® Crosland v. Shaw (Pa.) 12 Atl. 849; State v. Carpenter, 54 Vt. 551; Hayes v. Mitchell, 80 Ala. 183. 10 Coyles v. Hurtin, 10 Johns, (N. Y.) 85; Levy v. Edwards, 1 Car. & P. 40; White v. Edmunds, Peake, 89. 111 Chit. Cr. Law, 61; Com. v. McGahey, 11 Gray (Mass.) 194; Ex parte Sherwood, 29 Tex. App. 334, 15 S. W. 812; Simpson v. State, 56 Ark. 8, 19 S. W. 99. ‘ 122 Hawk, P. C. c. 13, § 14. 52 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 may, but must, arrest the offender, though he has no war- rant." By the great weight of authority, also, where a felony has in fact been committed, a private person may arrest on reasonable suspicion that it was committed by the person arrested, though his suspicion may be unfounded in fact.t* In such a case his position is different from that of an officer, in that he will be liable for assault and battery or false imprisonment, and the other consequences of an illegal arrest or attempt to arrest will also follow, unless it is shown, not only that there was probable cause for his sus- picion, but also that a felony had actually been committed by some one. Proof of probable cause to believe, and belief in good faith, that a felony had been committed, will not excuse him as it would an officer.15 Some of the courts have said that an arrest by a private person without a warrant cannot be justified by proving the actual commission of the crime by some one, and suspicion on probable cause of the person arrested; that actual guilt of the person arrested 134 Bl. Comm. 293; Long v. State, 12 Ga. 298; Holley v. Mix, 3 Wend. (N. Y.) 350, 20 Am. Dec. 702; Phillips v. Trull, 11 Johns. (N. Y.) 486; Ruloff v. People, 45 N. Y. 213; Rex v. Hunt, 1 Moody, 93; Keenan v. State, 8 Wis. 182; Weimer v. Bunbury, 30 Mich. 211; Davis v. Russell, 5 Bing. 364; Kindred v. Stitt, 51 Ill. 407. 142 Hale, P. C. 78; Ashley’ s Case, 12 Coke, 90; Wakely v. Hart, 6 Bin, (Pa.) 316; Brooks v. Com., 61 Pa. 352, 100 Am. Dec. 645; Ken- nedy v. State, 107 Ind. 144, 6 N. E. 305, 57 Am. Rep. 99; U.S. v. Boyd (C. C.) 45 Fed. 851; Long y. State, 12 Ga. 293; Holley v. Mix, 3 Wend. (N. Y.) 350, 20 Am. Dee. 702; Com. vy. Deacon, 8 Serg. & R. (Pa.) 47; Cary v. State, 76 Ala. 78; Brockway v. Crawford, 48 N. C. 433, 67 Am Dec. 250; State v. Roane, 13 N. C. 58; Smith vy. Donelly, 66 Ill. 464; Wrexford v. Smith, 2 Root (Conn.) 171; Carr v. State, 43 Ark. $9; Reuck v. McGregor, 32 N. J. Law, 70; Wilson v. State, 11 Lea (Tenn.) 310. 15 Holley v. Mix, 3 Wend. (N. Y.) 350, 20 Am. Dec. 702; Burns v. Erben, 40 N. Y. 463; Wakely v. Hart, 6 Bin. (Ta.) 316; Com. v. ‘Carey, 12 Cush. (Mass.) 246; Beckwith v. Philby, 6 Barn. & C. 638; People v. Adler, 8 Parker, Cr. R. (N. Y.) 249; Com. v. Deacon, 8 Serg. & R. (Pa.) 49; Brooks v. Com., 61 Pa. 352, 100 Am. Dec. 645; Teagarden v. Graham, 31 Ind. 422; Brockway v. Crawford, 48 N. C. 433, 67 Am. Dec. 250; Carr y. State, 48 Ark. 99; Reuck v. McGregor, 82 N. J. Law, 70; Doughty v. State, 33 Tex. 1; Findlay v. Pruitt, 9 Port. (Ala.) 195; Salisbury v. Com, 79 Ky. 425; Allen v. Wright, 8 Car, & P. 522. §§ 10-12) ARREST WITHOUT A WARRANT 53 must be shown;?* and in Texas it has been held that the offense must have been committed in the presence of the person making the arrest;+7 but these cases are contrary to the overwhelming weight of authority. In no case is mere conjecture, or suspicion without probable cause, sufficient to justify the arrest.18 As a rule, a private person cannot arrest without a-war- rant for a misdemeanor, even when it is committed in his presence,’® though it is otherwise by statute in some juris- dictions,?° and, as in the case of arrests by an officer, there are some exceptions at common law. He cannot arrest for a breach of the peace after it is over,?? but by the weight of authority he may not only interpose to stop a breach of the peace, but may, during its continuance, or where there is reasonable ground for apprehending its renewal, arrest the offender and take him before'a magistrate, or turn him over 16 Rohan v. Sawin, 5 Cush. (Mass.) 285; Com. v. Carey, 12 Cush. (Mass.) 251; Kindred v. Stitt, 51 Ill. 407; Morley v. Chase, 148 Mass. 396, 9 N. E. 767. No authorities, however, are cited in these cases in support of the proposition. 17 Alford v. State, 8 Tex. App. 545 (citing no authority, however). 18 Davis v. Russell, 5 Bing. 364. We have already collected the cases on this point in treating of arrests by an officer without a war- rant. Many of the cases there cited are cases of arrest by a private person. The liability of an oflicer and a private person is the same in this respect; so it is only necessary to refer to what we have al- ready said on the subject. Ante, p. 49. In People vy. Lillard, 18 Cal. App. 343, 123 Pac. 221, it was held that when accused, a private person, saw deceased running at night, and heard persons crying out, “Stop him!” “Catch him!” “We didit!’ ‘Heis the robber!’’ and, deceased being ordered by defendant four times to step, he refused to do so, defendant had reasonable cause to believe the deceased had committed a felony, and if, in fact, he had, defendant was justified in killing him, if necessary to effect his arrest. 19 Fox v. Gaunt, 3 Barn. & Adol. 798; Price v. Seeley, 10 Clark & F, 28; Phillips v. Trull, 11 Johns. (N. ¥.) 487; Handcock v. Baker, 2 Bos. & P. 262; Butler v. Turley, 2 Car. & P. 585; Coward v. Bad- deley, 4 Hurl. & N. 478; Wooding v. Oxley, 9 Car. & P. 1. 20 In some states it is provided that a private person may arrest for any crime committed in his presence. People v. Morehouse, 53 Hun, 638, 6 N. Y. Supp. 763. 21 Price v. Seeley, 10 Clark & F. 28; Phillips v. Trull, 11 Johns. (N.. Y.) 487. 54 APPREHENSION OF PERSONS AND PROPERTY (Ch.2 to an officer.??, A private person not only may, but must, interpose to prevent the attempted commission of a felony, or infliction of a deadly injury, and, if necessary to prevent it, may arrest the offender, though the attempt is only a misdemeanor.?® As already stated, however, such an at- tempt must necessarily, in most, if not in all, cases, amount to a breach of the peace, so that the arrest may be justified on that ground.* A private person may also recapture a prisoner charged with a felony, who has broken jail, or otherwise escaped from lawful custody, before or after conviction, though the prison breach or escape is only a misdemeanor.’® There are circumstances, as we shall now see, under which a private person may be called upon by an officer to assist him in making an arrest. SAME—ASSISTING OFFICER 13. An officer authorized to make arrests may call upon pri- vate persons to assist him, and they are bound to do so, provided they act in his actual or construc- tive presence. If there is just cause, any justice of the peace or sheriff may take of the county any number of persons he thinks proper to pursue, arrest, and imprison felons or breakers of the peace. This is called “raising the posse comitatus.” Persons who refuse to aid are guilty of a misdemeanor. This applies not only where the sheriff is acting under a warrant, but also where he is acting without a warrant as a conservator of the peace.?* Not only may the sheriff or a 22 Price v. Seeley, 10 Clark & F. 28; Timothy v. Simpson, 1 Cromp., M. & R. 757; Derecourt v. Corbishley, 5 El. & Bl. 188. 23 Handcock v. Baker, 2 Bos. & P. 260; Rex v. Hunt, 1 Moody, 93; Reuck v. McGregor, 32 N. J. Law, 70; Dill v. State, 25 Ala. 15; Ruloff v. People, 45 N. Y. 213; Long v. State, 12 Ga. 293; Com, v. Deacon, 8 Serg. & R. (Pa.) 47; Keenan v. State, 8 Wis. 132, 24 Ante, p. 51. 25 State v. Holmes, 48 N. H. 377. 26 Dalton, c. 171; 4 Bl. Comm. 293, § 13) ASSISTING OFFICER 55 justice of the peace thus raise the posse comitatus, but any other peace officer, authorized to make arrests or to sup- press breaches of the peace, may call upon private persons to assist him in the execution of his duty, whether he is acting under a warrant, or, in a proper case, without a war- rant, and any person who without good excuse refuses to aid is guilty of a misdemeanor.?” If the command is made ‘by a proper officer, and the case is one in which he apparent- ly has authority, the persons assisting him will be protected against any liability for their assistance, though in fact the officer may not have authority, or, though having authority, he may so fail to comply with the law as to become liable himself.2® To justify private persons, however, in acting at the command of an officer in cases in which they would have no right to act of their own accord, they must act in the actual or constructive presence of the officer.2® As we 272 Hawk. P. C. c. 18, § 7; Com. v. Field, 13 Mass. 321; Coyles v. Hurtin, 10 Johns. (N. Y.) 85; Blatch v. Archer, Cowp. 63; Mc- Mahan vy. Green, 34 Vt. 69, SO Am. Dec. 665; Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253; State v. James, 80 N. C. 370; State v. Shaw, 25 N. C. 20. F 28 Dehm y. Hinman, 56 Conn. 320, 15 Atl. 741,1L. R. A. 374; Reed vy. Rice, 2 J. J. Marsh. (Ky.) 44, 19 Am. Dec. 122; Watson v. State, 83 Ala. 60, 3 South. 441; Firestone v. Rice, 71 Mich. 377, 38 N. W.. 885, 15 Am. St. Rep. 266. “When the defendant was called upon by the sheriff in this case to assist him! in arresting the plaintiff, he was not at liberty to refuse. Nor could he demand of the sheriff an in- spection of the warrant under which he was acting, in order to see by what authority he was proceeding, and whether in his judgment it would be safe to assist him. * * * The nature of the case re- quires that there should be no delay in rendering the requisite as- sistance. No nice inquiries into the written authority of the sherift to do what he is doing. It is sufficient that the officer asks for aid in a matter in which he has by law a right to ask for aid, and that he is a known public officer. The person who is thus called on is protected by the call from being sued for rendering the requisite assistance. If the officer has no warrant, or authority that will justify him, he may be liable as a trespasser; but the person who is called upon for aid, having no means of knowing what the warrant is by which the officer acts, and who relies upon the official character and call of the sheriff as his security for doing what is required, is clearly entitled to protection against suits by the person arrested.” Aldis, J.; in McMahan v. Green, supra. 29 Coyles v. Hurtin, supra; Mitchell v. State, supra; State y. Shaw, 56 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 have seen, the verbal command of a judge or justice of the peace to arrest for a felony or breach of the peace commit- ted in his presence must be obeyed. A private person cannot refuse to assist an officer when called on on the ground that such assistance involves person- al danger; nor can he constitute himself the judge of the necessity for obedience.*° But a private person, it has been held, is not liable to indictment for refusing to aid an officer when summoned to do so, if such aid would be futile as well as dangerous.** SAME—ARREST UPON HUE AND CRY 14. Arrest upon hue and cry is an old common-law process of pursuing with horn and with voice all felons and such as have dangerously wounded others. The hue and cry could be raised by officers or by private persons or by both. The officer and his assistants have the supra; People v. Moore, 2 Doug. (Mich.) 1; Com v. Field, 138 Mass. 821; Rex v. Patience, 7 Car. & P. 775. The officer need not be ac- tually present. He may, for instance, leave persons whom he has called upon to assist, and go after help, and they must act in his aid during his temporary absence. “The sheriff,’ it was said in such a case, “is quodam modo present by his authority, if he be actually en- gaged in efforts to arrest, dum fervet opus, and has comnranded and is continuing to command and procure assistance. When he is call- ing on the power of the county, or a requisite portion of it, to enable him to overcome resistance, it would be impossible that he should be actually present in every place where power might be wanting. The law is not so unreasonable as to require the officer to be an eye or ear witness of what passes, and to render all his authority null and void except when he is so present. * * * The question in these cases does not turn upon the fact of distance, so long as the sheriff is within his county, and is bona fide and strictly engaged in the business of the arrest.” Coyles vy. Hurtin, supra. It has lately been held in Michigan, however, that a sheriff, having a warrant in a case in which a warrant is necessary, cannot send his deputy to one place to nrake the arrest without the warrant, while he goes to another place for the same purpose with the warrant. People v. McLean, 68 Mich. 480, 36 N. W. 231. 80 Dougherty v. State, 106 Ala. 63, 17 South. 393, 81 Dougherty v. State, supra. § 15) ; TIME OF ARREST 57 same powers, protection, and indemnity as if acting under a warrant. If a warrant has been obtained, and the felon has fled into another county, he may be followed by hue and cry without having the warrant backed or signed by a justice of the latter county. Private persons who join in the hue and cry are justified, even though it may turn out that no felony has in fact been committed. If, however, a private person wantonly and maliciously, and without cause, raises the hue and cry, he commits a breach of the peace, and is guilty of a misdemeanor.*? SAME—TIME OF ARREST 15. In the absence of statutory provision to the contrary, an arrest may be made at any time. An arrest at common law may be made on Sunday.*? By statute, in some jurisdictions, the right to execute a war- rant on Sunday is limited in terms to cases of treason, fel- ony, and breach of peace, but the term “breach of. peace” is held to include all indictable offenses.** In other jurisdic- tions, it is provided by statute that an arrest cannot be made on Sunday for a misdemeanor, unless upon direction of the magistrate indorsed upon the warrant. An arrest at common law may be made at any time of the day or night,*®> but by statute, in some jurisdictions, the right to arrest at night is very much restricted. 324 Bl. Comm. 293; 2 Hale, P. C. 98; Jackson’s Case, 1 Hast, P. C. 298; Galvin v. State, 6 Cold. (Tenn.) 283; Brooks v. Com., 61 Pa. 352, 100 Am. Dec. 645. 33 State v. Smith, 1 N. H. 346; Pearce v. Atwood, 18 Mass. 324, 847; Main v. McCarty, 15 Ill. 441; Rawlins vy. Ellis, 16 Mees. & W. 172. 34 Rawlins v. Ellis, supra; Watts v. Com., 5 Bush (Ky.) 309; Keith v. Tuttle, 28 Me. 326. 35 State v. Smith, supra; Wright v. Keith, 24 Me. 158; State v. Brennan’s Liquors, 25 Conn. 278. 58 APPREHENSION OF PERSONS AND PROPERTY (Ch.2 SAME—NOTICE OF PURPOSE AND AUTHORITY 16. An officer, commonly known as such, and acting within his own precinct, need not show his warrant, but he must, if requested, tell its substance. A private person or an officer not commonly known, or who is acting outside his precinct, must show his war- rant if requested. An officer or private person ar- resting without a warrant must give notice of his authority and purpose, unless they are known or are obvious. EXCEPTION—If the arrest is resisted, it may be effect- ed before notice of authority. ' An arrest, to be legal, must not only be authorized, but must be made in a proper manner. If made in an improper manner, the person making it is just as liable for the in- jury as if he had proceeded without any authority at all. When a warrant is necessary for a legal arrest, the person making the arrest must have the warrant with him when making the arrest.°° An officer, if he is commonly known to be an officer, and is acting within his own precinct, need not show his warrant, though requested to do so; but he must, if requested, tell the substance of it.47_ But all private persons to whom a warrant is directed, and officers who are not commonly known, or who are acting out of their own precincts, must show their warrant if requested.?* So, also, an officer acting without a warrant should, unless the party 36 People v. McLean, 68 Mich. 480, 36 N. W. 231; Smith v. Clark, 53 N. J. Law, 197, 21 Atl. 491. 87 2 Hawk. P. C. c. 13, § 28; Com. v. Cooley, 6 Gray (Mass.) 350; Arnold v. Steeves, 10 Wend. (N. Y.) 514; Bellows v. Shannon, 2 Hill (N. Y¥.) 92; Codd v. Cabe, 1 Exch. Div. 352; Hall v. Roche, 8 Term R. 188; Shovlin v. Com., 106 Pa. 369; State v. Curtis, 2 N. ©. 471; State v. Caldwell, 2 Tyler (Vt.) 214; State v. Phinney, 42 Me. 384. Code Cr. Proc. N. Y. § 178, provides that an officer must show his warrant, if required. 382 Hawk. P. C. c. 13, § 28; State v. Curtis, 2 N. C. 471; Frost yv. Thomas, 24 Wend. (N. Y.) 418; Arnold v. Steeves, 10 Wend. (N. Y.) 514; People v. Nash, 1 Idaho, 206; State v. Kirby, 24 N. C. 201. § 16) NOTICE OF PURPOSE AND AUTHORITY 59 is previously acquainted with the fact, or can plainly see it, notify him that he is an officer, or that he arrests in the name of the state, and for what offense,®* but he need not do so if his character and the reason of the arrest are known to the accused, or are obvious.*° It is established by the weight of authority, however, that an officer, whether act- ing with or without a warrant, need not state his character or authority before making the arrest, where the arrest is resisted, as this might defeat the arrest. It is enough if he does so on request, after the arrest has been made.*+ A private person, in making an arrest without a warrant, must make known his purpose,*? but, as is the case with an offi- cer, he need not do so in express words, where the circum- stances render his purpose obvious.** The person acting under a warrant is not. required to al- low a person he is about to arrest to have physical posses- sion of the warrant; and if he should do so, and the return of the warrant is refused, force may be used to recover pos- session of it.** 89 Yates v. People, 32 N. Y. 509; Wolf v. State, 19 Ohio St. 248. 40 Wolf v. State, supra; Com. v. Tobin, 108 Mass. 426, 11 Am. Rep. 875; Roberts v. State, 14 Mo. 144, 55 Am. Dec. 97; Lewis v. State, 3 Head (Tenn.) 127; People v. Pool, 27 Cal. 573. 41 Com. v. Cooley, 6 Gray (Mass.) 350; State v. Townsend, 5 Har. (Del.) 487; Rex v. Woolmer, 1 Moody, 334; Com. v. Field, 13 Mass. 821; Drennan v. People, 10 Mich. 169; Kernan v. State, 11 Ind. 471; Boyd v. State, 17 Ga. 194; Shovlin v. Com., 106 Pa. 369. But see State v. Garrett, 60 N. C. 144, 84 Am. Dec. 359. 42 Fost. Crown Law, 311; Rex v. Howarth, 1 Moody, 207; Long v. State, 12 Ga. 293; State v. Bryant, 65 N. C. 327; Brooks v. Com., 61 Pa. 352, 100 Am. Dec. 645. 43 State v. Mowry, 37 Kan. 369, 15 Pac. 282; Rex v. Howarth, 1 Moody, 207. And see Wolf v. State, 19 Ohio St. 248. The omission of the person making the arrest to declare his authority when such declaration is required by law has the effect of withdrawing from such person the protection the law throws around its officers when in the legal discharge of their duty. It does not justify the person arrested in killing him, though it may reduce such killing to man- slaughter. State v. Phinney, 42 Me. 384. 44 Rex v. Milton, Moody & M. 107. 60 APPREHENSION OF PERSONS AND PROPERTY (Ch.2 SAME—USE OF FORCE 17. All necessary force, even to the taking of life, may be used to effect an arrest or prevent an escape in cases of felony, and all necessary force, short of taking life, may be used, in cases of misdemeanor. In no case can unnecessary force be used. Neither an officer nor a private person, in making an ar- rest, can use unnecessary violence; if he does so, he will be liable both civilly and criminally for assault and battery, or criminally for murder or manslaughter if homicide re- sults.4° He may in any case.use all necessary force, short of taking life, both to effect the arrest and to retain the cus- tody of his prisoner.*® It has been held, for instance, that an officer may strike a man who is fighting, if the blow is necessary to stop the fight, and if he acts in good faith.** So, also, if necessary, an officer may tie or handcuff an un- ruly prisoner, but he cannot use handcuffs unnecessarily.*® If a legal attempt to arrest is forcibly resisted, the officer may oppose force to force, to overcome the resistance, even though the death of the person resisting may be the conse- quence, provided there is reasonable necessity for the kill- 45 State v. Pugh, 101 N. C. 737, 7 S. BE. 757, 9 Am. St. Rep. 44; State v. Sigman, 106 N. C. 728, 11 S. HE. 520; Wright v. Keith, 24 Me. 158; Murdock v. Ripley, 35 Me. 472; Burns v. State, 80 Ga. 544, 7 S. E. 88; Skidmore v. State, 43 Tex. 98; State v. Mahon, 3 Har. (Del.) 568; Findlay v. Pruitt,.9 Port. (Ala.) 195; Clark, Cr. Law, 211. 46 State v. Pugh, supra; State v. McNinch, 90 N. C. 695; State v. Fuller, 96 Mo. 165, 9 S. W. 583; State v. Mahon, 3 Har. (Del.) 568; Ramsey vy. State, 92 Ga. 53, 17 8. E. 613; Beaverts v. State, 4 Tex. App. 175; Clark, Cr. Law, 211. 47 State v. Pugh, supra. 48 Wright v. Court, 4 Barn. & C. 596; State v. Sigman, supra; State v. Stalcup, 24 N. ©. 50; Dehm v. Hinman, 56 Conn. 820, 15 Atl. 741,11. R. A. 374; Leigh v. Cole, 6 Cox, Cr. Cas. 331. And, if hand- cuffs are used in the bona fide belief that they are necessary, the officer will not be liable, though it afterwards appears that they were unnecessary. Firestone v. Rice, 71 Mich. 377, 88 N. W. 885, 15 Am. St. Rep. 266. § 17) USE OF FORCE 61 ing.*® It has been held that this applies to misdemeanors as well as felonies, and to civil as well as criminal cases.°° After an arrest has once been made, and the offender is in custody, the officer having him in charge may kill him to prevent his escape, if such extreme measures are necessary, and he may, under like circumstances, kill others who are 49 State v. Dierberger, 96 Mo. 666, 10 S. W. 168, 9 Am. St. Rep. 380; Clements v. State, 50 Ala. 117; People v. Lillard, 18 Cal. App. 348, 123 Pac. 221; Clark, Cr. Law, 134. 50 State v. Dierberger, supra; State v. Garrett, 60 N. C. 144, 84 Am. Dec. 359. But there are cases which seem to be contrary. Dil- ger v. Com., 88 Ky. 550, 11 8. W. 651. In the recent case of Robert- son v. Arizona, 188 Fed. 783, 110 C. C. A. 489, an officer was in- dicted for murder in killing deceased, whom he was attempting to arrest for a misdemeanor. The following instruction was held cor- rect: “It was entirely within his rights (that is to say, within the rights of the plaintiff in error as an officer) to use force to overcome resistance. You must observe the difference between resisting arrest and running away. Be the offense ever so trivial, if he actually resists arrest and fights back against arrest, the officer may use all force necessary and summon all the assistance that the surrounding circumstances offer him, to enable him to overcome that resistance even to the infliction of bodily harm, or, if necessary in extremity, the infliction of death. This duty of the officer to avoid infliction of injury or death only occurs when the man seeks to avoid arrest, but it does not devolve upon him to avoid the infliction of injury or death if it be necessary to overcome resistance, but he may inflict it only if it is necessary, and he may go only so far as it is necessary to effect arrest or overcome resistance. If the officer’s life becomes in jeopardy during the course of the attempt to overcome resistance in making the arrest, he has the right as anybody else to protect himself from bodily harm or death.” Though in theory the distinction be- tween killing to effect the arrest and killing only in self-defense may be important, the result in an actual case is the same. The typical case is where the officer tries to arrest an offender and the offender resists. All the cases agree that the officer need not abandon the effort to complete the arrest because of such resistance; indeed, they all agree that it is his duty to continue this effort to make the arrest. The offender then continues his resistance; the officer may use force sufficient to overcome this resistance; this is met with greater force by the offender. Now the officer, all agree, cannot kill unless it is either apparently necessary to effect the arrest or in self-defense. But it will never be apparently necessary to kill to effect the arrest until the officer’s life is in apparent danger, for until that time it does not appear but that a little more force than is being used will be sufficient to effect the arrest without killing. 62 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 seeking to rescue the prisoner; °? but, in those jurisdictions where it is held that an officer cannot kill to effect an arrest for a misdemeanor, it is also held that he cannot kill to prevent the escape of one in custody for a misdemeanor, as this is virtually a rearrest.°2 In misdemeanor cases, where a person sought to be arrested does not assault the officer and forcibly resist the attempt to arrest, but flees, the officer cannot kill him in pursuit, but must rather suffer him to escape.°? It is otherwise in the case of felonies. A fleeing felon may be killed if he cannot otherwise be taken.5* In all cases the killing must be apparently necessary.®* If an officer’s life is threatened, or grievous bodily harm is immi- nent, he may kill to save himself. What we have said also applies to lawful arrests by a private person. Life may also be taken by an officer or a private person, if necessary, in order to prevent a felony ®* or suppress a riot,5? but not to suppress an affray,®® for in the latter case it cannot be necessary. 514 Bl. Comm. 179; Fost. Crown Law, 321; 1 Hale, P. C. 496; 2 East, P. C. 821; Jackson v. State, 76 Ga. 473; State v. Bland, 97 N. C. 438, 2 S. E. 460; Clark, Cr. Law, 135. 52 Reneau v. State, 2 Lea (Tenn.) 720, 31 Am. Rep. 626; Head v. Martin, 85 Ky. 480, 8 S. W. 622; Thomas vy. Kinkead, 55 Ark. 502, 18 S. W. 854, 15 L. R. A. 558, 29 Am. St. Rep. 68; Brown v. Weaver, 76 Miss. 7, 23 South. 388, 42 L. R. A. 423, 71 Am. St. Rep. 512. It is otherwise where the attempted escape is a statutory felony. State v. Turlington, 102 Mo. 642, 15 S. W. 141. 53 Fost. Crown Law, 291; State v. Moore, 39 Conn. 244; Dilger v. Com., 88 Ky. 550, 11 S. W. 651; Clark, Cr. Law, 136. 541 East, P. C. 302; Rex y. Finnerty, 1 Craw. & D. 167; Jackson v. State, 66 Miss. 89, 5 South. 690, 14 Am. St. Rep. 542; State v. Roane, 13 N. C. 58. 55 Clark, Cr. Law (3d Ed.) 177. 561 East, P. C. 271; State v. Harris, 46 N. C. 190; State v. Moore, 31 Conn. 479, 83 Am. Dec. 159; Clark Cr. Law (3d Bd.) 178, and cases there cited. 571 Hale, P. C, 495; 4 Bl. Comm. 179; Pond v. People, 8 Mich. 150; Clark, Cr. Law (8d Ed.) 177. 58 People v. Cole, 4 Parker, Cr. R. (N. Y.) 35; Conner v. State, 4 Yerg. (Tenn.) 187, 26 Am. Dec, 217; Clark, Cr. Law (3d Ed.) 177. § 18) BREAKING DOORS, ETO. 63 SAME—BREAKING DOORS, ETC. 18. An officer, if, after notice of his purpose and authority, he is refused admittance, may break an outer or inner door or window of a house, for the purpose of executing a warrant, or of making a lawful ar- rest without a warrant, or to liberate himself or another who, having entered to make an arrest, is detained therein. A private person may so break into a house, to prevent a felony, or to arrest a per- son for a felony actually committed by him, but not to arrest a suspected felon. Either an off- cer or a private person may so break into a house to arrest a person who has escaped from lawful custody. In order to execute a warrant for a crime, the officer may break open doors, if upon demand of admittance it cannot be otherwise obtained.®® The right to break doors to exe- cute a warrant exists in the case of a misdemeanor, as well as in the case of a felony. It could not be otherwise, with- out allowing a man to defy the law.®° Where the house is occupied by the accused, the author- ities are agreed that the officer is not liable as a trespasser for forcing an entrance, though it may turn out that the ac- cused is not there, provided there was probable ground to believe he was there.** And by the better opinion the same is true where the house is occupied by a third person.*? 59 Fost. Crown Law, 320; 1 Hale, P. C. 583; 2 Hale, P. C. 103, 117; 1 East, P. C. 823; 1 Chit. Cr. Law, 51; State v. Smith, 1 N. H. 346; Com. v. Irwin, 1 Allen (Mass.) 587; Barnard v. Bartlett, 10 Cush. (Mass.) 501, 57 Am. Dec. 123; Com. v. Reynolds, 120 Mass. 190, 21 Am. Rep. 510; Allen v. Martin, 10 Wend. (N. Y.) 300, 25 Am. Dec. 564; Bell v. Clapp, 10 Johns. (N. Y.) 263, 6 Am. Dec. 339; Hawkins v. Com., 14 B. Mon. (Ky.) 395, 61 Am. Dec. 147; Shanley v. Wells, 71 IL. 78; Kelsy v. Wright, 1 Root (Conn.) 83; State v. Shaw, 1 Root (Conn.) 134. 60 See the authorities above cited. 61 Barnard v. Bartlett, 10 Cush. (Mass.) 501, 57 Am. Dec. 123; Com. v. Reynolds, 120 Mass. 190, 21 Am. Rep. 510; Hawkins v. Com., 14 B. Mon. (Ky.) 395, 61 Am. Dec. 147; State v. Smith, 1 N. H. 346. 62 Com. vy. Irwin, 1 Allen (Mass.) 587; Com. v. Reynolds, supra. 64 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 It has been said that the right of an officer to break doors to effect an arrest without a warrant is generally the same as if he proceeded upon a warrant, but this is not true. It seems to be well settled that, where a felony has been com- mitted, he may break doors and arrest without a warrant, and that he need not have seen the felony committed, but may act on the information of some one else who saw it.** He may also, according to the weight of authority, break into a house when there is an affray or breach of the peace therein, even when the doors are fastened.** Some of the cases, however, hold that he can only do so where the doors are unfastened.°® In other cases of misdemeanor, as, for~ instance, where unlawful gaming is going on in the house, or intoxicating liquors are being sold in violation of law, he cannot break in without a warrant,°® for he could not even arrest without a warrant. If a private person sees a felony committed, he may break into a house to arrest the offender, if the latter is within the house and refuses to surrender, but he cannot break into a house to arrest a suspected felon.” He may also break into a house to prevent a felony.** It has been said that he may break into a house where he is certain a felony has been committed, though he was not an eyewitness to its commission.*®® In all cases, without as well as with a warrant, after a person has been once actually arrested, and has escaped from custody, any door may be broken open to retake him, after proper demand of admittance.”° Contra, 1 Chit. Cr. Law, 57; 2 Hale, P. C. 117; Johnson v. Leigh, 1 Marsh. 565, 6 Taunt. 246; Hawkins v. Com., 14 B. Mon. (Ky.) 395, 61 Am. Dec. 147. 681 Hale, P. C. 583, 589; 1 Chit. Cr. Law, 53. 641 Hale, P. C. 588, 589; Handcock v. Baker, 2 Bos. & P. 260. 65 Com. v. Tobin, 108 Mass. 426, 11 Am. Rep. 375. ', 66 McLennon v. Richardson, 15 Gray (Mass.) 74, 77 Am. Dec. 353. And see Bailey v. Ragatz, 50 Wis. 554, 7 N. W. 564, 36 Am. Rep. 862. 67 2 Hale, P. C. 78, 82; 1 Chit. Cr. Law, 53; Brooks v. Com., 61 Pa. 358, 100 Am. Dec. 645. 68 Handcock v. Baker, 2 Bos. & P. 260. 691 Chit. Cr. Law, 52. 701 Chit. Cr. Law, 58; Fost. Crown Law, 320; Genner vy. Sparks, 6 § 19) WHAT CONSTITUTES AN ARREST 65 Where an officer who has entered a house is locked in, or otherwise prevented from retiring, he may break out, or other officers may break in to rescue him.72_ Where an offi- cer has entered a house he may always break an inner door, if admittance is demanded and refused.7? In all cases, ex- cept perhaps of felony, demand of admittance must be made before the door is broken.78 In cases where the officer is not allowed by law to break the door, procuring the opening of the door by a false pre- tense, and forcibly rushing in, has been held to be a break- ing.’* SAME—WHAT CONSTITUTES AN ARREST 19. To constitute an arrest, there must be actual restraint of the person arrested, or else he must submit to the custody of the officer or person arresting. Legal consequences attach to an escape from lawful arrest, and in many respects the position and the rights and liabilities of the parties arresting and arrested are different before and after the arrest has been made. It often becomes Mod. 173, 1 Salk. 79; Com. v. McGahey, 11 Gray (Mass.) 194; Allen v. Martin, 10 Wend. (WN. Y.) 300, 25 Am. Dec. 564; Cahill v. People, 106 Ill. 621. And where the prisoner has taken shelter in his own house, and the pursuit is fresh, the door may be broken without demand of admittance. Allen v. Martin, supra. 711 Chit. Cr. Law, 58; 1 Hale, P. C. 459; Fost. Crown Law, 319; Genner v. Sparks, 6 Mod. 173, 1 Salk. 79. 721 Chit. Cr. Law, 58; 1 Hale, P. C. 458, 459; Lee v. Gansel, Cowp. 1; Ratcliffe v. Burton, 3 Bos. & P. 223; Hubbard v. Mace, 17 Johns. -(N. ¥.) 127; Williams v. Spencer, 5 Johns. (N. Y.) 352; Hutchison v. Birch, 4 Taunt. 618. ; 731 Chit. Cr. Law, 53; Launock v. Brown, 2 Barn. & Ald. 592; Bur- dett v. Colman, 14 East, 168; Ratcliffe v. Burton, 3 Bos. & P. 229; Com. v. Reynolds, 120 Mass. 190, 21 Am. Rep. 510; State v. Oliver, 2 Houst. (Del.) 585. As stated in a previous note, where a prisoner escapes from custody and takes shelter in his own house, the officer, in fresh pursuit, may break in without demand of admittance, as the prisoner is aware of the object of the officer. Allen vy. Martin, 10 Wend. (N. Y.) 300, 25 Am. Dec. 564. 74 Park yv. Evans, Hob. 62. But see Rex vy. Backhouse, Lofft, 61, CLaRKk Cr.Proc.(2D Ep.)—5 66 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 important, therefore, to determine when an arrest has been made and the accused is in the custody of the officer. To constitute an arrest, mere words are not sufficient.7> There must be some actual restraint of the person of the accused, or he must submit. Merely to say to him that he is under arrest is not enough, if he does not submit; but it is suffi- cient if the officer touches him, however lightly; 7° and it is enough if the officer, being in a room with the accused, tells him that he is under arrest, and locks the door.77 Even though the officer uses no force at all, if he tells the accused that he is under arrest, and the accused submits, there is an arrest, and if the-accused afterwards runs off he is guilty of an escape.”®> As. we have seen, an officer or private person in making an arrest should make known his purpose and authority, unless the purpose or authority is already known or is obvious. If he fails to do so, and the purpose to arrest is not known nor obvious, physical restraint will not con- stitute an arrest.7° If the authority and purpose to arrest 76 Grainger v. Hill, 4 Bing. N. C. 212; Brushaber v. Stegemann, 22 Mich. 266; Mowry v. Chase, 100 Mass. 85. 76 Genner v. Sparks, 1 Salk. 79, 6 Mod. 173; Whithead yv. Keyes, 3 Allen (Mass.) 495, 81 Am. Dec. 672. © 77 Williams v. Jones, Cas. t. Hardw. 301; Grainger v. Hill, 4 Bing. N. ©. 212. 78 Emery v. Chesley, 18 N. H. 198; Mowry v. Chase, 100 Mass. 79; Pike v. Hanson, 9 N. H. 491; Russen vy. Lucas, 1 Car. & P. 153; George v. Radford, Moody & M. 244; Bissell v. Gold, 1 Wend. (N. Y.) 210, 19 Am. Dec, 480; Shannon vy, Jones, 76 Tex. 141, 18 S. W. 477. But see U. S. v. Benner, Baldw. 239, Fed. Cas. No. 14,568; Hunting- ton v. Shultz, Harp. (S. C.) 452, 18 Am. Dec. 660; Lawson v. Buzines, 3 Har. (Del.) 416; State v. Mahon, 3 Har. (Del.) 568. Submission to authority asserted under a pretended warrant has been held an ar- rest. Haskins v. Young, 19 'N. C. 527, 31 Am. Dec. 426. In Shannon v. Jones, 76 Tex. 141, 13 S. W. 477, the officer read the warrant to the appellee while she was sick and confined to her bed, and told her she must give bond or go to jail. She gave bond. It was held that this constituted an arrest. The giving bond was submission. 791 Bish. Cr. Proc. § 158; Whart. Cr. Pl. & Prac. § 3; citing Yates v. People, 32 N. Y. 509; Rex v. Howarth, 1 Ryan & M. 207; State v. Belk, 76 N. C. 10. In Grosse v. State, 11 Tex. App. 364, the officer who had taken the prisoner in charge testified that he took charge of the prisoner in his capacity of marshal, but that he did not consider the prisoner as under arrest. The court said: “The question is not so § 20) DUTY AFTER ARREST 67 are obvious, as where the officer shows his badge, or does some other act from which it can be seen that he is an officer and acts as such, express notice is not necessary.®° SAME—DUTY AFTER ARREST 20. An officer or private person, after making an arrest, must, without unnecessary delay, take his prisoner before a magistrate for examination; but a private person may, if he chooses, deliver his prisoner to an officer. When an arrest has been made, the officer should, as soon as the circumstances will permit, bring his prisoner before a proper magistrate. If he is guilty of unnecessary delay, he will be liable for false imprisonment. This applies, not only to arrests under a warrant,®! but also to arrests without a. warrant either by an officer ®? or by a private person,®* ex- cept that where the arrest is by a private person he may, if he prefers, deliver his prisoner over to an officer to be taken before the magistrate. In such a case he ceases to be fur- ther responsible for the safe custody of the prisoner. Nec- much the intentions and opinions of the marshal in regard to the matter, but the actual situation of the defendant; and he was not. only in actual, but intentional, arrest.” 80 Ante, p. 58; People v. Pool, 27 Cal. 573. 811 Chit. Cr. Law, 59; 2 Hale, P. C. 119; Tubbs v. Tukey, 3 Cush. (Mass.) 438, 50 Am. Dec. 744; Brock v. Stimson, 108 Mass, 520, 11 Am. Rep. 390; Butler v. Washburn, 25 N. H. 251; Rex v. Bootie, 2 Bur- rows, 864; Harris vy. City of Atlanta, 62 Ga. 290; Boaz v. Tate, 43 Ind. 67; Papineau v. Bacon, 110 Mass. 319; Phillips v. Fadden, 125 Mass. 198; Johnson v. Mayor, etc., of Americus, 46 Ga. 80; Butolph vy. Blust, 5 Lans. (N. Y.) 84; Burke y. Bell, 36 Me. 321; post, p. 87. 82 See the authorities above cited; and see Simmons v. Vandyke, 188 Ind. 380, 37 N. E. 973, 26 lh R. A. 33, 46 Am. St. Rep. 411; “Wright v. Court, 4 Barn. & C. 596; Com. v. Deacon, 8 Serg. & R. (Pa.) 47; Scircle v. Neeves, 47 Ind. 289; Burke v. Bell, 36 Me. 317; Papi- neau v. Bacon, 110 Mass. 319; post, p. 87. 88 See the authorities above cited; and see, particularly, Com. v. Deacon, 8 Serg. & R. (Pa.) 47; Com. v. Tobin, 108 Mass. 429, 11 Am. Rep. 375; post, D. 87. 68 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 essary delay will not render either an officer or a private person liable.§* In some states, if the warrant so directs, the officer may take his prisoner either before the magistrate who issued it, or before some other magistrate having concurrent jurisdic- tion of the subject-matter. In other states he can only take him before the magistrate who issued the warrant. The law in this respect must be followed.*§ SAME—AUTHORIZED ARREST IN UNAUTHOR- IZED MANNER 21. The fact that an authorized arrest is made in an un- authorized manner will render the officer or person arresting liable, but will not affect the state’s right to detain the accused. The authority to arrest, either with or without a warrant, should not be confused with the requirements of the law in regard to the manner of making the arrest. “The manner and circumstances of execution relate not to the authority, unless expressly or by necessary intendment made to; and, if the law prescribes the modes of execution, this is either to secure the execution of the process, or to guard the person whose arrest is commanded from unnecessary annoy- ance or oppression, and a departure in this respect ought not to affect the question of authority.” ®*® If an officer, making an authorized arrest, uses unnecessary force, he be- comes civilly liable, as would any other wrongdoer; and, if 84 Arnold vy. Steeves, 10 Wend. (N. Y.) 514. If a prisoner cannot be brought before a justice on the night of his arrest, the officer may place him in jail for the night. Wiggins v. Norton, 83 Ga. 148, 9 S. EB. 607. A party may waive his right to be immediately taken before a magistrate. Nowak v. Waller, 56 Hun, 647,10 N. Y. Supp. 199. The time during which a prisoner may be detained before being taken before a magistrate is in many states expressly limited by statute. Arnold v. Steeves, supra. 85 Post, p. 90. 86 Cabell v. Arnold, 86 Tex. 102, 23 S. W. 645, 22 L, R. A. 87; post, p. 70, note, 91. §§ 22-25) FUGITIVES FROM JUSTICE 69 he refuses to disclose his authority when he should do so, he may forfeit the right he would otherwise have to compensa- tion for injury inflicted by the person sought to be arrested in resisting, and such person would not be liable criminally for the resistance, unless he should intentionally kill the officer, and even then only for manslaughter; but the arrest and detention would be none the less under the authority of law, and therefore legal. The prisoner would not be entitled to a discharge from custody.” FUGITIVES FROM JUSTICE 22. A person who commits a crime in one country or state, and flees into another, cannot be followed and ar- rested in the latter without its consent. SAME—INTERNATIONAL EXTRADITION 23. By treaties, however, between the United States and most foreign countries, and by acts of Congress in pursuance thereof, provision is made for the extra- dition of fugitives from justice in specified cases. This is a matter in which the states cannot act. 24. A person extradited for one crime cannot be tried for another. 25. By the weight of authority, a person can be tried and punished for a crime committed in this country, though he has been forcibly abducted from a for- eign country. By the law of nations, a person who commits a crime in one country, and flees into another, cannot be followed and 87 People v. Park, 92 Misc. Rep. 369, 156 N. Y. Supp. 816; Cabell v. Arnold, supra. “If the officer expressly declare that he arrests under an illegal precept, and on that only, yet he is not guilty of false im- prisonment, if he had at the time a legal one; for the lawfulness of the arrest does not depend on what he says, but what he has.” State v. Kirby, 24 N. C, 201; State v. Elrod, 28 N. C. 250. 70 APPREHENSION OF PERSONS AND PROPERTY (Ch.2 arrested in the latter without its consent, and, further than this, there is no obligation, under the law of nations, upon the latter to surrender the fugitive; ®* but this difficulty, in so far as the United States and foreign nations are con- cerned, is regulated by treaties between them, mutually al- lowing the extradition of fugitives, and by acts of Congress giving effect to the treaty provisions. This is a matter in which, as far as we are concerned, the United States govern- ment alone can act. The states, while they are in a sense independent sovereignties, have no national powers as re- spects foreign nations. They cannot provide for the sur- render of fugitives from foreign countries, nor can they de- mand of a foreign government the surrender of a fugitive.** A person extradited from a foreign country under a treaty cannot be tried for a crime not within the treaty between that country and the United States; °° nor, unless the treaty so allows, can he be tried for a different offense than that for which he was extradited; °®1 at least not without first releasing him from arrest and giving him an opportunity to leave the country.°? It is almost needless to add that in all cases the provisions of the treaty, and of any act of Congress in pursuance of it, must be complied with.®* 88 Kix parte McCabe (D. C.) 46 Fed. 363, 12 L. R. A. 589. As to in- ternational extradition, see, generally, In re Ezeta (D. C.) 62 Fed. 972. 89 Holmes v. Jennison, 14 Pet. 540, 614, 10 L. Hd. 579; Ex parte Holmes, 12 Vt. 631; People v. Curtis, 50 N. Y. 321, 10 Am. Rep. 483. 90U. S. v. Rauscher, 119 U. 8. 407, 7 Sup. Ct. 234, 30 L. Wd. 425; State v. Vanderpool, 39 Ohio St. 278, 48 Am. Rep. 431; Ex parte Hibbs (D. C.) 26 Fed. 421. 91U. 8. v. Rauscher, supra; State v. Vanderpool, supra; Ex parte Coy (D. C.) 32 Fed. 911; In re Reinitz (C. C.) 39 Fed. 204, 4 L. R. A. 236; In re Baruch (C. C.) 41 Fed. 472; Ex parte Hibbs (D. C.) 26 Fed. 421. 92U. S. v. Rauscher, 119 U. S. 407, 7 Sup. Ct. 234, 30 lL. Bd. 425. One who has been extradited for the purpose of being tried for one crime cannot be imprisoned for another crime of which he had previ- ously been convicted, but should be placed on trial for the crime for which extradition was granted. Johnson v. Browne, 205 U. S. 309, 27 Sup. Ct. 539, 51 L, Ed. 816, 10 Ann. Cas. 636. 93In re Herris (D. C.) 32 Fed. 583. While a person is not to be sent from this country on mere demand or surmise, this government §§ 22-25) FUGITIVES FROM JUSTICE 71 There has been a direct conflict of opinion on the question whether a person who has been illegally extradited, or who has been kidnapped without any proceedings at all, and brought from one country into another, can be tried for a crime. The treaties do not guarantee a fugitive from the justice of one country an asylum in the other. They only make provision that for certain crimes he shall be deprived of that asylum, and surrendered to justice, and prescribe the mode in which this shall be done.°* Where a fugitive is extradited under a treaty, good faith, as between the coun- tries, requires that the treaty provisions shall be observed, and, as we have seen, he cannot be tried for an offense other than the one for which he was extradited. It has been said, on the other hand, that a person who has not been ex- tradited under a treaty, but has been forcibly abducted from one country, and brought into another in which he is charg- ed with a crime, has no rights under 'the treaty,.and there is the highest authority for holding that his abduction does not prevent his trial and punishment.*® There are cases that hold the other way.®® In reason, it would seem that the person arrested should not be allowed to raise any objection, though an objection coming from the authorities should respond to a request for extradition, if there is reasonable ground to suppose the accused to be guilty of an extraditable offense, even if presented in untechnical form. Glucksman v. Henkel, 221 U. S. 508, 31 Sup. Ct. 704, 55 L. Ed. 830. 94 Ker v. Illinois, 119 U. S. 436, 7 Sup. Ct. 225, 30 L. Hd. 421; Las- celles v. Georgia, 148 U. S. 587, 13 Sup. Ct. 687, 37 L. Ed. 549. But see State v. Vanderpool, 39 Ohio St. 273, 48 Am. Rep. 4381. 95 Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct. 1204, 32 L. Ed. 288; Ker v. Illinois, 119. U. 8. 487, 7 Sup. Ct. 225, 30 L. Ed. 421; Lascelles v. Georgia, 148 U. 8. 587, 138 Sup. Ct. 687, 87 L. Bd. 549; Ex parte Scott, 9 Barn. & C. 446; Lopez & Sattler’s Case, 1 Dears. & B. Crown Cas. 525; State v. Smith, 1 Bailey (S. C.) 283, 19 Am. Dec. 679; State v. Brewster, 7 Vt. 118; In re Miles, 52 Vt. 609; Dows’ Case, 18 Pa. 37; State v. Ross, 21 Iowa, 467; The Richmond v. U. S., 9 Cranch, 102, 3 L. Ed. 670; People v. Rowe, 4 Parker,.Cr. R. (N. Y.) 253; State v. Wenzel, 77 Ind. 428; Ex parte Wilson, 63 Tex. Cr. R. 281, 140 S. W. 98, 36 L. R. A. (N. S.) 248; note 29, infra. 96 In re Robinson, 29 Neb. 135, 45 N. W. 267, 8 L. R. A. 398, 26 Am. St. Rep. 378; State v. Simmons, 39 Kan. 262, 18 Pac. 177; In re Can- non, 47 Mich. 481, 11 N. W. 280. (2 APPREHENSION OF PERSONS AND PROPERTY (Ch.2 of the country from which he was abducted should be re- garded. Where one has not been arrested and extradited under a treaty, but has been voluntarily surrendered for a crime not embraced in the provisions of a treaty, it has been held that he might be tried for another crime without being first given the opportunity of leaving the country.®’ SAME—INTERSTATE EXTRADITION 26. Provision is made by the Constitution of the United States, by acts of Congress in pursuance thereof, and by auxiliary statutes in the different states, for the extradition of a person “charged” in one state with “treason, felony, or other crime,” who shall “flee from justice and be found in another state.” 27. In order that a person may be extradited— (a) He must be judicially “charged” with a crime in the demanding state, as by indictment, affidavit, or complaint. (b) He must not be charged with a crime against the state on which demand is made. (c) He must have been in the demanding state, or he can- not have “fled from justice.” It is sufficient, how- ever, if; having been in the demanding state, and having committed a crime therein, he departed from it, though for other reasons than to escape. (d) A person may be extradited for any crime against the laws of the demanding state. 28. By the weight of authority, a person may be tried for a crime other than that for which he was extradited. 29. By the weight of authority, also, the forcible abduction of a person from another state does not prevent his trial and punishment. The Constitution of the United States provides that “a person charged in any state with treason, felony, or other 97 Ex parte Foss, 102 Cal. 347, 36 Pac. 669, 25 L. R. A. 593, 41 Am. St. Rep. 182. §§ 26-29) FUGITIVES FROM JUSTICE 3 crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.” °* To carry this provision into effect, Congress has passed an act providing substantially that whenever the executive of any state shall demand any person, as a fugitive from justice, of the execu- tive authority of another state to which such person shall have fled, and shall, moreover, produce the copy of an in- dictment found, or an affidavit made before a magistrate of the demanding state, charging the person so demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the de- manding state,°® it shall be the duty of the executive author- ity of the state on which the demand is made to cause him or her to be arrested and secured, and to give notice of the arrest to the executive authority making such demand, or to the agent of such authority appointed to receive the fugi- tive, and to cause the fugitive to be delivered to such agent when he shall appear. But if no such agent shall appear within six months from the time of the arrest, the prisoner ‘may be discharged.t1. There are further provisions which it is not necessary to mention. Our purpose is to treat the subject only in a general way. Auxiliary to this act, some of the states have enacted stat- utes providing, among other things, for the arrest of fugi- tives from justice before demand by the state from which they have fled; while in other states, on grounds of comity, such an arrest and detention is allowed independently of statutory provision.2. The executive on whom demand is 98 Const. U.S. art. 4, § 2. 99 A statement of the commission of a crime, without a copy of an affidavit, complaint, or indictment, is insufficient. In re Doo Woon (D. C.) 18 Fed. 898; Ex parte Pfitzer, 28 Ind. 451. 2 Rey. St. U. S. § 5278 (U. S. Comp. St. 1916, § 10126). 2 Com. v. Hall, 9 Gray (Mass.) 262, 69 Am. Dec. 285; Com. v. Tracy, 5 Mete. (Mass.) 5386; People v. Schenck, 2 Johns. (N. Y.) 479; In re Fetter, 23 N. J. Law, 311, 57 Am. Dec. 382; In re Cubreth, 49 Cal. 435; People v. Wright, 2 Caines (N. Y.) 213; State ex rel. Adams v. Buzine, 4 Har. (Del.) 572; Com. ex rel. Short v. Deacon, 10 Serg. & R. (Pa.) 74 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 made, if he complies with it, usually issues his warrant to the agent sent by the demanding executive, authorizing him to arrest and transport the fugitive, or he may issue his warrant to an officer of his own state, directing him to ar- rest the fugitive and turn him over to the agent of the de- manding state.® A fugitive cannot lawfully be surrendered, or even ar- rested, until proceedings have been commenced against him in the demanding state, making at least a prima facie show- ing of guilt, or, as expressed in the Constitution, until he is “charged” with a crime.* Thus he cannot be surrendered on the verdict of a coroner’s jury charging him with the commission of a crime.® An indictment or a complaint under oath is sufficient; but 125. But see Tullis v. Fleming, 69 Ind. 15. Some courts have held such an arrest legal when made without a warrant, and by a private person. Lavina v. State, 63 Ga. 513; Morrell v. Quarles, 35 Ala. 544. 8 There has been some conflict as to the requisites of the warrant. Some of the cases seem to require that it shall set out the evidence necessary to authorize the state executive to issue it. Church, Hab. Corp. § 474; Doo Woon’s Case (D. C.) 18 Fed. 898. But the weight of authority is to the contrary. ‘‘When the papers upon which a war- rant of extradition is issued are withheld by the executive, the war- rant itself can only be looked to for the evidence that the essential conditions of its issuance have been complied with, and it is sufficient if it recites what the law requires.” Donohue’s Case, 84 N. Y. 438. It is sufficient if it recites the affidavit or indictment on which it is based. It need not set it out in full nor be accompanied by it.. Bx parte Stanley, 25 Tex. App. 372, 8 S. W. 645, 8 Am. St. Rep. 440, and cases there cited. It need not show that the crime charged and re- cited in the demand is a crime in the demanding state. Ex parte Stanley, supra; In re Renshaw, 18 S. D. 32, 99 N. W. 83, 112 Am. St. Rep. 778. The Governor of whom the prisoner is demanded is justi- fied in returning him if it appears by the documents submitted that the accused was charged by indictment with a specified crime against the laws of the demanding state, and that he had become a fugitive from justice. There need not be any evidence of either fact before the Governor beyond the requisition papers, though the Governor may require such evidence if he see fit. The accused has no right to a hearing before the Governor. Marbles v. Creecy, 215 U. S. 68, 30 Sup. Ct. 32, 54 L. Ed. 92. 4 Ex parte White, 49 Cal. 433. 5 State v. Hufford, 28 Iowa, 391. . §§ 26-29) FUGITIVES FROM JUSTICE 5 whether a charge by information is enough is a point on which the authorities are not agreed. Some jurisdictions hold that, when prosecution by information is a legal method of prosecution in the demanding state, one against whom an information has been filed is “charged” with a crime within the meaning of the Constitution.® Others hold that a charge by information is not sufficient,’ unless the information amount to the affidavit prescribed by the act of Congress,® or there has been a conviction on the informa- tion.® The word “charged,” in the Constitution, covers the case of a person who has been actually convicted of a crime and has escaped from arrest or imprisonment, as well as that of a person who is merely sought for the purpose of trial.*° There must be evidence that the act charged against the fugitive is a crime under the law of the demanding state.** Some courts, however, will take judicial notice of the penal statutes of another state, and by an examination of such statutes alone determine whether the act charged constitutes acrime.*? Other states will take judicial notice only of the common law of the demanding state, and if the act charged is not-a common-law crime, and is not shown to be a stat- utory crime in the requisition papers, will refuse to sur- render the prisoner.*® 6In re Hooper, 52 Wis. 699, 58 N. W: 741; State v. Hufford, 29 Iowa, 391; People v. Stockwell, 185 Mich. 341, 97 N. W. 765. 7 Ex parte Bergman, 60 Tex. Cr. R. 8, 180 S. W. 174; Ex parte Hart (C. C.) 59 Fed. 894. 8 Ex parte Hart (C. C.) 59 Fed. 894. 9 ix parte Bergman, 60 Tex. Cr. R. 8, 130 S. W. 174. 10 In re Hope (Ex. Ch.) 10 N. ¥. Supp. 28; Ex parte Bergman, 60 Tex. Cr. R. 8, 180 S. W. 174. 11 Ex parte Sheldon, 34 Ohio St. 319. In Drew v. Thaw, 235 U. S. 482, 35 Sup. Ct. 187, 59 L, Hd. 302, Holmes, J., said: “It was suggest- ed, among other things, that it was not a crime for a man confined in . an insane asylum to walk out if he could, and that therefore a con- spiracy to do it could not stand in any worse case. But that depends on the statute” [of New York, from which state Thaw had fied]. 12 Bx parte Sheldon, supra. 13 State v. Swope, 72 Mo. 399. i ‘ 76 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 Whether one is a fugitive from justice is not to be hested or controlled by a statute of the demanding state.** If the fugitive is already actually charged with a crime in the state upon which demand is made, he need not be sur- rendered,?® though it is otherwise if he is merely amenable to a charge, no charge having yet been made.*® It would seem clear, from the constitutional provision and act of Congress above mentioned, that the executive 14 Ex parte Bergman, 60 Tex. Cr. R. 8, 130 S. W. 174. But the statute of limitation of the demanding state will be considered in granting the requisition. In re Bruce (C. C.) 182 Fed. 390. The pres- ence of the prisoner in the state need not be voluntary. It is suffi- cient if he “is found” there. Ex parte Innes (Tex. Cr. App.) 173 S. W. 291, L. R. A. 1916C, 1251. In this case the prisoner had commit- ted a crime in Georgia. She went from Georgia to Oregon, and was delivered by the Governor of Oregon to the authorities in Texas on a requisition from the Governor of Texas. While awaiting trial in Tex- as the Governor of Texas granted a requisition for her from the Gov- ernor of Georgia. When tried for the alleged crime committed in Tex- as, she was acquitted, whereupon instead of releasing her from custody she was immediately arrested on the requisition from Geor- gia. On habeas corpus, it was held that she could be legally surren- dered to the Georgia authorities, without first being allowed an op- portunity to return to Oregon. But see In re Hope (x. Ch.) 10 N. Y. Supp. 28. One convicted of an offense against a state, who before the expiration of his sentence was delivered to the federal authori- ties to serve out a prior sentence, is at the termination of that sen- tence a “fugitive from justice,’ and may be arrested by the state authorities. People ex rel. American Surety Co. v. Benham, 71 Misc. Rep. 345, 128 N. Y. Supp. 610. 15 In re Troutman, 24 N. J. Law, 634; Taylor v. Taintor, 16 Wall. 866, 21 L. Ed. 287; Taintor v. Taylor, 36 Conn. 242, 4 Am. Rep. 58; Ex parte Hobbs, 32 Tex. Cr. R. 312, 22 S. W. 1035, 40 Am. St. Rep. 782; Ex parte Sheldon, 34 Ohio St. 319; Work v. Corrington, 34 Ohio St. 64, 32 Am. Rep. 345; State v. Allen, 2 Humph. (Tenn.) 258; In re Opinion of the Justices, 201 Mass. 609, 89 N. H. 174, 24 L. R. A. (N. S.) 799. But if the Governor see fit to surrender him he may law- fully do so, and the accused cannot object. People ex rel. Gallagher v. Hagan, 34 Mise. Rep. 85, 69 N. Y. Supp. 475. Contra, In re Opin- ion of Justices, supra. In the case last cited the court holds that the act of the Governor of the state of refuge in returning a prisoner who is under sentence of a court of the state of refuge would be an un- lawful interference with the execution of the sentence of a co-ordi- nate branch of the government. 16 See the cases above cited, §§ 26-29) FUGITIVES FROM JUSTICE vere upon whom demand is made should have no discretion in the matter; that he cannot look beyond the requisition and the properly certified copy of the charge against the person demanded, and proof as to the identity of the person de- manded, and the fact that he is a fugitive.’ He should not receive evidence and determine the question of guilt or innocence of the crime charged,’® nor should he determine the technical sufficiency of the charge,’® or look into the mo- tive or purpose of the demanding executive, and so it has been held; *° but there are cases to the contrary.2* How- ever this may be, the executive of the state upon which the demand is made can determine the question for himself; that is, he has the power, as distinguished from the right to do so. If he thinks proper to exercise a discretion in the 17 In re White, 55 Fed. 54, 5 ©. C. A. 29. 18 In re White, supra; Drew v. Thaw, 235 U. S. 482, 35 Sup. Ct. 187, 59 L. Ed. 302. 19 State v. O’Connor, 38 Minn. 243, 36 N. W. 462; Ex parte Sheldon, 34 Ohio St. 319; In re Voorhees, 32 N. J. Law, 141: Davis’ Case, 122 Mass. 324; Ex parte Pearce, 32 Tex. Cr. R. 301, 23 S. W. 15; In re Renshaw, 18 S. D. 32, 99 N. W. 83, 112 Am. St. Rep. 778. The in- formation, complaint, or affidavit, however, must charge a definite offense in the demanding state. State v. O’Connor, supra; Smith v. State, 21 Neb. 552, 32 N. W. 594. An affidavit that affiant “has rea- son to believe, and does believe,” that the alleged fugitive committed a certain crime, is not sufficient. Ex parte Spears, 88 Cal. 640, 26 Pac. 608, 22 Am. St. Rep. 341. 20 Work v. Corrington, 34 Ohio St. 64, 32 Am. Rep. 345; In re Man- chester, 5 Cal. 237; Kingsbury’s Case, 106 Mass. 223; In re Clark, 9 Wend. (N. Y.) 212; Ex parte Reggel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Eid. 250; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544; Ex parte Swearingen, 13 8S. C. 74. The motive for the pros- ecution cannot be inquired into; e. g., that the prosecution was inau- gurated for the purpose of collecting a debt. Com. v. Superintendent of Philadelphia Co. Prison, 220 Pa. 401, 69 Atl. 916, 21 L. R. A. (N. S.) 989. Drew v. Thaw, 235 U. 8. 432, 35 Sup. Ct. 1387, 59 L. Hd. 302. There are statutes in some of the states making the surrender obliga- tory. See, also, Pearce v. Texas, 155 U. 8S. 116, 15 Sup. Ct. 116, 39 L. Ed. 164; In re Sultan, 115 N. C. 57, 20 8. E. 375, 28 L. R. A. 294, 44 Am. St. Rep. 433; In re Van Sciever, 42 Neb. 772, 60 N. W. 1037, 47 Am. St. Rep. 730. 21 Kentucky v. Dennison, 24 How. 66, 16 L. Ed. 717; Hartman v. Aveline, 63 Ind. 344, 30 Am. Rep. 217; Kimpton’s Case, 138 Am. Law Rev. 157. 78 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 matter, and to deny the requisition, contrary to the act of Congress, there is no way in which his action can be con- trolled, for the federal government cannot control it.22 The executive on whom the demand is made may revoke his warrant at any time before its execution, if he is satisfied that it ought not to have been issued.?* The words “other crimes,” in the constitutional provi- sion above referred to, include all crimes under the common law or statutes of the demanding state, though mere mis- demeauors, and though not crimes in the state upon which the demand is made.?4 The person demanded must have been within the demanding state, and departed out of it, or there can have been no “fleeing,” within the meaning of the constitution. A person, therefore, who commits an act without, taking effect and constituting a crime within, a state,?®> but who has never been within the state, cannot be demanded of the other state.?° There need not, on the other 22 Kentucky v. Dennison, 24 How. 66, 16 L. Ed. 717; In re Man- chester, 5 Cal. 237. 23 Work v: Corrington, 34 Ohio St. 64, 32 Am. Rep. 345. 24 Kentucky v. Dennison, 24 How. 66, 16 L. Ed. 717; Ex parte Reg- gel, 114 U. S. 642, 5 Sup. Ct. 1148, 29 L. Hd. 250; Brown’s Case, 112 Mass. 409, 17 Am. Rep. 114; In re Clark, 9 Wend. (N. Y.) 212; People v. Brady, 56 IN. Y. 182; State ex rel. Brown v. Stewart, 60 Wis. 587, 19 N. W. 429, 50 Am. Rep. 388; In re Voorhees, 32 N. J. Law, 141; In re Fetter, 23 N. J. Law, 311, 57 Am. Dec. 382; Johnston v. Riley, 13 Ga. 97; Taylor v. Taintor, 16 Wall. 366, 21 L. Ed. 287; Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544; Com. v. Green, 17 Mass. 515; Davis’ Case, 122 Mass. 324; Com. v. Johnston, 12 Pa. Co. Ct. R. 263; Morton v. Skinner, 48 Ind, 123; Wilcox v. Nolze, 34 Ohio St. 520. 25 Clark, Cr. Law (8d Ed.) 485. 26 Jones v. Leonard, 50 Iowa, 106, 32 Am. Rep. 116; Hartman vy. Aveline, 63 Ind. 344, 30 Am. Rep. 217; Ex parte Reggel, 114 U.S. 642, 5 Sup. Ct. 1148, 29 L. Ed. 250; In re Greenough, 31 Vt. 279; Jackson’s Case, 12 Am. Law Rev. 602, Fed. Cas. No. 7,125; Wilcox v. Nolze, 34 Ohio St. 520; In re Mohr, 73 Ala. 503, 49 Am. Rep. 63. A man stand- ing in North Carolina, by shooting across the boundary into Tennes- see, killed a man in the latter state. It was held that he could not be tried and punished in North Carolina, as the murder was committed in Tennessee. State v. Hall, 114 N. C. 909, 19 S. BE. 602, 28 L. R. A. 59, 41 Am. St. Rep. 822. The authorities of Tennessee then sought to extradite the offender, but the North Carolina court held that he §§ 26-29) FUGITIVES FROM JUSTICE 79 hand, have been an actual “fleeing from justice,” as the term is popularly understood. A man who while in one state commits a crime there, and afterwards goes into another state, though for other reasons than to escape, may be ex- tradited.?7 As we have seen, a fugitive extradited from a foreign country, by virtue of provisions of a treaty between that country and the United States, cannot be tried for an of- fense other than that for which he was extradited. A few courts have held that the same rule applies in the case of interstate extradition; ?® but the great weight of authority is to the effect that “a fugitive from justice, surrendered by one state upon the demand of another, is not protected from prosecution for offenses other than that for which he was rendered up, but may, after being restored to the demanding state, be lawfully tried and punished for any and all crimes could not be surrendered, since, never having been in Tennessee, he could not be a fugitive from the justice of that state. State v. Hall, 115 IN. C. 811, 20 8S. E. 729, 28 L. R. A. 289, 44 Am. St. Rep. 501. In this case the authorities are collected, and the question is considered at length. The legislature could provide for a surrender in such eases. Id. 27In re Voorhees, 32 N. J. Law, 141; Kingsbury’s Case, 106 Mass. 223; In re White, 55 Fed. 54, 5 C. C. A. 29; In re Mohr, 78 Ala. 5038, 49 Am. Rep. 68; Ex parte Brown (D. C.) 28 Fed. 653; Roberts v. Reil- ly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Eid. 544; State v. Richter, 37 Minn. 436, 35 N. W. 9; Drew v. Thaw, 235 U. S. 432, 35 Sup. Ct. 187, 59 L. Ed. 302; In re Bruce (C.,C.) 182 Fed. 390. It has even been held that where a person organizes a bank in which he is an officer, and the business of which is under his control, and afterwards goes to another state, and allows the bank, while to his knowledge in an in- solvent condition, to receive a deposit, in violation of the law of the state, he is guilty of the offense, though not in the state at the time of the deposit or afterwards, and is a fugitive from the justice of that state. In re Cook (C. C.) 49 Fed. 833. See, also, In re Sultan, 115 N. ©. 57, 20 S. E. 375, 28 L. R. A. 294, 44 Am. St. Rep. 433. One is no less a “fugitive from justice” because he left the state when the crime was committed with the knowledge of and without objection by the authorities of the state. Bassing v. Cady, 208 U. S. 386, 28 Sup. Ct. 392, 52 L. Ed. 540, 18 Ann. Cas. 905. 28 Wx parte McKnight, 48 Ohio St. 588, 28 N. BE 1034, 14 L, R. A. 128; In re Fitton (C. C.) 45 Fed. 471. 80 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 committed within its territorial jurisdiction, either before or after extradition.” *° What we have said as to the right of one country to try and punish a person forcibly abducted from another, applies also where a person is forcibly abducted from one state and brought into another.®° SEARCHES AND SEIZURES OF PROPERTY 30. At common law, as well as by statute in most states, a magistrate, to recover stolen property or pro- cure evidence of a crime, may issue a warrant di- recting a search for, and seizure of, property. 31. To authorize the issuance of such a warrant, the same preliminary proceedings are generally necessary as are necessary to procure a warrant of arrest. 29 Lascelles v. Georgia, 148 U. S. 537, 13 Sup. Ct. 687, 37 L. Ed. 549; Id., 90 Ga, 347, 16 S. B. 945, 35 Am. St. Rep. 216; State ex rel. Brown v. Stewart, 60 Wis. 587, 19 N. W. 429, 50 Am. Rep. 388; People ex rel. Post v. Cross, 64 Hun, 348, 19 N. Y. Supp. 271; Id., 185 N. Y. 536, 32 N. E. 246, 31 Am. St. Rep. 850; Com. v. Wright, 158 Mass. 149, 33 N. E. 82,19 L, R. A. 206, 35 Am. St. Rep. 475; State v. Patterson, 116 Mo. 505, 22 S. W. 696; Harland v. Territory, 3 Wash. T. 131, 13 Pac. 453; Williams v. Weber, 1 Colo. App. 191, 28 Pac. 21; Ham v. State, 4 Tex. App. 645; State v. Glover, 112 N. C. 896, 17 S. E. 525; People ° v. Sennott, 20 Alb. Law J. 230; Hackney v. Welsh, 107 Ind. 253, 8 N. BE. 141, 57 Am. Rep. 101. But see Waterman .v. State, 116 Ind. 51, 18 N. E. 63, in which the contrary seems to be assumed; Musgrave v. State, 133 Ind. 297, 32 N. E. 885; State v. Kealy, 89 Iowa, 94, 56 N. W. 283; Reid v. Ham, 54 Minn. 305, 56 N. W. 35, 21 lL. R. A. 232, 40 Am. St. Rep. 333; note 95, p. 71. In re Flack, 88 Kan. 616, 129 Pac. 541, 47 L. R. A. (N. S.) 807, Ann. Cas. 1914B, 789, overruling State v. Hall, 40 Kan. 338, 19 Pac. 918, 10 Am. St. Rep. 200; In re Little, 129 Mich. 454, 89 N. W. 38, 57 L. R. A. 295; Rutledge v. Krauss, 73 N. J. Law, 397, 68 Atl. 988. The same conflict exists as to the right to arrest in a civil action after extradition for a crime. See Weale v. Clinton Circuit Judge, 158 Mich. 563, 123 N. W. 31; In re Walker, 61 Neb. 803, 86 N. W. 510. Where fraud or imposition is practiced upon the executive of the state from which the fugitive is extradited, the courts of the demanding state will discharge the prisoner. Harland v. Territory, supra. See, also, Carr y. State, 104 Ala. 4, 16 South. 150. 30 Notes 94-96, p. 71, supra. §§ 30-33) SEARCHES AND SEIZURES OF PROPERTY 81 32. The requisites of a search warrant are generally the same as the requisites of a warrant of arrest, ex- cept as the difference in the purpose of the war- rant renders them different. A search warrant— (a) Must accurately describe the person whose place is to be searched, the place, and the property to be seized. (b) It must command the property to be brought before _ the magistrate. (c) It must generally, both at common law and by stat- ute, direct the search to be made in the daytime. In special cases it may direct a search in the night- time. 33. A search warrant will protect the officer or person exe- cuting it under the same circumstances as a war- rant of arrest will protect him. The Constitution of the United States declares that the people shall be secure in their. persons, houses, papers, and possessions, from unreasonable arrests, and that no war- rant to search any place, or seize any person or thing, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation. This provision does not apply to searches and seizures un- der authority of the states,** but the state constitutions contain the same or a similar restriction. The provision is substantially a declaration of the common law. It does not prohibit such searches and seizures as were authorized by the common law, nor does it prohibit statutes authoriz- ing reasonable searches and seizures in cases not within the common law.®? It does, however, prohibit unreasonable searches and seizures, even under legislative authority, for a statute in violation of the Constitution is void. At common law, in order to recover stolen property, or, 31 Reed v. Rice, 2 J. J. Marsh. (Ky.) 44, 19 Am. Dec. 122; Weeks v. U. S., 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann, Cas. 1915C, 1177. 32 Com. v. Dana, 2 Metc. (Mass.) 336; Allen v. Staples, 6 Gray (Mass.) 491; Santo v. State, 2 Iowa, 165, 683 Am. Dec. 487. CLARK Cr.PROC.(2D Ep.) —6 82 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 it seems, to procure evidence of a crime, a magistrate, on a proper complaint, may issue a warrant directing the officer, or, as held by some courts, a private person,*® to whom it is addressed, to make a search for and seize the property de- scribed in the warrant.** Such warrants are expressly au- thorized by statute in most of the states, and in addition to this there are statutes authorizing search warrants in cases not covered by the common law, such as warrants to search for and seize intoxicating liquors, lottery tickets, gambling apparatus, etc., kept in violation of law. , Not only under the statutes and the constitutional pro- vision mentioned above, but also at common law, to author- ize the issuance of a search warrant, there must be a com- plaint on oath or affirmation. This is essential. The usual form of a complaint for the purpose of obtaining a warrant to search for stolen property is for the complainant to aver in direct terms the fact that the property has been stolen, and then to aver that he hath cause to suspect, and doth suspect, that it is secreted in the house or place proposed to be searched.*® The form of the complaint ** in statu- 33 Meek vy. Pierce, 19 Wis. 300; ante, p, 39. 341 Chit. Cr. Law, 68; Bell v. Clapp, 10 Johns. (N. Y.) 263, 6 Am. Dec. 339; State v. Miller, 48 Me. 576; Allen v. Colby, 47 N. H. 544. 35 Com. v. Phillips, 16 Pick. (Mass.) 214. 36 The following is a form of complaint to procure a warrant to search for and seize stolen property, and to arrest the person in whose possession it is found: State (or Commonwealth) of , County of , to wit: A. B., upon oath, complains that on the day of , A.D. , in the county aforesaid, one overcoat of the value of twenty- five dollars, of the goods and chattels of the said A. B., was feloni- ously stolen, taken, and carried away from him by C. D., and that he has just cause to suspect, and does suspect, that the said property is concealed in the dwelling house of the said C. D., at , in said county. The said A. B. therefore prays that the said dwelling house may be searched, and the said stolen property seized and disposed of accord- ing to law, and that the said C. D. may be apprehended and dealt with according to law. Dated this day of , A. D. [Signed] A. B. (Here follows the jurat of the justice as in the form on page 29, ante.) §§ 30-33) SEARCHES AND SEIZURES OF PROPERTY 83 tory cases is generally regulated by the statute. The facts inducing suspicion should be stated so that the magistrate may determine whether there is probable cause, for, in the absence of this, a warrant cannot be issued.*? The war- rant ** should show that the necessary’ complaint under oath or affirmation was made.*® Some courts hold that it must be under seal, but, as we have seen, there is a conflict on this point.*® General search warrants, like general warrants of arrest, are void. Not more than one place can be named in one warrant.*+ To be valid, the warrant must accurately de- scribe the person whose place is to be searched, the place, and the things to be seized.4?, No other place than that 371 Chit. Cr. Law, 64; Sandford v. Nichols, 18 Mass. 286, 7 Am. Dec. 151; Com. v. Lottery Tickets, 5 Cush. (Mass.) 369. 38 The following is a form of a search warrant. But the form may differ in the various states: State (or Commonwealth) of , County of , to wit: To the Sheriff or any Constable of said County: Whereas, A. B., of the county aforesaid, has this day made com- plaint on oath, before me, X. Y., a justice of the peace of said county, that on the day of , A. D. , in said county, one overcoat, of the value of twenty-five dollars, of the goods and chattels of the said A. B., was feloniously stolen, taken, and carried away by C. D., and that he has just cause to suspect, and does suspect, that the said property is concealed in the dwelling house of the said C. D., at , in said county. Now, therefore, you are commanded to search the said dwelling house, and seize said stolen property, and bring the same, and the said C. D., the person in whose possession it is found, before me at my office in said county, to be disposed of and dealt with according to law. Given under my hand and seal this day of , A. . & [Signed] X.Y., J.P. [Seal.] 39 State v. Staples, 37 Me. 228; State v. Spirituous Liquors, 39 Me. 262; Jones v. Fletcher, 41 Me. 254. 40 People v. Holcomb, 3 Parker, Cr. R. (N. Y.) 656; ante, p. 34. 41 State v. Duane, 100 Me. 447, 62 Atl. 80. | 42 Reed v. Rice, 2 J. J. Marsh. (Ky.) 44, 19 Am. Dec. 122; Sandford v. Nichols, 18 Mass. 286, 7 Am. Dec. 151; Grumon vy. Raymond, 1 Conn. 40, 6 Am. Dec. 200; Humes v. Taber, 1 R. I. 464; People v. Holcomb, 8 Parker, Cr. R. (N. Y.) 656; Santo v. State, 2 Iowa, 165, 63 Am. Dec. 487; Meek v. Pierce, 19 Wis. 300; Stone v. Dana, 5 Mete. (Mass.) 98; . D. ‘ 84 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 described can be searched,*® and it has been held that no other property than that described can be seized.** It has been held sufficient, where the warrant and the complaint on which it is issued are on the same paper, for the warrant to refer to the complaint for a description of the property to be seized.*® The warrant must command that the property to be seized shall be brought before the magistrate, to be dis- posed of according to law. It is void if it leaves the dispo- sition of the property to the ministerial officer.*® The rules in regard to breaking doors in executing a search warrant are substantially the ‘same as those stated in treating of arrest under a warrant. As a rule, locks _ Should not be broken until the keys are demanded and re- fused, provided there is any person at hand upon whom demand may be made.*” The statutes authorizing search warrants must in all cases be strictly complied with. Some of the statutes, for instarice, require the complaint to be fully set forth in the warrant, and a warrant failing to comply with the statute, as where it fails to name the complainants, is void.*® It is possible that a search warrant may direct a search to Ashley v. Peterson, 25 Wis. 621; Dwinnels v. Boynton, 3 Allen (Mass.) 310; Com. v. Certain Intoxicating Liquors, 109 Mass. 371; Com. v. Certain Intoxicating Liquors, 115 Mass. 145; Jones v. Fletcher, 41 Me. 254; Mlaherty v. Longley, 62 Me. 420; Tuell v. Wrink, 6 Blackf. (Ind.) 249; State v. Whiskey, 54 N. H. 164; U.S. v. Mills (C. C.) 185 Fed. 318. For descriptions of property held sufficient, see State v. Fitzpatrick, 16 R. I. 54, 11 Atl. 767. For description of premises held sufficient, see Com. v. Intoxicating Liquors, 146 Mass. 509, 16 N. BE. 298. 43 See the cases above cited; and see State v. Spencer, 38 Me. 30; Jones v. Fletcher, 41 Me, 254; McGlinchy v. Barrows, 41 Me. 74; State v. Thompson, 44 Iowa, 399. But see Dwinnels v. Boynton, supra. 44 Crozier v. Cundey, 6 Barn. & C. 232, 9 Dowl. & R, 224; Stone v. Dana, 5 Metc. (Mass.) 98. 45 Com v. Dana, 2 Metc. (Mass.) 329. 46 Cooley, Const. Lim. 369. 47 Androscoggin R. Co, v. Richards, 41 Me. 233. 48 Guenther v. Day, 6 Gray (Mass.) 490. And see Hussey. y. Davis, 58 N. H. 317. § 34) TAKING PROPERTY FROM PERSON ARRESTED 85 be made in the nighttime, but it is doubtful, except in cases of special necessity.*® However this may be, the statutes very generally require that searches shall be made in the daytime only, except in special cases.°° Where they al- low a search in the nighttime, it may, of course, be made.** A search warrant will protect the officer executing it un- der the same circumstances as a warrant of arrest will pro- tect him. Indeed, the rules stated in treating of warrants of arrest are generally applicable to search warrants, except in so far as the difference in the object of the warrant may make them inapplicable. TAKING PROPERTY FROM PERSON ARRESTED 34. Property found in the possession of a person arrested cannot be taken from him and turned over to the magistrate, unless it was apparently used in com- mitting the crime, or is the fruit of the crime, or furnishes the prisoner the means of committing violence or escaping, or may be used as evidence. If personal property, found in the possession of a person when he is arrested, was apparently used by him in the com- mission of the crime, or if it was obtained by the crime, or if by its means the prisoner may commit violence, or effect an escape, or if it may be used as evidence against him, it is lawful for the person making the arrest to take it from him; *? but a prisoner cannot be deprived of his mon- ey or other property if it is in no way connected with the 492 Hale, P. C. 150. 50 Cooley, Const. Lim. 369. 51 Com, v. Hinds, 145 Mass. 182, 13 N. E. 397, 521 Bish. Cr. Proc. §§ 210-212; Reifsnyder v. Lee, 44 Iowa, 101, 24 Am, Rep. 733; Commercial Exch. Bank v. McLeod, 65 Iowa, 665, 19 N. W. 829, and 22 N. W. 919, 54 Am. Rep. 36; Houghton v. Bachman, 47 Barb. (N. Y.) 888; Rex v. Burgiss, 7 Car. & P. 488. Such property cannot be seized, even though it affords evidence against the prisoner of the commission of a similar crime to that for which the arrest is made, U.S. v. Mills (C. C.) 185 Fed. 318, 86 APPREHENSION OF PERSONS AND PROPERTY (Ch. 2 charge or proof against him, or may not be used by him in violence or in escaping. “To take away the party’s money in such cases is to deprive him of the lawful means of defense.” § The fact, however, that property has been il- legally obtained from’a person, renders it none the less competent evidence against him.>* 53 Reg. v. McKay, 3 Crawf. & D, 205; Rex v. Kinsey, 7 Car. & P. 447; Rex v. O'Donnell, Id. 188; Rex v. Jones, 6 Car. & P. 348; Com- mercial Exch. Bank v. McLeod, supra; Welch v. Gleason, 28 S. C. 247, 5 S. EH. 599. 54 Post, p. 633; State v. Flynn, 36 N. H. 64; Williams v. State, 100 Ga. 511, 28 S. EH. 624, 39 L. R. A. 269; State v. Pomeroy, 130 Mo. 489, 82 S. W. 1002; State v. Griswold, 67 Conn. 290, 34 Atl. 1046, 33 L. R. A. 227. The introduction in evidence of papers unlawfully taken from defendant is not a violation of the constitutional provision against compelling a person to testify against himself. State v. Pomeroy, supra; People v. Adams, 176 N. Y. 351, 68 N. E. 636, 63 L. R. A. 406, 98 Am. St. Rep. 675; Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575. But see State v. Sheridan, 121 Iowa, 164, 96 N. W. 730; State v. Height, 117 Iowa, 650, 91 N. W. 935, 59 L. R. A. 487, 94 Am. St. Rep. 323; State v. Slamon, 73 Vt. 212, 50 Atl. 1097, 87 Am. St. Rep. 711; State v. Krinski, 78 Vt. 162, 62 Atl. 37. See 4 Wigmore, Ev. § 2264, § 85) PRELIMINARY EXAMINATION, BAIL, COMMITMENT 87 CHAPTER III PRELIMINARY EXAMINATION, BAIL, AND COMMITMENT 85. Preliminary Examination. 86. Bail—In General. 37-38. Right to Release on Bail. 389. Sufficiency of Bail. 40. Remedy of Accused on Denial of Bail. 41. The Bond or Recognizance. 42. Release of Sureties. 43. Breach of Bond or Recognizance, or Forfeiture of Bail. 44. Commitment. 45. Habeas Corpus. PRELIMINARY EXAMINATION 35. Both at common law, and very generally by statutes in the different states, a person arrested on a charge of crime is entitled to a preliminary examination before a proper magistrate, without unnecessary delay, to determine whether a crime has in fact been committed, and, if so, whether there is prob- able cause to suspect that he is guilty of its com- mission. Without such an examination as soon as the circumstances will permit, the detention of the accused will be unlawful. EXCEPTIONS—(a) The right to an examination may be waived by the accused. (b) An examination is not necessary where the ac- cused is a fugitive from justice. (c) A ccoroner’s inquest and commitment in homicide cases is equivalent to an examination before a magistrate, in the absence of a statutory pro- vision to the contrary. (d) If an indictment against the accused has been found by the grand jury, an examination be- fore a magistrate is not necessary. 88 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch. 3 When an offender or suspected offender has been arrested in any of the modes mentioned in the preceding chapter, he must, as soon as the circumstances will permit, be taken before a proper magistrate, and given a preliminary hearing Or examination, for the purpose of determining whether there is sufficient ground for detaining him for trial. In most of the states, if not in all of them, it is so provided by statute, but, independently of any statutory provision on the subject, a preliminary examination is necessary at com- mon law. If it is denied the accused, or if it is illegally con- ducted, his detention will be unauthorized 2 There are some exceptions to this rule. In the first place, the right to an examination is a right which the accused may waive.? The waiver, however, to be effective against him, must have been made freely. A waiver under fear of personal violence cannot estop him from claiming this right.2 Generally, it is provided that informations may be filed without a preliminary examination, where the accused is a fugitive from justice.* In the absence of statutory provision to the contrary, the accusation returned by a coroner’s jury upon an inquisition, and the commitment by the coroner, have the force and effect of an examination and commitment by a magistrate, though the inquisition was held in the absence of the ac- cused. At common law, the accused can be tried on such 1 Simmons y. Vandyke, 188 Ind. 380, 87 N. EK. 978, 26 L. R. A. 33, 46 Am. St. Rep. 411; Devine v. State, 4 Iowa, 443; Papineau v. Ba- econ, 110 Mass. 319; State v. Miller, 31 Tex. 564; Jackson vy. Com., 23 Grat. (Va.) 919; State v. Pay, 45 Utah, 411, 146 Pac. 300. 2 State v. Cobb, 71 Me. 198; Stuart v. People, 42 Mich. 255, 3 N. W. 863; In re Malison, 36 Kan. 729, 14 Pac. 144; Butler v. Com., 81 Va. 159; Cowell v. Patterson, 49 Iowa, 514; State v. Mays, 24 S. C. 190; Benjamin v. State, 25 Fla. 675, 6 South. 433; McCoy v. State, 46 Ark. 141; Washburn vy. People, 10 Mich. 372; People v. Jones, 24 Mich. 215; People v. Wright, 89 Mich. 70, 50 N. W. 792. But see Bx parte Ah Bau, 10 Nev. 264. See, for waiver by neglect to object be- fore plea, People v. Ronsse, 26 Cal. App. 100, 146 Pac. 65. : 8 In re Malison, supra. 4 People v. Kuhn, 67 Mich. 463, 35 N. W. 88; State v. Woods, 49 Kan. 237, 30 Pac. 520. § 35) PRELIMINARY EXAMINATION 89 an accusation. It is equivalent to an indictment.® This, of course, can apply only in cases of homicide. The examination before a magistrate has nothing to do with the finding of an indictment against the accused by the grand jury, unless by reason of statutory provisions, as, for instance, where an indictment is allowed to be based upon the minutes of the preliminary examination. The two pro- ceedings are entirely distinct. The fact, therefore, that the grand jury are investigating the charge against the accused does not deprive him of his right to an examination before a magistrate to determine whether he should be held to await the decision of the grand jury. A discharge by the magistrate would not prevent an indictment by the grand jury; and an indictment would itself authorize or require detention of the accused, so that after an indictment an examination would be an idle ceremony, and therefore un- necessary. It is required, both by the statutes and at common law, that the examination shall be had without any further delay than the circumstances render unavoidable.’ Unnecessary delay will render the detention of the accused a false im- prisonment. At common law the hearing may be adjourn- ed from time to time for good cause, or with consent of the 5 Ix parte Anderson, 55 Ark. 527, 18 S. W. 856; Com. v. Lafferty, 11 Pa. Co. Ct. R. 513; post, p. 148. 6 State ex rel. Matranga v. Recorder, 42 La. Ann. 1091, 8 South. 279, 10 L. R. A. 187. 7 Seavage v. Tateham, Cro. Bliz. 829; In re Peoples, 47 Mich. 626, 14 N. W. 112; Davis v. Capper, 10 Barn. & C. 28; Wright v. Court, 4 Barn. & C. 596; State v. Freeman, 86 N. C. 683; and see cases here- after cited. If a prisoner cannot be brought before a magistrate on the night of his arrest, the officer may place him in jail for the night. Wiggins v. Norton, 83 Ga. 148, 9 S. E. 607. See further, as to neces- sary delay, Arnold v. Steeves, 10 Wend. (N. Y.) 515; Wheeler v. Nes- bitt, 24 How. 544, 16 L. Ed. 765. A party may waive his right to be immediately taken before a magistrate. Nowak v. Waller, 56 Hun, 647. 10 N. Y. Supp. 199. 8 Tubbs v. Tukey, 3 Cush. (Mass.) 438, 50 Am. Dec. 744; Davis v. Capper, supra; State v. Kruise, 32 N. J. Law, 313. Statutes in some jurisdictions provide that on the return of the warrant, with the ac- cused, the justice shall proceed to hear, try, and determine the case within oné day, unless continued for cause. See Hepler v. State, 43 Wis. 479. 90 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch. 3 defendant.® The length of time is now very generally lim- ited by statute; but, even at common law, an adjournment for an unnecessary length of time is unlawful.?° In no case, unless a statute should expressly so permit, can the hearing be adjourned to await the mere convenience of the magis- trate or the prosecuting officers.*+ Before Whom At common law, and by the statutes in most of the states, the officer may, unless the warrant directs otherwise, take his prisoner either before the magistrate who issued the warrant, or before any other magistrate having jurisdiction of the offense.1?_ In other states he can only take him be- fore the magistrate who issued the warrant, unless he is absent, in which case he may take him before some other magistrate.+% In some states the statutes provide for a change of venue to some other justice on the ground of prejudice, or for other reasons; 1* but in others, where the statutes providing for a change of venue from one justice to another do not expressly mention preliminary examinations, it has been held, on a construction of them, that they do not apply to such examinations, but only to actions or proceedings which the justice has power to try and determine.*® 9 Chitty, Cr. Law, 73. If the order of adjournment is apparently for the benefit of the accused, is made in his presence, and without objection by him, it will be presumed that he consented to it. Com. y. Vincent, 160 Mass. 280, 35 N. BH. 852. 10 Davis v. Capper, supra; Hamilton v. People, 29 Mich. 173; Par- dee v. Smith, 27 Mich. 48. An adjournment for an unreasonable time, or for a greater length of time than is fixed by statute, may render the magistrate and the officer having the custody of the ac- cused guilty of false imprisonment. Davis v. Capper, supra. 11 In re Peoples, supra. Absence of the county attorney from the county, when a warrant is returned to a justice, is ground for a rea- sonable continuance. State v. Nerbovig, 33 Minn. 480, 24 N. W. 321. 12 Joster’s Case, 5 Coke, 59; Com. v. Wilcox, 1 Cush. (Mass.) 503; Wiggins v. Norton, 83 Ga. 148, 9 S. E. 607; ante, p. 68. 13 Batchelder v. Currier, 45 N. H. 460; People v. Fuller, 17 Wend. «N. Y.) 211. 14 State v. Sorenson, 84 Wis. 27, 53 N. W. 1124. 15 Duffies v. State, 7 Wis. 672; State v. Bergman, 37 Minn. 407, 34 N. W. 737. ‘ § 35) PRELIMINARY EXAMINATION 91 Mode of Conducting Examination The mode in which a preliminary examination must be conducted is almost entirely regulated by statute, and these statutes must be strictly followed; or the proceedings will be void."® Same—Complaint It is generally required that a complaint shall be made against the accused. Where the accused has been arrested by warrant, the complaint made for the purpose of pro- curing the issuance of the warrant serves in most states as the complaint for the purpose of the examination. A com- plaint is just as necessary where the arrest has been made without a warrant.17 In some states it is held, however, that, as the complaint or affidavit made for the purpose of procuring an arrest is merely for the purpose of satisfying the magistrate that a crime has been committed and that there is probable cause to suspect the accused, if it is defective it will not invalidate the subsequent examination and commitment of the ac- cused; that the accused can only avail himself of defects therein before his examination and commitment.*® And it is also held that if, upon the examination, it is found that the accused is probably guilty of an offense other than that charged in the complaint, he should not for that reason be discharged. It is the duty of the magistrate to commit him for trial for the offense disclosed by the evidence.*® Even when a complaint is essential, yet where it is insuffi- .cient, because it fails to charge an offense, or because it does not charge the particular offense of which the evidence shows the accused is probably guilty, or for any other rea- son, the magistrate is not bound to discharge him, but may hold him until a new complaint is made.?° 16 Devine v. State, 4 Iowa, 448; Papineau v. Bacon, 110 Mass. 319; Jackson v. Com., 23 Grat. (Va.) 919. 17 Tracy v. Williams, 4 Conn. 107, 10 Am. Dec, 102. No warrant need be issued, however, as that would be unnecessary. Ante, p. 46. 18 People v. Smith, 1 Cal. 9. 19 People v. Smith, supra ; People v. Wheeler, 73 Cal. 252, 14 Pac. 796; Ex parte Burke, 58 Miss. 50. 20 See State v. Shaw, 4 Ind. 428. 92 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch. 3 In some states the complaint made for the arrest and ex- amination of the accused is of no force after the warrant of arrest is issued. The examination is had upon the warrant, and not upon the complaint. Same—Attorneys for the State and for the Accused The state is generally, but not necessarily, represented at the hearing by the prosecuting attorney. The prosecutor, unless it is prohibited by law, may also employ private counsel to assist.24_ At common law it was held that the accused had no right to be represented by counsel, since the proceeding is a preliminary investigation only, and not con- clusive upon him;?? but by constitutional provisions and by statute in most of the states he is given this right.?® Same—Presence of Accused Probably at common law the accused could not insist on being present at the hearing, but it is very generally pro- vided by statute that the examination shall be conducted in his presence.?* Same—Intimidation and Restraint of Accused The accused, when brought before a magistrate for his examination, should not be subjected to intimidation or un- necessary personal restraint. He should not be handcuffed or otherwise bound, unless he is unruly.25 The mere fact, however, that he was handcuffed when he waived his exami- nation will not affect the validity of a subsequent indict- ment.?® Same—Examination of Witnesses At common law witnesses for the accused are not neces- sarily examined at the preliminary hearing, and the accused 21 People ex rel. Howes v. Grady, 66 Hun, 465, 21 N. Y. Supp. 381. 22 Cox v. Coleridge, 1 Barn. & C. 37. 23 People vy. Napthaly, 105 Cal. 641, 39 Pac. 29; People v. Fuller (Sup.) 68 N. Y. Supp. 742. If counsel is not present, statutes provide that a reasonable time must be allowed defendant to procure coun- sel. People v. Napthaly, supra. This right to counsel may be waiv- ed, however. People v. Elliott, 80 Cal. 296, 22 Pac. 207. 24 People vy. Napthaly, 105 Cal. 641, 39 Pac. 29. 252 Hawk. P. C. c. 28, § 1; Britt. ¢c. 5, fol. 14; State v. Kring, 64 Mo. 591; People v. Harrington, 42 Cal. 165, 10 Am. Rep. 296. 26 State v. Lewis, 19 Kan. 260. \ § 35) PRELIMINARY EXAMINATION 93 probably cannot insist upon their being examined ;?7 but the better practice is to examine them if the accused asks it, and if their testimony may aid in determining whether there is probable cause.28 In some states the statute expressly provides that the witnesses produced by the accused shall be examined. The accused is also allowed by statute, though not at common law, to cross-examine the witnesses against him. It is generally provided by statute that the magistrate, while examining any witness, may in his discretion exclude from the place of examination all the other witnesses; and that he may also, if requested, or if he sees cause, direct the witnesses for or against the accused to be kept separate, so that they cannot converse with each other until they are examined. This discretionary power has always existed at common law. In the absence of statute, the evidence need not be reduced to writing.?® It is provided in some states that the testimony of the witnesses examined shall be re- duced to writing by the magistrate, or under his direction, and shall be signed by the witnesses.*° A failure in this respect will be fatal to all subsequent proceedings, where the subsequent prosecution is by information.** Same—Examination of Accused It is provided by the Constitutions of the United States, and of most if not all the states, that no person shall be compelled to be a witness against himself in a criminal case, and the accused, therefore, cannot be examined as a wit- 27 See U. S. v. White, 2 Wash. C. C. 29, Fed. Cas. No. 16,685. 28 Whart. Cr. Pl. & Prac. § 72; Anon., 2 Car. & K. 845. 29 Redmond vy. State, 12 Kan. 172. 30 State v. Flowers, 58 Kan. 702, 50 Pac. 938; People v. Brock, 64 Mich. 691, 31 N. W. 585. Some statutes provide that the evidence must be reduced to writing when demanded by the accused, only. People v. Hines, 57 App. Div. 419, 68 N. Y. Supp. 276. 81 People v. Chapman, 62 Mich. 280, 28 N. W. 896, 4 Am. St. Rep. 857. Failure in this respect cannot be cured by amendment, after the justice has made his return to the circuit court. People v. Chap- man, supra. Where the testimony was reduced to writing and sign- ed, failure to read it to the witnesses is waived by not objecting to the filing of the information. People v. Gleason, 63 Mich. 626, 30 N. W. 210. \ 94 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch. 3 ness unless he chooses to submit to examination.2?. At com- mon law he was not allowed to be a witness in his own de- fense, but his incompetency in this respect has been very generally removed by statute, and he can now testify, if he desires to do so, in his own behalf on his preliminary exam- ination.28 When he does so, he becomes, like any other witness, subject to cross-examination by the attorney for the state, and, as we shall see, his testimony may be used against him at his trial.?* Same—Statement of Accused Not only by statute in some states, but also at common law, or by early English statutes which are old enough to be a part of our common law,** the accused is entitled, but can- not be compelled, to make a statement not under oath.*® In a few states he may be cross-examined. This statement may be used against him at the trial,°’ and the magistrate must so inform him. Failure to caution him in this respect may render the statement inadmissible against him.®* Same—Sufficiency of Evidence Neither at common law nor by statute is the same degree of proof required in order that the magistrate may commit or bind over the accused to await action by the grand jury, or to await trial, as is necessary to convict him on his trial. The rule at common law is stated by Blackstone to be that if “it manifestly appears either that no such crime was com- 382 Kelly v. State, 72 Ala. 244. 83 State v. Kinder, 96 Mo. 548, 10 S. W. 77. 84 Post, p. 642. 35 Rex v. Fagg, 4 Car. & P. 566; Rex v. Green, 5 Car. & P. 312. His statement ought not to be taken until after the evidence against him is all received, and then he should be asked if he has anything to say in answer to the charge. Rex v. Fagg, supra. 36 If the statement is under oath, it cannot be used against him. Rex v. Smith, 1 Starkie, 242; Rex v. Rivers, 7 Car. & P. 177; Reg. v. Pikesley, 9 Car. & P. 124. 37 Post, p. 622. Where two prisoners are taken before a magis- trate, and both make a statement, the statement of one cannot be used against the other on the trial. Reg. v. Swinnerton, 1 Car. & M. 593. 88 Rex v. Green, 5 Car. & P. 312; post, p. 625. § 35) PRELIMINARY EXAMINATION 95 mitted, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only is it lawful to discharge him. Otherwise he must be either committed to prison or give bail.” °° With us, however, more evidence is required. The general rule is that the magistrate must find that there is probable cause to believe the accused commit- ted the crime charged; *° and, even in the absence of such a provision, the evidence should show this much.*? It need not, either at common law or under the statutes, show more.*? Statutes providing that the magistrate shall examine the complainant and his witnesses on oath are held directory as to the quantity of testimony to be taken. He need not examine all the witnesses present, either for the state or ac- cused.*? , Same—Binding Over the Witnesses At common law, in cases of felony, the magistrate may re- quire the material witnesses for the prosecution to enter into recognizances to appear at the trial of the accused, and if they cannot find security they may be committed to jail.** In some of our states, by statute, the power of the magis- trate in this respect extends to misdemeanors.*® In some 394 Bl. Comm. 296; Bostick v. Rutherford, 11 N. C. 90; Ex parte Bell, 14 Rich. (S. C.) 13. 40 Where the statute provides that the magistrate must find that an offense has been committed, and that there is probable cause to be- lieve the accused guilty, the record of the magistrate should show the existence of these conditions. State v. Tennison, 39 Kan. 726, 18 Pac. 948. 41 State v. Hartwell, 35 Me. 129; Burr’s Trial, 11, 15; Whart. Cr. Pl. & Prac. § 73; Yaner v. People, 34 Mich. 286; Reg. v. Johnson, 2 Car. & K. 394; Anon., Id. 845. 42 People v. Sherman, 3 Cal. Unrep. Cas. 851, 32 Pac. 879, and cases cited above. ‘ 43 Emery v. State, 92 Wis. 146, 65 N. W. 848. Where the statute provides that the magistrate shall examine the complainant and the witnesses in support of the prosecution, he need not examine all the witnesses for the prosecution who are present. It is sufficient if he receive such testimony from the complainant and his witnesses as may be offered. People v. Curtis, 95 Mich. 212, 54 N. W. 767. 4492 Hawk. P. C. ¢. 16, § 2. 45 Markwell v. Warren Co., 53 Iowa, 422, 5 N. W. 570. 96 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch.3 states the hardship resulting from this rule, where witnesses are unable to find sureties, has induced the legislature to pass statutes requiring them to be allowed to go at large on their own recognizance. Same—Decision of Magistrate and Return If the magistrate deems the evidence insufficient to show probable cause for holding the accused, he must discharge him. ‘This discharge, however, will not prevent another complaint and examination for the same offense.** If, on the other hand, the magistrate’ determines that he should hold thé accused for trial, he must make an order to that effect, and must fix the amount of bail, if the offense is bailable. The question of bail and the commitment will be presently explained. The statutes generally require that the magistrate shall certify the examination and proceedings, and return the same to the clerk of the court before which the accused is bound to appear, and a proper return is generally essential to the validity of an information filed in the higher court, and to the jurisdiction of the higher court thereon.*? Effect of Want of Examination or Irregularities Therein It is not every irregularity in the preliminary examina- tion that will affect the subsequent proceedings against the accused. Failure to grant the accused a preliminary hear- ing, as we have already seen, or irregularities at the hear- ing, cannot affect the validity of an indictment against him; for the right of the grand jury to investigate a charge and present an indictment in no way depends upon a prelimi- nary examination.*® In some states an indictment is al- 46 Templeton v. People, 27 Mich. 501; State v. Ritty, 23 Ohio St. 562; Cowell v. Patterson, 49 Iowa, 514; Ex parte Walsh, 39 Cal. 705; State v. Jones, 16 Kan. 608. The same is true where the prosecution has been dismissed, on appeal, because of the invalidity of the pre- liminary examination. People v. Brock, 64 Mich. 691, 31 N. W. 585. 47 As to the sufficiency of the return, see People v. ce 67 Mich. 95, 38 N. W. 920. 48 Osborn v. Com. (Ky.) 20 8S. W. 223; State v. Schieler, 4 Idaho, 120, 37 Pac. 272. Contra, Com. v. Hughes, 11 Pa. Co. Ct. R. 470. § 35) PRELIMINARY EXAMINATION 97 lowed to be founded on the minutes of a preliminary exam- ination, and the rule there would be different.*® In those states, however, where the prosecuting attorney is allowed to file an information against the accused in lieu of an indictment, the preliminary examination is intended to take the place of a presentment by the grand jury, and furnish the same protection against prosecutions without cause. Here a proper preliminary examination, unless it is waived,*° is not only a right of the accused, but is essen- tial to the validity of an information upon which he is to -be tried.°* In such jurisdictions, where the statute requires the examining justice to hold the accused to answer, when he is satisfied that an offense has been committed, and that there is probable cause to believe the accused guilty, it has been held that the decision of the justice on these points is a judicial determination necessary to the jurisdiction of the higher court, and that an information filed in the higher court before any return has been made, showing such a decision by the justice, should be quashed, and this, not- withstanding a proper return is made pending the motion to quash.®? Presumption of Regularity of Proceedings The proceedings before the magistrate are presumed to have been regular.°* Where a statute, for instance, allows a magistrate to try a complaint where the punishment may be within or beyond his jurisdiction to try, and to bind over the accused/for trial in the higher court if in his opinion the offense is so aggravated as to require a greater pun- ishment than he can impose, his record need not show that the offense was so aggravated as to require binding over, 49 See State v. Wise, 83 Iowa, 596, 50'N. W. 59; State v. Helvin, 65 Iowa, 289, 21 N. W. 645. 50 Stuart v. People, 42 Mich. 255, 3 N. W. 863; ante, p. 88. 51 O’Hara v. People, 41 Mich. 623, 3 N. W. 161; People v. Evans, 72 Mich. 367, 40 N. W. 473. 52 People v. Evans, supra. It has been held, however, that, where the justice’s return fails to show a waiver of examination, the court may order a further return, and when it is made the information will be upheld. People v. Wright, 89 Mich. 70, 50 N. W. 792. 53 Boynton v. State, 77 Ala. 30. CLARK Cr.PRoc.(2D ED.)—T 98 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch.3 for the presumption in favor of his judgment binding him over will supply the omission.** So, also, where the testi- mony at the preliminary examination is not required to be, and is not, reduced to writing, it will be presumed, in the absence of any showing to the contrary, that it was suffi- cient to authorize the decision of the magistrate, whatever that decision may be.** Waiver of Objections As we have seen, the accused may waive his right to a preliminary examination. He may also, though he has not waived an examination, waive the objection that he was not given one, and he may waive any irregularities in the ex- amination. As a rule, he will be deemed to have waived them if he has failed to make objections at the proper time. If, for instance, he enters into a recognizance, or gives a bail bond, for his appearance at court to stand his trial, without making any objection to the sufficiency of the war- rant on which he was arrested, or the sufficiency of the complaint or information on which he is held, he waives any defects in this respect.** Giving bail is also a waiver of any irregularity in the order of commitment.>* Failure to plead in abatement in the trial court is a waiver of the objection that there has been no preliminary exam- ination.5® And, generally, objections to matters of form in the commitment proceedings are waived, if not raised before plea and trial.5® ower to Convict and Punish In all the states magistrates have exclusive jurisdiction to try and punish for certain petty offenses. In some states they have concurrent jurisdiction with the higher court over 54 State v. Watson, 56 Conn. 188, 14 Atl. 797. But see People v. Evans, 72 Mich. 367, 40 N. W. 473. 55 Redmond v. State, 12 Kan. 172. 56 State v. Longton, 35 Kan. 375, 11 Pac. 163; Cunningham v. State, 116 Ind. 433, 17 N. B. 904; State v. Perry, 28 Minn. 455, 10 N. W. 778. 57 Cunningham v. State, supra. 58 State v. Woods, 49 Kan. 237, 30 Pac. 520. 59 March v. Com. (Pa.) 14 Atl, 375; People v. Hanifan, 98 Mich. 32, 56 N. W. 1048. § 36) BAIL 99 certain offenses. They act in a twofold capacity—the one, that of an examining magistrate preparatory to binding the party to answer to the higher court upon presentment to be made by the grand jury, or, in some states, informa- tion to be filed by the prosecuting attorney; the other, that of a court competent to exercise final jurisdiction, or, in other words, a concurrent jurisdiction with the higher court to try the case, subject to an appeal, in which case a trial de novo is had in the higher court on the original com- plaint.*° It has been held that a magistrate clothed with this double power may, in cases where the higher court has a concurrent original jurisdiction, bind over the party if the circumstances of the case seem to demand a-higher pun- ishment than he can inflict, although he has jurisdiction to determine the case and punish the offender by a penalty more limited than might be imposed by the higher court.*? In some states the statute expressly so Br BAIL 36. Bail is security given by a person charged with a crime for his appearance for further examination, or for trial, whereupon he is suffered to go at large.*? Admission to bail has been said to consist in the delivery, or bailment, of the accused to his sureties on their giving security, he also entering into his own recognizance, for his appearance, at the time and place of trial, there to sur- render and take his trial. In the meantime he is allowed to be at large, being supposed to remain in their friendly cus- tody.°8 This definition is still good as far as it goes, but it 60 Com. v. Harris, 8 Gray (Mass.) 470. 61 Com, v. Harris, supra; Com. v. Sullivan, 156 Mass. 487, 31 N. B. 647. 62 We are here dealing with bail before trial and conviction. In some cases bail may be allowed after a conviction, pending an ap- peal or writ of error. 63 Harris, Cr. Law, 343; 4 Bl. Comm. 297; Nicolls v. Ingersoll, 7 Johns. (N. Y.) 145. 100 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch. 3 does not cover all cases. A person accused of crime may, on adjournment of his preliminary examination, be admit- ted to bail to secure his appearance for further examination, and not for trial.** And in some cases he may be released on his own recognizance, without sureties. Another form of security for the appearance of a person charged with crime was mainprise, but it is now obsolete. “The chief, if not only, difference between bail and main- prise seems to be this, that a man’s mainpernors are barely his sureties, and cannot justify the detaining or imprison- ing of him themselves, in order to secure his appearance; but that a man’s bail are looked upon as his jailers of his own choosing, and the person bailed is, in the eye of the law, for many purposes, esteemed to be as much in the pris- on of the court by which he is bailed as if he were in the ac- tual custody of the proper jailer.” °° The form of security is either a bond or a recognizance. These will be presently explained at length. It is sufficient to say here that a bail bond is a contract under seal, just like any ordinary bond, conditioned that the accused shall appear as therein provided. A recognizance is similar in so far as the obligation to pay money and the condition is concerned, but, instead of being a contract under seal, it is a contract of record, being acknowledged by the parties, and then entered or filed in the records of the court. At common law a deposit of money by the accused in lieu of furnishing sureties was not allowed, but it is now allowed by statute in some cases. At common law any magistrate, judge, or court having jurisdiction to try and punish for a crime, has, as incident to such jurisdiction, the power to admit to bail in cases where the offense is bailable.®° Jurisdiction to admit to bail is now very generally regulated by statute. It may be exercised by the magistrate before or at the preliminary examination, and provision is also made for application to the higher courts or judges, including the judges of the supreme court. 64 Goodwin v. Dodge, 14 Conn. 206. 652 Hawk. P. C. c. 15, §§ 2, 3. 66 People v. Huggins, 10 Wend. (N. Y.) 465. § 36) . BAIL XS wif 101 ; Law i” The question must be determined in each statéby reference to the statute. The power to admit to bail is a judicial power.*? It can only be exercised by those having judicial powers. In the absence of statute, it cannot be exercised by a clerk, or oth- er ministerial officer,** nor can it be delegated.®** It has been held that a statute allowing the clerk of the court to determine whether an offense is bailable, or to fix the amount of bail, is unconstitutional, as conferring judicial powers on a ministerial officer.7° A ministerial officer, how- ever, may be, and is in many jurisdictions, allowed to ap- prove and accept bail, after it has been allowed and fixed by the magistrate or judge, as that is a ministerial act."* A magistrate may become criminally liable either for wrongfully denying bail, or for wrongfully allowing it. To refuse or delay to bail any person entitled to bail, or to will- fully require excessive bail, is a misdemeanor, not only by statute, but also at common law.72 On the other hand, a 67 Gregory v. State ex rel. Gudgel, 94 Ind. 384, 48 Am. Rep. 162; Linford v. Fitzroy, 13 Q. B. 240; State v. Mills, 18 N. C. 555; Reg. v. Badger, 4 Q. B. 468; and see cases hereafter cited. 68 Gregory v. State ex rel. Gudgel, supra; State v. Mills, supra; State v. Winninger, 81 Ind. 51; State v. Hill, 25 N. C. 398; Wallen- weber v. Com., 3 Bush (Ky.) 68; State v. Jones, 3 La. Ann. 9; Solomon y. People, 15 Ill. 291; Com. v. Roberts, 1 Duv. (Ky.) 199; Dugan v. Com., 6 Bush (Ky.) 305; Com. v. Lee, 3 J. J. Marsh. (Ky.) 698; Gov- ernor v. Jackson, 15 Ala. 703. It cannot be exercised by the Governor of the state. Governor of Louisiana v. Fay, 8 La. Ann. 490. In England a sheriff had judicial powers to a certain extent, and it seems that he was allowed to admit to bail. See 1 Chit. Cr. Law, 98; Bengough v. Rossiter, 2 H. Bl. 418; Posteene v. Hanson, 2 Saund. 59. He has also been allowed the power in this country, in some jurisdic- tions. Dickinson v. Kingsbury, 2 Day (Conn.) 1; McCole v. State ex rel. Chipman, 10 Ind. 50; Schneider v. Com., 3 Metc. (Ky.) 411. But see cases above cited. 69 Butler v. Foster, 14 Ala. 323; Jacquemine v. State, 48 Miss. 280; State v. Clark, 15 Ohio, 596; Morrow v. State, 5 Kan. 563; Antonez v. State, 26 Ala. 81. ; 70 Gregory v. State ex rel. Gudgel, supra. 71 State v. Winninger, 81 Ind. 51; Wallenweber v. Com., 3 Bush (Ky.) 68; State v. Jones, 3 La. Ann. 9; State v. Gilbert, 10 La. Ann. 524; State v. Benzion, 79 Iowa, 467, 44 N. W. 709. 724 Bl. Comm, 297; Evans v. Foster, 1 N. H. 374. 102 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch. 3 magistrate who releases a prisoner on bail, where the offense is not bailable, is guilty of a negligent escape.”? SAME—RIGHT TO RELEASE ON BAIL 37. At common law it was within the discretion of the magistrate, judge, or court having jurisdiction and power to allow or deny bail in all cases. It could be allowed whenever it was deemed sufficient to insure the appearance of the accused, but not other- wise, and was therefore always allowed in cases of misdemeanor, less frequently in cases of felony, and almost always denied in cases of felony punish- able by death. 38. It is now generally declared by the constitutions of the different states, or provided by statute, that the accused shall have an absolute right to give bail in all cases excépt where the punishment may be death, and even in those cases except where the proof is evident or the presumption great. The ground upon which a magistrate commits a prisoner to jail, pending or after a preliminary examination and be- fore trial, is to insure his appearance for examination or trial, and not to punish him. He is committed solely be- cause there is a probability that he will not otherwise ap- pear. For this reason, bail should be taken whenever it will insure his appearance, but not otherwise. It was therefore the general rule at common law that the accused should be released on bail in all cases except cases of felony, for in all such cases, the punishment being generally a mere fine or a short term of imprisonment in the county jail, it was thought that bail would insure the appearance of the accus- ed. There was, however, no absolute right to be released on bail, even in cases of misdemeanor, though it was gen- erally, if not always, allowed. If there were any reason to 734 Bl. Comm, 297; 2 Hawk. P. C. ¢. 15, § 7; Rex v. Clarke, 2 Strange, 1216; State v. Arthur, 1 McMul. (S. C.) 456. §§ 37-38) RIGHT TO RELEASE ON BAIL 103 believe the accused would fail to appear, bail could be de- nied in any case. Where the offense was a felony punishable by death, bail was scarcely ever allowed, for it was not thought that any pecuniary consideration could weigh against the desire to live.** Even when the felony was not punishable by death, bail was generally denied, unless the guilt of the accused was very doubtful. “Where guilt is clear,” it was said, “and a rigorous and disgraceful imprisonment may follow for a great length of time, the presumption is strong that the accused will not appear and surrender himself to the de- mands of justice to avoid a mere forfeiture of property. The safest course, therefore, in cases of felony, where the guilt of the criminal is clear, is to deny bail.” *® In cases of felony, however, the magistrate or court might always admit to bail in his discretion.7* Even in capital cases, bail was sometimes allowed, for instance where there was a well-founded doubt of guilt;"’ or where the accused was ill, and his confinement endangered his life; 7* or where several continuances had been granted at the instance of the state.”® 74 See Cole’s Case, 6 Parker, Cr. R. (N. Y.) 695; State v. Holmes, 3 Strob. (S. C.) 272. 75 Per Sutherland, J., in Ex parte Tayloe, infra; People v. Dixon, 4 Parker, Cr. R. (N. Y.) 651. 76 Ex parte Tayloe, 5 Cow. (N. Y.) 39; Ex parte Baronnet, 1 El. & Bl. 1; People v. Van Horne, 8 Barb. (N. Y.) 158; Com. v. Trask, 15 Mass. 277; People v. Dixon, 4 Parker, Cr. R. (N. Y.) 651; State v. Summons, 19 Ohio, 189; State v. McNab, 20 N. H. 160. 77 Barronet’s Case, 1 El. & Bl. 1; Ex parte Bridewell, 57 Miss. 39; U. S. v. Jones, 3 Wash. C. C. 224, Fed. Cas. No. 15,495; U. 8. v. Ham- ilton, 8 Dall. 17, 1 L. Ed. 490; State v. Hill, 1 Tread. Const. (S. C.) 242: People v. Perry, 8 N. Y. Abb. Prac. (N. 8.) 27; State v. Rockafel- low, 6 N. J. Law, 332; Com. v. Semmes, 11 Leigh (Va.) 665; Archer’s Case, 6 Grat. (Va.) 705; State v. Summons, 19 Ohio, 139. 78 Aylesbury’s Case, 1 Salk. 108; Rex v. Wyndham, 1 Strange, 2, 4; Harvey’s Case, 10 Mod. 334; U. S. v. Jones, 3 Wash. C. C. 224, Fed. Cas. No. 15,495; Archer’s Case, 6 Grat. (Va.) 705. Sickness is no ground for release of a person on bail, unless confinement aggravates his illness, and endangers his life. Rex v. Wyndham, supra; Bx parte Pattison, 56 Miss. 161; Lester v. State, 33 Ga. 192; Thomas v. State, 40 Tex. 6. 79 Fitzpatrick’s Case, 1 Salk. 103; Crosby’s Case, 12 Mod. 66; U. S. 104 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch. 3 In most of our states there are constitutional or statutory provisions giving persons arrested for crime an absolute right to release on bail, except where the offense is punish- able by death, and the proof is evident or the presumption great. It will be noticed that the common law is changed by these provisions. The magistrate, judge, or court no longer has a discretion in all cases as to whether he will allow bail. He must allow it in all cases except where the offense is punishable by death, and even then he must allow it unless the proof is evident or the presumption great. These provisions are for the benefit of the accused, and it does not seem that they should be held to deprive the courts of the common-law power to admit to bail under special cir- cumstances in capital cases, even though the proof is evident and the presumption great; but it has been held in Penn- sylvania that no power at all to admit to bail exists in such cases.*° In construing the words, “when the proof is evident,” the Texas court at first held that bail should be denied if the evidence adduced on the examination would sustain a ver- dict of murder in the first degree, but otherwise bail should be allowed.*? But in a later case that decision was over- ruled, and it was held, following an Alabama case, that “if the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed, that the accused is the guilty agent, and that he will probably be punished capitally if the law be administered, bail is not a matter of right.” S? v. Jones, 3 Wash. C. C. 224, Fed. Cas. No. 15,495; People v. Perry, 8 N. Y. Abb. Prac. (N. 8.) 27; Rex v. Wyndham, 1 Strange, 2, 4. It is so by statute in many states. See Ex parte Chaney, 8 Ala. 424; Ex parte Stiff, 18 Ala. 464. An omission to prosecute at the first term after the arrest is not ground for bail, unless the omission has oper- ated oppressively. State vy. Abbot, R. M. Charlt. (Ga.) 244, 80 Com. v. Keeper of Prison, 2 Ashm, (Pa.) 227. 81 Ex parte Foster, 5 Tex. App. 625, 32 Am. Rep. 577. 82 Ex parte Smith, 23 Tex. App. 100, 5 S. W. 99; Ex parte McAn- ally, 53 Ala, 495, 25 Am. Rep. 646. And see, as to this point, Com. v. Keeper of Prison, supra; Ex parte Wray, 30 Miss. 673; Ullery v. Com., 8 B. Mon. (Ky.) 3; State v. Summons, 19 Ohio, 139; Shore v. State, 6 Mo. 640; Ex parte Goans, 99 Mo, 193, 12 S. W. 635, 17 Am. St. Rep. § 39) SUFFICIENCY OF BAIL 105 SAME—SUFFICIENCY OF BAIL 39. The bail required should be such, and such only, as will be sufficient to insure the appearance of the accused. It is declared by the Constitution of the United States, and those of the different states, that excessive bail shall not be required, and there are statutes in most jurisdictions limiting the amount of bail that may be required to such a sum as will, in the opinion of the judge or magistrate, se- cure the presence of the accused. This is merely a declara- tion of the common law. The object of requiring bail is to insure the presence of the accused to stand his trial, and the amount of bail required should be such only as to ac- complish this object. “It has been sometimes argued that bail should be arbitrarily graded to meet the heinousness of the offense. But this is a dangerous principle, as it tends to show that on the rich who can find bail, and afford to forfeit it, there is no necessary corporal punishment imposed. Far wiser is it to adopt the principle that, in determining and adjusting bail, the test to be adopted by the court is the probability of the accused appearing to take his trial.” ** 571. It has been held that, except under extraordinary circumstanc- es, an indictment creates such a presumption of guilt as to absolutely prevent admission to bail. Evidence to rebut the presumption was excluded. People vy. Tinder, 19 Cal. 539, 81 Am. Dee. 77; Hight v. U. S., Morris (Iowa) 407, 43 Am. Dec. 111. But see Lynch v. People, 38 Ill. 494; Lumm y. State, 3 Ind. 293; State v. Hill, 3 Brev. (S. C.) 89; Com. v. Rutherford, 5 Rand. (Va.) 646; Summerfield v. Com, 2 Rob. (Va.) 767; Tayloe’s Case, 5 Cow. (N. Y.) 39. In many states it is held that indictment raises a rebuttable presumption that the proof is evi- dent or the presumption great of the guilt of accused. Ex parte Towndrow, 20 N. M. 631, 151 Pac. 761. Doubt as to prisoner’s sanity when the crime was committed may be ground for bail. Zembrod v. State, 25 Tex. 519. As to drunkenness as not raising doubt, see Ex parte Evers, 29 Tex. App. 539; 16 S. W. 343 (Hurt, J., dissenting). Where the jury are unable to agree on two trials for murder, bail should be allowed. People v. Perry, 8 N. Y. Abb. Prac. (N. 8.) 27. 83 Whart. Cr. Pl. & Prac. § 76. And see People v. Cunningham, 3 Parker, Cr. R. (N. Y.) 520; Reg. v. Scaife, 9 Dowl. 553, 5 Jur. 700; Com. v. Rutherford, 5 Rand. (Va.) 646; Com. v. Semmes, 11 Leigh (Va.) 665; Lumm y. State, 3 Ind. 293; State v. Hill, 3 Brev. (S. C.) 89. 106 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch. 3 In applying this test, the circumstances and character of the accused, his means, the probability of his guilt, the nature of the crime charged, and the possible punishment, are all to be considered.** Where the punishment is a fine only, there is nothing to prevent the magistrate from requiring bail in an amount greater than the maximum fine. Indeed, it should be so required.*® It has been held that a magis- trate who has taken insufficient bail cannot direct the re- arrest of the accused for the purpose of increasing it; ®* but it is otherwise by statute in some jurisdictions. Sufficiency of Sureties—SJustification The magistrate or judge will act according to his discre- tion as to the sufficiency of the sureties, and, to determine their responsibility, he may orally examine them upon oath as to their means, or require them to justify by affidavit.§* Such justification by the sureties is generally required by statute. Failure to justify, or justification in a less sum than fixed by law, cannot be urged by the sureties to escape liability.®* Same—Who may Become Bail At common law, neither a married woman, nor an infant, nor an insane person, nor a person convicted of an infamous crime, could become bail.*® But the disability of married women in this respect has been very generally removed by statute. Unless the statutes provide otherwise, there is no reason why any person who is capable of contracting may not become bail. An infant may enter into a bail bond or recognizance as principal.*° 84 Whart. Cr. Pl. & Prac. § 76; People v. Cunningham, supra; In re Barronet, 1 Bl. & Bl. 1; State v. Hopson, 10 La. Ann. 550. 85 State v. Martinez, 11 La. Ann. 23. 86 Ingram v. State, 27 Ala. 17. 871 Chit. Cr. Law, 99; 2 Hale, P. C. 125; People v/ Vermilyea, 7 Cow. (N. Y.) 108. 88 People v. Carpenter, 7 Cal. 402; People v. Shirley, 18 Cal. 121. 891 Chit. Cr. Law, 100; Rex v. Edwards, 4 Term R. 440; Bennet v. Watson, 3 Maule & §. 1. 90 “Tf it [the recognizance] were executed for the purpose of pre- venting some third person from being imprisoned * * * we sup- pose it would not be classed as a necessary and might therefore be § 40) REMEDY OF ACCUSED ON DENIAL OF BAIL 107 SAME—REMEDY OF ACCUSED ON DENIAL OF BAIL 40. A prisoner, if he is denied bail, or if excessive bail is required, has a remedy by application for a writ of habeas corpus. If a person under arrest on a charge of crime is denied release on bail, or if excessive bail is required, he may apply to the proper ‘judge or court for a writ of habeas corpus. After a hearing, the court will admit him to bail if his offense is bailable, and will fix the amount of bail.°1 Where, however, the magistrate or judge by whom bail was denied, is required to determine whether under the evidence and circumstances of the particular case bail should be allowed, so that the matter rest in his discretion, and is not bound to admit to bail as a matter of course, the higher court or judge will not interfere, except where that discre- tion has been exercised in an arbitrary, unjust, and oppres- sive manner. This applies not only to cases in which bail has been denied entirely,®? but also to cases in which it is claimed that excessive bail has been required.** The sub- ject of habeas corpus is for treatment in a subsequent chap- ter. disafirmed. But if it were executed for the purpose of preventing the minor himself from being imprisoned then we suppose it would be classed as a necessary of the highest order and could not be disaf- firmed.” State v. Weatherwax, 12 Kan. 464. See, also, McCall v. Parker, 138 Metec. (Mass.) 372, 46 Am. Dec. 735. 91 Evans v. Foster, 1 N. H. 374. 92 Lester v. State, 33 Ga. 192; Ex parte Jones, 20 Ark. 9; Ex parte Osborn, 24 Ark. 185; People v. McLeod, 25 Wend. (N. Y.) 483, 1 Hill (N. Y.) 3877, 87 Am. Deg. 328. 93 People v. Perry, 8 N. Y. Abb. Prac. (N. S.) 27; Lynch v. People, 38 Ill. 494; Lumm v. State, 3 Ind. 293; Lester v. State, 33 Ga. 192. 108 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch. 3 SAME—THE BOND OR RECOGNIZANCE 41. A bond or recognizance cannot be taken unless author- ized by law, and, when authorized, it must be taken in the manner and form prescribed by law. If un- authorized or illegally taken, or if it is not in proper form, it is void, and of no effect. As we have heretofore stated, bail may be either in the form of a bond or of a recognizance. A bail bond is like any other bond, except in its condition.** It is a contract under seal between the accused and his sureties on the one side, and the state on the other, whereby the former bind themselves to pay the latter a certain sum of money if the _accused fails to appear as therein provided. In some states this form of security is no longer used. A recognizance is an obligation similar to the obligation created by a bail bond, acknowledged by the accused and his sureties before the magistrate, judge, or court, the ac- knowledgment being entered or filed in the records of the court. The practice now in giving a recognizance is gen- erally to draw up and sign an instrument similar in form to 94 The following is a form of bail bond: Know all men by these presents: That we, C. D. and E. F., are held and firmly bound unto the state (or commonwealth) of in the penal, sum of dollars, for true payment whereof, well and truly to be made, we bind ourselves and our heirs, jointly and severally. The condition of the above obligation is such that if the above- bound C. D. shall personally appear before the judge of the court of the county of , state (or commonwealth) of » on the first day of the next term thereof, then and there to answer the state (or commonwealth, or people of the state) of , for and concerning a certain felony (or misdemeanor) by him committed, in this: that (describing the offense)—wherewith he, the said C. D., stands charged, and shall not depart thence without the leave of the said court, then this obligation to be void; otherwise to remain in full force and virtue. Witness our hands and seals this the D. day of , A. Cc. D. [Seal.] E. F. [Seal.] § 41) THE BOND OR RECOGNIZANCE 109 a bond, and, instead of sealing it, to acknowledge it before the magistrate or judge. The instrument is certified as having been acknowledged, and is filed. Unless required by statute, however, this formality is not necessary. “The manner of taking a recognizance is that the magistrate re- peats to the recognizors the obligation into which they are to enter, and the condition of it, at large, and asks them if they are content. He makes a ‘short memorandum, which it is not necessary that they should sign. * * * From this short minute the magistrate may afterwards draw up the recognizance in full form, and certify it to the court. This is the most regular and proper way of proceeding.” °° When the acknowledgment of obligation is entered in the records of the proper court, or filed therein, it becomes a matter of record. Itis a contract, not under seal, but a con- tract of record, with all the characteristics of such a con- tract.*® Since, therefore, a bail bond or recognizance is a contract between the parties who execute it and the state, in deter- mining its validity and effect we must not only look to see whether special statutory or common-law requirements are complied with, but also to see whether it accords with the rules relating to contracts generally. Parties cannot be held liable on an attempted bail bond or recognizance if for any reason they have failed to make a valid contract. We can notice shortly those requirements only which spring from the nature of this particular kind of obligation, or are pre- scribed by statute. Other questions that may arise will be answered by the law of contracts generally. In the first place, to be valid, a bail bond or recognizance must be authorized, and must be taken in the mode pre- scribed by law. If a magistrate, judge, or court assumes without jurisdiction to admit a prisoner to bail, or if, though authorized to admit to bail, he exceeds his powers, or fails to comply with the requirements of the law, the bond or 95 Com. v. Emery, 2 Bin. (Pa.) 434. 26 1 Chit. Cr. Law, 90; People v. Kane, 4 Denio (N. Y.) 535; Bridge y. Ford, 4 Mass. 641; State v. Crippen, 1 Ohio St. 401. 110 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch.3 recognizance is void, and neither the accused nor the sure- ties are liable thereon. It has no effect whatever.®7 Whether or not a bond or a recognizance should be taken must generally depend on the statutes of the particular state. Ifa statute expressly requires a bond, a recognizance might not do; °* and if it expressly requires a recognizance, a bond might be insufficient, unless in the latter case the bond, being filed of record, may be treated as a recogni- zance. At common law, and under a statute which is silent as to the form of bail, either a bond or a recognizance may be taken.®® A bail bond, like any other contract under seal, must be signed, sealed, and delivered, or it cannot take effect as a contract.1 A recognizance, however, being a contract of record, need not be under seal.? Nor, unless it is so re- quired by statute, need it be signed by the parties; for it is the acknowledgment and record thereof that gives it valid- ity. If signed, the signatures may be rejected as surplus- age.2 At common law, and under the statutes in most states, the accused need not necessarily execute the bond or enter into the recognizance. The sureties may do so alone.* 97 Com. v. Loveridge, 11 Mass. 337; Com. v. Fisher, 2 Duv. (Ky.) 3876; State v. Kruise, 32 'N. J. Law, 313; State v. Harper, 3 La. Ann. 598; Com. v. Otis, 16 Mass. 198; Governor of Louisiana v. Fay, 8 La. Ann. 490; Branham vy. Com., 2 Bush (Ky.) 3; State v. Nelson, 28 Mo. 18; Cooper v. State, 23 Ark. 278; State v. Berry, 8 Greenl. (Me.) 179; Com. v. Canada, 18 Pick. (Mass.) 86; Powell v. State, 15 Ohio, 579; Solomon v. People, 15 Il. 291; Darling v. Hubbell, 9 Conn. 350; State v. Randolph, 26 Mo. 213; Williams v. Shelby, 2 Or. 144; State v. Wenzel, 77 Ind. 428. 98 See Johnson v. Randall, 7 Mass. 340. 99 Pugh vy. State, 2 Head (Tenn.) 227. 1 Clark, Cont. 73. Signing is probably necessary, though there seems to have been some doubt on the question. Id. 2 Slaten v. People, 21 Ill. 28; Campbell v. State, 18 Ind. 375, 81 Am. Dec. 363; Hall v. State, 9 Ala. 827; State v. Foot, 2 Mill, Const. (S. C.) 123. 31 Chit. Cr. Law, 90; Irwin v. State, 10 Neb. 325, 6 N. W. 370; King v. State,.18 Neb. 375, 25 N. W. 519; Madison v. Com., 2 A. K. Marsh. (Ky.) 131; Com. vy. Mason, 3 A. K. Marsh. (Ky.) 456; Com. v. Emery, 2 Bin. (Pa.) 484. Contra, Cunningham v. State, 14 Mo. 402; State v. Foot, 2 Mill, Const. (S. C.) 123. 4 State v. Patterson, 23 Iowa, 575; People v. Dennis, 4 Mich. 609, § 41) THE BOND OR RECOGNIZANCE 111 The bond or recognizance, to be valid, “must contain, and express in the body of it, the material parts of the obliga- tion and condition.” ® By the weight of authority at com- mon law, and generally under the statutes, a bond or recog- nizance must state the offense for which the accused is held. It need not state the circumstances under which the offense was committed, nor need it state all the facts necessary to constitute the offense;® but it must describe the offense itself accurately and with reasonable certainty.” If it states a charge for which an indictment will not lie, it is void.* It has also been held that a material variance in the description of the offense between the warrant, complaint, or indictment on which the accused is held, and the bond or recognizance is fatal.® To avoid this result it is usual to insert a provision in the recognizance or bond binding the accused, not only to ap- 69 Am. Dec. 338; Com. v. Mason, 3 A. K. Marsh. (Ky.) 456; Com. v. Radford, 2 Duy. (Ky.) 9; Minor v. State, 1 Blackf. (Ind.) 236. But see State v. Doax, 19 La. Ann. 77; State v. Taylor, 19 La. Ann. 145. 5 State v. Crippen, 1 Ohio St. 399. 6 State v. Marshall, 21 Iowa, 143; Patterson v. State ex rel. Neff, 12 Ind. 86; State v. Hamer, 2 Ind. 371; Young v. People, 18 Ill. 566) People v. Baughman, 18 Ill. 152; Hall v. State, 15 Ala. 431; Browder y. State, 9 Ala. 58; People-v. Dennis, 4 Mich. 609, 69 Am. Dec. 338; Com. v. Downey, 9 Mass. 520; Com. v. Daggett, 16 Mass. 447; Hamp- ton v. Brown, 32 Ga. 251; Daniels v. People, 6 Mich. 381; State v. Williams, 17 Ark. 871; Besimer v. People, 15 Ill. 489; People v. Blank- man, 17 Wend. (N. Y.) 252. But see Allison v. State, 33 Tex. Cr. R. 501, 26 S. W. 1080; U.S. v. Sauer (D. C.) 73 Fed. 671. In general, it need not state the venue of the offense. Cundiff v. State, 38 Tex. 641. Some statutes, however, make a statement of the venue necessary. La Rose v. State, 29 Tex. App. 215, 15 S. W. 33. 7 Nicholson v. State, 2 Ga. 363; Simpson v. Com., 1 Dana (Ky.) 523 ; Goodwin v. Governor, 1 Stew. & P. (Ala.) 465. But see State v. Loeb, 21 La. Ann. 599; People v. Gillman, 125 N. Y. 372, 26 N. E. 469. The recognizance may be invalid on account of duplicity in statement, Hutchison vy. State, 4 Tex. App. 485; or for describing the crime in the disjunctive, Walker v. State, 82 Tex. Cr. R. 517, 24 S. W. 909. 8 Dailey v. State, 4 Tex. 417; Cotton v. State, 7 Tex. 547; Tousey v. State, 8 Tex. 173; McDonough Vv. State, 19 Tex. 293. 9 Dillingham vy. U. S., 2 Wash. ©. C. 422, Fed. Cas. No. 3,918; Welch v. State, 36 Ala. 277; People v. Hunter, 10 Cal. 502; State v. Woodley, 25 Ga, 235; Draughan v. State, 35 Tex. Cr. R. 51, 35 S. W. 667; State vy. Forno, 14 La. Ann, 450. 112 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch.3 pear at court and answer the specific charge for which he is held, but also binding him “not to depart therefrom without leave of the court” or “to answer such matters as shall be objected against him on behalf of the state.” 1° Since all the terms of the contract must be contained in the bond or ‘recognizance, it must correctly and with cer- tainty state the time and place at which the accused is to appear, including a description of the court at which he must appear.4? Ina California case it was held unnecessary to state the court, on the ground that it was fixed by law.?? Mere clerical errors will not invalidate the bond or recog- nizance.4® Nor will it be avoided by recitals of unnecessary and irrelevant matter, since such matter may be rejected as surplusage.4* Nor does the fact that the words used are improperly arranged affect the validity of the contract, where all the necessary words are inserted so that they can be understood.*® A bail bond, to be valid, need not be filed, for the execu- tion and delivery is what renders it binding. A recogni- zance, however, derives its validity and effect from the fact that it is a judicial record, and it must therefore be certified by the magistrate to the proper court of record, and be there filed or recorded. It then becomes an obligation of record.1* When the recognizance has thus become a matter of record, it will be presumed that a charge was properly preferred 10 Pack v. State, 23 Ark. 235; State v. Bryant, 55 Iowa, 451, 8 N. W. 303; State v. Forno, 14 La. Ann. 450. See, further, post, 117. 11 People v. Mack, 1 Parker, Cr. R. (N. Y.) 567; State v. Allen, 33 Ala. 422. In the latter case a recognizance taken by a justice of the peace, conditioned for the prisoner’s appearance, on a certain day, before him, or some other justice, was held void for uncertainty, be- cause the place of appearance was not specified. And a recognizance to appear to answer a charge on a day when the court does not sit is void. State v. Sullivant, 3 Yerg. (Tenn.) 281. 12 People v. Carpenter, 7 Cal. 402. 13 State v. Patterson, 23 Iowa, 575. 14 State v. Adams, 3 Head (Tenn.) 259; Howie v. State, 1 Ala. 113; McCarty v. State, 1 Blackf. (Ind.) 338; State v. Wellman, 3 Ohio, 14. 15 State v. Adams, supra. 16 People v. Huggins, 10 Wend. (N. Y.) 464; People v. Kane, 4 Denio (N. Y.) 585; Bridge v. Ford, 4 Mass. 641; Com. v. Emery, 2 Bin. (Pa.) 431; King v. State, 18 Neb. 375, 25 N. W. 519. § 42) RELEASE OF SURETIES 113 and examined into, and a proper decision made before it was entered into and acknowledged.*” By the weight of authority, a bond or recognizance taken before or approved by a person unauthorized by law, or in a case where the taking of it is unauthorized by law, so that it is invalid under the statutes, is invalid for all purposes. It cannot be upheld as a common-law obligation.*® SAME—RELEASE OF SURETIES 42. The sureties will be discharged from liability— (a) By any change in the terms of the bond or recog- nizance made by the state without their con- sent. (b) By any action on the part of the state prejudicing their rights. (c) By surrendering the accused; and for this pur- pose they may arrest him, either themselves or by deputy, and at any time or place. The liability of sureties on a recognizance or bail bond is limited to the precise terms of their contract, and they will be discharged if any change is made therein without their consent; as, for instance, where the state agrees with the accused to postpone the trial until a later day or term than that named in the bond or recognizance.1® The sure- ties are also discharged by any other action by the state, without their knowledge or consent, prejudicing their rights, as where the accused is held imprisoned by the state at the date fixed in the bond for his appearance; ?° or where 17 Shattuck v. People, 4 Scam. (IIl.) 477. 18 Powell v. State, 15 Ohio, 579; Williams v. Shelby, 2 Or. 144; Dickenson v. State, 20 Neb. 72, 29 N. W. 184. Contra, State v. Can- non, 34 Iowa, 325; Dennard v. State, 2 Ga, 187. 19 Reese v. U. S., 9 Wall. 18, 19 L. Ed. 541. And see Vincent v. People, 25 Ill. 500. 20 People v. Bartlett, 3 Hill (N. Y.) 570. But see State v. Grol: 114 Ala. 11, 22 South. 110. If, however, the accused has escaped or been discharged from such imprisonment, the bail are responsible CriarK Cr.PRoc.(2D ED.)—8 114 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch. 3 it consents to the departure of the accused beyond their reach or control.?+ Facts rendering the sureties unable to surrender the ac- cused, other than his death, where they are not attributable to action by the state, will not release them.?? For instance, they are not discharged or excused from. their obligation by the fact that the accused has, since his release on bail, been arrested and imprisoned in another state, so that they are unable to surrender him,” nor by the fact that he is ill,?4 or even insane.?® As is the case with any other kind of contract, the sure- ties will, of course, be discharged from their obligation, if the terms thereof are complied with. What amounts to such a compliance will be presently shown.?® Arrest and Surrender of Accused The sureties are not compelled to act as bail for a longer time than they wish. As we have already said, the accused is, in the eye of the law, in the custody of his sureties, who are considered his keepers. If they fear his escape, or for any other reason wish to be released, they may rearrest him, and surrender him before the magistrate or court by which he was bailed. They will then be discharged.?7. The ac- for his appearance. State v. Crosby, 114 Ala. 11, 22 South. 110; Bishop v. State, 16 Ohio St. 419. 21 Reese v. U. S., supra. 22 Yarbrough vy. Com., 89 Ky. 151, 12 S. W. 148, 25 Am. St. Rep. 524. 23 State v. Scott, 20 Iowa, 63; Harrington v. Dennie, 13 Mass. 93; Taylor v. Taintor, 16 Wall. 366, 21 L. Ed. 287; Yarbrough v. Com., supra; King v. State, 18 Neb. 375, 25 N. W. 519; Devine v. State, 5 Sneed (Tenn.) 623. 24 State v. Edwards, 4 Humph. (Tenn.) 226; Piercy v. People, 10 Ill. App. 219. Contra, People v. Tubbs, 37 N. Y. 586. 25 Adler v. State, 35 Ark. 517, 837 Am. Rep. 48. Contra, where, hav- ing been declared insane, he is in custody of the officers of the state. Wood v. Com., 33 8. W. 729, 17 Ky. Law Rep. 1076. 26 Post, p. 115. 271 Chit. Cr. Law, 104; Harp v. Osgood, 2 Hill (N. Y.) 216; Parker y. Bidwell, 3 Conn. 85; State v. Le Cerf, 1 Bailey (S. C.) 410; State v. Mahon, 3 Har. (Del.) 568; Com. v. Bronson, 14 B. Mon. (Ky.) 361. The court or magistrate cannot compel a continuance of responsibil- ity against the express dissent of the bail. People v. Clary, 17 Wend. § 43) FORFEITURE OF BAIL 115 cused, however, will be allowed to find new sureties. The sureties may depute another to take and surrender the ac- cused,?8 and either they or their agent may seize him at any time, and in any place, even in another state.?® SAME—BREACH OF BOND OR RECOGNIZANCE, OR FORFEITURE OF BAIL 43. As soon as the condition of the bond or recognizance is broken, the bail is said to be forfeited, and the sure- ties become absolutely liable on their obligation for the amount of the penalty. If, at the time fixed for the appearance of the accused, he is called and fails to appear, unless his appearance is ex- cused under the rules just mentioned, his bail is forfeited, and the sureties are absolutely liable for the amount of the penalty.2° This liability is not necessarily affected by the (N. Y.) 874, A bail in arresting his principal occupies substantially the same position as a person making any other authorized arrest. He becomes liable if he uses unnecessary force in the arrest or in the detention. Pease v. Burt, 3 Day (Conn.) 485. He may break open doors, as already explained. Nicolls v. Ingersoll, 7 Johns. (N. Y.) 145; Com, v. Brickett, 8 Pick. (Mass.) 188; Bean v. Parker, 17 Mass. 604; U. S. v. Bishop, 3 Yeates (Pa.) 87; Broome v. Hurst, 4 Yeates (Pa.) 123; Read vy. Case, 4 Conn. 166, 10 Am. Dec. 110. The accused, in order that the sureties may be discharged, must be surrendered to the proper magistrate or court, or to some officer who has authority to commit him to jail. State v. Le Cerf, 1 Bailey (S. C.) 410; Com. v. Bronson, 14 B. Mon. (Ky.) 361. Merely ‘to deliver him to the deputy sheriff is not sufficient. State v. Le Cerf, supra; Stegars v. State, 2 Blackf. (Ind.) 104. If the accused is indicted and arrested upon a warrant before default of appearance, this is equivalent to a surren- der, and the bail are discharged. People v. Stager, 10 Wend. (N. Y.) 431. 28 Nicolls v. Ingersoll, 7 Johns. (N. Y.) 145; Harp v. Osgood, 2 Hill (N. Y.) 216. 29 Nicolls v. Ingersoll, supra; Com. v. Brickett, 8 Pick. (Mass.) 138 ; Read v. Case, 4 Conn. 166, 10 Am. Dec. 110; Anon, 6 Mod. 231; State v. Beebe, 13 Kan. 589, 19 Am, Rep. 93. 30 Com. v. Johnson, 3 Cush. (Mass.) 454. 116 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch.3 fact that he is afterwards surrendered or arrested, or volun- tarily appears, and is tried.*+_ Generally, however, the court has the power to remit the forfeiture, if good excuse is shown; ®* and generally, by constitutional or statutory pro- visions, the Governor is given power to remit fines and for- feitures, so that he can remit the forfeiture of a bail bond or recognizance, even after the liability has passed into judg- ment.*8 In felonies, a personal appearance by the accused is neces- sary, for he cannot be tried in his absence.** Where, how- ever, under indictment for misdemeanor, the accused may, as is generally the case, appear and plead by attorney, and be tried in his absence, the court has no power to declare his bond or recognizance forfeited for failure to appear, if his attorney appears and offers to plead for him.** The mere appearance of the accused at the time and place requir- ed by the recognizance does not discharge the sureties from their obligation, where the court does not by its officer take him in custody;** but where the accused not only so ap- pears, but is taken into custody, the sureties are discharged, and are not liable if he is subsequently released, or if he escapes.3* If the obligation merely requires the accused to appear and answer to a certain indictment, or for a particular crime, it would seem that he cannot be required to appear and an- 31 Com. v. Johnson, supra; Shore v. State, 6 Mo. 640; Lee v. State, 25 Tex. App. 331, 8-8. W. 277. 32U. S. v. Feely, 1 Brock. 255, Fed. Cas. No. 15,082; Com. v. Dana, 14 Mass. 65. 33 Harbin vy. State, 78 Iowa, 263, 43 N. W. 210. 84 State v. Rowe, 8 Rich. (S. C.) 17; post, p. 492. 35 People v. Ebner, 23 Cal. 158; State v. Conneham, 57 Iowa, 351, 10 N. W. 677; post, p.496. In an action on a recognizance as forteit- ed, however, a demurrer will not lie on this ground, unless it appears that the accused did appear by attorney. It is not enough that he could have so appeared. People v. Smith, 18 Cal. 498. 36 Com. v. Ray, cited in Com. v. Coleman, 2 Mete. (Ky.) 886. And see Starr v. Com., 7 Dana (Ky.) 248. 37 Com. v. Coleman, 2 Metc, (Ky.) 382. And see Lyons v. State, 1 Blackf. (Ind.) 309; State v. Murphy, 10 Gill & J. (Md.) 365; Smith v. State, 12 Neb. 309, 11 N. W. 317. § 43) FORFEITURE OF BAIL 117 swer for any other crime, or to any other indictment, for the sureties are entitled to stand strictly on the terms of their contract; and it has been so held.*® But if the condition of the contract is not only that the accused shall appear, but also that he “shall not depart without the leave of the court,” or “until discharged by due course of law,” etc., then the condition is broken if he does so depart, without regard to whether the crime for which he is indicted is the same as the crime for which he was held.2® A recognizance to ap- pear in court from day to day to answer to a certain indict-: ment, and not to depart without the leave of the court, is not discharged by the quashing of the indictment, but re- mains in force until the defendant has leave from the court to depart; and, if a new indictment is found, he and his sureties are bound for his appearance to answer it.*® It is essential to the breach of a bail bond or recognizance that the prisoner shall have been formally called before entry of his default, and in an action on the recognizance it must be proved that he was so called and failed to appear.*? It has been held that where an indictment is fatally defec- tive there can be no breach of a recognizance to appear and answer.*? There are many cases, however, to the effect that the sureties on a bail bond cannot question the validity of the indictment,**® unless it was insufficient to confer juris- diction, as where it was found by an illegally constituted 38 Gray v. State, 43 Ala. 41; People v. Hunter, 10 Cal. 502. 39 U.S. v. White, 5 Cranch, C. ©. 368, Fed. Cas. No. 16,678; Pack v. State, 23 Ark. 235; Gentry v. State, 22 Ark. 544; State v. Bryant, 55 Iowa, 451, 8 N. W. 303. 40 U. S. v. White, supra. 41 Dillingham vy. U. S., 2 Wash. C. C. 422, Fed. Cas. No. 3,918; Mish- ler v. Com., 62 Pa. 55, 1 Am. Rep. 377; Park v. State, 4 Ga. 329; State v. Grigsby, 3 Yerg. (Tenn.) 280; White v. State, 5 Yerg. (Tenn.) 183; Brown v. People, 24 Ill. App. 72. By statute in some states this is no longer necessary. State v. Murphy, 23 Nev. 390, 48 Pac. 628; State v. Holtdorf, 61 Mo. App. 515. The sureties need not be called. Mish- ler v. Com., 62 Pa. 55, 1 Am. Rep. 877. 42 State v. Lockhart, 24 Ga. 420. 43 Lee v. State, 25 Tex. App. 331, 8 S. W. 277; State v. Loeb, 21 La. Ann, 599. 118 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch. 3 grand jury.** This question, it would seem, must depend on the terms of the contract as above explained.*® The accused cannot be required to appear at any time other than that stipulated in the bond or recognizance, even though the legislature should change the time of holding the court.*® As we have already seen, the sureties are not excused from liability for breach of their contract by the fact that the accused has been arrested and imprisoned in another state, or by any other fact rendering it impossible for them to surrender him, other than his death, or action by the state.*” Forfeiture of bail cannot affect the right of the state after- wards to capture and punish the accused.*® A forfeited bond or recognizance is enforced by entry of the forfeiture, and judgment, and by scire facias thereon, or by an action by the state on the obligation. The practice in this respect is generally regulated by statute. COMMITMENT 44. If the offense is not bailable, or if bail is refused, or is not given, the accused is committed to jail to await his trial. If the offense is not bailable, or if the magistrate, in a proper exercise of his discretion, determines not to allow bail, or the accused fails to furnish sufficient bail, and the evidence is sufficient to require him to be held for trial, the magistrate must commit him to jail to await his trial. To authorize the detention of the accused after he is com- mitted, a mittimus or warrant to the jailer is necessary, 44 Wells v. State, 21 Tex. App. 594, 2 S. W. 806. 45 Ante, p. 109. 46 State v. Stephens, 2 Swan (Tenn.) 308; State v. Melton, 44 N. C. 426. 47 Ante, p. 115. 48 State v. Meyers, 61 Mo. 414; State v. Rollins, 52 Ind. 168. § 44) COMMITMENT 119 and, of course, it must be valid.*® A form is given below.®° It must be in writing, under the hand, and, by the weight of authority at common law, under the seal,®* of the magis- trate, and it must show the authority of the magistrate,®? and the time and place of making it.5* It must run in the name of the state, or that of the magistrate, judge, or court 49 Sthreshley vy. Fisher, Hardin (Ky.) 249. A magistrate may by parol order a person to be detained a reasonable time, until he can draw up a formal commitment. 1 Chit. Cr. Law, 109; 7 East, 537; 2 Hale, P. C. 122. It has been held that the order or sentence of a court of record, without any mittimus, is sufficient to authorize the detention of the accused (In re Wilson [D. C.] 18 Fed. 37; People v. Nevins, 1 Hill [N. Y.] 154; State v. Heathman, Wright [Ohio] 691) ; but this cannot apply to justices of the peace, for a justice’s court is not a court of record. 650 State (or Commonwealth) of , County of , to wit. To the Sheriff or Any Constable of Said County, and the Jailer of Said County: : These are to command you, in the name of the state (or common- wealth) of , forthwith to convey and deliver into the custody of the said jailer, together with this warrant, the body of C. D., charged before me, X. Y., a justice of the peace of said county; on the oath of A. B., with a felony (or misdemeanor) by him conmtmitted, in this: that he,'the said C. D., did, on the day of , A.D. , in said county (here describe the offense); and you, the said jailer, are hereby required to receive the said C. D. into your jail and custody, that he may be tried for said offense by the — court of said county, and him there safely keep until he shall be discharged by due course of law. Given under my hand and seal this the day of A. D. [Seal] | X. ¥., J. P. 511 Chit. Cr. Law, 109; 2 Hawk. P. C. @ 16, § 18; 2 Hale, P. C. 122; 4 Bl. Comm. 300; Somervell v. Hunt, 3 Har. & McH. (Md.) 113; State v. Caswell, T. U. P. Charlt. (Ga.) 280. In some jurisdictions, a seal is not deemed necessary. State v. Vaughn, Harp. (8S. C.) 313; Thomp- son v. Fellows, 21 N. H. 425; Davis v. Clements, 2 N. H. 390. And in many it is rendered unnecessary by statute. 521 Chit. Cr. Law, 109. It must, for instance, show where the of- fense was committed, for it may have been committed beyond the magistrate’s jurisdiction. It should also show the character of the magistrate. The initials “J. P.,” after his signature, are sufficient to show that he is a justice of the peace. State vy. Manley, 1 Tenn. (1 Overt.) 428; Rex v. York, 5 Burrows, 2684. : 58 1 Chit. Cr. Law, 109; 2 Hale, P. C. 122. 120 PRELIMINARY EXAMINATION, BAIL, COMMITMENT (Ch. 3 by whom it is issued.°* It must be directed to the proper jailer, and not be generally to carry the accused to prison.® The accused must be described by his name, including his Christian name, if known, and, if not known, the fact should be stated, and he should be described so that he may be identified.5* It seems to be unnecessary to state that the accused has been charged upon oath,>” and it is certainly unnecessary to set out any of the evidence adduced before the magistrate; °* but the mittimus must state the offense with which the party is charged, and must state it with rea- sonable certainty.®® It is sufficient to state the nature of the crime. A detailed statement of the circumstances attending its commission is not necessary.®°° It must point out the place of imprisonment, and not merely direct that the accus- ed shall be taken to prison; ** and it should state the time of imprisonment, namely, “until he shall be discharged by due course of law.” ° Errors in the commitment do not generally affect the validity. of the examination and subsequent proceedings. The fact, for instance, that a magistrate erroneously com- 541 Chit. Cr. Law, 109. 55 Rex v. Smith, 2 Strange, 934; Rex v. Fell, 1 Ld, Raym. 424, 561 Chit. Cr. Law, 110; 1 Hale, P. C. 577. 571 Chit. Cr. Law, 110; Rex v. Wyndham, 1 Strange, 3, 4; Rex v. Wilkes, 2 Wils. 158; Rex v. Platt, 1 Leach, 167. 68 Rex v. Wilkes, 2 Wils. 158. 591 Chit. Cr. Law, 110; 2 Hale, P. C. 122; 4 Bl. Comm. 300; Rex v. Wilkes, 2 Wils. 158; Rex v. Judd, 2 Term R. 255; Rex v. Wyndham, 1 ‘Strange, 2; Rex v. Marks, 3 East, 157; Rex v. Kendal, 1 Ld. Raym. 65; Collins v. Brackett, 34 Minn. 339, 25 N. W. 708; State v. Bandy, Ga. Dec. 40, pt. 2; Day v. Day, 4 Md. 262; Com. v. Ward, 4 Mass. 497; In re Ricker, 32 Me. 37. Thus a commitment containing no descrip- tion of the crime charged, beyond the statement that the prisoner was accused of violating section 351 of the Penal Code, was held void. People ex rel. Allen v. Hagan, 170 N. Y. 46, 62 N. E. 1086. See, also, State ex rel. Lewis v. Arnauld, 50 La. Ann. 1, 22 South. 886. Where the offense is statutory, the mittimus should so show. Rex v. Rem- nant, 5 Term R. 169. 60 People v. Johnson, 110 N. Y. 134, 17 N. B. 684; Collins v. Brack- ett, supra; In re Kelly (C. C.) 46 Fed. 653. 61 Rex y. Smith, 2 Strange, 9384; Rex v. Fell, 1 Ld. Raym. 424, 621 Chit. Cr. Law, 111. § 45) HABEAS CORPUS 121 mits the accused to trial, in a county other than that in which the offense was committed, does not invalidate the examination and commitment, if it was otherwise proper, so as to prevent the filing of an information thereon in the proper county.®* HABEAS CORPUS 45. When a person who has been committed to jail, as just explained, is advised that his commitment is illegal, or that he is entitled to be discharged or bailed by a superior judge or court, he may obtain relief by writ of habeas corpus. The right to apply for this writ is not limited to persons illegally committed by an examining magistrate, but extends to every person who is illegally imprisoned. We shall there- fore consider the subject in a separate chapter.°* We shall then see that irregularities in the preliminary examination, wrongful refusal to admit to bail, or irregularity and defects in the commitment, do not necessarily entitle the accused to a discharge. 63 In re Schurman, 40 Kan. 533, 20 Pac. 277. 64 Post, p. 651. 122 MODE AND TIME OF ACCUSATION (Ch. 4 CHAPTER IV MODE OF ACCUSATION—TIME OF PROSECUTION—NOLLD PROSEQUI OR WITHDRAWAL 46. In General of Mode of Accusation. 47-48. Indictment and Presentment—The Grand Jury. 49. Information. 50. Coroner’s Inquisition. 51. Complaint. 52-53. Time of Prosecution. 54. Nolle Prosequi, or Withdrawal of Accusation, MODES OF ACCUSATION—IN GENERAL 46. The prosecution of a person charged with crime may be either: (a) Upon an indictment or presentment upon oath by a grand jury. (b) Upon a coroner’s inquisition in cases of homicide. (c) Upon an information preferred by the proper pros- ecuting officer without the intervention of a grand jury. (d) Upon a complaint or information made under oath by a private person. A formal accusation is essential to every trial for crime. Without it the court acquires no jurisdiction to proceed. Not even the consent of the accused can give it jurisdic- tion.t And, where the law requires a particular form of accusation, that form of accusation is essential. In a New 11 Bish. Cr. Proc. §§ 79, 95, et seq.; People v. Campbell, 4 Parker, Cr. R. (N. Y¥.) 386; ante, p. 7. A conviction is bad where the charge does not in terms show a legal offense, though the meaning ot the charge was understood by the defendant, and was in a form used time out of mind in the court in which it was made, Ex parte Hop- kins, 61 Law J. Q. B. (N. §.) 240, 66 Law T. (N. S.) 53, 17 Cox, Cr. Cas. 444; and though he pleaded guilty, Klawanski v, People, 218 Ill. 481, 75 N. E. 1028. §§ 47-48) INDICTMENT AND PRESENTMENT 123 York case in which the law required prosecution by indict- ment, a fatal defect in the indictment was sought to be rem- edied by stipulation of counsel that the case should be tried as if the omitted allegation had been inserted. This the court held was not sufficient to give jurisdiction. “The charge as made, being a felony, the Constitution of this state requires the presentment or indictment of a grand jury as a prerequisite to trial; and, if the pleading they file with the court could be remodeled by stipulations between the counsel, the defendant would not be tried upon the present- ment of the grand jury, but rather upon the consent of counsel. This court cannot acquire jurisdiction to try an offense by consent, nor can its jurisdiction over an offense be changed by consent, so as to embrace any other than that presented by the grand jury, where the action of that body is requisite.” ? INDICTMENT AND PRESENTMENT—GRAND JURY 47. An indictment is a written accusation of a crime, pre- sented on oath by a grand jury. 48. A presentment is the notice taken by a grand jury of an offense from their own knowledge or informa- tion, or of their own motion from information de- rived from others, on which an indictment i is after- wards framed. A distinction has been made between an indictment and a presentment. By presentment is meant the notice taken by a grand jury of an offense from their own knowledge or .observation, or of their own motion on information from others, without any bill of indictment having been laid be- fore them. Upon such a presentment the proper officer of the court afterwards frames an indictment or formal accu- 2 People v. Campbell, supra. And see Com. v. Adams, 92 Ky. 134, 17 S. W. 276; Com. v. Mahar, 16 Pick. (Mass.) 120. 124 MODE AND TIME OF ACCUSATION (Ch. 4 sation.? By indictment is meant a written accusation of crime, drawn up, with us by the prosecuting attorney, and submitted to the grand jury, and by them found and pre- sented as true.t When submitted to the grand jury, it is only a “bill” of indictment, and becomes an indictment when found and presented by them. This distinction, it has been said, though still recognized, is of no practical importance, for every indictment is in fact a finding and presentment; the grand jury find and “present” that the accused has com- mitted a certain crime.> This observation, however, does not apply in all states, and the distinction must be borne in mind. When Indictment Lies An indictment lies for all treasons, felonies, or misde- meanors at common law. It has been from very early times 34 Bl. Comm. 301; State v. Cox, 8 Ark. 442; Id., 28 N. C. 444; Lewis v. Board of Com’rs of Wake County, 74 N. C. 197; State v. Morris, 104 N. C. 837, 10 S. E. 454; McKinney v. U. S., 199 Fed. 25, 117 C. C. A. 408. “A presentment made in the ordinary way by a grand jury is regarded, in the practice at common law, as nothing more than in- structions given by the grand jury to the proper officer of the court for framing an indictment for an offense which they find to have been committed. When the indictment has been prepared by him, it is submitted to them; and, upon their finding it a true bill, the prose- cution commences upon that indictment. The presentment merged in the indictment ceases and becomes extinct. If, however, the officer of the court, who is the representative of the crown, and whose con- currence and co-operation in the prosecution are always required, de- clines framing an indictment upon these instructions, the present- ment ceases to exist for any purpose.” Com. v. Christian, 7 Grat. (Va.) 631. It has been, and may still be, the practice in some states to allow the presentment an efficacy not known at common law. It has been allowed for some purposes to stand as an indictment, or to stand as the foundation for further proceedings, as by information, against the party presented. Com. v. Christian, supra. 44 Bl. Comm. 302; Ganaway v. State, 22 Ala. 777; Mose v. State, 35 Ala. 425; Goddard v. State, 12 Conn. 452; Lougee v. State, 11 Ohio, 71; Wolf v. State, 19 Ohio St. 255; State v. Cox, 8 Ark, 442; Board of Com’rs of Arapahoe County v. Graham, 4 Colo. 202; Vanderkarr v. State, 51 Ind. 93; State v. Tomlinson, 25 N. C. 33; State v. Walk- er, 32 N. C, 286; State v. Collins, 1 McCord (S. C.) 357; State v. Mor- ris, 104 N. C. 837, 10 S. B. 454. 5 Com. v. Keefe, 9 Gray (Mass.) 290. §§ 47-48) INDICTMENT AND PRESENTMENT 125 the usual mode of prosecution.® It lies for statutory as well as for common-law crimes. If a statute prohibits a matter of public grievance, or commands a matter of public con- venience, such as the repairing of highways, all acts or omissions contrary to the command or prohibition of “the statute, being misdemeanors at common law, are punishable by indictment if the statute specifies no other mode of pro- ceeding.” If the statute specifies a mode of proceeding different from that by indictment, then, if the matter was already an indictable offense at common law, and the stat- ute introduces merely a different.mode of prosecution and punishment, and does not expressly or by necessary impli- cation do away with indictment, the remedy is cumulative, and the prosecution may be either by indictment at com- mon law, or by the mode pointed out by the statute.® When Indictment is Necessary At common law ali offenses above the grade of misde- meanor must be prosecuted by indictment, for it is the pol- icy of the common law that no man shall be put upon his trial for felony until the necessity therefor has been deter- mined by a grand jury on oath.® The Constitution of the United States declares that “no person shall be held to an- swer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”1° This pro- vision does not apply to prosecutions by the states;*? but in many of the state Constitutions there is a similar provi- sion. In some states, instead of requiring an indictment in prosecutions “for a capital or otherwise infamous crime,” it is required in all cases where the punishment is death or 62 Hawk, P. C. c. 25, § 4. 7 Harris, Cr. Law, 349; Reg. v. Hall, L. R. 1 Q. B. 632. 8 Harris, Cr. Law, 349; Rex v. Robinson, 2 Burrows, 799. 91 Chit. Cr. Law, 844; 2 Hale, P. C. 151; 4 Bl. Comm. 310; 2 Hawk. P. C. ec. 26, § 38; Com. v. Barrett, 9 Leigh (Va.) 665. 10 Const. U. S. Amend. art. 5. “Cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger,” are excepted. 11 Rowan vy. State, 30 Wis. 129, 11 Am. Rep. 559; Turner v. People, 33 Mich. 363; State v. Keyes, 8 Vt. 57, 30 Am. Dec. 450; Jones vy. Rob- bins, 8 Gray (Mass.) 345; Parris v. People, 76 Ill, 274. 126 MODE AND TIME OF ACCUSATION (Ch. 4 confinement at hard labor. In others, an indictment is nec- essary in every case where an indictment will lie. In oth- ers, it is required only where the punishment is death or im- psonment for life. - There has been some conflict of opinion as to what con- stitutes an “infamous” crime, within the meaning of the Constitution. By the weight of opinion the question is determined by the punishment with which the offense may be visited, rather than by the nature of the act itself, and all crimes are held to be infamous that may be punished by death or by imprisonment in the penitentiary.1? If they may be so punished, the fact that they may receive a less punishment is immaterial, for it is the possible punishment that makes the crime infamous.1? The term “infamous crime” is not synonymous with “felony,” except in those states where every offense that may be punished by death or imprisonment in the penitentiary is declared or held to be a felony.** Where an indictment or presentment is required by the Constitution, such an accusation is essential to the court’s jurisdiction to try the offender.1° The defendant cannot even waive the benefit of the provision by consenting to be tried in another mode, for, as we have seen, jurisdiction cannot be conferred upon the court by consent.t® Where the Constitution does not require an indictment, there is nothing to prevent the Legislature from providing for the prosecution of all offenses, even capital, by information, and in some states such statutes have been enacted. 12 Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89; Mackin v. U. S8., 117 U. S. 348, 6 Sup. Ct. 777, 29 L. Ed. 909; U. S. v. De Walt, 128 U. S. 393, 9 Sup. Ct. 111, 32 L. Ed. 485; Jones v. Rob- bins, 8 Gray (Mass.) 347; U. S. v. Wong Dep Ken (D. C.) 57 Fed. 206. And see Pearson v. Wimbish, 124 Ga. 701, 52 S. BE. 751, 4 Ann. Cas. 501. Other offenses may be prosecuted by information. State v. Ebert, 40 Mo. 186; King v. State, 17 Fla. 183. 13 See Clark, Cr. Law, (8 Ed.) 48. 14 See Jones v. Robbins, supra. 15 Wx parte Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849; Hewitt v. State, 25 Tex. 722; People v. Campbell, 4 Parker, Cr. R. (N. Y.) 386. 16 People v. Campbell, supra; ante, p. 7. §§ 47-48) INDICTMENT AND PRESENTMENT 127 There is another constitutional provision which has been claimed to render prosecutions for felony othérwise than by ‘indictment illegal, because the common law required an in- dictment in such cases. This provision is that no person shall be deprived of life, liberty, or property without due process of law. It has been held, however, that this con- stitutional provision is not violated by an abolition of the grand jury system and indictments, provided some other formal and sufficient mode of accusation, as by information, is substituted.27 Powers of Grand Jury The authorities are not agreed as to the powers and func- tions of the grand jury. Dr. Wharton ?® points out three different views that have been advanced on the subject. The view taken by the English judges, and in which they are followed by some of the judges in this country, is that the grand jury has the power, on its own motion, to insti- tute any prosecution it may see fit, and for this purpose to summon witnesses to appear before them; and that they cannot be controlled in their action by the court or the pros- ecuting officer.?® Another view in this country is that they can inquire into and present all offenses which are of public notoriety and within their knowledge, and such offenses as are given them in charge by the court or the prosecuting officer, but that they cannot summon witnesses, and inquire into and present other offenses, unless the accused has been examined before a magistrate.?° 17 Hurtado v. California, 110 U. S. 516, 4 Sup. Ct. 111, 292, 28 L. Ed. 232; Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. 448, 494, 44 L. Ed. 597; Rowan vy. State, 30 Wis. 145, 11 Am. Rep. 559; State v. Bos- well, 104 Ind. 541, 4 N. E. 675; State v. Ledford, 3 Mo. 102; Com. v. Francies, 250 Pa. 496, 95 Atl. 527; In re McKee, 19 Utah, 231, 57 Pac. 23. 18 Whart. Cr. Pl. & Prac. §§ 3382-340. 19 Whart. Cr. Pl. & Prac. § 334; Ward v. State, 2 Mo, 120, 22 Am. Dec. 449; U. S. v. Thompkins, 2 Cranch, C. C. 46, Fed. Cas. No. 16,483 ; Blaney v. State, 74 Md. 153, 21 Atl. 547; State v. Wilcox, 104 N. C. 847, 10 S. E. 458; U. S. v. Kimball (C. C.) 117 Fed. 156; Wilson v. U. S., 221 U. S. 361, 31 Sup. Ct. 538, 55 L, Ed. 771, Ann. Cas. 1912D, 558. 20 Whart. Cr. Pl. & Prac. § 338; McCullough v. Com., 67 Pa. 33; 128 MODE AND TIME OF ACCUSATION (Ch. 4 A third view is that they cannot inquire into and present certain offenses unless there has been a preliminary examina- tion of the accused before a magistrate.?+ A grand jury cannot indict or present for an offense that is not within the jurisdiction of the court in which they are acting.?? It cannot present for offenses committed in an- other county.?® Selecting and Summoning the Grand Jury The sheriff of every county was required by the common law to return to every term of the court having jurisdiction of offenses 24 men having the requisite qualifications; and from these men a grand jury were selected. The mode of selecting and summoning grand jurors is now generally regulated by statutes, and it is unnecessary to do more than refer to that fact, and leave the student to consult the stat- utes of his state. Same—Qualification of Jurors The common law requires grand jurors to be probi et legales homini (true and lawful men) and inhabitants of the county in which the crimes they are to inquire into were committed. Blackstone says they should also be freehold- ers.24 They should be able to understand the language in Brown v. Com., 76 Pa. 319; Com. v. Green, 126 Pa. 531, 17 Atl. 878, 12 Am. St. Rep. 894; People v. Horton, 4 Parker, Cr. R. (N. Y.) 222; State v. Love, 4 Humph. (Tenn.) 255; State v. Lewis, 87 Tenn. 119, 9 S. W. 427; Lewis v. Board of Com’rs of Wake County, 74 N. C. 194. In Com. v. Green, supra, it was held that the grand jury could not make a presentment of a crime on the testimony of a witness given before them in the investigation of another matter. 21 Whart. Cr. Pl. & Prac. § 339; Butler v. Com., 81 Va. 159. 22U. S. v. Hill, 1 Brock. 156, Fed. Cas. No. 15,364; Shepherd v. State, 64 Ind. 43; U. S. v. Reed, 2 Blatchf. 435, Fed. Cas. No. 16,134. 23 Ante, p. 10; post, pp. 167, 449. Contra, by statute, State v. Lew- is, 140 N. C. 626, 55 S. E. 600, 7 L. R. A, (N. S.) 669, 9 Ann. Cas. 604. 244 Bl. Comm. 302. Women, in the absence of a statute to the con- trary, are not qualified to act as grand jurors. Rumsey v. Washing- ton Terr., 8 Wash. T. 332, 21 Pac. 152. By “true and lawful men” is intended “that they must be liege subjects of the king, and neither aliens, nor persons outlawed even in a civil action, attainted of any treason, or convicted of any species of crimen falsi, as conspiracy or perjury which may render them infamous.” 1 Chitty, Cr. Law, 307. §§ 47-48) INDICTMENT AND PRESENTMENT 129 which the proceedings are conducted;25 they must be compos mentis.2* Their qualifications are now generally prescribed by statute. Some statutes still require that they shall be freeholders.2” Some require the qualification of an elector.?® At common law it was not a disqualification that a person was interested, other than in a direct pecuniary way, in the prosecution,?® or that he was related to the accused, the prosecutor, or the victim of the crime;® or that he had formed or expressed an opinion of the guilt of the accused before the finding of the indictment.*t In many states noth- ing but what is specified in the statute will disqualify a grand juror.?? The statutes generally exempt from jury duty persons who are over a certain age, or who occupy certain positions. This, however, is merely an exemption, which they may claim or not as they choose. It does not disqualify them.** 25 0. S. v. Benson (C. C.) 31 Fed. 896. 26 U. S. v. Benson, supra. 27 See authorities collected in 20 Cyc, 1298. 28 State v. Harris, 122 Iowa, 78, 97 N. W. 1093. -29 In re Tucker, 8 Mass. 286; Com. v. Brown, 147 Mass. 585, 18 N. E. 587, 1 L. R. A. 620, 9 Am. St. Rep. 736. 30 State v. Brainerd, 56 Vt. 582, 48 Am. Rep. 818; State v. Russell, 90 Iowa, 569, 58 N. W. 915, 28 L. R. A, 195. 81 Tucker’s Case, 8 Mass. 286; State v. Chairs, 9 Baxt. (Tenn.) 196; State v. Hughes, 1 Ala. 655; Musick v. People, 40 Ill. 268. Contra, Com. v. Clark, 2 Browne (Pa.) 328; People v. Jewett, 8 Wend. (N. Y.) 814. Other grounds which, while not absolutely disqualifying a grand juror, so as to vitiate an indictment, have been said to be sufficient to sustain a challenge, are that the juror is related to the prosecutor, or person killed in cases of homicide, or otherwise has a personal in- terest in the prosecution. See Whart. Cr. Pl. & Prac. § 348; U.S. v. Williams, 1 Dill. 485, Fed. Cas. No. 16,716. But the fact that he is a member of an association for the detection of crime is no ground for challenge. Musick v. People, 40 Ill. 268. A grand juror may be chal- lenged if he has conscientious scruples which will prevent his finding an indictment for a capital offense, if such an offense is to be inquir- ed into. State v. Rockafellow, 6 N. J. Law, 332; State v. Duncan, 7 Yerg. (Tenn.) 271; Gross v. State, 2 Cart. (2 Ind.) 329, 32 See Territory v. Hart, 7 Mont. 42, 14 Pac. 768, 33 State v. Wright, 53 Me. 328; State v. Quimby, 51 Me. 895; Green y. State, 59 Md. 123, 43 Am. Rep. 542; State v. Forshner, 43 N. H. 89, CLARK Cr.PRoc.(2D Ep.)—9 130 MODE AND TIME OF ACCUSATION (Ch. 4 Same—Constitution of Grand Jury—Impaneling After the court has been opened in the usual way, the names of those summoned on the grand jury are called, and they are sworn. They must, at common law, number 12 at least, and not more than 23, so that 12 may be a majority, the concurrence_of a majority and of that number being required to find an indictment. At common law a finding by less than 12 or by more than 23 is void.** The oath administered to the jury is substantially the 80 Am. Dec. 132; Owens v. State, 25 Tex. App. 552, 8 S. W. 658; State vy. Adams, 20 Iowa, 486; State v. Stunkle, 41 Kan. 456, 21 Pac. 675; Jackson vy. State, 76 Ga. 551; post, p. 524. The court has power to excuse an individual grand juror on its own motion for sufficient cause, and may refuse to state the reason for excusing him. State v. Codington, 80 N. J. Law, 496, 78 Atl. 743. 342 Hale, P. G 121; 2 Hawk. P. C. c. 25, § 16; King v. Marsh, 6 Adol. & El. 236; Clyncard’s Case, Cro, Eliz. 654; State v. Barker, 107 N. C. 918, 12 S. B. 115, 10 L. R. A. 50; People v. King, 2 Caines (N. Y.) 98; Pybos v. State, 3 Humph. (Tenn.) 49; State v. Symonds, 36 Me. 128; People v. Thurston, 5 Cal. 69; Hudson v. State, 1 Blackf. (Ind.) 317; Leathers v. State, 26 Miss. 73; English v. State, 31 Fla. 356, 12 South. 689; Com. v. Wood, 2 Cush. (Mass.) 149. In many of the states the maximum number that shall be necessary is prescribed by statute, and in some states more than 12 are required; but in very few states does the statute change the common-law requirement that there shall not be less than 12 nor more than 23, and that 12 must concur. Statutory provisions that there shall be a certain number (the maximum) have been held merely directory, and not a change of the common law, so as to prevent a finding by a jury less than that number, but of at least 12. Com. v. Wood, 2 Cush. (Mass.) 149; Com. v. Sayers, 8 Leigh (Va.) 722; State v. Miller, 3 Ala. 343; State v. Clay- ton, 11 Rich. (S. C.) 581; Hudson v. State, 1 Blackf. (Ind.) 317; State v. Davis, 24 N. C. 153; Pybos v. State, 3 Humph. (Tenn.) 49; People v. Butler, 8 Cal. 485. Contra, Doyle v. State, 17 Ohio, 222. Where the Constitution requires an indictment, it would seem that it re- quires such an indicment as was necessary at common law, and there- fore an indictment found by the concurrence of at least 12 grand ju- rors; so that a statute allowing an indictment to be found on the con- currence of a less number than 12 would be unconstitutional; and so it has been held. State vy. Barker, 107 N. C. 913, 12 S. E. 115, 10 L. R, A. 50; English v. State, 31 Fla. 356, 12 South. 689. In some states the common-law requirement is not guaranteed by the Constitution, or is expressly changed, and there are statutes allowing a grand jury to consist of less than 12. See State v. Belvel, 89 Iowa, 405, 56 N. W. 545, 27 L. R. A. 846. §§ 47-48) INDICTMENT AND PRESENTMENT 131 same in most of the states, and substantially the same as that administered at common law. It is generally that they will diligently inquire and true presentment make of such articles, matters, and things as shall be given them in charge, or otherwise come to their knowledge, touching the present service; the commonwealth’s or state’s counsel, their fellows’ and their own, they shall keep secret; that they shall present no one from envy, hatred, or malice, nor leave any one unpresented from fear, favor, affection, hope of reward, or gain, but shall present all things truly, as they come to their knowledge, according to the best of their un- derstanding. The oaths administered in the different states” vary somewhat, so that the statutes must be consulted. The foreman, when appointed by the court, is first sworn, and the rest of the jurors, several at a time, after him. They merely take the same oath without its being repeated ‘to them.*® A foreman is appointed by the court before the jury is sworn, of else he is selected by the jurors after they retire, according to the practice in the particular jurisdiction.** Same—Charge of the Court After the grand jury has been sworn, the judge charges or instructs them; the object of the charge being to show them their duties, and to assist them by stating the law applicable to the various cases that may come before them, and by pointing out matters which require special attention: The judge should not express an opinion that a particular act to which he has directed their attention is in fact a crime?” or that a particular person is guilty of a crime,?® for these are the things the jury is to determine. The charge should not be inflammatory. It will not be a contempt of court to object to a charge on that ground, and, if the objec- tion is properly taken, it may be ground for setting the in- dictment aside. It should be taken by plea.** 35 The record must show that all the jurors were sworn. Roe v. State (Ala.) 2 South. 459; post, p. 169. 36 See Blackmore v. State (Ark.) 8 S. W. 940. 37 Clair v. State, 40 Neb. 534, 59 N. W. 118, 28 L. R, A. 367. 88 State v. Turlington, 102 Mo. 642, 15 S. W. 141. 89 Clair v. State, 40 'Neb. 534, 59 N. W. 118, 28 L, R, A. 367. 132 MODE AND TIME OF ACCUSATION (Ch. 4 Same—Findings of Indictments After they have heard the charge, the grand jury with- draw from the court to their own room, whete they are to conduct their examinations, and hold their deliberations. Bills of indictment, which, as we have seen, are formal written accusations prepared in advance by the prosecuting officer of the county, and which do not become indictments until they are found true by the grand jury, are taken with them by the jury when they withdraw, or are sent or taken to them there by the prosecuting officer. The names of wit- nesses to be examined are sometimes indorsed on the bills by the prosecuting officer, but the latter, unless required by statute, need not so indorse them. He may summon and call or send such witnesses as he sees fit into the jury room, and in some states the jury may summon witnesses them- selves.*° The witnesses whose names are indorsed on the bill, or who are called or sent in, are sworn in open court before going into the jury room,*? and are examined by the grand jurors. Only the witnesses for the prosecution need be examined, since the function of the grand jury is merely to inquire whether there is sufficient ground to put the ac- cused upon his trial; but, as we have said, the jury may in some states call others, and they should do so if such wit- nesses mav show that there is no ground for indictment. A person against whom a charge is pending has no right to be present himself nor by counsel, nor has he the right to send witnesses to be examined in his behalf.*? The grand jury should not hear any but legal evidence. If it is shown that an indictment was found entirely upon incompetent evidence, it will be quashed on plea in abate- ment.4® But, by the better opinion, where there was the 40 Ward v. State, 2 Mo. 120, 22 Am. Dec. 449; ante, p. 127. 41 The general practice has been to swear the witnesses in court before they go into the grand jury room (State v. Kilcrease, 6 S. C. 444); but in some states they may be sworn in the grand jury room by the foreman (Bird v. State, 50 Ga. 585; Allen v. State, 77 Il. 484); or, in Connecticut, by a magistrate (State v. Fasset, 16 Conn. 457). 42 State v. Wolcott, 21 Conn. 272; People v. Goldenson, 76 Cal. 328, 19 Pac. 161. 43 State v. Logan, 1 Nev. 509; People v. Lauder, 82 Mich. 109, 46 N. W. 956; Sparrenberger v. State, 53 Ala. 486, 25 Am, Rep. 643: Com. v. §§ 47-48) INDICTMENT AND PRESENTMENT 133 slightest legal evidence, the court cannot inquire into its sufficiency, or set the indictment aside because some illegal evidence was received with it.** A person who is accused of crime cannot be compelled to testify against himself, and the grand jury have no power to ‘require him to testify. If they do so against his will, it is held by some courts that the indictment will be quashed.*® Knapp, 9 Pick. (Mass.) 498, 20 Am. Dec. 491; Com. v. Green, 126 Pa. 531, 17 Atl. 878, 12 Am. St. Rep. 894; Com. v. McComb, 157 Pa. 611, 27 Atl. 794; Boone v. People, 148 Ill. 440, 86 N. E. 99. Contra, State v. Dayton, 23 N. J. Law, 49, 53 Am. Dee. 270; Royce v. Terr., 5 Cel 61, 47 Pac. 1083. 44 People v. Lauder, 82 Mich. 109, 46 N. W. 956; “People. y. Hulbut, 4 Denio (N. Y.) 186, 47 Am. Dec. 244; Hope v. People, 83 N. Y. 418, 38 Am, Rep. 460; State v. Logan, 1 Nev. 509; Washington v. State, 63 Ala. 189; Bloomer v. State, 3 Sneed (Tenn.) 69; State v. Fasset, 16 Conn. 472; State v. Wolcott, 21 Conn. 272; Stewart v. State, 24 Ind. 142; Creek v. State, 24 Ind. 151; State v. Tucker, 20 Iowa, 508; State v. Fowler, 52 Iowa, 103, 2 N. W. 983; M’Kinney v. U. S., 199 Fed. 25, 117 C. C. A. 403; Holt v. U. S., 218 U. S. 245, 31 Sup. Ct. 2, 54 L. Ed. 1021, 20 Ann, Cas. 11388; State v. Boyd, 2 Hill (8. C.) 288, 27 Am. Dec. 376. It has been held in New Jersey that the indictment will not be set aside, even though there was no legal evidence before the grand jury. State v. Dayton, 23 'N. J. Law, 49, 58 Am. Dec. 270. 45 People v. Haines (Gen, Sess.) 1 N. Y. Supp. 55; State v. Froiseth, 16 Minn. 297 (Gil. 260) ; dissenting opinion in People v. Lauder, infra.| And see People v. Mondon, 103 N. Y. 211, 8 N. E. 496, 57 Am. Rep. 709; Boone v. People, 148 Ill. 440, 36 N. B. 99; State v. Hawks, 56 Minn. 129, 57 N. W. 455. Merely being subpoenaed and compelled to take the usual oath administered to a witness is not an infringement of the right. U.S. v. Collins (D. C.) 145 Fed. 709. If the defendant vol- untarily testifies, he cannot object. People v. Lauder, 82 Mich. 109, 46 N. W. 956; People v. King, 28 Cal. 265; U. S. v. Kimball (C. C.) 117 Fed. 156. The general rule, however, in the absence of a statute, is to the contrary, where the dis- qualification is not only pronounced by the common law or by statute, but is one that absolutely disqualifies, such as alienage.7® Jf there is one person on the jury who is ab- State v. Clarissa, 11 Ala. 57. But see, contra, as to objections by amicus curize, People v. Horton, 4 Parker, Cr. R. (N. Y.) 222; Hudson y. State, 1 Blackf. (Ind.) 318. 78 Doyle v. State, 17 Ohio, 222; State v. Easter, 30 Ohio St. 542, 27 Am. Rep. 478; State v. Symonds, 36 Me. 128; Conkey v. People, 5 Parker, Cr. R. (N. Y.) 81; State v. Martin, 24 N. C. 101; Com. v. Wil- liams, 5 Grat. (Va.) 702; State v. Carver, 49 Me. 588, 77 Am. Dec. 275; Vanhook v. State, 12 Tex. 252; State v. Clarissa, 11 Ala. 57; State v. Town of Newfane, 12 Vt. 422; McQuillen v. State, 8 Smedes & M. (Miss.) 587; State v. Borroum, 25 Miss. 203; Wilburn v. State, 21 Ark. 198; Byrne v. State, 12 Wis. 519; State v. Duncan, 7 Yerg. (Tenn.) 276. 74 Under such a statute, even the nonresidence or alienage of a grand juror cannot be raised against the indictment. Lienburger v. State (Tex. Cr. App.) 21 S. W. 603; Lacy v. State, 31 Tex. Cr. R. 78, 19 S. W. 896. And see State v. Henderson, 29 W. Va. 147, 1 S. E. 225. 75 Com. v. Smith, 9 Mass. 107 (but see Com. v. Parker, 2 Pick. [Mass.] 550); Com. v. Gee, 6 Cush. (Mass.) 174; Boyington v. State, 2 Port. (Ala.) 100; People v. Jewett, 8 Wend. (N. Y.) 314; Hardin v. State, 22 Ind. 347; Mershon v. State, 51 Ind. 14; People v. Beatty, 14 Cal. 566. As already stated, it is so provided by statute in some ju- risdictions. “76 State v. Hamlin, 47 Conn. 95, 86 Am. Rep. 54; State v. Sharp, 110 N. C. 604, 14 S. E. 504; State v. Rockafellow, 6 N. J. Law, 340; Com. v. Cherry, 2 Va. Cas. 20; Com, v. St. Clair, 1 Grat. (Va.) 556; Stanley v. State, 16 Tex. 557; Thayer v. People, 2 Doug. (Mich.) 417; State v. Ostrander, 18 Iowa, 488; State v. Middleton, 5 Port. (Ala.) 484; Barney v. State, 12 Smedes & M. (Miss.) 68; State v. Duncan, 7 Yerg. (Tenn.) 271; Huling v. State, 17 Ohio St. 583; Doyle v. State, §§ 47-48) INDICTMENT AND PRESENTMENT 141 solutely disqualified, the indictment is bad.77. Objections to an indictment have been sustained on the ground that one of the grand jurors was an alien;7® that he was not a free- holder or elector;’® that he had not paid his taxes as re- quired by statute;®° that he had served on a petit jury which convicted the defendant of the same offense.** On the other hand, objections to a grand juror on grounds which do not absolutely disqualify him, as because he had formed and expressed an opinion as to the guilt of the accused, or was related to the person killed by the accused, or to the prosecutor, cannot be raised against the indict- ment.®? This is the generally accepted rule, though there are some cases to the contrary. 17 Ohio, 222 (but see State v. Easter, 80 Ohio St. 542, 27 Am. Rep. 478); Kitrol v. State, 9 Fla. 9. “It is certainly not reasonable to re- quire .a person, who has not been held to answer, to object to the juror before he is impaneled; for he may be on the other side of the globe, or he may have no reason to suppose he is going to be indicted, being guiltless. And, even if a person has been held to answer, he may be in prison, or sick at home, or, if in court, he may be ignorant without fault of the disqualification of the’ juror until after he has been sworn. Indeed, a person may be indicted for an offense com- mitted pending the inquest. Moreover, the action of the grand jury is ex parte and preliminary, and it is contrary to principle to hold that a person shall forfeit his rights by not intervening in a proceed- ing to which he is not a party.” State v. Davis, 12 R. I. 492, 34 Am. Rep. 704. : 77 Barney v. State, 12 Smedes & M. (Miss.) 68; State v. Cole, 17 Wis. 674; State v. Duncan, 7 Yerg. (Tenn.) 271; Kitrol v. State, 9 Fla. 9; State v. Jacobs, 6 Tex. 99. 78 Reich v. State, 538 Ga. 73, 21 Am. Rep. 265. 79 State v. Rockafellow, 6 N. J. Law, 332; State v. Davis, 12 R. I. 492, 34 Am, Rep. 704; Doyle v. State, 17 Ohio, 222. 80 State v. Durham Fertilizer Co., 111 N. C. 658, 16 S. E. 231. 81U. S. v. Jones (C. C.) 31 Fed. 725. 82 State v. Haster, 30 Ohio St. 542, 27 Am. Rep. 478; Tucker’s Case, 8 Mass. 286; State v. Sharp, 110 N. C. 604, 14 S. B. 504; State v. Rick- ey, 10 N. J. Law, 83; Musick v. People, 40 Ill. 268; U. S. v. White, 5 Cranch, C. C. 457, Fed. Cas. No. 16,679; People v. Jewett, 3 Wend. (N. Y.) 8314; U. S. v. Williams, 1 Dill. 485, Fed. Cas. No. 16,716; State v. Chairs, 9 Baxt. (Tenn.) 196; Lee v. State, 69 Ga. 705; Com. v. Brown, 147 Mass. 585, 18 N. BE. 587, 1 L. R. A. 620, 9 Am. St. Rep. 736; State v. Brainerd, 56 Vt. 532, 48 Am. Rep. 818; Com. v. Strother, 1 Va. Cas. 186; State v. Maddox, 1 Lea (Tenn.) 671. It was held in a late Massa- 142 MODE AND TIME OF ACCUSATION (Ch. 4 In many states it is provided that no indictment shall be deemed insufficient by reason of any defect in matter of form, and under such a statute it has been held that an in- dictment cannot be objected to because one of the grand jurors was not a qualified elector, as required by statute,** or assessed for taxes.** It has even been said that all per- sonal disqualifications of grand jurors are matters of form, within the meaning of the statute.*® Secrecy as to Proceedings of Grand Jury It has always been the policy of the law that the proceed- ings of grand juries should be kept secret. At common law, as well as under most of the statutes, the jurors are sworn to secrecy—that “the secrets of the cause, their own, and their fellows’ they will duly observe and keep.” “The se- crets of the cause,” it has been said, “relate to the persons accused, the witnesses, who they are, and what they testi- fied. Their own and their fellows’ secrets must refer to the deliberations and the votes of the grand jurors them- selves,” 86 As a rule, therefore, no objection can be raised in a crimi- nal case at any stage which must necessitate a disclosure of the proceedings before or by the grand jury. Grand jurors cannot ordinarily be compelled to testify to what was given in evidence before them, or as to irregularities in their pro- ceedings; but there are exceptions to the rule, as where public justice requires such evidence, and there is some con- flict in the authorities as to the extent of the rule.*7 It has chusetts case that an indictment is not bad merely because one of the grand jurors, before the meeting of the jury, made a personal investi- gation into the guilt of the accused, and secreted himself in a room with an officer for the purpose of listening to declarations and admis- sions of the accused, and heard the same, and listened to statements of officers as to his guilt, and believed him guilty. Com. v. Wood- ward, 157 Mass. 516, 32 N. BH. 939, 34 Am. St. Rep. 302. 83 U. 8. v. Ewan (C. C.) 40 Fed. 451. 84U. S. v. Benson (C. C.) 31 Fed. 896. 85 U.S. v. Tuska, 14 Blatchf. 5, Fed. Cas. No. 16,550. 86 State v. Hamlin, 47 Conn. 95, 36 Am. Rep. 54. 87 State v. Hamlin, 47 Conn. 95, 36 Am. Rep. 54; State v. Passet, 16 Conn. 465; Beam v. Link, 27 Mo. 261; People v. Hulbut, 4 Denio (N. Y.) 183, 47 Am. Dec. 244; Zeigler v. Com. (Pa.) 14 Atl. 537; State v. 8§ 47-48) INDICTMENT AND PRESENTMENT 143 even been held that witnesses called before the grand jury cannot testify to what took place before that body, as this Hayden, 45 Iowa, 11; State v. Gibbs, 39 Iowa, 318; Tindle v. Nichols, 20 Mo. 326; Perkins v. State, 4 Ind. 222; Ex parte Sontag, 64 Cal. 525, 2 Pac. 402. But see Com. v. Green, 126 Pa. 581, 17 Atl. 878, 12 Am. St. Rep. 894. The grand jury cannot be made to disclose “how any member voted, or the opinion expressed by their fellows or them- selves upon any question before them, nor to disclose the fact that an indictment for a felony has been found against any person, not in custody or under recognizance, nor to state in detail the evidence on which the indictment is founded.” Com. v. Hill, 11 Cush. (Mass.) 137. And see People v. Hulbut, supra; Freeman y. Arkell, 1 Car. & P. 187; Huidekoper v. Cotton, 3 Watts (Pa.) 56. But a grand juror is a competent witness to testify that a certain person did or did not testify before the grand jury. Com. v. Hill, supra; Ex parte Schmidt, 71 Cal. 212, 12 Pac. 55. And it has been held that the testimony of grand jurors is admissible to prove that one of the witnesses for the prosecution testified differently on his examination before them. It was said that, though the authorities on this point were not uniform, the weight of authority was in favor of the ruling. “The reasons on which the sanction of secrecy which the common law gives to proceed- ings before grand juries is founded are said in the books to be three fold. One is that the utmost freedom of disclosure of alleged crimes and offenses by prosecutors may be secured. A second is that per- jury and subornation of perjury may be prevented by withholding the knowledge of facts testified to before the grand jury, which, if known, it would be to the interest of the accused or their confeder- ates to attempt to disprove by procuring false testimony. The third is to conceal the fact that an indictment is found against a party, in order to avoid the danger that he may escape, and elude arrest upon it, before the presentment is made. To accomplish these purposes, the rule excluding evidence, to the extent stated in Com. v. Hill, 11 Cush. (Mass.) 140, seems to be well established, and it is embodied substantially in the words of the oath of office which each grand jur- or takes on entering on the discharge of his duties. But, when these purposes are accomplished, the necessity and expediency of retaining the seal of secrecy are at an end. ‘Cessante ratione, cessat regula.’ After the indictment is found and presented, and the accused is held to answer, and the trial before the traverse jury is begun, all the facts relative to the crime charged and its prosecution are necessa- rily opened, and no harm can arise to the cause of public justice by no longer withholding facts relevant and material to the issue, merely because their disclosure may lead to the development of some part of the proceedings before the grand jury. On the contrary, great hard- ship and injustice might often be occasioned by depriving a party of important evidence, essential to his defense, by enforcing a rule of exclusion, having its origin and foundation in public policy, after the 144 MODE AND TIME OF ACCUSATION (Ch. 4 would nullify the rule requiring the proceedings before the grand jury to be kept secret.®§ Although there are some authorities to the contrary, it has been generally held that it is inadmissible to show the number of jurors who concurred in finding an indictment, for the purpose of an objection that it was found by less than the 12 required by law, since this could be shown only by the testimony or affidavits of the grand jurors them- selves.®° In some cases grand jurors may be allowed to testify to what took place before them where the ends of justice re- quire it, as in a prosecution of a person for perjury before them. And by statute in some jurisdictions it is expressly provided that grand jurors may be compelled to disclose the testimony of witnesses before them in certain cases. INFORMATION 49. An information is a written accusation of crime pre- ferred by the prosecuting officer without the inter- vention of a grand jury. An information lies at common law for all misdemeanors. It will not lie for a felony, for, as we have seen, it has al- ways been the policy of the common law that no man shall be put upon his trial for a felony until the necessity therefor has been determined by the oath of the grand jury.®°® As reasons on which this rule is based have ceased to exist.” Com. v. Mead, 12 Gray (Mass.) 169, 71 Am. Dec. 741. And see State v. Brough- ton, 29 IN. C. 96, 45 Am. Dec. 507; Perkins v. State, 4 Ind. 222; Com. v. Green, 126 Pa. 531, 17 Atl. 878, 12 Am. St. Rep. 894; People v. Reg- gel, 8 Utah, 21, 28 Pac. 955. 88 State v. Fasset, supra. The obligation of secrecy is not removed by the discharge of the jury, and a breach of the obligation is a con- tempt of court. In re Atwell (D. C.) 140 Fed. 368. 89 State v. Hamlin, 47 Conn. 95, 36 Am. Rep. 54; People v. Hulbut, 4 Denio (N. Y.) 1383, 47 Am. Dec. 244; Green v. State, 28 Miss. 687; State v. Baker, 20 Mo. 347; Tindle v. Nichols, 20 Mo. 326; Imlay v. Rogers, 7 N. J. Law, 347. Contra, Low’s Case, 4 Greenl. (Me.) 489, 16 Am. Dec. 271; Territory v. Hart, 7 Mont. 489, 17 Pac. 718. 90 Ante, p. 125; 2 Hale, P. C. 151. § 49) INFORMATION 145 we have seen, however, in speaking of indictments, there is nothing, in the absence of constitutional provisions requir- ing an indictment, to prevent the Legislature, if it sees fit, from doing away with indictments altogether, and substi- tuting information as the mode of accusation. This the Legislature has done in some states. We have shown that in the Constitutions of the United States and of some of the states there are provisions requiring all prosecutions in cer- tain cases to be by indictment, and that in such cases no other mode of accusation will do.** An indictment, as we have seen, is sanctioned by the oath of the grand jury. An information, on the other hand, is the mere allegation of the prosecuting officer by whom it is preferred. The practice of filing informations existed at common law, and may be traced to the earliest period.*? “As the king was bound to prosecute,” it is said by Black- stone, “or, at least, to lend the sanction of his name to a prosecutor, whenever a grand jury informed him upon their oaths that there was a sufficient ground for instituting a criminal suit; so, when his immediate officers were other- wise sufficiently assured that a man had committed a gross misdemeanor, either personally against the king or his gov- ernment, or against the public peace or good order, they were at liberty, without waiting for any further intelligence, to convey that information to the court of king’s bench, by a suggestion on the record, and to carry on the prosecution in his majesty’s name.” °° Under the common law of England, informations were of two kinds. The first was filed by the Attorney General, as a rule, for offenses more immediately against the king or the public safety; but such an information could be filed by him for any other misdemeanor, though it were an of- fense more particularly against an individual.** The second was filed by the masters of the crown office, and it was the 91 Ante, p. 125. ‘ 921 Chit. Cr. Law, 843; 2 Hawk. P. C. ¢. 26, § 85. 934 Bl. Comm. 309. 943 Bac. Abr. tit. “Informations,” B; 2 Hawk. P. C. ¢. 26, § 1; Ter- ritory v. Cutinola, 4 N. M. (Johns.) 160, 14 Pac. 809; State v. Kelm, 79 Mo. 515. CuaRK Cr.Proc.(2p Ep.)—10 . 146 MODE AND TIME OF ACCUSATION (Ch. 4 usual mode of proceeding by information for offenses against individuals. Formerly both of these informations could be filed without leave of court, and without further oath or affidavit than the oath of office of the officer pre- ferring it. By an early English statute,°® however, which is old enough to have become a part of our common law, if applicable to our conditions, it was provided that informa- tions by masters of the crown office could only be filed by leave of court, and that they should be supported by the affidavit of the person at whose suit they were preferred.*® The law remained that informations filed by the Attorney General. (and as already stated, he could file them for any misdemeanor) need not be verified, and that he was the sole judge of the necessity or propriety of filing them. Leave of court was not necessary. Nor was the accused entitled to opportunity to show cause against the proceeding.®’ The Attorney General usually acted on affidavits of witnesses laid before him, but this was not necessary. There is some authority for the proposition that the kind of information to be used at common law in this country is that which in England was filed by the masters of the crown office, and that this is the kind contemplated by stat- utes which show no intention to the.contrary;°** and, if this is so, leave of the court and affidavit would be neces- sary. But, by the better opinion, the other kind of informa- tion is the one in use with us. “In our states the criminal information should be deemed to be such, and such only, as in England is presented by the Attorney or Solicitor Gen- eral. This part of the English common law has plainly be- come common law with us. As with us the powers which in England were exercised by the Attorney or Solicitor General are largely distributed among our district attorneys, whose office does not exist in England, the latter officers would seem to be entitled, under our common law, to prose- 954&5W. & Mc. 18. 96 Bac, Abr. 635, tit. “Informations.” ’971: Chit. Cr. Law, 845; 4 Bl. Comm. 312; 11 Harg. St. Tr. 270; ‘State v. Town of Dover, 9 N. H. 468. 98 State v. Gleason, 32 Kan. 245, 4 Pac, 868. And see U. S. v. Tu- reaud (C. C.) 20 Fed. 621. § 49) INFORMATION 147 cute by information, as a right adhering to their office, and without leave of court.” °* The mode of procedure is in many states almost entirely regulated by statute. In some the information must be under the oath of the prosecuting officer, or of some wit- ness, and, if not so verified, it is invalid.t Unless verifica- tion is required by statute, however, it is not necessary; for, as we have seen, it was. not required at common law. In some states it is necessary to the filing of an information that there shall have been a complaint on oath and pre- liminary examination before a magistrate, and a finding by the magistrate of probable cause for the prosecution.” Though, in general, as stated above, the prosecuting offi- cer is the sole judge of the necessity and propriety of filing an information, his action is now very much restricted by statute; and he must follow the statutory provisions. It has been held that even at common law he cannot prefer an information where the grand jury have inquired into the alleged offense, and found that the evidence did not justify an indictment, unless he has new evidence which was not brought before the grand jury. But the soundness of this decision is doubtful. ? In all cases, an information, to be valid, must be preferred by the proper prosecuting officer, and not by a private per- son.* 991 Bish. Cr. Proc. §§ 144, 604, 606; Whart. Cr. Pl. & Prac. § 87; State v. Kelm, 79 Mo. 515; State v. Moore, 19 Ala. 514; Territory v. Cutinola, 4 N. M. (Johns.) 160, 14 Pac. 809; State v. Keena, 64 Conn. 212, 29 Atl. 470. By statute in some states leave of court is required. Walker v. People, 22 Colo, 415, 45 Pac. 388; State v. Cole, 38 La. Ann. 843. 1 State v. Hayward, 83 Mo. 308; State v. Calfer (Mo.) 4 8S. W. 418; Wadgymar v. State, 21 Tex. App. 459, 2 S. W. 768; Lackey v. State, 14 Tex. App. 164. 2O’Hara v. People, 41 Mich. 623, 3 N. W. 161. See ante, p. 97. 3 Richards v. State, 22 Neb. 145, 34 'N. W. 346. 4 People v. Kelm, 79 Mo. 515. But an information filed by another may be adopted by the prosecuting officer, and his prosecution of such information is proof of his adoption of it. State v. Boogher, 8 Mo. App. 599. 148 MODE AND TIME OF ACCUSATION (Ch. 4 CORONER’S INQUISITION 50. A coroner’s inquisition is the record of the finding of the jury sworn by the coroner to inquire super visum corporis, concerning the death of a person. On this a person might, at common law, be prosecuted for murder or manslaughter without the intervention of a grand jury, for the finding of the coroner’s jury was itself equivalent to the finding of a grand jury. The accused is arraigned on the inquisition as on an indictment, and the subsequent proceedings are the same. This practice does not obtain in the United States. Indeed, it would seem to conflict with the constitutional provisions in many states requiring an indictment in cases of ielony The mode of conducting a coroner’s inquest is generally regulated by statute. On receiving notice of a death under circumstances requiring investigation, the coroner causes a jury consisting of six men (in some jurisdictions perhaps more, and in some less) to be summoned. After the jury are sworn, they view the body. Witnesses are examined on oath, and their evidence is reduced to writing by the cor- oner. He has authority, like a magistrate, to cause the ma- terial witnesses to enter into a recognizance for their ap- pearance tc testify at court in case of a trial. 5 Reg. v. Ingham, 9 Cox, Cr. Cas. 508. 6 Ex parte Anderson, 55 Ark. 527,18 S. W. 856; State v- Powell, 7 N. J. Law, 244. 7 State v. Powell, supra. §$§ 52-53) TIME OF PROSECUTION 149 COMPLAINT 51. By statute in most states, certain minor offenses may be prosecuted before inferior courts upon a complaint or information made under oath by a private per- son. This kind of a complaint or information is very different from the information which we have already explained. In- stead of being presented by the prosecuting officer, it is made by a private person. It is more in the nature of a complaint made by a private person for the purpose of an arrest. Itis allowed only in the case of petty misdemeanors. The prosecution is instituted in an inferior court, as before a justice of the peace or municipal court. In case of a con- viction, an appeal to the higher court is provided for in some cases, and a trial de novo is there had on the same complaint or information. TIME OF PROSECUTION 52. It is generally provided by statutes, known as the “stat- utes of limitation,” that prosecutions shall be bar- red unless commenced within a certain time after the offense was committed. In the absence of such a provision, there is no period beyond which a prosecution may not be instituted. 53. In some states it is provided by statute that a person un- der arrest on a charge of crime shall be discharged from imprisonment unless a presentment, indict- ment, or information is found or filed within a pre- scribed time after his arrest. But these statutes do not operate as a bar to prosecutions. Courts look with disfavor on unreasonable delay in com- mencing prosecutions,* but, in the absence of statutory lim- 8 See Reg. v. Robins, 1 Cox, Cr. Cas, 114. 150 MODE AND TIME OF ACCUSATION (Ch. 4 itation, there is no time within which a prosecution must be commenced. In most jurisdictions, however, statutes have been enacted barring prosecutions unless commenced within a prescribed time after the offense is alleged to have been committed. These statutes are to be liberally con- strued in favor of the defendant.® It has been held that the statutes apply to offenses committed before their enact- ment,?° but the general rule is otherwise."? A statute extending the time within which prosecution must be begun does not, it seems, affect cases in which the period set by the previous statute had expired;?* but it does extend the time for prosecution as to cases in which the time provided in the previous statute had not expired when the extending statute was passed.** The statute commences to run on the day the offense is consummated,?* unless the offense is continuous, in which case it commences when the act or omission constituting the 9 Whart. Cr. Pl. & Prac. § 316. In a recent case it was held that such statute applies to proceedings for contempt not committed in the presence of the court, though such contempt proceeding may not be instituted by indictment or information. Gompers v. U. S., 233 U. 8. 604, 34 Sup. Ct. 693, 58 L. Ed. 1115, Ann. Cas. 1915D, 1044. 10 Johnson v. U. S., 3 McLean, 89, Fed. Cas. No. 7,418; U. S. v. Ballard, 3 McLean, 469, Fed. Cas. No. 14,507; Com. v. Hutchinson, 2 Pars. Eq. Cas. (Pa.) 453. 11 Martin v. State, 24 Tex. 61; People v. Lord, 12 Hun (N. Y.) 282. 12 See Com. v. Duffy, 96 Pa. 506, 42 Am. Rep. 554. 13 Com. v. Duffy, 96 Pa. 506, 42 Am. Rep. 554. In this case the de- fendant had committed forgery when the statute of limitation re- quired prosecution within two years. The two years had not expired when a statute was passed extending the time of prosecution in cases of forgery to five years. The prosecution was begun within five years, but not within two years, after the commission of the crime. It was held that the defendant was subject to prosecution. The court- said: “The state makes no contract with criminals, at the time of the passage of an act of limitation, that they shall have immunity from punishment if not prosecuted within the statutory period. Such enactments are measures of public policy only. They * * * may be changed or repealed altogether, as that [legislative] power may see fit to declare.” 14 Whart. Cr. Pl. & Prac. § 321; Gise v. Com., 81 Pa. 428; State v. Asbury, 26 Tex. 82; Scoggins v. State, 32 Ark. 205; U. S. v. Irvine, 98 U. S. 450, 25 L. Ed. 193. §§ 52-53) TIME OF PROSECUTION 151 offense ceases.1° Thus, in homicide, the statute begins to run from the date of the death, not the date of the blow; *° in obtaining property by false pretense, from the date the property was actually obtained, not from the date on which the pretense was made;*” in bigamy from the date of the illegal marriage, not from the date the illegal cohabitation ceases;28 in seduction, from the date of the illicit inter- course, not from the date of the promise on which it was obtained.?® As said above, when the crime is a continuing one, the statute begins to run from the date that the act or omission constituting the offense ceased. Thus, in bigamous cohab- itation, the statute does not begin to run from the date of the first act of illegal intercourse, but from the date when such intercourse ceased;?° in obstructing a highway by maintaining a dangerous crossing, the statute does not be- gin.to run from the date the obstruction began, but from the date it ceased.2+ The crime of abandonment of one’s wife is held not to be a continuing offense, and must there- fore be prosecuted within the statutory period from the date of deserting the wife.?? . The commencement of the prosecution, stopping the run- ning of the statute, is in some jurisdictions the finding of an indictment, filing of an information, or, in case of in- ferior misdemeanors prosecuted by complaint, filing of the complaint, and not the filing of a complaint for the issu- ance of a warrant of arrest or a preliminary hearing, or the issuance of a warrant.?8 In other jurisdictions the issuance 15 Whart. Cr. Pl. & Prac. § 321; U. S. v. Irvine, supra. 16 State v. Taylor, 31 La. Ann. 851. 17 State v. Riley, 65 'N. J. Law, 192, 46 Atl. 700. 18 Gise v. Com., 81 Pa. 428. 19 People v. Nelson, 153 N. Y. 90, 46 N. E. 1040, 60 Am. St. Rep. 592. .20 State v. Sloan, 55 Iowa, 217, 7 N. W. 516. 21 State v. Dry Fork R. Co., 50 W. Va. 235, 40 S. BL 447. 22 People v. Heise, 257 Tl. 448, 100 N. E. 1000; State v. Langdon, 159 Ind. 377, 65 N. E.1. So withholding pension money from a client has been held not to be a continuing offense. U.S. v. Irvine, 98 U. S. 450, 25 L. Hd. 198. 230. S. v. Slacum, 1 Cranch, C. C. 485, Fed. Cas, No. 16,311; Com. v. Sheriff, 3 Brewst. (Pa.) 394. The sending of an indictment to the 152 MODE AND TIME OF ACCUSATION (Ch. 4 of a warrant, at least where the arrest is made within a rea- sonable time afterwards,’ or binding over or commit- ment,?* will stop the running of the statute. The statutes generally except from their operation cases in which the offender conceals himself or is a fugitive from justice or a nonresident of the state,?* and may contain other exceptions. In some states the statute does not run until the offense is known.?? No other exceptions than those specified in the statute will defeat its operation.?® The statutes generally provide that if an indictment is found within the statutory period, and quashed or set aside grand jury does not stop the running of the statute. State v. Tom- linson, 25 N. C. 82; State v. Morris, 104 N. C. 887, 10 S. BE. 454. Pre- sentment by a grand jury is sufficient, though the statutory period elapses before indictment. Brock v. State, 22 Ga. 98. But see U. 8S. v. Slacum, supra. If a nolle prosequi of an indictment is entered, the running of the statute is riot interrupted. U. S. v. Ballard, 3 McLean, 469, Fed. Cas. No. 14,507. Contra, by statute, State v. Child, 44 Kan. 420, 24 Pac. 952. The sustaining of a demurrer to an indictment aft- er the statutory period had expired, the indictment having been found within the period, does not bar the prosecution.» Berkley v. Com., 164 Ky. 191, 175 S. W. 364. 24 Reg, v. Parker, 9 Cox, Cr. Cas. 475; In re Clyne, 52 Kan, 441, 35 Pac. 23; Foster v. State, 38 Ala. 425; Ross v. State, 55 Ala. 177; Peo- ple v. Clement, 72 Mich. 116, 40 N. W. 190. Filing complaint for issu- ance of warrant is not sufficient. In re Clyne, supra; People v. Clem- ent, supra; State v. Miller, 11 Humph. (Tenn.) 505; People v. Clark, 383 Mich. 120; In re Griffith, 35 Kan. 377, 11 Pac. 174. The arrest need not be made within the statutory period. Id. 25 Reg. vy. Austin, 1 Car. & K. 621. 26 As to these exceptions, see U. S. v. White, 5 Cranch, C. C. 116, Fed. Cas. No. 16,677; Robinson v. State, 57 Ind. 113; State v. Harvell, 89 Mo. 588, 1 S. W. 837; State v. Heller, 76 Wis. 517, 45 N. W. 307; Graham v. Com., 51 Pa. 255, 88 Am. Dec. 581; People v. McCausey, 65 Mich, 72, 31 N. W. 770. In Blackman v. Com., 124 Pa. 578, 17 Atl. 194, the court held that if the prosecution proved the commission of the offense, the issuing of the warrant, defendant’s flight, and his ab- sence from his usual place of residence within the state, it need not prove the negative fact that defendant was not an inhabitant or resi- dent of the state until within the statutory period for finding an in- dictment. 27 Dale v. State, 88 Ga. 552, 15 S. E. 287. 28 Com. v. Sheriff, 3 Brewst. (Pa.) 394; In re Griffith, 35 Kan, 377, 11 Pac. 174. §§ 52-53) TIME OF PROSECUTION 153 as defective, or judgment is arrested, the time during which the first indictment was pending is not to be computed as part of the time of limitation prescribed for the offense.*® The same rule has been applied where the indictment was nolle pros’ed.2° When the second indictment was found after the statutory period, the burden is on the state to show that a former indictment had been found within the stat- utory period.*? The effect of the statute cannot be avoided by charging a crime not barred, and convicting of an offense which is included in the charge, but which was barred. Thus, where a person is indicted for murder, for which no limitation is prescribed, and is found guilty of assault with intent to murder, which was barred when the indictment was found, a motion in arrest of judgment should be sustained.*? In some states it is provided that a person in jail on a criminal charge shall be dismissed from imprisonment if a presentment, indictment, or information be not found or filed against him before the end of the secqnd term (the time varies in the different states) of the court at which he is held to answer. These statutes do not operate, like the statutes of limitation of which we have spoken, as a bar to the prosecution of the defendant. He must be dis- charged from imprisonment if not formally charged with- 29 Foster v. State, 38 Ala. 425; State v. Johnson, 50 N. C. 221; State v. Hailey, 51 'N. C. 42; Tully v. Com., 18 Bush (Ky.) 142; State vy. Owen, 78 Mo. 367; State v. Child, 44 Kan. 420, 24 Pac. 952. 30 State v. Child, 44 Kan. 420, 24 Pac. 952; Swalley v. People, 116 Tll. 247, 4 N. E. 379. In the absence of a provision that the time dur- ing which the first indictment was pending is not to be computed in the running of the statute, it has been held that, where an indictment found within the statutory period has been nol. pros’ed, the time within which the indictment was pending is not to be deducted. U. S. v. Ballard, 3 McLean, 469, Fed. Cas. No. 14,507. -81 Gill v. State, 38 Ark. 524; White v. State, 103 Ala. 72, 16 South. 63. 32 Fuecher vy. State, 33 Tex. Cr. R. 22, 24 8. W. 292. This rule is not changed by a statute providing that, where one is indicted for a crime, he may be convicted of a lesser degree of the same crime, or of an attempt to commit it. People v. Di Pasquale, 161 App. Div. 196, 146 N. Y. Supp. 523. 154 MODE AND TIME OF ACCUSATION (Ch. 4 in the time prescribed, but he may be again arrested and tried upon any indictment that may be subsequently found against him.*® In most states, by statute, a person who has been indicted or informed against, and is in custody, must be brought to trial within a certain time, or he will be entitled to a dis- charge. This, however, relates to the time of trial, rather than of the prosecution.®4 NOLLE PROSEQUI 54. A nolle prosequi is a formal entry upon the record by the prosecuting officer, by which he declares that he will no further prosecute the case, either as to some of the counts of the indictment, or part of a divisible count, or as to some of the defendants, or altogether. It may be entered at any time before judgment without the defendant’s consent; but if entered after the trial has commenced, and without the consent of the defendant, and the indictment is sufficient, it will amount to an acquittal. At common law, the state may at any time before judg- ment,®> without the defendant’s consent, voluntarily with- draw the indictment or other accusation altogether, or as. to some counts which are objectionable, or as to part of a count which is divisible, or as to some of several defend- ants where the offense is joint and several.*® This is done 388 Waller & Bogg v. Com., 84 Va. 492, 5 S. H. 364. It is sufficient under such a statute that the defendant has been indicted at every term of court, though for a different crime from that for which he is finally indicted and tried. Waller & Bogg v. Com., supra. 34 Post, p. 475. 35 Com. v. Briggs, 7 Pick. (Mass.) 178; Com. v. Tuck, 20 Pick. (Mass.) 357; State v. Burke, 38 Me, 574; Levison v. State, 54 Ala. 520; State v. Roe, 12 Vt. 93. 86 Com. v. Briggs, supra; Com. v. Tuck, supra; Com. v. Smith, 98 Mass. 10; U. S. v. Watson, 7 Blatchf. 60, Fed. Cas. No. 16,652; State y. Bruce, 24 Me. 71; State v. Roe, 12 Vt. 93; People v. Porter, 4 Park- er, Cr. R. (N. Y.) 524; Wright v. State, 5 Ind. 290, 61 Am. Dec. 90; § 54) NOLLE PROSEQUI 155 by the entry of such a withdrawal on the record. The entry is essential. Until the entry is made on the record, there is no binding withdrawal, but it may be retracted, and the prosecution may proceed on the same charge.” The entry of a nolle prosequi as to one count does not affect the right to proceed to judgment on the others, nor does such an entry as to one of several defendants affect the proceeding as to the others, where the offense is several as well as joint.8* If the entry is made before the trial has com- menced by the swearing of the jury, or even if made after- wards, where the indictment was fatally defective, a new prosecution may be instituted for the same offense; *® but by the weight of authority, as we shall see, there can be no further prosecution if the indictment is sufficient to sustain a conviction, and the entry is made, without defendant’s consent, after the jury have been sworn.*® In some states, by statute, the consent of the court to the entry of a nolle prosequi is necessary ; *? and in others it has been held necessary, in the absence of such a statute, after the jury are sworn, and before verdict; #2 but, by the better opinion, it was not necessary at all at common law.** State v. Fleming, 7 Humph, (Tenn.) 152, 46 Am. Dec. 73; Lacey v. State, 58 Ala. 385. 87 Com. v. Wheeler, 2 Mass. 172; Com. v. Tuck, supra; Wortham v. Com., 5 Rand. (Va.) 669. 38 See the cases above cited. 3° Post, p. 442; Com, v. Wheeler, 2 Mass. 172; Com. v. Briggs, 7 Pick. (Mass.) 179; State v. Benham, 7 Conn. 418; Lindsay v. Com., 2 Va. Cas. 345; Wortham v. Com., 5 Rand. (Va.) 669; U: S. v. Shoemak- er, 2 McLean, 114, Fed. Cas...No. 16,279; State v. McNeill, 10 N. O. 188; State v. Haskett, 3 Hill (S. C.) 95. 40 Post, p. 442. : 41 See People v. McLeod, 1 Hill (N. Y.) 404, 87 Am. Dee. 328. 42 U.S. v. Shoemaker, 2 McLean, 114, Fed. Cas. No. 16,279; Com. v. Tuck, 20 Pick. \(Mass.) 357; State v. I. 8S. S., 1 Tyler (Vt.) 178; State v. Moody, 69 'N. C. 529. 43 People v. McLeod, 1 Hill (N. Y.)'404, 837 Am. Dec. 328. The fol- lowing is related of Sir John Holt, Chief Justice of the King’s Bench in the reigns of William and Anne: “There were some persons in Lon- don who pretended the power of foretelling future events, and who were Called the ‘French prophets.’ Holt having, upon occasion, com- mitted one of these to prison, a disciple of his came to the Chief Jus- 156 MODE AND TIME OF ACCUSATION (Ch. 4 tice’s house, and desired to see him. On being admitted, he said: ‘I come from the Lord, who bade me desire thee to grant a nolle pro- sequi for John Atkins, his servant, whom thou hast thrown into pris- on.’ ‘Thou art a false prophet and lying knave,’ returned the Chief Justice. ‘If the Lord had sent thee, it would have been to the Attor- ney General; for the Lord knoweth that it is not in my power to grant a nolle prosequi.’” 1 Hill (N. Y.) 405, from 1 Law & Lawy. (Phil. Ed.) 293, 294. PLEADING—THE ACCUSATION 157 CHAPTER V PLEADING-—-THE ACCUSATION 55. Form of Indictment—In General. 56. The Commencement. 57. The Statement. 58. Name and Description of Defendant. 59. Statement of Offense—In General. 60. Stating Ingredients of Offense. 61. Facts to be Stated, and not Conclusions of Law. 62. Identifying Offense. 63. Mode of Averment—Argument and Inference. 64. Unnecessary Matter. 65. Facts Necessarily Implied from Facts Stated. 66. Facts Judicially Noticed. 67. Conclusions of Law from Facts Stated. 68. Matters of “Evidence. 69. Matters of Defense. 70. Facts not Known. 71. Disjunctive or Alternative Allegations, 72. Repugnancy. 73. English Language. 7A, Abbreviations. 75. Use of Videlicet or Scilicet. 76. Clerical or Grammatical Errors. 17. Inducement. 78. Innuendo. 79. Surplusage. We have seen that no man can be put upon his trial for an offense without being formally accused, and we have ex- plained the different modes of accusation; namely, by in- dictment, by information, and by complaint. It is not only necessary that there shall be an accusation, but it must be in the form required by law. Certain allegations are essen- tial, and they must conform to certain rules. We will now show what these essential allegations are, and explain the rules of pleading which govern the construction of an ac- cusation. We shall in terms speak of indictments only, but the rules apply with equal force to informations and 158 PLEADING—THE ACCUSATION (Ch. 5 complaints, except in so far as the difference in the nature of the accusations necessarily renders them inapplicable. In general, the rules and principles of pleading with re- spect to the structure of a declaration in a civil action are applicable to an indictment, and therefore, where the crim- inal law is silent as to the form of an indictment in a par- ticular case, resort may be had to decisions on the requisites of pleading in civil actions. There are many questions of pleading in criminal cases, however, which are peculiar to them, and, even where this is not the case, a correct knowl- edge of the principles and rules of pleading in criminal cases cannot be acquired by a study of the rules of plead- ing in civil actions only. A special discussion is necessary. ‘Record and Caption of Indictment ‘Every indictment must have a caption, but the caption is no part of the indictment itself; it is only a formal state-. ment of the proceedings, describing the court before which the indictment was found, the time and place where it was found, and the jurors by whom it was found.1 These par- ticulars, as we shall see, must be set forth with sufficient certainty.” It has been said that the record of the prosecu- tion will not be perfect without the caption, and would not be admissible in evidence, for it would not-show by what authority the indictment was found;* but it has been held that the omission of a caption does not make the indict- ment itself bad, and that the omission may be supplied from other parts of the record.* The name of the county should 11 East, P. C. 118; State v. Gary, 36 N. H. 359; People v. Jewett, 3 Wend. (N. Y.) 319; Rose v. State, Minor (Ala.) 29; State v. Brick- ell, 8 N. C. 354; State v. Williams, 2 McCord (S. C.) 301; U.S. v. Bornemann (C. C.) 35 Fed. 824; McClure v. State, 1 Yerg. (Tenn.) 206; State v. Hunter, Peck (Tenn.) 166; Noles v. State, 24 Ala. 672; State v. Smith, 2 Har. (Del.) 583; State v. Jones, 11 N. J. Law, 289; State v. Smith, 148 Iowa, 640, 127 N. W. 988. 22 Hale, P. C. 165; 2 Hawk. P. ©. c. 25, §§ 16, 17, 118-120; State vy. Conley, 39 Me. 78; Reeves v. State, 20 Ala. 33; English v. State, 4 Tex. 125; State v. Hunter, supra. 8 Cooke v. Maxwell, 2 Starkie, 183. 4 State v. Gilbert, 13 Vt. 647; State v. Wasden, 4 N. C. 596; post, p. 161. PLEADING—THB ACCUSATION 159 appear in the caption, unless it is inserted in the margin, and is referred to in the body of the caption as “the county aforesaid.” * If stated in the body of the caption, it may be omitted in the margin.® The caption must set forth with sufficient certainty the court in which the indictment was found, so as to show that the court had jurisdiction.” It is not necessary, how- ever, to set forth the foundation of the court’s authority, if it be exercised in the course of ordinary jurisdiction,* but it is probably otherwise if the indictment is found in a spe- cial court.2 An indictment with this caption: “Common- wealth of Massachusetts, Essex, to wit: At the court of common pleas, begun and holden at Salem, within and for the county of Essex, on the first day of ——— in the year of our Lord ———,” is sufficient, and sufficiently shows that the court was held in the commonwealth. Lo The place at which the court is held, including the name of the county, must be stated. This is necessary to show that the place is within the limits of the court’s jurisdic- tion. As already stated, the county may be stated in the margin, and merely referred to in the body of the caption as “the county aforesaid.” Such a reference or an express statement of the county is essential.1? 52 Hale, P. C. 165, 166. 61 Chit. Cr. Law, 327. It is enough if the county be stated in the body of the indictment. Tefft v. Com., 8 Leigh (Va.) 721; State v. Lane, 26 N. C. 113. 72 Hale, P. C. 166; 2 Hawk. P. C. ¢. 25, §§ 16, 17, 118-120; State v. Williams, 2 McCord (S. C.) 801; State v. Sutton, 5 N. GC. 281; Dean v. State, Mart. & Y. (Tenn.) 127; Taylor v. Com., 2 Va. Cas. 94; Burgess v. Com., 2 Va. Cas. 483. In many states it is provided that defects in form may be amended or cured by verdict, and it has been held that omission of the name of the court from the caption is such a defect. State v. Brennan, 2 S. D. 384, 50 N. W. 625. 8 Rex v. Royce, 4 Burrows, 2085; Rex v. Gilbert, 1 Salk. 200; 2 Hawk. P. C. ¢. 25, § 125. 91 Chit. Cr. Law, 329; Fost. 3; State v. Williams, 2 McCord (S. C.) 801. 10 Com. v. Fisher, 7 Gray (Mass.) 492; State v. Conley, 39 Me. 78. 112 Hale, P. C. 166; 2 Hawk. P. C. c. 25, § 128; Lusk v. State, 64 Miss. 845, 2 South. 256. See State v. Conley, 39 Me. 78. 122 Hale, P. C. 166; 2 Hawk. P. C. c. 25, § 128; State v. Williams, 4 160 PLEADING—THE ACCUSATION (Ch. 5 The caption must also specify the day and year on which the indictment was presented, and if it state an uncertain, future, or impossible day, or merely lay a day of the week, or state the time with repugnancy, it will be fatally defec- tive,’® unless the omission or mistake is supplied by other parts of the record.14 It was formerly held that, in addition to the description of the court, and the time and place at which it is held, the caption must name the judges or justices, or so many of them as the law requires to constitute the court, and allude to the rest by the words “and others their fellows”; +* and this may still be necessary in some jurisdictions. There is no reason, however, why it should be required if the name of the judge otherwise appears on the record; and in some states it has been held not to be necessary, while in others the approved forms of caption do not contain it.*® The indictment must always be shown to have been found upon oath, or upon affirmation; and, if an allegation of this fact does not appear either in the caption or the commence- ment, the indictment will be bad.17. The names of the jurors need not be specified in the caption, though they must ap- pear somewhere on the record.7* It should also appear on 2 McCord (8. C.) 301; Dean v. State, Mart. & Y. (Tenn.) 127; Tay- lor v. Com., 2 Va. Cas. 94; Burgess v. Com., 2 Va. Cas. 483; Com. v. James, 1 Pick. (Mass.) 375. 132 Hawk. P. C. c. 25, § 127; Rex v. Warre, 1 Strange, 698; 4 Coke, 48; ,Rex v. Fearnley, 1 Term R. 316, 1 Leach, Crown Cas. 425; Rex v. Roysted, 1 Ld. Keny. 255. 14 Post, p. 161. : 152 Hale, P. C. 116; 2 Hawk. P. C. ¢. 25, § 124; 1 Chit. Cr. Law, 331; State v. Zule, 10 N. J. Law, 348; State v. Price, 11 N. J. Law, 203. It is not necessary to show their appointment. Rex v. Royce, 4 Burrows, 2084. 16 Com. v. Stone, 3 Gray (Mass.) 453. 172 Hale, P. C. 167; 2 Hawk. P. C. c. 25, § 126; Rex v. Evans, 1 Keb. 329; Roy v. Inhabitants of Yarton, 1 Sid. 140; Roe v. State (Ala.) 2 South. 459. 181 Chit. Cr. Law, 333; U.S. v. Insurgents, 2 Dall. 335, Fed. Cas. No, 15,443; Mahan vy. State, 10 Ohio, 232. See Stone yv. State, 30 Ind. 115; State v. Norton, 23 N. J. Law, 33. PLHADING—THE ACCUSATION 161 the record that the bill is found by at least 12 jurors,*® though it need not appear in the caption.?° It is usual to describe the jurors as “good and lawful men,” and there is authority for saying that such a description is necessary.** But it has been held otherwise.22, These words include ev- ery qualification required by law for grand jurors.2* Where some of the jurors are affirmed instead of sworn, the record, it has been held, must show that this was authorized, as that they alleged that they had conscientious scruples against taking an oath;** but the weight of authority is to the contrary. As we shall see, an indictment, being a finding of the grand jury on oath, cannot be amended by the court. The caption, however, being no part of the indictment, but mere- ly a ministerial act to make up the record of the court, may, in the absence of a statutory provision to the contrary, be amended at any time, even after conviction, so as to cure defects, by making it conform to the other records of the term;7> thus omissions or mistakes in the caption, in the description of the court, or the statement of time of the find- 192 Hale, P. C. 167; 2 Hawk. P. C. c. 25, §§ 16, 126; Clyncard’s Case, Cro. Eliz. 654; Rex v. Darley, 4 East, 175. . 20 Young v. State, 6 Ohio, 435; Turns v. Com., 6 Metc. (Mass.) 225, 212 Hale, P. C. 167; Oily’s Case, Cro. Jac. 635. 22 State v. Yancey, 1 Tread. Const. (S. C.) 237; 1 Chit. Cr. Law, 333. / 23 Jerry v. State, 1 Blackt, (Ind.) 396; State v. Glasgow, 1 N. C. 264, 2 Am. Dec. 629; State v. Price, 11 N. J. Law, 203; Collier v. State, 2 Stew. (Ala.) 388; Bonds v. State, Mart. & Y. (Lenn.) 143, 17 Am. Dee. 795; Cornwefl v. State, Mart. & Y. (Tenn.) 147. 24 State v. Fox, 9 N. J. Law, 244; State v. Harris, 7 N. J. Law, 861. But see Mulcahy v. Reg., L. R. 3 Ir. 306; Com. v. Fisher, 7 Gray (Mass.) 492. It is also held now in New Jersey that such an omission is a defect of form, which under a statute in that state is waived if not objected to by demurrer or motion to quash. Enge- man v. State, 54 N. J. Law, 247, 23 Atl. 676. 251 Chit. Cr. Law, 335, and old authorities there collected; Philips v. Smith, 1 Strange, 138; Rex v. Hayes, 2 Ld. Raym. 1518, 2 Strange, 843; Rex v. Darley, 4 East, 175; State v. Williams, 2 McCord (S. GC.) 801; State v. Gilbert, 18 Vt. 647; Dean v. State, Mart. & Y. (Tenn.) 127; Com. v. James, 1 Pick. (Mass.) 375; Burgess v. Com., 2 Va. Cas, 483; Taylor v. Com, 2 Va. Cas, 94. CLARK Cr.Proc.(2D Ep.)—11 162 PLEADING—THE ACCUSATION (Ch. 5 ing of the indictment, or in any other respect, may be sup- plied or corrected by other parts of the record, as by the cer- tificate of the clerk on the back of the indictment.?° In many states, the caption, instead of being made up by the clerk, is prefixed to the bill before it is submitted to the grand jury, and forms a part of the bill as presented by them. This, however, does not make it any part of the in- dictment proper." Being a part of the bill, however, when submitted to the grand jury, and considered by them, the indictment proper may refer to it for the name of the county, just as it may refer to the county in the margin.?® In North Carolina it has been held that a caption is not necessary unless the court is acting under a special commis- sion,?® 26 Com. v. Mullen, 13 Allen (Mass.) 551; Penn’a v. Bell, Add. (Pa.) 175, 1 Am. Dec. 298; Com. v. Hines, 101 Mass. 33; U. S. v. Borne- mann (C. C.) 35 Fed. 824; Com. vy. Stone, 3 Gray (Mass.) 453; Com. v. Colton, 11 Gray (Mass.) 1; State v. Robinson, 85 Me. 147, 26 Atl. 1092; State v. Jones, 9 N. J. Law, 357, 17 Am. Dec. 483; State v. Brickell, 8 N. C. 356; State v. Gilbert, 13 Vt. 647 (in this case it was held that the entire omission of a caption might be supplied by the minutes of the clerk on the bill, and the general records of the term). An indictment which purports in its caption to have been found on the first day of the term, but charges an offense of a later day, may be shown, by reference to the clerk’s certificate indorsed thereon, to have been actually returned into court after this date. Com. v. Stone, supra. : 27 Ante, p. 158. 28 Com. v. Edwards, 4 Gray (Mass.) 1; Com. v. Fisher, 7 Gray (Mass.) 492. 29 State v. Brickell, 8 N. C. 854; State v, Haddock, 9 N. C. 462. ~“Inasmuch as a prosecution, in this state, is never removed from one to a higher tribunal, a captién can be of no benefit to an indict- ment, and is universally dispensed with.” State v. Marion, 15 La. Ann. 495. § 55) FORM OF INDICTMENT 163 FORM OF INDICTMENT 55. An indictment is divided into three parts, namely: (a) The commencement. (b) The statement. (c) The conclusion. An indictment for larceny at common law would be in the following form: State of , County of , to wit: The jurors for the county aforesaid upon their oath pre- sent (a) that John Doe, at B , in the county aforesaid, on the first day of January, in the year of our Lord 1895, one overcoat, of the value of one hundred dollars, of the goods.and chattels of Richard Roe, feloniously did steal, take and carry away, (b) against the peace and dignity of the state. From the beginning to the letter (a) is the commence- ment; from the letter (a) to the letter (b) is the state- ment; and from the letter (b) to the end is the conclusion. We shall in the following pages take up and explain each of these parts separately and in detail, but before doing so it is necessary to say something about the form of indict- ments generally, and to call attention to the variance be- tween the forms used in the different states, and to the effect of modern statutes on the common-law rules. The form of indictment given above is sufficient at common law; and it is therefore sufficient in all of our states unless there is something in the statutes, decisions, or peculiar practice requiring a different form. It must not be sup- posed that these exact words are essential, and that no other words will do, for this is not true. It is required, as we shall see, that certain matters shall appear in an indictment, and that they shall be stated in a certain manner. If these re- quirements are met, nothing more is necessary. It is best that there should be a particular form of indictment, and that it should in practice be followed in all cases, but a de- parture from the exact form which is generally used does 164 PLEADING—THE ACCUSATION (Ch. 5 not necessarily, and should not, make an indictment bad. The fact that cértain averments are found in precedents of forms which have been used does not show that they may not be dispensed with. “It would be giving too much force to mere precedents of forms, which often contain unnec- essary and superfluous averments, to hold that a particular allegation is essential to the validity of an indictment, be- cause it has sometimes, or even generally, been adopted by text writers or by cautious pleaders.” °° Nor, on the other hand, does the fact that an indictment follows the form which has been in general use necessarily show that it is good. Convictions may be had on 99 indictments, all of which are in exactly the same form, simply because no ob- jection is made to a defect therein, or because an objection is erroneously overruled by the court. This, however, is no reason why the one hundredth indictment should be sus- tained, if it is in fact defective. The rules of pleading must be applied to every indictment, and it is by those rules (in connection with the statutes, of course) that its sufficiency is to be determined. If the pleader adopts a form, he should first test it by these rules. “If, upon inquiry, it is found that a form which has long been pursued is inconsistent with the rules of law and good pleading, it cannot be too soon reformed; and the consequences, which are suggested to be so alarming in prospect, appear to amount to no more than to require that in the future the pleader should at- tend to the language of the statute upon which the proceed- ing is adopted, instead of copying a faulty precedent.” ** The forms of indictment and information vary more or less in the different states, because of particular constitu- tional or statutory provisions, or because of local usage. In some states the word “state” is used in the commence- 30 Com. v. Hersey, 2 Allen (Mass.) 179; Com. v. Wright, 1 Cush. (Mass.) 64. And see State v. Brooks, % Mo. 121, 7 8S. W. 24. 31 Rex v. Morley, 1 Younge & J. 221. A conviction is bad where the charge does not in terms show a legal offense, though it is in a form used time out of mind in the court before which the party was so charged. Ex parte Hopkins, 61 Law J. Q. B. 240, 66 Law T. (N. 8.) 58, 17 Cox, Cr. Cas. 444. § 55) FORM OF INDICTMENT 165 ment and conclusion, while in others the word “common- wealth” is used, and in others the words “the people of the state” are used. In many of the states forms of indictment are prescribed by statute. The object of the Legislature is to simplify the drawing of indictments and other accu- sations, and dispense with the necessity of purely formal and technical averments, which, though really useless, are considered essential at common law, and the omission of which would often defeat an indictment which is perfectly good in substance. These statutes merely do away to some extent with the strictness required by the common law; they. do not, as a rule, render insufficient an indictment which would have been good at common law.®? The English parliament has plenary power to prescribe any form of accusation it may see fit, but with us the power of Congress and of the state Legislatures is greatly restrict- ed by constitutional provisions. Some of the Constitutions, as we have seen, require certain prosecutions to be by in- dictment. Most of them require the accusation, in what- ever form it may be, to be sufficient in substance to fully inform the accused of the specific charge against him; and most, if not all, provide that no person shall be deprived of life, liberty, or property without due process of law. None of these provisions prevent the Legislature from abol- ishing common-law forms of accusation (except, of course, that there must be an indictment when it is required by the Constitution), or from dispensing with particular allega- tions which are necessary at common law, provided the form substituted or allowed is sufficient to give the accused reasonable notice of the charge against him.*? No form, however, will suffice, even though it may be authorized by 32 State v. Brooks, 94 Mo. 121, 7 S. W. 24. 33 State v. Corson, 59 Me. 137; Morton v. People, 47 Ill. 468; State v. Learned, 47 Me. 426; State v. Comstock, 27 Vt. 553; State v. Hodgson, 66 Vt. 134, 28 Atl. 1089; Rowan v. State, 30 Wis. 129, 11 Am. Rep. 559; State v. Morgan, 112 Mo. 202, 20 S. W. 456; State v. Beswick, 138 R. I. 211, 43 Am. Rep. 26. That a statute may dis- pense with the necessity to state the means, manner, and circum- stances of the killing in an indictment for homicide, see Newcomb v. State, 37 Miss. 383; Cathcart v. Com., 87 Pa. 108; Noles v. State, 24 166 PLEADING—THE ACCUSATION (Ch. 5 statute, if it fails to set forth any essential element of the offense; °* or if it fails to state such particulars of the of- fense, as distinguished from its essential legal elements, as may be necessary to inform the accused of the specific of- fense charged; it is not sufficient that it inform him merely of the character of the offense.*® THE COMMENCEMENT 56. The commencement of the indictment must state: (a) The venue. This is the name of the county from which the grand jury have come, and in which the trial is to be had, and generally of the county in which the offense was committed.*¢ (b) The fact of presentment by the grand jurors upon oath or affirmation. The commencement of an indictment at common law in England was: “Middlesex, to wit. The jurors for our lord, the king, upon their oath present,” etc. And in this coun- try a proper form would be: “State (or Commonwealth) of ———, County of ———, to wit. The jurors for the Ala. 672; Wolf v. State, 19 Ohio St. 248; Rowan v. State, 30 Wis. 129, 11 Am. Rep. 559. 34 State v. Mace, 76 Me. 64; Com. vy. Harrington, 130 Mass. 35; Hewitt v. State, 25 Tex. 722; McLaughlin y. State, 45 Ind. 338; State v. Learned, 47 Me. 426; State v. Startup, 39 N. J. Law, 432; People v. Campbell, 4 Parker, Cr. R. (N. Y.) 386. 35 State v. Mace, 76 Me. 64; Bradlaugh v. Reg., 3 Q. B. Div. 607; Murphy v. State, 24 Miss. 590, Id., 28 Miss. 687; McLaughlin v. State, 45 Ind. 338; Kilrow v. Com., 89 Pa. 480; State ‘v. Meyers, 99 Mo. 107, 12 8. W. 516; State v. Learned, 47 Me. 426; People v. Dumar, 106 N. Y. 502, 13 N. E. 325; People v. Stark, 136 N. Y. 538, 32 N. E. 1046; State v. Daugherty, 30 Tex. 360; Com. v. Buzzard, 5 Grat. (Va.) 694; State v. Comstock, 27 Vt. 553; Blumenberg v. State, 55 Miss. 528; Williams v. State, 85 Ohio St. 175; State v. Fleming, 117 Mo. 377, 22 8. W. 1024; State v. Reynolds, 106 Mo. 146, 17 8. W. 322. As to what are mere matters of form, and what are matters of substance, see post, pp. 365, 366, 373. 36 The venue need not be stated in the commencement if it ap- pears in the caption. § 56) THE COMMENCEMENT 167 state (or commonwealth, or the people of the state, accord- ing to the practice) of -, in and for the body of the county of (or for the state and county aforesaid, or the county aforesaid), upon their oath present,” etc. By statute or usage, the form used varies in the different states, but the above form would be sufficient in most of them.*’ Subsequent counts of an indictment commence: “And the jurors aforesaid upon their oath aforesaid further pre- sent,” etc.38 Statement of Venue The statement of the venue is usually said to be a state- ment of the county in which the offense was committed and the trial is to be had. In effect this is generally true, but it is more accurate to say that it is a statement of the coun- ty from which the grand jury have come, and for which they are to inquire. It is also the county in which the of- fense was committed, because generally a grand jury for any other county would have no authority to present the indictment, and the county in which the trial is to be had, for the trial is generally had in the county where the of- fense was committed. The county is usually stated in the margin of the indict- ment, but it need not be if it appears in the body of the commencement or in the body of the caption; and in the latter case is referred to in the commencement as the “coun- ty aforesaid.” *° It has been held that the omission of the name of the state does not render the indictment defective,*® unless the Constitution or a statute requires it to be stated.4t Even if 37 See State v. Nixon, 18 Vt. 70, 46 Am, Dec. 185; Hurley vy. State, 6 Ohio, 399; Woodsides v. State, 2 How. (Miss.) 655. 38 A second or third count so commencing sufficiently refers to the statement in the first count that the jurors are for the county therein named. The statement need not be repeated. State v. Vincent, 91 Mo. 662, 4 S. W. 430. 392 Hale, P. C. 165; Com. v. Quin, 5 Gray (Mass.) 478; Tefft v. Com., 8 Leigh (Va.) 721. 40 State v. Lane, 26 N. C. 113; Greeson v. State, 5 How. (Miss.) 83; Woodsides v. State, 2 How. (Miss.) 655; note 48, p. 169. 41 State v. Hazledahl, 2 N. D. 521, 52 N. W. 315, 16 L. R. A. 150. 168 PLEADING—THE ACCUSATION (Ch. 5 it should be deemed necessary to name the state, the name alone without the words “State of would be sufficient.*? Showing as to Presentment It is essential that it appear that the indictment is pre- sented by a grand jury. Since no other jury can find an in- dictment, the word “jurors” in the commencement will be taken to mean “grand jurors,” and will be sufficient. It is not necessary to use the latter term.** It need not appear in the body of the indictment that the grand jury was au- thorized to inquire into the offense, and therefore they need not be described as the “jurors for the county of ,’ or “for the county aforesaid,” where the county is mentioned in the margin or caption.*4 Therefore, though it is usual to state in the commencement the county from which the jury have come, it is not essential. But it is es- sential that the record shall show that they come from the proper county.*® In some states it is usual to state that the grand jury are “inquiring for,” or are “sworn to inquire for,” the county, or in and for the body of the coun- ty, etc. This, however, is not necessary, for the law pre- sumes as much from the fact that the grand jury can be impaneled and sworn for no other purpose.** The num- ber of the grand jurors should, as we have seen, appear on the record, but they need not be specified in the indict- ment itself.47 A formal statement in the indictment that it is found by the authority of the state is not necessary, if 42 See State v. Anthony, 1 McCord (S. C.) 285. 43 Com. v. Edwards, 4 Gray (Mass.) 1. 44 The form of the caption and commencement in Massachusetts is as follows: “Commonwealth of Massachusetts, Suffolk, to wit: At the superior court holden at [Boston], within and for the county of [Suffolk], for the transaction of criminal business, on the day of in the year of our Lord one thousand , the jurors for the said commonwealth on their oath present that,” ete. St. Mass. 1899, c. 409, § 28. 45 Tipton v. State, Peck (Tenn.) 308; Cornwell v. State, Mart. & Y. (Yenn.) 147. 46 Hurley v. State, 6 Ohio, 399; State v. England, 19 Mo. 386. 47 Ante, p. 160; Young v. State, 6 Ohio, 435. § 56) THE COMMENCEMENT 169 it appears from the record that the prosecution is in the name of the state.*® It is essential that it shall appear that the indictment is presented by the jurors under oath, or under oath and af- firmation when some are affirmed; *? and this must appear in every count, either by direct allegation or by a proper reference to a preceding count.®® It is therefore stated that the jurors “upon their oath (or oath and affirmation) present.” The use of the word “oaths” instead of “oath” does not render the indictment defective; either word will do.** It has been held that an indictment purporting to be presented upon oath and affirmation need not state the rea- sons why some of the jurors affirmed instead of being sworn, so as to show that affirmation was authorized,®? but there is some authority to the effect that the reasons must appear on the record.** ; A statement that the indictment was found on oath when ‘in fact some of the jurors affirmed, is not such a defect as. can be taken advantage of on a motion in arrest of judg- ment.** The fact of presentment must be expressed by the use of the word “present,” or of some other appropriate word showing that the grand jury charge the defendant; **> and 48 Greeson v. State, 5 How. (Miss.) 38; State v. Devine, 6 Wash. 587, 34 Pac. 154; State v. Kerr, 3 N. D. 523, 58 N. W. 27. 49 Cro. Jac. 685; Huffman’s Case, 6 Rand. (Va.) 685; Curtis v. People, Breese (Ill.) 256. 50 State v. McAllister, 26 Me. 374; State v. Wagner, 118 Mo. 626, .24 §. W. 219; post p. 844. In State v. McAllister, supra, the first count of the indictment alleged that the jurors “upon their oaths present,” etc. The third count merely alleged that “the jurors aforesaid for the state aforesaid do further present,’ etc., and it was held that this was not a sufficient reference to the allegation of the first count of a finding upon oath, as it did not say “as aforesaid, or in manner aforesaid.” 51 Com. v. Sholes, 18 Allen (Mass.) 554; Jerry v. State, 1 Blackf. (Ind.) 395; State v. Dayton, 23 N. J. Law, 49, 58 Am. Dec. 270. 52 Com. v. Fisher, 7 Gray (Mass.) 492; Anon., 9 Car. & P. 78; ante, p. 161. 58 State v. Harris, 7 N. J. Law, 361; ante, p. 161. 54 Bram y. U. S., 168 U. S. 532, 18 Sup. Ct. 183, 42 L. Ed. 568. 65 Vanvickle v. State, 22 Tex. App. 625, 2S. W. 642. 170 PLEADING—THE ACCUSATION (Ch. 5 it must be expressed in the present tense. If an indictment were to read “did present,” it would be fatally defective.*® Mere clerical and grammatical errors in the commence- ment, as where the indictment commences, “The grand ju- rors within and the body of the county,” omitting the word “for,” will not vitiate the indictment.®? THE STATEMENT 57. The statement is that part of the indictment which charges the offense. For convenience in treat- ment we shall divide it into two parts: (a) The description of the defendant, and (b) The statement of the offense. NAME AND DESCRIPTION OF THE DEFENDANT 58. The indictment should describe the accused by his Christian name and surname, if they are known. At common law a misnomer of the defendant is fatal to the particular indictment, if the objection is taken by plea in abatement before pleading to the merits; but it can only cause delay, for a new indictment may be presented.°* Objection on this ground cannot be made after pleading to the mer- its. The indictment must correctly state the name of the de- fendant. By the weight of authority his full Christian name must be set out, if his name is known.®® Ifa man has 561 Chit. Cr. Law, 202. 57 State v. Brady, 14 Vt. 353. See post, p. 205, as to clerical er- rors. 58 Hinktom v. State, 9 Ala. App. 27, 64 South. 193. In some juris- dictions, by statute, the indictment may be amended in this respect. A new indictment is not necessary. Post, p.. 363. 59 Rex v. Shakespeare, 10 East, 83; Com. v. Perkins, 1 Pick. (Mass.) 388; Com. v. Hall, 3 Pick. (Mass.) 262; Turner y. People, 40 § 58) NAME AND DESCRIPTION OF THE DEFENDANT 171 initials for his Christian name, or is in the habit of using initials therefor, and is known by them, they may be used to describe him.*® In some states a middle name or initial is not recognized as a part of the name, and need not be stated; nor by the weight of authority, if it is unnecessa- rily stated, need it be proven; *! and if erroneously stated it is immaterial.°? Some courts, while holding that a mid- dle name or initial need not be stated, hold that, if it is stated, it becomes part of the description, and cannot be Il. App. 17; Enwright v. State, 58 Ind. 567; Pickens v. State, 6 Ohio, 274; State v. Hand, 6 Ark. 165; Gerrish v. State, 53 Ala. 476; State v. Webster, 30 Ark. 166. See Pancho vy. State, 25 Tex. App. 402, 8 S. W. 476. If the defendant’s name is stated with repug- nancy, as where it is differently stated in two places, the indict- ment is fatally defective. Kinney v. State, 21 Tex. App. 348, 17 S. W. 423. Contra, under a statute providing that an error in stating the name shall not vitiate the indictment. Combast v. Com., 137 Ky. 495, 125 S. W. 1092. Where, by statute, an indictment is not to be held invalid for a defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits, the substitution of initials for the Christian name of the defendant does not render the indictment bad. State v. Johnson, 93 Mo. 317, 6S. W. 77; post, p. 379. 60 Reg. v. Dale, 17 Q. B. 64; Tweedy v. Jarvis, 27 Conn. 42; City Council of Charleston v. King, 4 McCord (S. C.) 487; State v. Black, 31 Tex. 560 (statutory); State v. Kean, 10 N. H. 347, 34 Am. Dec. 162; Vandermark v. People, 47 Ill. 122; State v. Johnson, 93 Mo. 73, 317, 5 S. W. 699, and 6 S. W. 77; State v. Johnson, 67 N. C. 58; State v. McMillan, 68 N. C. 440; State v. Appleton, 70 Kan. 217, 78 Pac. 445. In some jurisdictions the initials are sufficient in all cases. Eaves v. State, 113 Ga. 749, 39 S. E. 318. 61 Choen v. State, 52 Ind. 347, 21 Am. Rep. 179; Franklin v. Tal- madge, 5 Johns. (N. ¥.) 84; Roosevelt v. Gardinier, 2 Cow. (N. Y.) 463; Edmundson vy. State, 17 Ala. 179, 52 Am. Dec. 169; Thompson y. Lee, 21 Ill. 242; Erskine v. Davis, 25 01]. 251; Bletch v. Johnson, 40 Ill. 116; Wood v. Fletcher, 3 N. H. 61; State v. Martin, 10 Mo. 391; Dilts v. Kinney, 15 N. J. Law, 180; Isaacs v. Wiley, 12 Vt. 674; Allen v. Taylor, 26 Vt. 599; State v. Feeny, 138 R. I. 623; Hart v. Lindsey, 17 N. H. 235, 48 Am. Dec. 597; Bratton v. Seymour, 4 Watts (Pa.) 329; Keene v. Meade, 3 Pet. 1, 7 L. Ed. 581; McKay v. Speak, 8 Tex. 376; State v. Manning, 14 Tex. 402; State vy. Wil- liams, 20 Iowa, 98; People v. Lockwood, 6 Cal. 205. 62 Langdon vy. People, 133 Ill. 382, 24 N. E. 874; Timberlake vy. State, 100 Ga. 66, 27 S. E. 158. 172 PLEADING—THE ACCUSATION (Ch. 5 rejected as surplusage.** Other courts seem to regard the middle name or initial as a part of the name necessary to be stated.** The words “junior,” “senior,” etc., are no part of a per- son’s name, and their omission can ordinarily make no dif- ference.*® It has been said that where a father and son have the same name, and are both indicted, some such mode of distinguishing them should be adopted.** If the true name and the name given in the indictment are idem sonans—that is, if the sound is not affected by the mistake in spelling it—there is no misnomer; °*’ and it has been said that if the two names are the same in orig- inal derivation, and are taken promiscuously in common use, there is no misnomer, though they may differ in sound.’® Ifa person is known by more than one name, ei- ther may be used.*® Whether he is so known or not is for 20 66 63 Price v. State, 19 Ohio, 423; State v. Hughes, 1 Swan (Tenn.) 261. 64 Jones v. Macquillin, 5 Term R. 195; Com. vy. Perkins, 1 Pick. (Mass.) 388; Com. v. Hall, 3 Pick. (Mass.) 262; Com. v. Shearman, 11 Cush. (Mass.) 546. 65 Com. v. Perkins, 1 Pick. (Mass.) 888; De Kentland v. Somers, 2 Root (Conn.) 437; Kincaid v. Howe, 10 Mass. 205; Cobb v. Lucas, 15 Pick. (Mass.) 7; State v. Grant, 22 Me. 171; Brainard v. Stilphin, 6 Vt. 9, 27 Am. Dec. 532; People v. Collins, 7 Johns. (N. Y.) 549; Padgett v. Lawrence, 10 Paige (N. Y.) 170, 40 Am. Dec. 282; Allen v. Taylor, 26 Vt. 599; Headley v. Shaw, 39 Ill. 354; Com. y. Par- menter, 101 Mass. 211; post, p. 276. But see State v. Vittum, 9 N. H. 519; Jackson ex dem. Pell v. Prevost, 2 Caines (N. Y.) 164. 661 Chit. Cr. Law, 211. See State v. Vittum, 9 N. H. 519; Rex v. Bailey, 7 Car. & P. 264. But by the better opinion, it is not neces- sary. Rex v. Peace, 3 Barn. & Ald. 579; Com. v. Parmenter, 101 Mass. 211. And see cases cited in the preceding note. 67 Rex y. Shakespeare, 10 Bast, 84; Dickinson v. Bowes, 16 Hast, 110; Petrie v. Woodworth, 3 Caines (N. Y.) 219; State v. Upton, 12 N. ©. 513. See post, p. 392, note 75, where illustrations are col- lected. 682 Rolle, Abr. 185; Bac. Abr. tit. “Misnomer”; 1 Chit. Cr. Law, 203. “Jack” for John, Walter v. State, 105 Ind. 589, 5 N. HE, 735; “Geo.” for George, Patterson v. People, 12 Hun (N. Y.) 187. 69 1 Chit. Cr. Law, 203; Com. v. Gale, 11 Gray (Mass.) 320; State v. Pierre, 39 La. Ann. 915, 3 South. 60. He need not be as well known by one as by the other. State v. Pierre, supra. § 58) NAME AND DESCRIPTION OF THE DEFENDANT 173 the jury.7° And if a man, by his words or conduct, holds out a name as his, he is answerable under that name.”! In case of doubt a second name may be given after an alius dictus.7? If the name of the defendant (either his Christian name, or both Christian name and surname) is unknown, and he refuses to disclose it, an indictment against him as a per- son whose name is to the jurors unknown, but who is per- sonally brought before them by the jailer, will be suffi- cient.7* The general practice is to use an assumed name, and drive the defendant to a plea in abatement, which, as we shall see, must give his true name. If he does not plead in abatement, the conviction, as we shall see, is good; while if he does so plead, a new indictment may be presented, or in some states the indictment may be amended.” A corporation is indicted by its full corporate name, which must be accurately stated, and the names of the natural persons composing it are not mentioned.7® Ifa corporation 70 Lott v. State, 24 Tex. App. 723, 14 S. W. 277; Com. v. Warren, . 167 Mass. 58, 44 N. E. 1073. 71 People v. Leong Quong, 60 Cal. 107; City Council of Charleston vy. King, 4 McCord (S. C.) 487; State v. Bell, 65 N. C. 3183; Newton v. Maxwell, 2 Cromp. & J. 215. 72 State v. Graham, 15 Rich. (S. C.) 810; Evans v. State, 62 Ala. 6. In Goodlove v. State, 82 Ohio St. 365, 92 N. EB. 491,:30 L. R. A. (N. S.) 1384, 19 Ann. Cas. 898, it was held that when the indictment charged defendant with having killed “Percy Stuckey, alias Frank McCormick,” proof that defendant killed a person commonly known as Frank McCormick, would not sustain a verdict of guilty, unless it was also shown that the Frank McCormick killed and Percy Stuckey were one and the same person. 731 Chit. Cr. Law, 203; Rex v. , Russ. & R. 489; State v. Angel, 29 N. C. 27; Bryant v. State, 36 Ala. 270; Kelley v. State, 25 Ark, 392. Merely to state that his name is unknown, without any statement to identify him, is not sufficient. Rex v. , Russ. & R. 489. Such a description is bad, and a misnomer, if the grand jury knew the defendant’s real name. Jones v. State, 63 Ala. 27; post, p. 890. 74 Post, pp. 176, 364. In some states the statute prescribes this practice. See Geiger v. State, 5 Iowa, 484. _ 75 Reg. v. Birmingham & G. Ry. Co., 3 Q. B. 223; Rex v. Patrick, 1 Leach, Crown Cas. 253; Com. v. Demuth, 12 Serg. & R. (Pa.) 389. And it has been held that there must be an averment that the cor- 174 PLEADING—THE ACCUSATION (Ch. 5 is commonly known by a name other than its full legal name, it would seem by analogy to the rule stated above that an indictment in which its commonly known name is used should be sufficient."* The general rule above stated applies not only to private corporations, but also to cities, towns, and other municipal corporations. The city or town by its corporate name, and not the inhabitants there- of, is indicted.” The inhabitants of a county or unincor- porated town are generally indicted simply as such, and not by the name of the county, nor by their individual names.’* It is allowable, however, to indict them by the name of the county or town.”® Addition of Defendant Even at common law, in England, it was necessary to state the rank and degree of the defendant, in addition to his name, if he was a knight, or of any higher dignity. And at common law, where a person is indicted in respect of his office, that addition is necessary.*° The necessity for additions was extended to other cases by the statute of 1 Henry V, c. 5, known as the “Statute of Additions.” It re- quired that additions should be made in indictments in the name of the defendants “of their estate, or degree, or mys- poration is in esse; for instance, thus: “The Vermont Central Rail- road Company, a corporation existing under and by force of the laws of this state, duly organized and doing business.” State v. Vermont C. R. Co., 28 Vt. 583. But see State v. Great Works Mill- ing, etc., Co., 20 Me. 41, 37 Am. Dec. 38; Com. v. President, ete., of Swift Run Gap Turnpike Co., 2 Va. Cas. 362; Clark, Cr. Law, 78. See post, p. 277, note. 76It has been so held in cases where the corporation was not itself indicted, but was necessarily mentioned in the indictment, and as we shall see the rule in regard to stating the names of third per- sons is quite as rigid as that in regard to stating the name of the defendant. See Putnam v. U. S., 162 U. S. 687, 16 Sup. Ct. 9238, 40 L. Ed. 1118; Rogers v. State, 90 Ga. 463, 16 S. BH. 205. 77 City of Lowell v. Morse, 1 Mete. (Mass.) 473; Com. v. Inhabit- ants of Dedham, 16 Mass. 141. 782 Rolle, Abr. 79. 79 See Com. v. Inhabitants of Dedham, supra; City of Lowell v. Morse, supra. 801 Chit. Cr. Law, 204; 2 Inst. 666. § 58) NAME AND DESCRIPTION OF THE DEFENDANT 175 tery, and of the towns, or hamlets, or places and counties, of which they were, or be, or in which he or they were con- versant.” By the terms “estate” and “degree” were meant the title, rank, condition, etc., of the defendant; as knight, laborer, widow, spinster, etc. By “mystery” was meant his calling, trade, or profession; as merchant, tailor, broker, hostler, baker, etc.*+ This statute is old enough to be a part of our common law, but in most jurisdictions it has ei- ther been abrogated by statute or is not recognized.®? In some states, however, it or a similar statute has been or still is in force.2® A woman is described as the wife of some person properly described, or as a widow, or spinster, where an addition is necessary; but in many states no such addition is required.** In some jurisdictions it is still necessary, and in others it is at least customary, to add the residence of the defendant as required by the statute of additions; but it is usual to give as his residence the place where the offeuse was committed, even though he may in fact live elsewhere, because he is considered as having been conversant in that place.*® Repeating Name and Description of Defendant Where the defendant has been once fully named and de- scribed, he may afterwards be referred to as the said (giving his Christian name only).®° It has been held that this applies to indictments containing several counts; that, if the defendant is fully described in the first count, he may be described as the said ——— (giving his Christian name) 811 Chit. Cr. Law, 204-208; 2 Hawk. P. C. ¢. 88, § 111. 82 The Statute of Additions was repealed in England by the statute of 14 & 15 Vict. c. 100, § 24. Where the addition of the defendant’s degree, etc., is necessary, the omission is cured by his pleading to the indictment, Rex v. Hannum, 1 Leach, C. C. 420; and a fortiori, by verdict, Com. v. Jackson, 1 Grant, Cas. (Pa.) 262. 83 State v. Bishop, 15 Me. 122; State v. Hughes, 2 Har. & McH. (Md.) 479; Haught v. Com., 2 Va. Cas. 3; Com. v. Clark, 2 Va. Cas. 401. ; 84 State v. Guest, 100 N. C. 410, 6 S. HE. 253. 85 1 Chit. Cr. Law, 210; Com. v. Taylor, 113 Mass. L 86 State v. Pike, 65 Me. 111. 176 PLEADING—THE ACCUSATION (Ch. 5 in the subsequent counts.8” Where there is only one count in the indictment, a previous description of a person so re- ferred to need not be repeated; ** but it has been held that such a reference in a second count cannot import a descrip- tion contained in the first count; that, where there are sev- eral counts, the description must be repeated.®® Effect of Misnomer Misnomer of the defendant does not render the indict- ment fatally defective, so that a conviction cannot be had thereon. Objection can be taken only by a plea in abate- ment before pleading to the merits. The effect is merely to delay the trial, for the plea must give the true name of the defendant, and a new indictment may be presented.* Or the state may join issue on the plea, or reply that the defendant was as well known by one name as the other.** If the defendant, instead of pleading in abatement, pleads to the merits, he cannot afterwards object on the ground of misnomer.®? Under the statute of additions above mentioned, the same rule applies where an addition is omitted or misstated. The defect can only be taken advantage of by plea in abate- ment.** 87 Com. v. Hagarman, 10 Allen (Mass.) 401; Com. y. Clapp, 16 Gray (Mass.) 287. See State v. Pike, 65 Me, 111. 88 Com. v. Sullivan, 6 Gray (Mass.) 477. 89 Reg. v. Martin, 9 Car. & P. 215; Reg. v. Waters, 3 Cox, Cr. Cas. 300. 90 State v. Hughes, 1 Swan (Tenn.) 261. The accused will be con- cluded by the name given by him. 1 Chit. Cr. Law, 208. In some states, by statute, the same indictment may be amended in this respect. 91 Com. v. Gale, 11 Gray (Mass.) 320; ante, p. 173. ®2 Com. v. Inhabitants of Dedham, 16 Mass. 141; Turns v. Com., 6 Mete. (Mass.) 224; Turner v. People, 40 Ill. App. 17; post, p. 433. 931 Chit. Cr. Law, 204; State v. Bishop, 15 Me. 122; State vy. Mc- Gregor, 41 N. H. 407; Com. v. Cherry, 2 Va. Cas. 20; Com. v. Lewis, 1 Metc. (Mass.) 151; Com. v. Butler, 1 Allen (Mass.) 4. § 59) ' STATEMENT OF THE OFFENSE 177 STATEMENT OF THE OFFENSE 59. The indictment must state the offense, and must state it with sufficient certainty— (a) To enable the court to say that, if the facts stated are true, an offense has been committed by the defendant. (b) To enable the court to know what punishment to impose in case of conviction. (c) To enable the court to confine the proof to the of- fense charged, so that the defendant may not be accused of one offense and convicted of another. (d) To give the defendant reasonable notice of the par- ticular charge he will be called upon to answer, and enable him to properly prepare his defense. (e) To make it appear on the record of what particular offense the defendant was charged, for the purpose of review in case of conviction. (£) To so identify the offense that an acquittal or con- viction may be pleaded in bar of a subsequent pros- ecution for the same offense. It has always been an established rule of the common law that the indictment must be certain—that is, that it must set forth the special manner of the whole fact, so that it can be clearly seen what particular crime, and not merely what nature of crime, is intended to be charged. This rule is recognized and declared by the Constitution of the United States, in the provision that “the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation.” This applies only to prosecutions in the federal courts, but there are similar provisions in most of the state Constitutions. “The salutary rule of the common law,” said the Massachusetts court, “that no one shall be held to answer to an indictment or information unless the crime with which it is intended to charge him is expressed with reasonable precision, directness, and fullness, that he may be fully prepared to meet, and, if he can, to answer CrarxK Cr.Proc.(2p Ep.)—12 178 PLEADING—THE ACCUSATION (Ch. 5 and repel it, is recognized and enforced, and extended to every mode in which a citizen can be called to answer to any charge of crime in this commonwealth by the highest authority known to the laws; namely, an express provi- sion in the bill of rights (article 12). It declares that no subject shall be held to answer for any crime or offense until the same is fully and plainly and substantially and formally described to him.” * It is generally stated in the books that there are three degrees of certainty in pleading: (1) Certainty to a com- mon intent; (2) certainty to a certain intent in general; and (3) certainty to a certain intent in every particular. A pleading is certain to a common intent when it is clear - enough according to reasonable intendment or construc- tion, though not worded with absolute precision. Certainty to a certain intent in general means what upon a fair and reasonable construction may be called certain without re- curring to possible facts which do not appear except: by inference or argument. Certainty to a certain intent in ev- ery particular requires “the utmost fullness and particu- larity of statement, as well as the highest attainable accu- racy and precision, leaving nothing to be supplied by ar- gument, inference or presumption, and no supposable an- swer wanting. The pleader must not only state the facts of his own case in the most precise way, but must add to them such facts as will anticipate the case of his adver- sary.” °> The first is the lowest degree of pleading allowed, and is allowed only in pleas in bar; and in certain parts of the indictment other than the charge, which we shall pres- ently explain. The second degree is required in that part of the indictment which charges the offense. The third degree is required in pleas in abatement and other dilatory pleas. There are several reasons why certainty in indictments is required, and there is no better way to determine the degree of certainty that is necessary than by referring to 94 Com. v. Phillips, 16 Pick. (Mass.) 211; Com. y. Blood, 4 Gray (Mass.) 31; ante, p. 122; post, p. 363. 95 Shipm. Com. Law Pl. 249. § 59) STATEMENT OF THE OFFENSE 179 them. If an uncertain charge were allowed, the defendant would not know what evidence he might be called upon to meet, and could not properly prepare his defense; there would be no way to determine whether the facts given in evidence are the same as those charged, so that a man might be put upon his trial for one offense and convicted on proof of another; the court could not know what pun- ishment to impose in case of conviction; and, finally, the pendency of the indictment, or an acquittal or conviction under it, could not be pleaded in bar of another prosecu- tion, for it could not be determined that the charges were the same, and so a man might be twice punished for the same offense.*® There are many decisions on the application of the rule that the indictment must be certain, and the degree of cer- tainty, and in many of them very formal objections have been allowed to prevail. This has often been regretted by the judges. As early as Lord Hale’s time, he observed that the strictness required in indictments was grown ‘to be a blemish and inconvenience in the law, and the administra- tion thereof; that more offenders escaped because of the overeasy ear given to exceptions to indictments than by the manifestation of their innocence; and that the grossest crimes had gone unpunished by reason of these unseemly niceties.°? And Lord Mansfield, while admitting that ten- derness ought always to prevail in criminal cases, so far at least as to take care that a man may not suffer otherwise than by due course of law, said that tenderness did not re- quire such a construction of words perhaps not absolutely and perfectly clear and express as would tend to render the law nugatory and ineffectual, and destroy or evade the 96U. S. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; Com. v. Phil- lips, 16 Pick. (Mass.) 211; Rex v. Horne, 2 Cowp. 682; Com. v. Dean, 109 Mass. 352; People v. Taylor, 3 Denio (N. Y.) 91; Reg. v. Rowed, 8 Q. B. 180; White v. Reg., 138 Cox, Cr. Cas. 318; Com. v. Maxwell, 2 Pick. (Mass.) 148; Com. v. Child, 18 Pick. (Mass.) 202; U.S. v. Reese, 92 U. S. 225, 23 L. Ed. 563. _ 972 Hale, P. C. 193. And see observations of Lord Kenyon (Rex v. Suddis, 1 East, 314) and Lord Ellenborough (Rex v. Stevens, 5 East, 260; Rex v. Perrott, 2 Maule & S. 386). 180 PLEADING—THE ACCUSATION (Ch. 5 very end of it; nor did it require the courts to give in to such nice and strained critical objections as are contrary to its ‘true meaning and spirit.°* In civil cases, it is said by Chitty, it was considered the best policy to require tech- nical accuracy in pleading; but in criminal cases, where the public security is so deeply interested in the prompt ex- ecution of justice, it has been held that technical objections should be overlooked. Yet notwithstanding the remarks of these distinguished judges the most technical and frivolous objections have been allowed to prevail, and in a lesser degree continue to prevail in many jurisdictions, bringing the administration of the criminal law into disrepute in a practical age, when so- ciety demands efficiency and is intolerable of such scho- lasticism as “certainty to a certain intent in general” and “certainty to a certain intent in every particular.” The most enlightened judges and legislators are realizing that a rigid adherence to the ancient technical rules governing indictments is subversive of justice, and are collaborating to bring about a more rational system.°® 981 Chit. Cr. Law, 170. 99 A statute in Minnesota provides that an indictment is sufi- ciently certain if the act charged as an offense is stated with such degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case, and formal defects, which do not tend to the prejudice of the substantial rights of the defendant upon the merits, must be disregarded. Rev. Laws 1905, §§ 5305, 5306. See, for a liberal application of the statute, State v. Preuss, 112 Minn. 108, 127 N. W. 488. The Massachusetts Statute (Rev. Laws 1902, c. 218, § 34) provides: “An indictment shall not be quashed or be considered defective or insufficient if it is sufficient to enable the defendant to understand the charge and to prepare his defense; nor shall it be considered defective or insufficient for lack of any description or information which might be obtained by requiring a bill of particulars as provided in section 39.” This is a most enlightened statute and has enabled the Massachusetts court to go far in abolishing the technicalities of the common law as to indictments that have served for so long in obstructing a just administration of the criminal law. Section 4706, St. 1898, of Wisconsin, provides that no indictment or infor- mation in a criminal case shall be abated, quashed, or reversed: for any error or mistake where the person and the case may be right- § 60) STATEMENT OF THE OFFENSE 181 60. The indictment must show on its face that if the facts alleged are true, and assuming that there is no de- fense, an offense has been committed. It must therefore state explicitly and directly every fact and circumstance necessary to constitute the of- fense, whether such fact or circumstance is an ex- ternal event, or an intention or other state of mind, or a circumstance of aggravation affecting the legal character of the offehse. Unless the indictment complies with this rule, it does not state the offense. The charge must always be sufficient to support itself. It must directly and distinctly aver every fact or circumstance that is essential, and it cannot be helped out by the evidence at the trial or be aided by ar- gument and inference.t With rare exceptions, offenses con- sist of more than one ingredient, and in some cases of many; and the rule is universal that every ingredient of which the offense is composed must be accurately and clear- ly alleged in the indictment, or the indictment will be bad, and may be quashed on motion, or the judgment may be arrested or be reversed on error. What facts and circum- stances are necessary to be stated must be determined by ly understood by the court, and the court may on motion order an amendment curing such defect. See State v. Brown, 143 Wis. 405, 127 N. W. 956. A recent decision of the Supreme Court of the Unit- ed States seems to hold that an indictment is not void, though it fail to charge an offense—citing U. S. v. Ball, 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. Ed. 300—but that even substantial defects must be objected to in the trial court. Serra v. Mortiga, 204 U. S. 470, 27 Sup. Ct. 343, 51 L. Ed. 571. 12 Hawk. P. C. @ 25, § 57; Vaux’s Case, 4 Coke, 44b; State v. Brown, 7 N. C. 224; Com. v. Proprietors of Newburyport Bridge, 9 Pick. (Mass.) 142; Reg. v. Aspinall, 2 Q. B. Div. 56; Bradlaugh v. Reg., 3 Q..B. Div. 626; U.S. v. Cruikshank, 92 U. 8S. 542, 23 L. Ed. 588; Ex parte Hopkins, 61 Law J. Q. B. 240, 66 Law T. (N. 8.) 53, and 17 Cox, Cr. Cas. 444; Reg. v. Dixon, 2 Ld. Raym’ 971; Rex v. Perrott, 2 Maule & 8. 879; Lambert v. People, 9 Cow. (N. Y.) 578; Com. v. Dudley, 6 Leigh (Va.) 613; Com. v. Whitney, 5 Gray (Mass.) 85; Com. vy. Lannan, 1 Allen (Mass.) 590; State v. Perry, 2 ee (S. C.) 17; Com. y. O’Donnell, 1 Allen (Mass.) 593. 182 PLEADING—THE ACCUSATION (Ch. 5 reference to the definitions and the essentials of the specific crimes. Having ascertained them, every essential fact must not only have arisen, but it must be stated in the in- dictment.? To constitute the statutory offense of obtain- ing property by false pretenses,* there must have been a representation by the defendant of a past or existing fact or circumstance; it must have been in fact a false representa- tion; it must have been known by him to be false; it must have been made with intent to defraud; it must have been believed by the other party; and he must have parted with his property to the defendant because of it. If an indict- ment for this offense fails to state any one or more of these facts or circumstances, it fails to charge the offense, and would not support a conviction, even though every essen- tial fact were shown by the evidence to have existed.* Where the circumstances are constituent parts of the offense, they must be set out. In other words, where the act is not in itself necessarily unlawful, but becomes so by its peculiar circumstances and relations, all the matters nec- essary to show its illegality must be stated. To erect a building may be a nuisance, but it is not necessarily so, and therefore an indictment for a nuisance in erecting a build- ing must show the circumstances which make it a nui- sance.® 2 People v. Gleason, 75 Hun, 572, 27 N. Y. Supp. 670; State v. Fancher, 71 Mo. 460; Garcia v. State, 19 Tex. App. 389; State v. Hall, 72 Iowa, 525, 34 N. W. 315; State v. Cleveland, C., C. & St. L. Ry. Co., 187 Ind. 75, 36 N. E. 713. 3 Clark, Cr. Law (8d Ed.) 362. : 4 Rex v. Perrott, 2 Maule & S. 379; Hightower v. State, 23 Tex. App. 451, 5 8S. W. 343. But in Goodlove v. State, 82 Ohio St. 365, 92 N. E. 491, 30 L. R. A. (N. S.) 184, 19 Ann. Cas. 893, it was held that, though the statute defining murder uses the words “human being,” it is not necessary to state in the indictment that the deceased was a human being, if his name is given. See, also, Palmer v. People, 138 Ill. 356, 28 N. E. 130, 32 Am. St. Rep. 146. 52 Hawk. P. C. c. 25, § 57; Lowe v. State, 59 Tex. Cr. R. 557, 129 S. W. 842. Under a statute punishing the bribing of an officer, an indictment for bribing X., “an assistant city attorney,” is invalid, if there be no such officer known to the law. 6Id.; Higges v. Henwood, 2 Rolle, 345. § 60) STATEMENT OF THE OFFENSE 183 So it has been held that an indictment for not serving in an office to which defendant had been elected, must set out the mode of his election; because, if he was not le- gally elected, it would not be a crime for him to refuse to serve.” For the reasons above stated, where notice, knowledge, or request is necessary to raise the duty, the breach of which constitutes the crime charged, it should be averred.* And where a particular evil intent accompanying an act is necessary to make that act a crime, it must be alleged.’ And where aggravating circumstances enter into the of- fense, and increase the punishment, they must be alleged, in order that the increased penalty may be inflicted.*° It was formerly held at common law that in indictments for homicide, where the death is alleged to have been caused by an incised wound or cut, the wound must be described, so that the court may see that it was an adequate cause of death. But this is not now considered necessary; it is suf- ficient to state that it was mortal.1? It has never been deemed necessary to describe a bruise which does not make a technical wound.’” As we shall presently see, technical phrases and expres- sions are required to be used in describing certain offenses, to express the precise idea which the law entertains of the offense. Thus, in every indictment for a felony the word “feloniously” must -be used, and in every indictment for burglary the words “burglariously and feloniously” are 7 Rex yv. Harpur, 5 Mod. 96. 8 Post, p. 225. © Post, p. 218. 10 Post, p. 237. 118 Chit. Cr. Law, 7384; 1 East, P. C. 342; 2 Hale, P. C. 185, 186; Com. v. Chapman, 11 Cush. (Mass.) 428; State v. Owen, 5 N. C. 452, 4 Am. Dec. 571; State v. Moses, 18 N. C. 452; State v. Crank, 2 Bailey (S. C.) 66, 23 Am. Dec. 117; State v. Sanders, 76 Mo. 35; State v. Green, 111 Mo. 585, 20 8S. W. 304; West v. State, 48 Ind. 483; Com. v. Woodward, 102 Mass. 155; Stone v. People, 2 Scam. (I1l.) 326. 12 Rex v. Mosley, 1 Moody, Crown Cas. 98; Turner’s Case, 1 Lewin, Crown Cas. 177; Rex v. Tomlinson, 6 Car. & P. 370. 184 PLEADING—THE ACCUSATION (Ch. 5 necessary.1® Except in these cases where precise technical expressions are necessary, there is no rule that any other words shall be employed than such.as are in ordinary use, or that a different sense is to be put upon them than that which they bear in ordinary acceptation.** It is often said without qualification that if every allega- tion in an indictment can be taken as true, and yet the de- fendant be guilty of no offense, then the indictment is in- sufficient ;*° but such a rule, though generally applicable, is not universal. In many cases it would mislead, and to many it is quite inapplicable.1® As we shall see, for in- stance, it is never necessary to negative matters of de- fense.17 Everything alleged in an indictment may be true, and yet there may be some fact which need not be nega- tived, but must be set up by the defendant, showing that no crime has been committed. The test “would prove to be equally fallacious in the case of a common assault. In such a case the party may have done all imputed to him by the indictment, and yet be innocent. He may have only corrected: his child, or his servant; he may have commit- ted the assault charged against him in necessary defense of his life or of his possession. Thus, this test is quite too wide.” 18 ‘ 61. The acts which are relied upon as constituting the of- fense must be stated. The statement of a conclu- sion of law, without showing the facts, is bad. Under this rule, for instance, to charge generally the vio- lation of public decency, without setting forth the particu- lar acts and the circumstances rendering them indecent; or 13 Post, p. 228. 14 Com. v. Inhabitants of Dedham, 16 Mass. 141; Com. v. Wentz, 1 Ashm. (Pa.) 269. 15 Reg. v. Rowlands, 2 Denison, Crown Cas. 377; Reg. v. Harris, 1 Denison, Crown Cas. 466; Com. v. Harris, 18 Allen (Mass) 539. 16 Jones v. Reg., Jebb & B. 161. 17 Post, p. 195. 18 Jones v. Reg., supra. And see Com. v. Hersey, 2 Allen (Mass.) 181. § 61) STATEMENT OF THE OFFENSD 185 the disturbance of a school or other assemblage, without showing the acts done;?® or to charge an unlawful escape from prison, without showing the cause of imprisonment; ?° or to charge perjury, without setting forth the oath as an oath taken in a judicial proceeding, and before a proper person, so that it may appear that it was an oath which the court had jurisdiction to administer;?1 or to charge a forgery, the sending of a threatening letter, or the publi- cation of a libel, without setting forth a copy of the instru- ment or writing,—would be to state a conclusion of law.?? So where an indictment charges a conspiracy, without set- ting forth the object specifically, and showing that it is criminal, or the means to be used, and showing that they are criminal, it is bad.?% In a leading English case the defendant was charged with unlawfully soliciting one Hooper, a customhouse of- ficer, to neglect his duty to seize goods. The information alleged that Hooper was a person employed in the cus- toms service, and that it was his duty as such person, so employed, to arrest and detain goods, etc., and was held bad because it did not show the facts making it Hooper’s duty to seize the goods. “The allegation,” it was said by Lord Tenterden, “that Hooper was a person employed in the service of the customs, is an allegation of fact. The al- legation that it was his duty to seize goods which upon importation were forfeited is an allegation of matter of law. That being so, the fact from which that duty arose ought 19 State v. Butcher, 79 Iowa, 110, 44 N. W. 239; State v. Brunson, 2 Bailey (S. C.) 149; Com. v. Maxwell, 2 Pick. (Mass.) 189; State v. Scribner, 2 Gill & J. (Md.) 246; Randolph v. Com., 6 Serg. & R. (Pa.) 398; Com. v. Gillespie, 7 Serg. & R. (Pa.) 469, 10 Am. Dec. 475; State v. Dent, 3 Gill & J. (Md.) 8. Contra, State v. Craddock, 44 Kan. 489, 24 Pac. 949; Jones v. State, 28 Neb. 495, 44 N. W. 658, 7 L. R. A. 325. 20 Rex v. Freeman, 2 Strange, 1226; 2 Hawk. P. C. c. 25, § 57. 21 Rex v. Horne, Cowp. 683; Stedman’s Case, Cro. Eliz. 1387; State v. Street, 1 N. C. 156, 3 Am. Dec, 682; State v. Ammons, 7 N. C. 123; State v. Mace, 76 Me. 64, 22 Post, pp. 189, 239. 23 Post, p. 189. 186 PLEADING—THE ACCUSATION (Ch. 5 to have been stated in the count. If, indeed, it could be said to be the duty of every person employed in the service of the customs to seize such goods, then the allegation would have been sufficient. But it is clearly not the duty of every such person; as, for instance, it is not the duty of a porter employed in the service of the customs to seize such goods.” *4 There is an exception to this rule in certain cases in which an act is allowed to be stated according to its legal effect, instead of according to the fact. Under the common- law principle, “qui facit per alium facit per se,” a person whose servant unlawfully sells intoxicating liquor in the 24 Rex v. Everett, 8 Barn. & C. 114. The case just cited is an illus- tration of the extent to which common sense was sacrificed—and it is still sometimes now sacrificed—to formalism in criminal pleading. It would be tolerable as a system if it had been even consistent with itself. But it was not. The principle on which this case was decided was that the allegation that it was Hooper’s duty to seize goods was an allegation of matter of law, and therefore insufficient, without a statement of the facts from which that duty arose. Yet the state- ment that Hooper “was a person employed in the service of the cus- toms” was said to be an allegation of fact, and sufficient. But that Hooper “was employed” might just as well be held to be a matter of law. His duty, if he had any duty, arose from his employment; if he was not “employed,” he was under no duty. Whether Hooper was “employed” depended either on his being in a certain contractual re- lation with another, or on his being appointed to his position. Whether one stands in a contractual relation to another is, however, also a question of law, and a very difficult one; and whether one is appointed to an office depends on whether the person appointing him has legal authority so to do, also a question of law, depending on his own appointment or election. To have been consistent in this and similar cases the judges should have required the pleader to set forth in the indictment—if Hooper held his office under a contract—the terms of the alleged contract, the fact whether Hooper and the per- son employing him were sui juris, the consideration for the contract, ete. If the office Hooper held was an appointive one, the pleader should have been required to show that the person making the ap- pointment had legal authority to make it, by showing his own up- pointment by one having authority to appoint him, and so on back to the king, whose authority to act as king should also be shown. Of course, no such consistency was practiced. The next paragraph in the text above shows the ease with which the principle was ignored without injury to the rights of the defendant, even in so serious charges as murder. § 61) STATEMENT OF THE OFFENSE 187 course of his employment is regarded in law as selling it himself. The sale in such a case may be alleged to have been made by the principal, though this is a mere conclu- sion of law, and the indictment will be sustained by proof of a sale by the agent.2®> “It is a general rule in prosecutions for misdemeanors that, when an indictment alleges:that a person did an act, such allegation is sustained by proof that he caused it to be done by another.” 2" The rule also ap- plies where an indictment charges the defendant with pub- lishing a libel, and the evidence shows that he procured an- other person to publish it;?7 or where an indictment charg- es the defendant with selling lottery tickets, and the proof shows that they were sold by his servant.?* So, also, an indictment for extortion from a person acting as agent may be alleged to have been from the principal.2* And an unlawful sale of liquor to a person who is acting as agent for an undisclosed principal may be alleged to have been made to the principal.*° And an indictment charging the defendant with himself committing a murder or other fel- ony is supported by proof that he was present, aiding and abetting its commission by another, and was principal in the second degree only.*? Indictments for soliciting or enticing another to commit an act need not state the means used, but may charge the solicitation or enticement in general terms. “The act of enticing or soliciting consists of a variety of acts and cir- cumstances, all originating in the same purpose, and is itself a fact which admits of no precise or definite description; and the particular means used need not, and indeed hardly could, be detailed. The general allegation that the defend- 25 Com. v. Park, 1 Gray (Mass.) 553. 26 Com. v. Park, supra. 27 Rex v. Gutch, Mood. & M. 487. 28 Com. v. Gillespie, 7 Serg. & R. 469, 10 Am. Dec. 475. 29 Com. v. Bagley, 7 Pick. (Mass.) 279. 80 Com. v. McGuire, 11 Gray (Mass.) 460. Or it may be alleged to have been made to the agent. Com. v. Kimball, 7 Metc. (Mass.) 308. 31 Reg. v. Crisham, 1 Car. & M. 187; Com. v. Chapman, 11 Cush. (Mass.) 428; Coal Heavers’ Case, 1 Leach, Crown Cas. 64; Brister v. State, 26 Ala. 108; post, p. 349. 188 PLEADING—THE ACCUSATION (Ch. 5 ant did entice and solicit with the prohibited object is therefore sufficient.” ®? The rule has also been laid down that where the offense is made up of a number of minute acts, which cannot be enumerated upon the record without great prolixity and in- convenience, and the danger of a variance, they ought to be dispensed with. Under this rule it has been held that an indictment for fitting out a vessel in violation of the slave trade act need not specify the particulars of the fitting out, since “the fitting out is a compound of various minute acts, almost incapable of exact specification.” 3% 62.. The indictment, to be certain, must specify and describe the particular offense, so that it may be identified, and not charge the defendant with being an of- fender in general, or with having committed an offense of a certain nature and name, without iden- tifying the particular act or acts relied upon. This is clearly necessary in order that the defendant may know with what particular offense he is charged, and in order that he may plead his conviction or acquittal if again indicted for the same offense, and in order that the proof at the trial may be confined to the charge.*4 To charge a man, for instance, with “burning” or “bur- glariously entering” a dwelling house, or with “stealing,” without describing the house or the property stolen, would not be sufficient; for the defendant is entitled to know the 82 Com. v. McGovern, 10 Allen (Masgs.) 198; Rex v. Fuller, 1 Bos. & P. 180, 2 Leach, Crown Cas. 790. 33 U. S. v. Gooding, 12 Wheat. 460, 6 L. Ed. 693. 342 Hawk. P. C. c. 25, § 59; State v. Mace, 76 Me. 64; Com. v. Pray, 18 Pick. (Mass.) 359; U. S. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; Com. y. Phillips, 16 Pick. (Mass.) 211; Rex v. Horne, 2 Cowp. 682; Com. vy. Dean, 109 Mass. 352; People v. Taylor, 3 Denio (N. Y.) 91; White v. Reg., 18 Cox, Cr. Cas. 318; Com. v. Maxwell, 2 Pick. (Mass.) 143; Com. v. Child, 13 Pick. (Mass.) 202; U. 8. v. Reese, 92 U. S. 225, 23 L. Ed. 563; People v. Dumar, 106 N. Y. 502, 18 N. BE. 325; People y. Stark, 186 N. Y. 538, 32 N. E. 1046; Com. v. Milby (Ky.) 24 8. W. 625; Luter v. State, 32 Tex. Cr. R. 69, 22 S. W. 140. As to when it is insufficient to follow the language of the statute, see post, p. 309. § 62) STATEMENT OF THE OFFENSE 189 particular act of which he is accused, so that he may pre- pare his defense. And, under this rule, an indictment is insufficient if it charges the defendant generally with hav- ing spoken or published scandalous and defamatory words of a person, without stating what the words were; *® or if it charges a person with the statutory offense of having failed to deliver to the recorder a chattel mortgage which he had executed, and with the delivery of which he had been intrusted, and fails to state by whom the mortgage was de- livered to the accused; ** or if it charges him with being a common disturber of the peace, and having stirred up di- vers quarrels,*” or with being a common thief ** or a com- mon evildoer.®® On the same principle, an indictment for obtaining mon- ey by false pretenses is not sufficient if it merely states that the accused falsely pretended certain allegations; but it must expressly set out the representations, and state what part of them was false.*® And indictments for forgery and threatening letters must set forth a copy of the instru- ment.*?| An indictment for a conspiracy is bad if it does not set forth the object specifically, and show that such ob- ject is criminal, or the means intended to be used, and show that they are criminal; *? and an indictment under a stat- , ute providing that no innholder should entertain any per- sons, other than travelers, etc., on the Lord’s day, under a 86 Rex v. How, 2 Strange, 699; 2 Hawk. P. C. c. 25, § 59; Cook v. Cox, 3 Maule & S. 116. 36 State v. Grisham, 90 Mo. 163, 2 S. W. 223. 872 Rolle, Abr. 79; 2 Hale, P. C. 182; Rex v. Cooper, 2 Strange, 1246. | 382 Rolle, Abr. 79; 2 Hale, P. C. 182. 392 Hawk. P. C. ¢.-25, § 59. 40 Rex v. Perrott, 2 Maule & 8. 879, 387. See, also, People v. Wald- horn, 82 Mise. Rep. 238, 143 N. Y. Supp. 484. 41 Rex v. Gilchrist, 2 Leach, Crown Cas. 661. 42 Lambert v. People, 9 Cow. (N. Y.) 578; U. 8. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; State v. Parker, 43 N. H. 83; State v. Keach, 40 Vt. 118; Alderman v. People, 4 Mich. 414, 69 Am. Dec. 321; State v. Roberts, 34 Me. 320; U. 8. v. Patterson (C. C.) 55 Fed. 605. See, also, People v. Arnold, 46 Mich. 268, 9 N. W. 406. 190 PLEADING—THE ACCUSATION (Ch. 5 penalty for each person so entertained, was held bad be- cause it failed to state the: precise number of persons en- tertained, but merely charged that he entertained “divers persons.” #2 Sometimes time is a necessary ingredient of the offense, and must, of course, be stated in order to state the offense. Some offenses, from their nature, it is said, form an ex- ception to this rule. A person, for instance, may be charged generally with being a common barrator, or a common scold,** or a common seller of intoxicating liquors, or the keeper of a common bawdy or gaming house,*® or a com- mon nightwalker or prostitute, etc.*® The indictment need not set out the particular acts, because the charges include in their nature a succession and continuation of acts which do not belong to any particular period, but form the daily habit and character of the individual offending.*7 The state, however, may be required before trial to give the de- 43 Com. v. Maxwell, 2 Pick. (Mass.) 139. 44 Rex v. Cooper, 2 Strange, 1246; 2 Hale, P. C. 182; 2 Hawk. P. C. c. 25, § 59; Com. v. Davis, 11 Pick. (Mass.) 4832; Com. v. Pray, 13 Pick. (Mass.) 362; James v. Com., 12 Serg. & R. (Pa.) 220. 452 Hale, P. C. 182; 2 Hawk. P. C. c. 25, § 59; Rex v. Cooper, 2 Strange, 1246; Rex v. Humphrey, 1 Barn. & C. 272; James v. Com., 12 Serg. & R. (Pa.) 220; Com. v. Pray, 13 Pick. (Mass.) 359; Lambert v. People, 9 Cow. (N. Y¥.) 587; Com, v. Davis, 11 Pick. (Mass.) 432; U. 8. vy. Fox, 1 Low. 199, Fed. Cas. No. 15,156; State v. Patterson, 29 N. C. 70, 45 Am. Dec. 506; Stratton v. Com., 10 Metc. (Mass.) 217; Com. v. Odlin, 23 Pick. (Mass.) 275; State v. Collins, 48 Me. 217. 46 State v. Dowers, 45 N. H. 543; State v. Russell, 14 R. I. 506. 471 Chit. Cr. Law, 230. This is the reason given in the books. We have seen, however, that an indictment is bad which charges defend- ant with being a common disturber of the peace or a common thief. It is difficult to understand why a charge of being a common thief does not “include in its nature a succession and continuation of acts which do not belong to any particular period, but form the daily hab- it and character of the individual offending,” as well as the charge of being a common prostitute. It may be noted, also, that an indict- ment for the crime of affray was good at common law if it merely charged the defendant with committing an affray, without a state- ment of the acts constituting the affray. See Archbold, Cr, Pr. & Pl. (24th Ed.) p. 1224. The same is true of the crime of assault. State y. Clayton, 100 Mo. 516, 18 S. W. 819, 18 Am. St. Rep. 565. § 63) STATEMENT OF THE OFFENSE 191 fendant notice of the particular instances that are meant to be proved.#® It has been held that an indictment is bad if it may ap- ply to more than one offense, and does not show which is intended.*® In Massachusetts, however, the contrary has been held. In that state there were two statutes, one of which declared it a crime to break and enter in the night- time an office adjoining a dwelling house, with intent to steal therein, and the other of which declared it a crime, subject to the same punishment, to break and enter in the nighttime, with a like intent, an office not adjoining a dwell- ing house. An indictment for breaking and entering an of- fice in the nighttime with such intent was held sufficient, though it failed to allege whether the office was or was not adjoining a dwelling house, and could therefore have ap- plied to either offense.5° 63. The offense must be stated positively, and every essen- tial fact and circumstance must be alleged directly and distinctly. Nothing can be brought into the indictment by argument or other than necessary inference. The offense must be stated positively. A statement by way of recital, and not in positive language, as where a statement is preceded by the words “whereas,” is bad.®? 482 Hawk. P. C. c. 25, § 59; Rex v. Mason, 2 Term R. 586; Com. v. Pray, 13 Pick. (Mass.) 359; Com. v. Davis, 11 Pick. (Mass.) 434; State v. Chitty, 1 Bailey (S. C.) 379; State v. Russell, 14 R. I. 506. 49 Rex v. Marshall, 1 Moody, Crown Cas. 158. 50 Larned v. Com., 12 Metc. (Mass.) 240. 512 Hawk. P. C. ¢. 25, § 60; Rex v. Crowhurst, 2 Ld. Raym. 1363; Rex vy. Whitehead, 1 Salk. 371. In Rex v. Whitehead the indictment was: “Whereas, an order had been made that the parishioners should receive a bastard child, they in contempt did refuse to receive it.” The fact that the participle is used does not render the statement de- fective. To charge, for instance, that the defendant, “being” an offi- cer, did embezzle, sufficiently alleges that the defendant was an offi- eer. State v. Manley, 107 Mo. 364, 17 S. W. 800. And see State y. Hooker, 17 Vt. 658; State v. Roberts, 52 N. H. 492; Zoborosky v. State, 180 Ind. 187, 102 N. E. 825. 192 PLEADING—THB ACCUSATION (Ch. 5 This does not apply to matter stated by way of induce- ment.°* For the same reason an indictment is bad if the charge is stated argumentatively, instead of in express and positive language; °* or if it is stated that “there is prob- able cause to suspect” that the accused has committed the _ crime, instead of that he did commit it.* Every fact and circumstance which is essential to make out the offense must, as we have seen, be alleged.®®> And it must be alleged directly and distinctly. The charge must be sufficient to support itself. It cannot be helped out by argument or inference. This rule has been expressed in various ways, as that “an indictment must be certain to every intent, and without any intendment to the contrary”; that it “ought to be full, express, and certain, and shall not be maintained by argument or implication”; that “the want of a direct allegation of anything material in the descrip- tion of the substance, nature, or manner of the crime can- not be supplied by any intendment or implication whatso- ever”; that the law “requires the utmost precision, and will not permit a fact on which the life or liberty of a person depends to be made out merely by inference”; that the charge must be sufficiently explicit to support itself, for no latitude of intention can be allowed to include anything more than is expressed.5® Where a statement of one fact necessarily implies that another fact or circumstance exist- ed, the existence of the latter fact or circumstance need not' be directly alleged.*’ 52 Reg. v. Goddard, 2 Ld. Raym. 920; post, p. 207. 53 Rex yv. Knight, 1 Salk. 375. And cases hereafter cited. 54 Com. v. Phillips, 16 Pick. (Mass.) 211. 55 Ante, p. 181. 561 Chit. Cr. Law, 172; 2 Hawk. P. C. c. 25, § 60; Vaux’s Case, 4 Coke, 44b; Rex v. Williams, 1 Leach, Crown Cas. 534; State v. Brown, 7 N. C, 224; State v. Paul, 69 Me. 215; Com. v. Proprietors of Newburyport Bridge, 9 Pick. (Mass.) 142; Com. v. Shaw, 7 Mete. (Mass.) 52; Com, v. Whitney, 5 Gray (Mass.) 85; Com. vy. Lannan, 1 Allen (Mass.) 590, Com. v. O’Donnell, 1 Allen (Mass.) 594; State v. Bushey, 84 Me. 459, 24 Atl. 940; State v. Perry, 2 Bailey (8S. C.) 17; Com. v. Dudley, 6 Leigh (Va.) 618; State v. Haven, 59 Vt. 399, 9 Atl. 841. 57 Post, p. 193. § 65) STATEMENT OF THE OFFENSE 193 64. It is not necessary or proper to state any other facts than such as are necessary to make out the offense with certainty.°® To set out unnecessary matter is bad pleading, and, while. it may in many cases be rejected as surplusage, it may, on the other hand, as we shall presently see, result in repug- nancy or absurdity in a material part, and so render the in- dictment bad, or may be matter of description, which will have to be proved as laid; thus an assault with intent to kill or to rob does not depend in any way upon the instru- ment or means used in making the assault, and it is therefore unnecessary to set it out.°® Where an act constitutes a crime without regard to the circumstances surrounding its commission, it is not necessary to set forth the circumstanc- es. They may, however, be alleged in aggravation.*® The question of surplusage will be hereafter explained. | 65. Facts which are necessarily implied or presumed as a matter of law or fact from facts stated need not be expressly alleged. We have seen that every essential fact must be directly and distinctly alleged, and that nothing can be brought into an indictment by argument or inference.* This rule, how- ever, does not require the express statement of facts which are necessarily implied from the facts which are stated.%? Under a statute, for instance, providing that, when lands shall be rented or leased by agreement for agricultural pur- poses, the crops raised thereon shall be deemed to be vested in possession of the lessor at all times until the rents: are paid, and all stipulations in the lease or agreement per- 581 Chit. Cr. Law, 227; State v. Ballard, 6 IN. C. 186. 59 Rogers v. Com., 5 Serg. & R. (Pa.) 463; State v. Dent, 3 Gill & J. (Md.) 8; Péople v. Bush, 4 Hill (N. Y.) 133. 60 Rex v. Horne, 2 Cowp. 683. 61 Ante, p. 191, ; 62 Rex v. Tilley, 2 Leach, 662; Holloway v. Reg., 17 Q. B. 325, 2 Denison, Crown Cas. 298; Rex v. Chard, Russ. & R. 488. CLARK Cr.PRoc.(2D Ep.)—13 194 PLEADING—THE ACCUSATION (Ch. 5 formed; and that any lessee who shall remove the crop without the consent of the lessor, etc., “before satisfying all liens held by the lessor on said crop, shall be guilty of a | misdemeanor’—an indictment for removal of a crop, which charges that the lease was made, is sufficient, without charging specifically that the lessor had a lien, since the statute implies a lien arising by virtue of the relation charged.®8 66. The indictment need not state facts of which the court must take judicial notice.** We find a good illustration of this rule in indictments un- der statutes. It is never necessary to recite or expressly state the particular statute upon which the indictment is founded. The court must take judicial notice of the public statutes, and all that is necessary, therefore, is to state the facts bringing it within the statute, and allege in the con- clusion that the offense was committed “contrary to the form of the statute in such case made and provided.” ** An indictment for larceny, as we shall see, must generally state the value of the property stolen;®® but an indictment charging the larceny of “eighty dollars in money, consist- ing of ten-dollar bills and twenty-dollar bills, currency of the United States,” need not aver that the money was of the value of $80, for the court will take judicial notice that such bills are worth their face value.®” 63 State v. Smith, 106 N. C. 653, 11 S. E.,166 (Davis, J., dissenting). 64 Gady v. State, 83 Ala. 51, 3 South, 429; Damron y. State (Tex. Cr. App.) 27 8. W. 7. 65 Post, p. 300. 66 Post, p. 264, 67 Gady v. State, 83 Ala. 51, 3 South. 429, § 68) STATEMENT OF THE OFFENSE 195 67. It is not necessary to state a conclusion of law result- ing from the facts stated, but it suffices to state the facts and leave the court to draw the infer- ence.®® In a Massachusetts case, an indictment under a statute declaring a building used as a house of ill fame to be a com- mon nuisance was objected to because, though it charged the defendant with keeping a house of ill fame, it did not allege that she kept and maintained a common nuisance. The court held that this was a conclusion of law which it was not necessary to state.°® So, under a statute declaring a person who should utter counterfeit money, having in his possession at the same time other counterfeit money, know- ing it to be such, to be a common utterer of counterfeit money, it was held not necessary for the indictment, after alleging the uttering of counterfeit money by the defendant and his possession at the same time of other money know- ing it to be counterfeit, to further allege that the defend- ant was a common utterer of counterfeit money, since this was a conclusion of law."° 68. It is never necessary to allege mere matter of evidence, unless it alters the offense.”? Under this rule it has been held that an indictment charg- ing the defendants with conspiring “by divers false pre- tenses and undue means and devices to obtain money from 68 Wells v. Com., 12 Gray (Mass.) 326; Rex v. Smith, 2 Bos. & P. 127, 1 East, P. C. 183, and Russ. & R. 5; Rex v. Michael, 2 Leach, Crown Cas. 938, Russ. & R. 29; Melton v. State, 3 Humph. (Tenn.) 889; Territory v. O'Donnell, 4 N. M. (Johns.) 66, 12 Pac. 748; Ball v. State, 48 Ark. 94, 2S. W. 462; Leftwich v. Com., 20 Grat. (Va.) 716. 69 Wells v. Com., supra. 70 Rex v. Smith, supra. But the indictment must contain a formal conclusion, stating that the acts charged are against the peace of the state (post, p. 356), though this would seem to be a conclusion of law. 71 Rex y. Turner, 1 Strange, 139, 140. Thus, it is not necessary to show on the face of an indictment for forgery in what manner a person is to be defrauded, as that is a matter of evidence at the trial. 196 PLEADING—THE ACCUSATION (Ch. 5 A. B., and to cheat and defraud him thereof,” is sufficient without setting out the particular means or pretenses.7? It is often difficult to say what is mere matter of evidence, as distinguished from facts necessary to be stated in order to render the indictment sufficiently certain to identify the offense.”? Thus it is sometimes held that the means by which a crime was committed must be specifically stated, as the na- ture of the blow in indictments for murder,” the particular acts constituting the alleged riot in indictments for riot,’® and the manner of causing the disturbance in indictments for disturbing a public meeting;7° while in the case of other crimes it is held that the means employed in commit- ting the crime are merely matter of evidence, and need not be stated."” 69. Matters of defense must come from the defendant, and they need not be anticipated and negatived in the indictment.7® “Tt is an elementary principle of pleading (except in dila- tory pleas, which are not favored) that it is not necessary to allege matter which would come more properly from the It is sufficient to show an instrument which on its face is capable of being used to defraud. Mead v. State, 53 N. J. Law, 601, 23 Atl. 264. 72 Rex v. Henry, 2 Barn. & Ald. 204; Rex v. Mawbey, 6 Term R. 628. 73 Ante, p. 188. 74 Drye v. State, 14 Tex. App. 185. 75 Whitesides v. People, Breese (Ill.) 21. 76 State v. Butcher, 79 Iowa, 110, 44 N. W. 239; Contra, Jones v. State, 28 Neb. 495, 44 N. W. 658, 7 L. R. A. 325. 77 Thus it has been held that it is not necessary to mention the weapon used in an indictment for assault with a deadly weapon, Peo- ple v. Congleton, 44 Cal. 92; or for assault with intent to kill, Mur- phey v. State, 43 Neb. 34, 61 N. W. 491. 78 Rex v. Baxter, 5 Term R. 84, 2 Leach, Crown Cas. 580; Com. v. Hart, 11 Cush. (Mass.) 1387. Under a statute providing that when a public offense is committed on the boundary line of two or more coun- ties, ete., the jurisdiction is in either county, an indictment for such a crime need not aver that the accused has not been prosecuted in the other county. State v. Niers, 87 Iowa, 723, 54 N. W. 1076. § 69) STATEMENT OF THE OFFENSE 197 other side; that is, it is not necessary to anticipate the ad- verse party’s answer, and forestall his defense or reply. It © is only when the matter is such that the affirmation or de- nial of it is essential to the apparent or prima facie right of the party pleading that it must be affirmed or denied by him in the first instance.” 7° It is not necessary to allege in the indictment that the defendant was of sound satu, or that he was over seven years of age. In an indictment for disobeying a justice’s order it need not be averred that the order was not re- voked.*° And in an indictment for rape it need not be al- leged that the defendant was a male, or over the age of 14 years, or, if under that age, that he possessed physical abil- ity, since incapacity to commit the crime is matter of de- fense.6+ And it is never necessary to negative all the ex- ceptions which, by some other statute than that which cre- ates the offense, might render the act legal, for these must be shown by the defendant.8?, We shall hereafter consider when it is necessary to negative exceptions contained in a statute in an indictment under that statute. This rule is well illustrated by a Massachusetts case, to which we shall presently refer in another connection. It.is the rule, as we shall see, that an intent to commit a criminal act is inferred from its commission, and need not be al- leged. In a case in which it was held that an indictment for murder by knowingly administering a deadly poison need not allege an intent to take life, because the law would infer such intent from the act, it was urged by counsel for the defendant that every fact stated in the indictment might have been done by the defendant, and yet he might have committed no offense; that is, that a person may adminis- ter to another what he knows to be a deadly poison inno- cently, and without any intent to do bodily harm, as where a physician administers poison honestly, and in the exer- 79 Com. v. Hart, 11 Cush. (Mass.) 137. 801 East, P. C. 19, 20. 81 People v. Wessel, 98 Cal. 352, 33 Pac. 216. 82 Rex v. Pemberton, 2 Burrows, 1036; Rex v. Baxter, 2 Leach, Crown Cas. 580; Com. vy. Maxwell, 2 Pick. (Mass.) 141. 198 PLEADING—THE ACCUSATION (Ch. 5 cise of due care, but with fatal results. The court said that this was also true with homicide by stabs or cuts with a knife; that a surgeon may accidentally kill in performing an operation. But it was held that this did not make it necessary to expressly allege the criminal intent in an in- dictment for murder by poison or by cuts or stabs with a knife. If death is thus caused by accident, or is otherwise justifiable or excusable, that is a matter of defense to be proven by the defendant.®* 70. Though the law requires certainty in describing the offense, it generally requires such certainty only as the circumstances of the case will permit.*+ An indictment for murder at common law should, if pos- sible, state the means by which the death was caused, but, if the means are unknown, failure to state them cannot ren- der the indictment bad.*° An indictment for a conspiracy to defraud should, if possible, name the persons whom it was intended to defraud; ** but if the particular persons have not been ascertained by the conspirators, or are not known to the grand jurors, an indictment which does not name them is good,§” provided, at least, it shows the ex- cuse for not naming them.** The rule also applies to the descriptions of property, allegations of ownership, names of persons, describing lost instruments, etc.*® Of course ig- 83 Com. v. Hersey, 2 Allen (Mass.) 181. 84 State v. Gray, 29 Minn. 142, 12 N. W. 455; Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dee. 711; Com. v. Ashton, 125 Mass. 384; People v. Taylor, 3 Denio (N. Y.) 91. Lost instruments, Com. v. Mar- tin, 125 Mass. 394. 85 Com. v. Webster, 5 Cush, (Mass.) 322, 52 Am. Dec. 711; Cox Vv. People, 80 N, Y. 500; State v. Williams, 52 N. C. 446, 78 Am. Dec. 248. 86 Reg. v. King, 7 Q. B. 782. 87 Rex v. De Berenger, 3 Maule & S. 67; Reg. v. Aspinall, 2 Q. B. Div. 59. 88 Reg. v. King, supra. 89 Post, pp. 250, 267, 170, 239. The rule that the indictment should state these facts—the cause of death, the persons defrauded, the de- scription of property stolen, etc.—was that otherwise the defendant § 71) STATEMENT OF THE OFFENSE 199 norance could not excuse an omission to state an essential element of the offense. The excuse for failure to state par- ticulars should be shown by the express statement that they are unknown to the grand jurors. 71. The offense must not be stated in the disjunctive, for, if the rule were otherwise, it would always be un- certain which of the two accusations is intend- ed.°° Under this rule it has been held that an indictment which charges that the defendant “murdered, or caused to be mur- dered,” or that he “murdered or wounded,” is bad for un- certainty.°1 The same is true of charges that the defendant “burned or caused to be burned”; °* that he “forged or ‘caused to be forged” an instrument; °* that he “erected or caused to be erected” a nuisance; °* that he “published or caused to be published” a libel; °* that he “took or caused to be taken”; °* that he “carried and conveyed or caused to be would not be able to prepare his defense. How easily this consid- eration, on which numberless indictments have been quashed, could be ignored, is shown by the rule announced in the text. Of course, the defendant was not aided in preparing his defense in any degree by the statement in the indictment that a description of the property, ete., was unknown to the grand jury. 902 Hawk. P. C. ¢c. 25, §§ 57, 58; Speart’s Case, 2 Rolle, Abr. 81; Davy v. Baker, 4 Burrows, 2471; Com, v. Perrigo, 3 Metc. (Ky.) 5; State v. Stephenson, 83 Ind. 246; Davis v. State, 28 Tex. App. 637, 5 8S. W. 149; Hammel y. State, 14 Tex. App. 326; Angel v. Com., 2 Va. Cas. 231; State v. Jones, 1 MeMul. (S. C.) 236, 36 Am. Dec. 257; State v. Charlton, 11 W. Va. 332, 27 Am. Rep. 603. But see State v. Van Doran, 109 N. C. 864, 14 S. E. 32, in which an indictment charg- ing a physician with practicing or attempting to practice without a license was sustained. 912 Hawk. P. C. c. 25, §§ 57, 58; Rex v. Stocker, 5 Mod. 187. 92 People v. Hood, 6 Cal. 236. 93 Rex v. Stocker, 5 Mod. 187, 1 Salk. 342, 8371; Rex v. Middlehurst, 1 Burrows, 399; Com. v. Perrigo, 3 Mete. (Ky.) 5; People v. Tomlin- son, 35 Cal. 503. 94 Rex v. Stoughton, 2 Strange, 900. 95 Rex y. Brereton, 8 Mod. 330. 96 State v. O’Bannon, 1 Bailey (8. C.) 144, 200 PLEADING—THE ACCUSATION (Ch. 5 carried and conveyed” a person having a contagious dis- ease; °’ or that he suffered a game of cards to be played “Gn a house or on premises in the county aforesaid.” °* And, since all intoxicating liquor is not spirituous, an indictment charging the sale of “spirituous or intoxicating” liquor is bad.®°® The rule applies also to such averments as that the defendant administered “a drug or poison,” or that he broke into “a barn or stable,” etc.* The rule does not apply where the charges ‘are the same. As explained in a Massachusetts case,? where the word “or” in a statute is used in the sense of “to wit”—that is, in ex- planation of what precedes—and making it signify the same thing, an indictment which adopts the words of the statute is sufficient. Thus, an indictment charging in the words of a statute that the defendant had in his custody and pos- session 10 counterfeit “bank bills or promissory notes,” pay- able to the bearer thereof, and purporting to be signed by the president and directors of a certain bank, was held suffi- cient, since the words “promissory note,” in the statute, were used merely as explanatory of “bank bill,” and meant the same thing.? So an information alleging that the de- fendant stole a mare “of a bay or brown color” was held sufficient on the ground that the colors were the same.* And, in the case mentioned above, the indictment charging the sale of “spirituous or intoxicating” liquors would have 97 Rex vy. Flint, Cas. t. Hardw. 370. And see Noble v. State, 59 Ala. 73; State v. Naramore, 58 N. H. 273. 98 Com. v. Perrigo, 3 Mete. (Ky.) 5. 99 Com. v. Grey, 2 Gray (Mass.) 501, 6Y Am. Dec. 476. Or of “beer or ale.” Rex v. North, 6 Dowl. & R. 148. See, however, Cunningham v. State, 5 W. Va. 508; Morgan v. Com., 7 Grat. (Va.) 592; Thomas v. Com., 90 Va. 92, 17 S. E. 788. 1 State v. Drake, 30 N. J. Law, 422; State v. Green, 3 Heisk. (Tenn.) 131; Horton vy. State, 60 Ala. 72. An allegation that defendant car- ried a pistol “on or about his person” is bad. Harris v. State, 58 Tex. Cr. R. 523, 126 S. W. 890. ° 2Com. v. Grey, 2 Gray (Mass.) 501, 61 Am. Dec. 476. And see State v. Hester, 48 Ark. 40, 2 S. W. 339. 3 Brown v. Cont, 8 Mass. 59; Russell v. State, 71 Ala. 348; State v. Ellis, 4 Mo. 474; State'v. Flint, 62 Mo. 393. 4 State v. Gilbert, 13 Vt. 647. \ e § 72) STATEMENT OF THE OFFENSE 201 been sufficient if the two terms were the same. All spirit- uous liquor is intoxicating, but all intoxicating liquor is not spirituous.® Where a statement in the disjunctive is superfluous and immaterial, it will be rejected as surplusage.® 72. An indictment which is repugnant in a material part is altogether bad.” , Under this rule, an indictment which charged the defend- ant with having forged a certain writing, whereby one per- son was bound to another, was held bad, because it was im- possible for any one to be bound by a forgery. And an indictment alleging that the defendant caused to be issued to a person a false and fraudulent certificate of ownership of certain stock, signed in blank, and of the following tenor (setting it out), was held bad for repugnancy, as a blank certificate could not certify or purport ownership, nor have a tenor.® So, an indictment for forging a bill of exchange, stating it as directed to John King, by the name and addi- tion of John Ring, Esq., was held bad.t° And an indict- 5 Com. v. Grey, supra. 61 Hale, P. C. 535; State v. Corrigan, 24 Goan 286; post, p. 209. Under statutes in some states different crimes of the same nature and subject to the same punishment may be charged disjunctively. See Wickard v. State, 109 Ala. 45, 19 South. 491. 72 Hawk. P. C. c. 25, § 62; Rex v. Gilchrist, 2 Leach, Crown Cas. 660; Reg. v. Harris, 1 Denison, Crown Cas. 461; State v. Hardwick, 2 Mo. 226; State v. Johnson, 50 N. C. 221; State v. Haven, 59 Vt. 899, 9 Atl. 841; Com. v. Lawless, 101 Mass. 32. An indictment for manslaughter, alleging that the defendant “willfully” and “with cul- pable negligence’’ killed the deceased, is bad for repugnancy. State vy. Lockwood, 119 Mo. 463, 24 S. W. 1015. But in Overstreet v. Com., 147 Ky. 471, 144 8. W. 751, it was held that an indictment naming, in one part, the offense as arson, and in another part describing the offense as a statutory burning, was not demurrable under a statute providing that a ‘conviction shall not be reversed for error when the court is satisfied that the substantial rights of accused have not been prejudiced. 82 Hawk. P. C. c. 25, § 62; Rex v. ® State v. Haven, 59 Vt. 399, 9 Atl. 841. 10 Rex v. Reading, 2 Leach, Crown Cas, 590. , 3 Mod. 104. 202 PLEADING—THE ACCUSATION (Ch. 5 ment is repugnant if the description of a written ‘instru- ment varies from the instrument as set out therein;+? or if it states that the offense, or an act constituting a part of the offense, was committed at “said A.,” or at “A. afore- said,” where A. has not been previously mentioned.1? So, where one was indicted for compounding the felony of uttering a counterfeit bill, and the bill was stated to have been issued on the 5th day of November, 1802, and the in- dictment continued that “afterwards, to wit, on the lst day of June, 1800,” the felony was compounded, judgment was arrested.?® . Where the contradictory or repugnant expressions do not enter into the substance of the offense, and the indictment may be good without them, they may be rejected as sur- plusage. Of this we shall speak more at length in treating of surplusage.** Where a matter is capable of different meanings, that meaning will be taken which will support the indictment, and not that which will defeat it.15 But it must be clearly capable of two meanings, for the court cannot, to support the indictment, arbitrarily give it a meaning with which the use, habits, or understanding of mankind would plainly dis- agree.1®° Words, taken by themselves, may be open to this objection, and yet, taken in connection with other words used, they may be sufficient. Words are not ambiguous if it sufficiently appears from the context in what sense they are intended, and repugnancy only exists where a sense is an- nexed to words which is either absolutely inconsistent therewith, or, being apparently so, is not accompanied by anything to explain or define them.?’ 11 Com. v. Lawless, 101 Mass. 32. 12 Com. v. Pray, 13 Pick. (Mass.) 359; post, p. 288, 18 State v. Dandy, 1 Brev. (8. C.) 395. But see Com. v. Roberts, 145 Ky. 290, 140 S. W. 313. 14 State v. Staples, 126 Minn. 396, 148 N. W. 283. And see post, 211. 15 Reg. v. Stokes, 1 Denison, Crown Cas. 307; Com. y. Butler, 1 Allen (Mass.) 4; Wright v. Rex, 1 Adol. & E. 448. 16 Rex v. Stevens, 5 East, 257. : 171 Chit. Cr. Law, 173; Reg. v. Craddock, 2 Denison, Crown Cas, 31; Jeffries v. Com., 12 Allen (Mass.) 145; Com. v. Kelly, 123 Mass. 417. § 74) STATEMENT OF THE OFFENSE 203 73. The indictment must be in the English language. Formerly, in England, indictments, like all other legal proceedings, were in the Latin language; but the rule for a long time has been that they must be in English. If, how- ever, any document in a foreign language, as a libel or a forged instrument, be necessarily introduced, it should be set out in the original tongue, and then translated so as to show its application.*® 74. Abbreviations ought never to be used except in setting forth the facsimile of a writing. An indictment is not bad, however, because the usual initials and figures are used for dates, nor because of the use of other abbreviations which are commonly used and understood. By statute in England all indictments are required to be in words at length, and therefore no abbreviations can be used. ‘Nor can any figures be allowed, but all numbers must be expressed in words at length.2® There is an exception, of course, in those cases where, as in the case of forgery, a facsimile of an instrument must be given in an indictment.?° In this country, as we shall see, it is held that the usual initials and figures may be used for dates.24. Probably other abbreviations may be used if they have been so commonly used that they have acquired a meaning which is commonly known; but abbreviations of words employed by men of science or in the arts will not answer, without a full expla- nation of their meaning in ordinary language.?? 18 Post, p. 241. 191 Chit. Cr. Law, 176. 20 Post, p. 239. 21 Post, p. 287. . 22 U. S. v. Reichert (C. C.) 82 Fed. 142. It has been held that the mathematical signs for “degrees,” etc., cannot be used. State v. Town of Jericho, 40 Vt. 121, 94 Am. Dec. 387. But “&’’ for “and’’ has been held not to vitiate the indictment. Pickens y. State, 58 Ala. 364. : 204 PLEADING—THE ACCUSATION (Ch. 5 75. A videlicet or scilicet (e. g., to wit, or that is) may be used to render more particular and certain a state- ment before general or obscure. Its use, if the al- - legation is immaterial, will not prevent rejection of the allegation as surplusage; nor, on the other hand, if the allegation is material, will it allow such rejection, or dispense with strict proof. In setting forth time, place, number, quantity, etc., it is very usual to introduce the statement under what is termed a videlicet or scilicet—as, “that afterwards, to wit, on,” etc., or “at,” etc., the accused did, etc., or a fact occurred. Lord Hobart speaking of a videlicet, says that its use is to par- ticularize that which was before general, or to explain that which was before doubtful or obscure; that it must not be contrary to the premises, and neither increase nor diminish, but that it may work a restriction where the former words were not express and special, but so indifferent that they might receive such a restriction, without apparent injury.*® “The precise and legal use of a videlicet in every species of pleading is to enable the pleader to isolate, to distinguish, and to fix with certainty that which was before general, and which, without such explanation, might with equal proprie- ty have been applied to different objects.” ?* Respecting the effect of the use of this mode of statement, it has been said that where the time when a fact happened is immaterial, and it might as well have happened at anoth- er day, there, if alleged under a scilicet, it is absolutely nug- atory, and therefore not traversable, and if it be repugnant to the premises, or not proved as laid, the defect will not vitiate, but will be rejected as superfluous.?® But where the precise time, etc., is material and enters into the sub- stance of the description of the offense, there the time, etc., though laid’ under a scilicet, is conclusive and traversable, and it will be intended to be the true time and no other, and, if impossible or repugnant or not proved, the defect 28 Stukeley v. Butler, Hob. 172, quoted in 1 Chit. Cr. Law, 226. See State v. Brown, 51 Conn. 1. 24 Com. v. Hart, 10 Gray (Mass.) 465. 265 State v. Haney, 8 N. C. 460; State v. Heck, 23 Minn. 549. § 76) STATEMENT OF THE OFFENSE 205 will vitiate.2° Either the allegation must exactly corre- spond with the fact or it may vary. If the former, it will be well faid with a scilicet, which may be rejected; and if the latter, though the scilicet were omitted, evidence of a different day, quantity, or place may be admitted. Thus, in indictments for extortion, or taking a greater sum for bro- kerage than allowed by statute, though the sum be stated without a videlicet, it is not necessary to state it with pre- cision.?” | And, on the other hand, where the true sum must be set forth, it will not dispense with strict proof to allege a different sum under a scilicet.?® Therefore it would seem that the use of 3 a videlicit or scili- cet is of no benefit to the pleader.?® 76. Mere clerical or grammatical errors in drafting an in- dictment will not vitiate it, if the sense is not ob- \ scured or changed.*° Where, for instance, an information for arson charged that the accused theretofore, to wit, on a certain day, etc., and at a certain place, the inhabited dwelling of a certain person there situated “was willfully, maliciously, and felo- niously set fire to, with intent then and there to burn,” etc., it was held good on motion in arrest of judgment. The word “was” was considered a mere clerical error, and was 26 Jansen v. Ostrander, 1 Cow. (N. Y.) 676; Gleason v. McVickar, 7 Cow. (N. Y.) 48; State v. Phinney, 32 Me. 440; Hastings v. Lovering, 2 Pick. (Mass.) 223, 18 Am. Dec. 420; Paine v. Fox, 16 Mass. 133. 27 Rex v. Gillham, 6 Term R. 265, 1 Esp. 285. 28 Grimwood v. Barrit, 6 Term R. 462. 29 See Bishop, New Cr. Proc. § 406. 30 People v. Duford, 66 Mich. 90, 33 N. W. 28; Rex v. Dowlin, 5 Term R. 317; Rex v. Beach, Cowp. 229; Morgan vy. Edwards, 2 Marsh. 100; State v. Wimberly, 3 McCord (S. C.) 190; State v. Halder, 2 McCord (S. C.) 877, 138 Am. Dec, 788; Rex y. Hart, 1 Leach, 145; State v. Whitney, 15 Vt. 298; Com. y. Call, 21 Pick. (Mass.) 515; People v. Warner, 5 Wend. (N. Y.) 271; Langdale v. People, 100 Ill. 268; Fortenberry v. State, 55 Miss. 403; Ward v. State, 50 Ala. 120; State v. Edwards, 19 Mo. 674; State v. Davis, 80 N. C. 384; Lazier v. Com., 10 Grat. (Va.) 708; State v. Gilmore, 9 W. Va. 641; Shay v. People, 22 N. Y. 817; State v. Keener, 225 Mo. 488, 125 S. W. 747. 206 PLEADING—THE ACCUSATION (Ch. 5 read “did.” *1| Where the meaning is not changed, and is clear, an indictment will not be held insufficient merely be- cause a word is misspelled, or a letter is omitted,®? or be- cause a word is used which is grammatically wrong, or a word which is not essential is omitted.** If the error chang- es or destroys the sense or an essential word is omitted, it is otherwise.** 21 People v. Duford, supra. 32 Rex v. Beech, 1 Leach, Crown Cas, 1384; Rex v. Hart, Id. 145; State v. Molier, 12 N. C. 263; Keller v. State, 25 Tex. App. 325, 8 S. W. 275; State v. Crane, 4 Wis. 400; State v. Hedge, 6 Ind. 330; Lefler v. State, 122 Ind. 206, 23 N. B. 154. 33 State v. Whitney, 15 Vt. 298; People v. Warner, 5 Wend. (N. Y.) 271; McLaughlin v. Com., 4 Rawle (Pa.) 464; State v. Brady, 14 Vt. 353; State v. Freeman, 21 Mo. 481; Evans v. State, 58 Ark. 47, 22 S. W. 1026; Jackson v. State, 88 Ga. 784, 15 S. HE. 677. 34 People v. St. Clair, 56 Cal. 406; State v. Edwards, 70 Mo. 480; Strader v. State, 92 Ind. 376; Jones v. State, 21 Tex. App. 349, 17 S. W. 424; Moore v. State, 7 Tex. App. 42; State v. Rector, 126 Mo. 828, 23 S. W. 1074. Thus, under a statute punishing any person who shall cause a stallion to serve mares near a public highway, un- less the place “is so surrounded by artificial or natural barriers” as to obstruct the view, etc., an indictment for causing such service near a public highway which alleges merely that the place was not so surrounded by “artificial and barriers” as to obstruct the view is bad. State v. Raymond, 54 Mo. App. 425. It is impossible to recon- cile the decisions. Thus “Tebruary” has been read “February,” Wit- ten v. State, 4 Tex. App. 70; “eiget,’’ for ‘“‘eight,’’ Somerville v. State, 6 Tex. App. 433; “mair” for “mare,’’ State vy. Myers, 85 Tenn. 203, 5 8. W. 377; “Janury’’ for ‘‘January,’’ Hutto v. State, 7 Tex. App. 44; “rill” for “kill,’’ Irvin v. State, 7 Tex. App. 109; ‘“‘frausulently”’ for “fraudulently,” St. Louis v. State (Tex. Cr. App.) 59 S. W. 889; “gol” for ‘‘gold,’’ Grant v. State, 55 Ala. 201; ‘“assalt’’ for “assault,”’ State v. Crane, 4 Wis. 400. But ‘‘maice” for “malice’’ has been held bad, Wood v. State, 50 Ala. 144; “prom.,” for ‘‘proniise,’’ Latham v. State, 63 Tex. Cr. R. 682, 141 S. W. 953; “larcey” for “larceny,’’ People v. St. Clair, 56 Cal. 406; “malice aforethou” for “malice afore- thought.’’ Griffith v. State, 90 Ala. 583, 8 South. 812. Yet the word “fraudulently,” for which “frausulently’ was used in St. Louis v. State, supra, was as necessary as “malice,’? for which ‘‘maice’’ was used in Wood v. State, supra, and the context showed as clearly in the one case as the other what word was intended. In Evans v. State, 34 Tex. Cr. R. 110, 29 S. W. 266, the defendant was indicted for robbery, and the indictment stated the goods taken to be in the ‘“possion’’ of one Barnard. The court quashed the indictment, say- ing: “The sufficiency of the word ‘possion,’ as used in the indictment, § 17) STATEMENT OF THE OFFENSE 207 77. The inducement is a statement of preliminary facts which do not enter into the description of the of- fense, but which are necessary to be shown in or- der to show the criminal character of the acts charged. Not being a part of the description of the offense, it does not require the same certainty.** In an indictment for dissuading, hindering, and prevent- ing a witness from appearing at court, statements as to the summoning of the witness are merely by way of inducement to the substance of the charge against the defendant, and it need not be stated with certainty where the witness was summoned and when he was required to appear.*® And, in an indictment for disobeying the order of justices, state- ments that the justices had jurisdiction to make the order, and that it was obligatory, are matter of inducement, which instead of the word ‘possession,’ used in the statute defining robbery is thus presented for our consideration. We have examined the dic- tionaries, and nowhere find such a word as ‘possion’; nor do we find it used as an abbreviation for ‘possession’ or any other word. It is not idem sonans with the word ‘possession,’ nor can we consider it simply as an instance of bad spelling [though that was clearly what it was, since the court admitted there was no such word, and that it was not an abbreviation]. Evidently the pleader intended to write in the indictment the word ‘possession,’ but with us it is not a ques- tion of what he means, but what did he do; and the word ‘posses- sion,’ in defining the offense of robbery, is material, and we cannot’ supply it by intendment.’’ In State v. Caspary, 11 Rich. (S. C.) 356, which was an indictment for failing to support a bastard child, it was stated in the indictment that the defendant was the “farther” of the bastard. The court held the indictment void, declaring it did not know what the “farther’’ of a bastard child could be, though in the jurisdiction “farther” and “father’’ are idem sonans; while in State v. Colly, 69 Mo. App. 444, the court sustained an indictment against the defendant for selling one bottle of “larger” beer. The Alabama court, that in Griffith v. State, 90 Ala. 583, 8 South. 812, held that an indictment alleging the killing to have been done with “malice aforethou,” was insutiicient, later held that “malice afore- thougt” was not bad. Sanders v. State, 2 Ala. App. 13, 56 South. 69. 35 Com, v. Reynolds, 14 Gray (Mass.) 87, 74 Am. Dec. 665; Reg. v. Wyatt, 2 Ld. Raym. 1191; Reg. v. Bidwell, 1 Denison, Crown Cas. 222. 36 Com, v. Reynolds, supra. 208 PLEADING—THE ACCUSATION (Ch. 5 may be alleged generally. The offense is the disobedience of the order.?7 So, in an indictment for libel, where the writing as set out in the indictment is not necessarily libel- ous, a preliminary statement of facts is necessary, in order to show its libelous character.?8 78, An innuendo is a statement, showing the application or meaning of matter previously expressed, the ap- plication or meaning of which would not otherwise be clear. It can only explain some matter already sufficiently expressed. It cannot add to or enlarge or change the sense of previous words. We have just explained the necessity of an inducement in an indictment for libel where the matter written is not in itself prima facie libelous. If, after this, the matter al- leged in the inducement and charge is not obviously libel- ous, or applicable to the party charged to have been libeled, it is necessary to render it so by explaining its real meaning by an innuendo.*® This is necessary only where the intent may be mistaken, or where it cannot be collected from the libel itself. It is necessary where the words of the writing are general, ironical, or written by way of allusion or in- ference, so that, in order to show its offensive meaning, it connects the writing with some facts or associations not ex- pressed in words, but which they necessarily present to the mind. In this case an explanation must be put upon the record, because the jury can take cognizance of nothing but what is there stated with legal precision.*° The innuendo is only explanatory of matter already expressed, which it applies to the part that is ambiguous, but it neither alters nor enlarges the sense of previous averments.*? It not only 37 Reg. v. Bidwell, supra. 38 Post, p. 246, 39 3 Chit. Cr. Law, 875; post, p. 246. 403 Chit. Cr. Law, 875; State v. Corbett, 12 R. I. 288; State v. Mott, 45 N. J. Law, 494. 413 Chit. Cr. Law, 875b; Rex v. Greepe, 2 Salk. 518; Woolnoth v. Meadows, 5 East, 469; Goodrich v. Hooper, 97 Mass. 1, 938 Am. Dec. 49; Com. v. Keenan, 67 Pa. 203; State v. Spear, 13 R. I. 326; Mix v. Woodward, 12 Conn. 262; State v. Atkins, 42 Vt. 252. § 79) SURPLUSAGE 209 cannot supply what has not been alleged in the inducement , or the libel as set out, but it cannot even render certain that which is there uncertain. Every fact necessary to show that the words are libelous must be stated in the induce- ment or libel. The libelous meaning of the words cannot be explained by an innuendo of a fact not previously stated with legal precision and certainty. Everything necessary to be stated must be stated previous to the innuendo. The of- fice of the innuendo is to apply facts thus stated to the mat- ter charged as libelous. Whenever the innuendo is erro- neous in consequence of its going beyond its office, if the libel be clear without it the defective part may be rejected as surplusage.*3 The same rule applies to indictments for forgery. If ex- trinsic facts are necessary to show that the instrument al- leged to have been forged, and set out in the indictment, was sttch an instrument as could be the subject of forgery, these facts must be stated by way of inducement, and, if necessary, applied to the instrument by innuendo.** SURPLUSAGE | 79. The introduction of averments which are superfluous and immaterial will not render the indictment bad. If it can be supported without them, they will be rejected as surplusage. But no allegation can be so rejected, even if it was unnecessary, where it is descriptive of the identity of that which is essen- tial. Superfluous and immaterial averments, not descriptive of ‘the identity of what is essential, will generally be rejected 423 Chit. Cr. Law, 873, 875b; Woolnoth v. Meadows, 5 East, 469; Hawkes v. Hawkey, 8 East, 427; James v. ‘Rutlech, 4 Coke, 17b; Com. v. Snelling, 15 Pick. (Mass.) 321; Thomas v. Croswell, 7 Jobns. (N. Y.) 271, 5 Am. Dec. 269. 43 Woolnoth v. Meadows, 5 Hast, 463; Hawkes v. Hawkey, 8 Hast, 427; Smith v. Cooker, Cro. Car. 512; Peake v. Oldham, Cowp. 275. 44 Post, p. 246. CLARK Cr.PrRoc.(2D Ep.)—14 210 PLEADING—THE ACCUSATION (Ch. 5 ‘as surplusage, and therefore will not render the indictment bad.*® As we have seen, an indictment cannot charge the offense in the disjunctive.*® An indictment is not rendered bad, however, by a statement in the disjunctive if the statement is superfluous, for it will be rejected as surplusage. ‘Thus an indictment for robbery is not bad because it charges that it was committed “in or near the highway,” for the exact place of its commission is immaterial.47 ° Nor is an indictment rendered bad for duplicity by an al- legation which is superfluous; as, for instance, where it charges that the defendant “did embezzle, steal, take, and carry away” certain goods. “This indictment is not bad for ~ duplicity, as charging the two offenses of larceny and em- bezzlement in the same count. The term ‘embezzle’ is in- troduced into the count, but not in any such manner as to give to the count the character of a charge of embezzlement. It is without any of those technical allegations essential to a charge of embezzlement ; and the indictment being perfect without it, as a charge of larceny, the word ‘embezzle’ may well-be stricken out as surplusage.” #8 An indictment, as we have seen, is bad if it is repugnant 451 Hale, P. C. 535; State v. Kendall, 38 Neb. 817, 57 N. W. 525; State v. Broughton, 71 Miss. 90, 18 South. 885; State v. Ean, 90 Towa, 584, 58 N. W. 898; People v. Laurence, 137 N. Y. 517, 33 N. E. 547; Turner v. Muskegon Circuit Judge, 95 Mich. 1, 54 N. W. 705; State v. Kern, 51 N. J. Law, 259, 17 Atl. 114. See Littell v. State, 133 Ind. 577, 33 N. E. 417; State v. Sovern, 225 Mo. 580, 125 S. W. 769. And see the cases hereafter particularly referred to. 46 Ante, p. 199. 471 Hale, P. C. 535. And see State v. Gilbert, 18 Vt. 647; Moyer v. Com., 7 Pa. 489; Respublica vy. Arnold, 3 Yeates (Pa.) 417; Ex parte Pain, 5 Barn. & ©. 254; Raisler v. State, 55 Ala. 64; Rex v. Wardle, Russ. & R. 9; State v. Ellis, 4 Mo. 474; McGregor v. State, 16 Ind. 9. 48 Com. v. Simpson, 9 Metc. (Mass.) 188; Com. v. Brown, 14 Gray (Mass.) 429; post, p. 329. In State v. Edwards, 19 Mo. 674, the in- dictment alleged that the defendant “assault, beat, and maltreat” one X. The word ‘did’ was inadvertently omitted. The court held that the words “assault and maltreat” could be rejected as surplus- age, and, being rejected, the word “did” was not necessary before the word “beat.” § 79) SURPLUSAGE 211 or inconsistent in a material part; but where the repugnant or contradictory expressions do not enter into the substance of the offense, and the indictment may be good without them, they may be rejected as surplusage.*® It has been laid down that where the repugnant matter is inconsistent with some preceding averment, it may be rejected as sur- plusage; but where the objectionable words are not contra- dicted by anything that goes hefore, but are merely irrecon- cilable with some subsequent allegation, they cannot be thus rendered neutral.°° “I do not find any authority in the law,” it was said by Lord Ellenborough in a case involving this point, “which warrants us in rejecting any material al- legation in an indictment or information which is sensible and consistent in the place where it occurs, and is not re- pugnant to any antecedent matter, merely on account of there occurring afterwards, in the same indictment or infor- mation, another allegation inconsistent with the former, and which latter allegation cannot itself be rejected. * * * If the subsequent repugnant matter could be rejected at all (which in this case it cannot, for the reason before given), it might be so in favor of the precedent matter, according to what is said by Lord Holt in Wyatt v. Alard, Salk. 325, ‘that, where matter is nonsense by being contradictory and repugnant to somewhat precedent, then the precedent mat- ter, which is sense, shall not be defeated by the repugnancy which follows, but that which is contradictory shall be re- 491 Chit. Cr. Law, 231; 2 East, P. C. 1028; Com. v. Pray, 13 Pick. (Mass.) 359; Rex v. Morris, 1 Leach, 109; Rex v. Gill, Russ. & R. 431; Trout v. State, 111 Ind. 499, 12 N. B. 1005. See Littell v. State, 183 Ind. 577, 33 N. E. 417. Where an indictment charged an offense against Matt Taylor, ‘“‘whose Christian name is otherwise unknown,” it was held not bad for repugnancy, as the words quoted could be rejected as surplusage. Taylor v. State, 100 Ala. 68, 14 South. 875. In Rex v. Morris, 1 Leach, 109, Francis Morris was indicted for receiving stolen goods. The indictment stated that Francis Morris received the goods, “he, the said Thomas Morris,” * % %* well knowing the goods to be stolen. It was held that the words “the said Thomas Morris” might be rejected as surplusage, and the indictment was sustained. See, also, State v. Staples, 126 Minn. 396, 148 'N. W. 288. 501 Chit. Cr. Law, 231. 212 PLEADING—THE ACCUSATION (Ch. 5 t jected.’ But here the matter required to be rejected is pre- cedent matter, and is also, in the place where it occurs, sensible, and liable to no objection whatever.” ** The great difficulty in the application of the doctrine we are here discussing is to determine when a particular alle- gation is surplusage, and may be stricken out without af- fecting the validity of the indictment, and when it is not. If the allegation is wholly foreign to the charge, or, though not foreign, can be stricken out entirely, and yet leave the crime properly charged, it may generally be rejected as su- perfluous.*? In an indictment for obtaining goods by false pretenses, for instance, the statement that the offense was committed by the defendant in his “capacity as a merchan- dise broker” is surplusage. “This is certainly an unusual and extraordinary allegation, but we think the maxim, ‘Utile per inutile non vitiatur,’ is applicable to it. Inasmuch as a man cannot ordinarily commit a crime in any particular capacity or in the exercise of any special occupation, it does not change or in any way affect the nature of the charge to aver that, when he was committing it, he purported or claimed to act, or actually did act, in a specific capacity, or by virtue of a certain employment. An allegation in due form that a person committed an assault and battery would not be vitiated by the addition of an allegation that he did it as a constable, nor would an averment in technical lan- guage that a defendant had committed larceny be rendered nugatory or insufficient by an additional allegation that he committed the act in his capacity as a common carrier. The rule of law as to matters which may be treated as surplus- age is clear, intelligible, and consonant with good sense. It is this: When, in addition to facts which are essential to the charge, others are alleged which are wholly redundant and useless, the latter may be wholly disregarded. As the 51 Rex v. Stevens, 5 Hast, 254; Wyatt v. Aland, 1 Salk. 325. 62 Rex v. Jones, 2 Barn. & Adol. 611; Com. v. Wellington, 7 Allen (Mass.) 299; Rex y. Hollingberry, 4 Barn. & C. 329; Com. v. Gavin, 121 Mass. 54, 23 Am. Rep. 255; Com. v. Moseley, 2 Va. Cas. 154; State v. Bailey, 31 N. H. 521; Ryalls v. Reg., 11 Q. B. 781; State v. Corrigan, 24 Conn. 286; U. S. v. Elliot, 3 Mason, 156, Fed. Cas. No. 15,044. § 79) SURPLUSAGE 213 law does not require the superfluous circumstances to be alleged, so, although they have been improvidently stated, the law, in furtherance of its object, will reject them as mere surplusage, and will no more regard them than if they had not been alleged at all.” °° Under this rule, where an indictment correctly describes an offense in the statement of facts, it will not be vitiated by the fact that it designates it, in the charging part or else- where, by the wrong name.®* So, where an indictment charges the defendant with being a common seller of intox- icating liquors, that being all that is necessary under the statute, a further averment that he made certain specified sales may be rejected as surplusage.®® And an indictment charging an offense on a particular day, and also on divers other days, is good; a day certain being alleged, the residue may be rejected.°* So where a complaint alleged that the defendant, “not being first duly licensed, according to law, as an innholder, and without any authority or license there- for duly obtained, according to law, to sell intoxicating liq- r,” did sell, etc., and it appeared that he was duly licensed as an innholder, but was without authority to sell intoxicat- ing liquor, it was held that the allegation that he was not licensed as an innholder should be rejected as surplusage, and that he was rightly convicted on the other allegations.®” And an indictment for stealing a bank bill or note, which properly describes it by its denomination and value, is not bad because it adds “of the goods and chattels” of a person named, since, if bank bills. or notes cannot properly be term- ed “goods and chattels,” these words may be rejected as 53 Com. v. Jeffries, 7 Allen (Mass.) 571, 83 Am. Dec. 712. 54 State v. Shaw, 35 Iowa, 575; State v. Davis, 41 Iowa, 311; U. S. v. Elliot, 8 Mason, 156, Fed. Cas. No. 15,044; State v. Wyatt, 76 Iowa, 328, 41 N. W. 31; U. S. v. Lehman (D. ©.) 39 Fed. 768; post, p. 3804. 55 Com. v. Pray, 18 Pick. (Mass.) 360; Com. v. Hart, 11 Cush. (Mass.) 130. 56 People v. Adams, 17 Wend. (N. Y.) 475. And see Com. v. Bry- den, 9 Mete. (Mass.) 187; Gallagher v. State, 26 Wis. 425; Wells v. Com., 12 Gray (Mass.) 326; U. 8S. v. LaCoste, 2 Mason, 129, Fed. Cas. No. 15,548. 57 Com. v. Baker, 10 Cush. (Mass.) 405. 214 PLEADING—THE ACCUSATION (Ch. 5 surplusage.®® So in a complaint alleging that the defendant did make an assault on Lucy Ann Leach, and her did strike with a ferule “divers grievous and dangerous blows upon the head * * * [of her, the said Lucy Ann Leach, whereby the said Lucy Ann Leach was cruelly beaten and wounded, and other wrongs to the said ILaicy Ann Leach then and there did and committed], to her great damage,” it was held that the words in brackets could be rejected as surplusage, leaving a sufficient charge of assault on Lucy Ann Leach.®® As we shall presently see, an indictment for a statutory offense should conclude “against the form of the statute,” but it would be improper for an indictment for a common- law offense to so conclude. The insertion of the words in the latter case, however, will not render the indictment bad, for they may be rejected as surplusage.®® Unnecessary Matter of Description Care must always be taken to distinguish between aver- ments which are thus wholly foreign and immaterial, or which, though not wholly foreign, can be stricken out with- out destroying the accusation, and averments which, though they might have been omitted, enter into the description of the offense. Ifthe whole averment may be rejected without injury to the pleading, it may be rejected; but it is other- wise with averments of essential circumstances stated with unnecessary particularity. No allegation, though it may have been unnecessary, can be rejected as surplusage, if it is descriptive of the identity of that which is legally essen- tial to the charge.*t The application of this rule often de- 58 Kastman y. Com., 4 Gray (Mass.) 416; Rex v. Morris, 1 Leach. 109; Reg. v. Radley, 1 Denison, Crown Cas. 450; Com. v. Bennett, 118 Mass. 452. 59 Com. v. Randall, 4 Gray (Mass.) 36. And see Com. v. Hunt, 4 Pick. (Mass.) 252; Reg. v. Crespin, 11 Q. B. 918; Rex vy. Morris, 1 Leach, 109; Greeson vy. State, 5 How. (Miss.) 33; State v. Wall, 39 Mo. 532. 60 itex v. Mathews, 5 Term R. 162; Com. v. Hoxey, 16 Mass. 385; Com. v. Reynolds, 14 Gray (Mass.) 87, 74 Am. Dec. 665. 61 U. 8. v. Howard, 3 Sumn, 12, Fed. Cas. No. 15,403; Alkenbrack y. People, 1 Denio (N. Y.) 80; Com. v. Atwood, 11 Mass. 93; State v. Noble, 15 Me. 476; Com. v. Hope, 22 Pick. (Mass.) 1; Dennis v. § 79) SURPLUSAGE 215 feats the ends of justice, and has been abrogated by statute in some jurisdictions.®? A few illustrations will make the rule clear. It has been held, for instance, that, though an indictment for stealing a sheet need not state the material of which it is composed, yet, if it does so, it must be proved as described; and an in- dictment for stealing “one white woolen flannel sheet” will not be sustained by proof of stealing a blanket made partly of cotton and partly of wool.** It is not necessary, as we shall see,** to describe third persons further than by their name; but, if an addition is stated, it must be proved. Thus, in an indictment for bigamy, if the woman whom it is alleg- ed that the defendant bigamously married is described as a widow, and the evidence shows that she was a spinster, the variance is fatal.*®° “Whenever a person or thing necessary to be mentioned in an indictment is described with unnec- essary particularity, all the circumstances of the descrip- tion must be proved; for they are essential to its identity. Thus, in an indictment for stealing a black horse, the animal is necessarily mentioned, but the color need not be stated, yet, if it is stated, it is made descriptive of the particular animal stolen, and a variance in the proof of the color is fatal.°® So, in respect to the larceny of lumber, the special State, 91 Ind. 291; Com. v. Moriarty, 185 Mass. 540; State v. Sher- burne, 59 N. H. 99; Gray v. State, 11 Tex. App. 411; Goodlove v. State, 82 Ohio St. 365, 92 N. E. 491, 30 L. R. A. (N. 8.) 134, 19 Ann. Cas. 893; post, pp. 386, 389, 395, 401. As to ownership of property, see post, p. 389. 62 See Goodall v. State, 22 Ohio St. 203. 63 Alkenbrack v. People, supra. The reason for the rule is that, though it was unnecessary to describe the sheet (in which case it may be noted the defendant would be compelled to come prepared to disprove the taking of any kind of sheet that the prosecutor might introduce evidence of the taking of), yet if the sheet is de- scribed the defendant would be misled if evidence of any other kind of sheet was produced against him on the trial. The ends of jus- © tice would be furthered by ‘allowing the description of the article to be stricken out, or amended, with leave to the defendant to postpone the trial, if he was in fact misled by the misdescription. 64 Post, p. 227. , 65 Rex v. Deeley, 1 Moody, Crown Cas. 303. 661 Greenl. Ev. §§ 56, 65. But see State v. Gilbert, 13 Vt. 647. a © 216 PLEADING—THE ACCUSATION (Ch. 5 marks on it need not be described; but, if they are describ- ed, the omission or failure to prove them exactly as they are alleged would constitute an essential variance between the allegation and the proof, and would necessarily prevent a conviction.*? And the authorities affirm that where place is stated, not as venue, but as matter of local descrip- tion, the slightest variance between the description of it in the indictment and the evidence offered concerning it will be fatal.*® And, in illustration of this rule, it is said that the slightest variance between the indictment and the evidence in the name of the place where the house is situate, or in any other description of it, will be fatal in indictments for steal- ing in a dwelling house, or burglary or arson, or for entering a close by night, being armed for the purpose of taking game. And therefore it is said by Story, J.,®° that no alle- gation, whether it be necessary or unnecessary, whether it be more or less particular, which is descriptive of the identi- ty of that which is legally essential to the charge in the in- dictment, can ever be rejected as surplusage. And the rule seems to be fully established, both in civil and criminal cases, with respect to what statements in the declaration or indictment are necessary to be proved, that if the whole of the statement can be stricken out without destroying the ac- cusation and charge in the one case, and the plaintiff’s right of action in the other, it is not necessary to prove the partic- ular allegation; but, if the whole cannot be stricken out without getting rid of a part essential to the accusation or cause of action, then, though the averment be more particu- lar than it need have been, the whole must be proved, or the action or indictment cannot be maintained.” 7° In the case from which we have quoted, it was held that though an indictment for wrongfully desecrating and disfiguring a public burying ground need not describe the burying * ground by metes and bounds, yet, if it does so, the metes and bounds must be proved as stated. In some states, by 67 State v. Noble, 15 Me. 476. 68 See Reg. v. McKenna, Ir, Cire. R. 416. 69 U. 8. v. Howard, 3 Sumn. 14, Fed. Cas. No. 15,403. 70 Com. v. Wellington, 7 Allen (Mass.) 299. / § 79) SURPLUSAGE : 217 statute, an indictment for stealing money may describe it simply as ‘money, without stating the kind. But, if it does unnecessarily state the kind, the statement is matter of de- scription which must be proved.”! We have discussed in another connection the effect of al- legations under a videlicit or scilicet. It is only necessary here to refer to what was there said."? Not only may averments which are superfluous be reject- ed as surplusage on objection made by demurrer or other- wise before trial, but they may also be rejected at the trial, or, after the trial, on motion in arrest of judgment, or ap- peal, or error.”* 71 Lewis v. State, 113 Ind. 59, 14 'N. E. 892. 72 Ante, p. 204. 73U. S. v. Howard, 3 Sumn. 15, Fed. Cas. No. 15,403; Com. v. Keefe, 7 Gray (Mass.) 332; Rex v. Jones, 2 Barn, & Adol. 611; Com. v. Baker, 10 Cush. (Mass.) 405 218 PLEADING—THE ACCUSATION (Ch. 6 CHAPTER VI PLEADING—THE ACCUSATION (Continued) Allegation of Intent. Allegation of Duty. Allegation of Notice, Request, and Knowledge. Technical Terms and Phrases. Aggravating Circumstances—Second or Third Offense. Setting Forth Writings. Setting Forth Spoken Words. Description of Real Property. Description of Personal Property. Ownership of Property. Name and Description of Third Persons, ALLEGATION OF INTENT 80. When a specific state of mind or specific intent is es- sential to constitute an offense or a crime is at- tempted, but not accomplished, and the attempt to carry out the evil intent only can be punished,’ the intent must be distinctly and precisely alleged, and proved. But if the offense does not, by its definition, require a specific intent, or does not rest merely in tendency, or in an attempt to carry out an evil intent, the evil intention need not be al- leged.? 1It has been said that the intent must be alleged where a crim- inal act is attempted, but not accomplished, “and the evil intent only ean be punished.” Heard, Cr. Pl. 145; Com. v. Hersey, 2 Allen (Mass.) 173. This is wrong. A criminal intent is never punished. There must be some act done in an attempt to carry out the criminal intent. The intent is not punished, but the act, because it is done with the criminal intent, is punished. The “attempt,” not the ‘in- tent,” constitutes the offense. See Clark, Cr. Law (8d Ed.) 48, 139. 21 Hale, P. C. 455; Rex v. Woodfall, 5 Burrows, 2667; Rex v. Philipps, 6 East, 473. : § 80) ALLEGATION OF INTENT 219 The rule on this subject is well stated and illustrated in a Massachusetts case. “There can be no doubt,” it is there said, “that in every case, to render a party responsible for a felony, a vicious will or wicked intent must concur with a wrongful act. But it does not follow that, because a man cannot commit a felony unless he has an evil or malicious mind or will, it is necessary to aver the guilty intent as a substantive part of the crime, in giving a tech- nical description of it in the indictment. On the contrary, as the law presumes that every man intends the natural and necessary consequences of his acts, it is sufficient to aver in apt and technical words that the defendant commit- ted a criminal act, without alleging the specific intent with which it was done. In such a case, the act necessarily in- cludes the intent.”* Thus, in charging the crime of bur- glary, it is necessary to show in the indictment that the breaking and entry was with the specific intent to commit a felony in the house, for this intent is an essential element of the crime. § 3Com. v. Hersey, 2 Allen (Mass.) 173. In the above discussion other illustrations than those mentioned in the case cited are in- cluded. 4 Rex vy. Philipps, 6 Hast, 478; Reg. v. Taylor, 2 Ld. Raym. 879; State v. McCarter, 98 N. C. 687, 4 S. E. 553; State v. Hurds, 19 Neb. 316, 27 N. W. 139. 5 Winslow v. State, 26 Neb. 308, 41 N. W. 1116; page 221, note 12, infra. It has been held, however, that this intent is sufficiently charged by alleging the breaking and entry, and the actual commis- sion of the felony, on the ground that the fact that the felony is committed is the strongest possible evidence of the intent, and that the allegation of the commission of the felony is equivalent to an averment of an intent to commit it. 2 East, P. C. c. 15, § 24; Com. v. Hope, 22 Pick. (Mass.) 1, 5; Rex v. Furnival, Russ. & R. 445; Com. v. Brown, 3 Rawle (Pa.) 207. The correctness of this proposi- tion is doubtful, to say the least. If a man breaks and enters a house without a felonious intent, and, after entering, forms and carries out a felonious intent, he does not commit burglary, for the intent must exist at the time of the breaking and entry. Clark, Cr. Law, 238. If an indictment merely charges a breaking and entry, and actual commission of a felony in the house, it does not charge a breaking and entry with intent to commit a felony, except argu- _ moentatively and inferentially, and nothing is better settled in the 220 PLEADING—THE ACCUSATION (Ch. 6 So, in an indictment for murder by blows or siabs with a deadly weapon, it is not necessary to expressly allege that the blows were inflicted with an intent to kill or mur- der. The law infers the intent from proof that the acts were committed, and that death ensued. The principle also applies to indictments for murder by poison. It need not be alleged that the poison was administered with intent to kill. Ifa person administers to another that which he knows to be a deadly poison, and death ensues therefrom, the averment of these facts in technical form necessarily involves and includes the intent to take life. It is the nat- ural and necessary consequence of the act done, from which the law infers that the defendant contemplated and intend- ed the result which followed.?. And, in an indictment for the crime of rape, it is not necessary to allege that the assault was made by the defendant with intent to ravish; it'is sufficient to allege the assault, and that the defendant had carnal knowledge of the woman by force and against her will. The averment of the act includes the intent, and criminal law than the rule that no material‘averment can be sup- plied by other than necessary inference. Everything stated in such an indictment may be true, and yet there may have been no bur- glary, for the intent to commit the felony may not have been enter- tained until after the breaking and entry. It is true that the intent may and must necessarily, in most cases, be inferred from the fact that the felony was committed. This is a matter of evidence, how- ever. The rules of evidence allow the existence of one fact to be inferred from the existence of other facts proved, though the infer- ence is not a necessary one, but the rules of criminal pleading do not allow averments of a fact or circumstance or a mental condition, which is necessary to constitute the crime sought to be charged, to be imported into an indictment by argument and inference, unless it is a necessary inference. Ante, p. 191; note 24, infra. 6 Com. v. Hersey, 2 Allen (Mass.) 173. But see (statutory murder) ‘People v. Antoniello (Co, Ct.) 146 N. Y. Supp. 799. 7 Com. v. Hersey, supra. The rule stated in the text has received very general recognition in indictments for murder, but it seems not to be necessary to invoke it in such cases. The definition of murder requires, as the mental element “malice aforethought” only, and this element it is to be presumed was expressly averred in the indict- ment, since at common law, and under most statutes, an indictment for murder without this averment would be invalid, § 80) ALLEGATION OF INTENT 221 proof of the commission of the act draws with it the neces- sary inference of the criminal intent.® If the act was done while the accused was insane,® or through noncriminal negligence,!® the accused may show this on the trial, and entitle himself to an acquittal; but it is not necessary to negative any of these defenses in the indictment. On the other hand, if, by the common law or by the provision of a statute, a particular intention is essential to an offense, or, as is included in the above proposition, if a crime is attempted, but not accomplished, so that the only offense punishable is the attempt to carry out the particu- lar evil intent, it is necessary to allege the intent with dis- tinctness and precision, and to support the allegation by proof.1t Burglary is not committed unless the breaking and entry was with the specific intent to commit a felony in the house. ‘To charge the crime, therefore, the indict- ment must either expressly allege such an intent, or per- haps, as stated above, allege the actual commission of a felony from which an intent to commit it may be implied.” 8 Com. v. Hersey, supra. 9 See Clark, Cr. Law (3d Ed.) 64. 10 See Clark, Cr. Law (8d Ed.) 59. 11 Rex v. Philipps, 6 East, 473; Com. v. Hersey, 2 Allen (Mass.) 178; State v. Davis, 26 Tex. 201; Fergus v. State, 6 Yerg. (Tenn.) 345; Coffee v. State, 3 Yerg. (Tenn.) 283, 24 Am. Dec. 570; State v. Beadon, 17 8. C. 55; State v. Garvey, 11 Minn. 154 (Gil. 95); People v. Congleton, 44 Cal. 92; post,-p. 224. 122 Hale, P. C. 518; State v. Lockhart, 24 Ga. 420; Winslow v. State, 26 Neb. 308, 41 N. W. 1116; Portwood v. State, 29 Tex. 47, 94 Am. Dec. 258; State v. Brady, 14 Vt. 353; Murray v. State, 48 Ala. 675; Jones v. State, 11 N. H. 269; notes 5-7, supra. An in- dictment for burglary with intent to commit larceny need not allege the intent with the same particularity as would be required in an indictment for larceny. It need not, for instance, describe the prop- erty intended to be stolen, nor state its ownership or value. State v. ‘vyrrell, 99 Mo. 354, 11 S. W. 734; Lanier v. State, 76 Ga. 304; Stokes v. State, 84 Ga. 258, 10 S. EH. 740; Wright v. Com., 82 Va. 183; Green v. State, 21 Tex. App. 64, 17 S. W. 262; State v. Jennings, 79 Towa, 513, 44 N. W. 799; Reg. v. Clarke, 1 Car. & K. 421; Larned v. Com., 12 Metc. (Mass.) 240; Davis v. State (Tex. Cr. App.) 23 S. W. 687; Hamilton v. State (Tex. Cr. App.) 24 S. W. 82; Bigham v. State, 31 Tex. Cr. R. 244, 20 S. W. 577. The same is true in case 222 PLEADING—THE ACCUSATION (Ch. 6 As we have seen, an indictment for the consummated crime of rape need not allege that the assault was made w%th intent to rape. Where, on the other hand, the crime is not consummated, and it is sought to punish for the attempt to rape, or for the statutory crime of assault with intent to rape, the specific intent to rape must be alleged and proved. The attempted crime not being consummated, the gist of the offense consists in the intent with which the assault was committed. It must therefore be distinctly alleged and proved.1? The same is true of attempts to murder, or as- saults with intent to murder. It must be alleged and proved that the assault was made with that specific in- tent. This general averment will be sufficient. By the weight of authority, the indictment need not contain an averment of the facts necessary to constitute the crime intended to be committed; as, in an indictment for murder, that the acts were done feloniously, willfully, and of malice aforethought.?® “The indictment should set out precisely all the facts and circumstances which render the defendant guilty of the offense charged. * * * If the intent with which an act is done constitutes the offense charged, that intent must be averred in the indictment. In Penhallo’s Case, Cro. Eliz. 231, the defendant was indicted on 5 Edw. VI, c. 4, for drawing his dagger in a church against J. S., and doth not of intent to rape, murder, etc. Cases above cited; Com. v. Doherty, 10 Cush. (Mass.) 52. It has even been said that the particular fel- ony intended need not be specified. Slaughter v. Com. (Ky.) 24 S. W. 622, ; 138 Com. v. Merrill, 14 Gray (Mass.) 415, 77 Am. Dec. 336. 14 State v. Patrick, 3 Wis. 812; People v. Petit, 3 Johns. (N. Y.) 511; Bradley v. State, 10 Smedes & M. (Miss.) 618. 15 People v. Petit, supra; Rex v. Higgins, 2 East, 5; Com. v. Do- herty, 10 Cush. (Mass.) 52; Cross v. State, 55 Wis. 262, 12 N. W. 425; Porter v. State, 57 Miss. 300; Garner vy. State, 31 Tex. App. 22, 19 S. W. 333; Com. v. McDonald, 5 Cush. (Mass.) 365; Rogers v. Com., 5 Serg. & R. (Pa.) 463; Taylor v. Com., 3 Bush (Ky.) 508; Martin v. State, 40 Tex. 19; State v. Ackles, 8 Wash. 462, 36 Pac. 597; note 12, supra. But see, contra, State v. Wilson, 7 Ind. 516; State v. Fee, 19 Wis. 562; Milan v. State, 24 Ark. 346; State v. Davis, 121 Mo. 404, 26 S. W. 568. ~ § 80) ALLEGATION OF INTENT 223 say to the intent to strike him. The indictment was ad- judged bad. So, if an offense at common law is by statute punishable with additional severity when committed with the intention to perpetrate another and greater offense, the criminal intention must be directly averred in the indict- ment, or the offender cannot be subjected to the additional punishment. It is not sufficient that the indictment con- cludes contra formam statuti. So, if a misdemeanor is de- clared to be a felonv when committed with a certain crimi- nal intent, it is not sufficient to aver in the indictment that the criminal act was done feloniously.” In the case from which we have quoted, an indictment under a statute pun- ishing the removal of a dead body with the intent to use or dispose of it for the purpose of dissection was held bad be- cause it failed to allege this intent.1° An intent to defraud is an essential element in the crimes of forgery, obtaining goods by false pretenses, etc.; and an indictment for such an offense is fatally defective if it fails to allege such an intent.17 At common law it is gen- erally necessary to allege an intent to defraud some par- ticular person, but, by statute, in many jurisdictions a gen- eral allegation of intent to defraud is sufficient. Even where such a statute is in force, a special intent to defraud a particular person, if alleged, though unnecessarily, must be proved.*® 16 Com. v. Slack, 19 Pick. (Mass.) 307. 17 Rex v. Rushworth, Russ. & R. 317; Rex v. Powner, 12 Cox. Cr. Cas. 235; People v. Mitchell, 92 Cal. 590, 28 Pac. 597, 788; Com. v. Bakeman, 105 Mass. 53; Com. v. Dean, 110 Mass. 64; People v. Getchell, 6 Mich. 496; Scott v. People, 62 Barb. (N. Y.) 62; Stough- ton v. State, 2 Ohio St. 562; State v. Jackson, 89 Mo. 561, 1S. W. 760; State v. Harrison, 69 N. C. 143; Cunningham v. State, 49 Miss. 685; State v. Stephen, 45 La. Ann. 702, 12 South. 883; Moore v. Com., 92 Ky. 630, 18 S. W. 833. But see State v. Rowlen, 114 Mo. 626, 21 S. W. 729; Hamilton v. Reg., 2 Cox, Cr. Cas. 11. 18 Reg. v. Hodgson, Dears. & B. Crown Cas. 9; Com. v. Harley, 7 Metc. (Mass.) 509; Roush v. State, 34 Neb. 325, 51 N. W. 755; State v. Hart, 67 Iowa, 142, 25 N. W. 99; People v. Van Alstine, 57 Mich. 69, 23 N. W. 594; State v. Tingler, 32 W. Va. 546, 9 S. I. 935, 25 Am. St. Rep. 880; State v. Adams, 39 La. Ann, 238, 1 South. 455; State v. Weaver, 149 Iowa, 403, 128 N. W. 559, 31 L. R. A. (N. S.) 1046, Ann. Cas. 1912C, 1137. 19 Com. v. Harley, supra; Com. v. Kellogg, 7 Cush. (Mass.) 476. 224 PLEADING—THE ACCUSATION (Ch. 6 It has been held that, where it is necessary. to allege an evil intent, it is sufficient if it be alleged in the prefatory part of the indictment. An indictment for indecent ex- posure, for instance, which alleges that the defendant, de- vising and intending the morals of the people to debauch and corrupt at a time and place named, in a certain public building there situate, in the presence of divers citizens, etc., unlawfully, scandalously, and wantonly did expose his person, etc., sufficiently alleges the intent with which the act was committed.2® The rule is subject to this qualifica- tion, namely, that, if the intention is necessary to consti- tute the offense, it must be alleged in every material part where it so constitutes it.2t Thus, where an indictment for obtaining money on a forged order, after charging that the accused presented the order with intent to cheat, and that he knowingly, etc., pretended it was genuine, proceed- ed to charge that the accused did obtain the money, with- out alleging that he obtained it with the intent to cheat, etc., or knowingly and designedly, it was held bad.?* And an indictment for selling unwholesome meat, knowing it to be unwholesome, is bad if it fails to allege that the defend- ant knew it was unwholesome. It is not enough to allege that he did “knowingly sell” unwholesome meat, for a man may knowingly sell an article without knowing its condi- tion.?8 Like all other essential averments, the intent must be precisely and distinctly alleged. If not expressly alleged, it cannot be made out by inference and argument from the facts which are stated.?* Where the intent is thus material, it must be correctly alleged, for a variance between the allegation and the proof 20 Com, v. Haynes, 2 Gray (Mass.) 72, 61 Am. Dec. 487; Rex v. Philipps, 6 Bast, 4738; Miller v. People, 5 Barb. (N. Y.) 203. 21 Curtis v. People, Breese (Ill.) 256, Id., 1 Scam. (Ill.) 285: Rex y. Rushworth, Russ. & R. 317; Com. v. Boynton, 12 Cush. (Mass.) 499; Com. v. Bakeman, 105 Mass. 53; Com. v. Dean, 110 Mass. 64. 22 Rex v. Rushworth, Russ. & R. 317: 28 Com. v. Boynton, 12 Cush. (Mass.) 499. 24 Ante, p. 219; Reg. v. James, 12, Cox, Cr. Cas. 127; Rex v. Rush- worth, Russ. & R. 317; Com. vy. Lannan, 1 Allen (Mass.) 590; Com. y. Dean, 110 Mass. 64; note 5, supra. § 82) ALLEGATION OF NOTICE, REQUEST, KNOWLEDGE 225 may prove fatal.25 To avoid a possible variance in this respect, it is usual to allege the same act with different in- tents in the same or different counts of the indictment.?® If an intent is unnecessarily alleged, it cannot, as a rule, affect the validity of the indictment, nor need it be proved, for it will be rejected as surplusage.?? 81. Allegation of duty. Under the rule that every essential element of the crime must be stated, if the crime for which the defendant is in- dicted is predicated on the existence of a legal duty which he is charged with having violated, the indictment must show how the duty arose, unless it is a duty connected by law to an office which the defendant holds.28 Thus an in- dictment for neglecting to keep a road in repair, must show how defendant’s duty to keep the road in repair arises.”® ALLEGATION OF NOTICE, REQUEST, AND KNOWLEDGE 82. Whenever notice, request, or knowledge is necessary to constitute the crime, it must be alleged and proved. If a special notice is necessary to- raise the duty which the defendant is charged with having violated, it must be alleged.*° On the same principle, if a request or demand is neces- sary to raise the duty which the defendant is charged to have violated, it must be stated. Thus, an indictment for 25 As to variance, see post, p. 379. 26 As to joinder of counts and duplicity, see post, pp. 322, 331. 27 Post, p. 881. But see note 19, supra. 28 State v. Hageman, 13 N. J. Law, 314; State v. President, etc., of N. J. Turnpike Co., 16 N. J. Law, 222. 29 State v. Haddonfield & C. Turnpike Co., 65 N. J. Law, 97, 46 Atl. 700. 80 Crouther’s Case, Cro. Eliz. 654, CLARK Cr.PROC.(2D Ep.)—15 226 PLEADING—THE ACCUSATION (Ch. 6 contempt in disobeying a justice’s order must allege that the defendant was requested to perform the order, or that it was served on him.3+ On the same principle, whenever a particular knowledge is essential to the constitution of an offense, it must be alleged, and it must be alleged in every material part of the description where it so constitutes it. Thus, under a stat- ute imposing a penalty upon any person who shall know- ingly sell unwholesome provisions, “without making the same fully known to the buyer,” not only must the provi- sions be knowingly sold, but the seller must know that they are unwholesome, and an indictment is fatally defec- tive if it does not allege such knowledge. It is not enough to allege that the defendant “did knowingly sell” unwhole- some provisions, but it must be further expressly alleged that he knew at the time that they were unwholesome, since a person may knowingly sell an unwholesome article without knowing it to be unwholesome. The sale of itself is not made criminal, but it is the sale coupled with a knowledge of the condition of the article which constitutes the offense, and the scienter is essential.3? So, also, an in- dictment for receiving stolen goods must allege that the defendant knew that they were stolen, for this knowledge is essential; it is not enough to state that he “knowingly received” stolen goods, for this might be true, and yet he might not have known they had been stolen.** Averment 31 Rex v. Kingston, 8 East, 52; King v. Fearnley, 1 Term R. 316. 82 Com. vy. Boynton, 12 Cush. (Mass.) 499. And see Stein v. State, 87 Ala. 128 (selling unwholesome water). But in U.S. v. Clark (C. C.) 37 Fed. 106, an indictment charging that the defendant did know- ingly deposit for mailing and delivery certain obscene pictures, etc., was held not subject to the objection that it did not allege that he knew that the pictures were obscene, since it was considered that the word “knowingly,” as used in the charge, qualified the whole act. And see -U. S. v. Nathan (D. C.) 61 Fed. 936. And it has been held that a charge that the defendant knowingly uttered a forged note is equivalent to an averment that he knew the note was forged. State v. Williams, 139 Ind. 438, 38 N. BH. 339, 47 Am. St. Rep. 255. 33 Com. v. Merriam, 7 Allen (Mass.) 356; Com. v. Cohen, 120 Mass. 198; Reg. v. Larkin, 6 Cox, Cr. Cas. 377; Huggins v. State, 41 Ala. 893. § 82) ALLEGATION OF NOTICE, REQUEST, KNOWLEDGE 227 of knowledge is also essential in indictments for uttering forged instruments or counterfeit coin,?* and other at- tempts to defraud; *® in indictments under a statute pun- ishing the stealing of bank bills or promissory notes, “knowing them to be such”; ** harboring or aiding a fugi- tive slave; ®" illegal voting; °* assaulting, resisting, or ob- structing an officer;*® selling an obscene or libelous book; *° and in all other cases where it is necessary to show knowledge in order to make out the offense.*+ Where knowledge must be presumed, and the event, fact, or circumstance rendering the act criminal lies alike in the knowledge of all men, it is never necessary to state or prove itt? And whenever an act is unlawful and criminal without regard to the defendant’s ignorance or knowledge of the facts, so that knowledge does not enter into the con- stitution of the offense, it is, of course, unnecessary to allege or prove knowledge. It was held, for instance, that an indictment under a statute against an unmarried man for adultery with a married woman need not allege that the defendant knew, at the time the offense was committed, 34 Anderson v. State, 7 Ohio, 250, pt. 2; Rex v. Rushworth, Russ. & R. 317; Powers v. State, 87 Ind. 97; U. 8. v. Carll, 105 U. S. 611, 26 L, Ed.-1185; People v. Mitchell, 92 Cal. 590, 28 Pac. 597, 788, People v. Smith, 103 Cal. 568, 837 Pac. 516; Gates v. State, 71 Miss. 874, 16 South. 342. 35 Com. v. Bakeman, 105 Mass. 53; Com. v. Dean, 110 Mass. 64; State v. Gardner, 2 Mo. 23. 36 Gatewood v. State, 4 Ohio, 386; Rich v. State, 8 Ohio, 111. 37 Birney v. State, 8 Ohio, 230. But see State v. brown, 2 Speers (8. C.) 129. 38U. S. v. Watkinds (C. C.) 7 Sawy. 85, 6 Fed. 152. 89 State v. Maloney, 12 R. I. 251; Horan v. State, 7 Tex. App. 183: Com. v. Kirby, 2 Cush. (Mass.) 577. Contra, People v. Haley, 48 Mich. 495, 12 N. W. 671. 40U. 8. v. Clark (C. C.) 37 Fed. 106. 41 State v. Carpenter, 20 Vt. 9; U. S. v. Buzzo, 18 Wall. 125, 21 L. Ed. 812; Powers v. State, 87 Ind. 97; Morman v. State, 24 Miss. 54; People v. Lohman, 2 Barb. (N. Y.) 216; State v. Gove, 34 N. H. 510; State v. Bloedow, 45 Wis. 279. 42 Rex v. Hollond, 5 Term R. 621; 1 Hale, P. C. 561; 2 East, P. C. 51; Com. v. Elwell, 2 Metc, (Mass.) 190, 35 Am. Dec. 398; Turner v. State, 1 Ohio St. 422; State v. Freeman, 6 Blackf. (Ind.) 248; Com. v. Stout, 7 B. Mon. (Ky.) 247; State v. Brown, 2 Speers (S. C.) 129. 228° | PLEADING—THE ACCUSATION (Ch. 6 that she was a married woman.** So, in those jurisdictions where it is held that, under statutes punishing the sale of intoxicating liquors to minors and drunkards, and the sale of intoxicating or adulterated liquor or food, ignorance of the fact that the purchaser of the liquor was a minor or drunkard, or that the liquor or food was intoxicating or adulterated, is no defense, knowledge of these facts need not be alleged or proved.*4 There is much conflict as to when knowledge of fact is essential but the question is not within the scope of this work.*® In alleging knowledge, the word “knowingly” or the words “well knowing” may be used. They are equivalent to a positive averment that the accused knew the facts sub- sequently stated.* If knowledge is unnecessarily stated, the allegation may be rejected as surplusage, and need not be proven.” TECHNICAL TERMS AND PHRASES 83. Unless the necessity therefor is obviated by statute, the following technical terms and phrases must be used, and no periphrasis or circumlocution, will supply their place: (a) The term “traitorously” in all indictments for trea- son. (b) The term “feloniously” in all indictments for felony. (c) The terms “feloniously,” “of his malice afore- thought,” did kill and “murder,” in indictments for murder. 43 Com. v. Elwell, 2 Mete. (Mass.) 190, 35 Am. Dee. 298. 44Com. v. Raymond, 97 Mass. 567; Com. v. Boynton, 2 Allen (Mass.) 160; People v. Kibler, 106 N. Y. 321, 12 N. BE. 795; State v. Smith, 10 R. I. 258; People v. Roby, 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270; State v. Hartfiel, 24 Wis. 60; State v. Heck, 23 Minn. 549; Farmer v. People, 77 Ill. 322; State v. Hause, 71 N. C. 518; State v. Goodenow, 65 Me. 30; State v. Bacon, 7 Vt. 219. 46 Clark, Cr. Law (3d Ed.) 90. 46 Rex v. Lawley, 2 Strange, 904; Rex v. Rushworth, Russ. & R. 317; Com. v. Kirby, 2 Cush. (Mass.) 577. As to averment of knowl- edge in indictment for perjury, see note 88, infra. ' 47 Post, D.381. § 83) TECHNICAL TERMS AND PHRASES 229 (d) The terms “feloniously ravished,” and, perhaps, “carnally knew,” in indictments for rape. (e) The terms “feloniously” and “burglariously” in in- dictments for burglary. (f) The terms “feloniously took and carried away” the property, or “feloniously took and led away” the cattle, in indictments for simple larceny. (g) The terms “forcibly and against the will” in indict- ments for robbery. (h) The terms “feloniously” and “piratically” in indict- ments for piracy. (i) “Common barretors,” etc., must be indicted by those words. (j) The word “riot” must be used in indictments for riot. (k) The word “maintained” in indictments for mainte- nance, (1) The words “with strong hand” in indictments for forcible entry. (m) As we shall see in treating of indictments under statutes, technical terms used in the statute must generally be used in the indictment. There are certain technical phrases and terms of art which are so appropriated by the law to express the precise idea which it entertains of an offense that they must be used in describing it. No other terms, however synony- mous they may seem, will be sufficient.*® There are other technical expressions which, though usual, are not neces- sary. : The term “unlawfully,” which is frequently used in the description of the offense, is unnecessary when the crime existed at common law, and is manifestly unlawful.*® But, as we shall see, if a statute, in describing an offense which it creates, uses the word, an indictment founded on the stat- 482 Hawk. P. C. c. 25, § 55. 492 Hawk. P. C. c. 25, § 96; 2 Hast, P. C. 985; 2 Rolle, Abr. 82; Jerry v. State, 1 Blackf. (Ind:) 396; State v. Bray, 1 Mo. 180; Curtis vy. People, Breese (Ill) 256; Com. v. Byrnes, 126 Mass. 248; Com. vy. Twitchell, 4 Cush. (Mass.) 74. 230 PLEADING—THE ACCUSATION (Ch. 6 ute will be bad if it omits to use it.®° It-can in no case be wrong to use the word, and it is in general better to insert it, for it precludes all legal cause of excuse for the crime.** In every indictment for treason the word “traitorously” must be used.®? And at common law, in every indictment for felony, ex- cept in some cases of statutory felony, to be presently ex- plained, the word “feloniously” is absolutely essential. Nothing can supply its place. This applies to all felonies at common law, and generally to statutory felonies also.** The term, of course, is not only unnecessary, but is im- proper, in indictments for attempts to commit felonies, or assaults with intent to commit them, for these offenses are misdemeancrs only.*¢ But, by the weight of authority, if it is thus erroneously inserted in an indictment for misde- meanor, it will not vitiate, but may be rejected as surplus- age.5> This phrase need not be inserted in any particular 50 Post, p. 305. 51 Rex v. Burnett, 4 Maule & S. 274; Com. v. Thompson, 108 Mass. 461. 523 Inst. 15; 4 Bl. Comm. 307; 2 Hale, P. ©. 172, 184; 2 Hawk. P. C. c. 25, § 55; 1 Hast, P. C. 115. 532 Hale, P. C. 171, 184; 2 Hawk. P. C. c. 26, § 55; Dearing’s Case, Cro. Eliz. 193; Long’s Case, 5 Coke, 121; Rex v. Crighton, Russ. & R. 62; Reg. v. Gray, Leigh & C. Crown Cas. 365; Stout v. Com., 11 Serg. & R. (Pa.) 177; Curtis v. People, Breese (Ill.) 256, Id., 1 Scam. (Ill.) 285; Jane v. State, 3 Mo. 61; State v. Gilbert, 24 Mo. 880; State v. Murdock, 9 Mo. 739; Kaelin v. Com., 84 Ky. 354, 1 S, W. 594; Hall v. Com. (Ky.) 26 S. W. 8; Bowler v. State, 41 Miss. 570; Wile v. State, 60 Miss. 260; Com. v. Scannel, 11 Cush. (Mass.) 547; State v. Jesse, 19 N. C. 297; State v. Rucker, 68 N. C. 211; State v. Roper, 88 N. C. 656; Com. v. Weiderhold, 112 Pa. 584, 4 Atl. 345; State v. Hang Tong, 115 Mo. 389, 22 S. W. 381; Williams v. State, 8 Humph. (Tenn.) 585; Scudder v. State, 62 Ind. 18; Edwards y. State, 25 Ark, 444; State v. Whitt, 39 W. Va. 468, 19 S. E. 873; State v. Bryan, 112 N.-C. 848, 16 8S. E. 909; State v. Caldwell, 112 N. C. 854, 16 S. E. 1010. In some states the term is declared by statute to be unnecessary. Com. v. Jackson, 15 Gray (Mass.) 187; Com. v. Sholes, 18 Allen (Mass.) 558. 54 Stout v. Com., 11 Serg. & R. (Pa.) 177. 55 Hess v. State; 5 Ohio, 12, 22 Am. Dec. 767; People v. Jackson, 8 Hill (N. Y.) 92; Com. v. Squire, 1 Mete. (Mass.) 258; People v. White, 22 Wend. (N. Y.) 175; Com. v. Gable, 7 Serg. & R. (Pa,) 423; § 83) TECHNICAL TERMS AND PHRASES 231 part of the indictment. In an indictment for embezzlement, for instance, it is sufficient to state in the conclusion that the accused feloniously did steal, take, etc., though the word is not inserted in the former part of the indictment before the word “embezzlement.” °° ‘The crime of murder also has terms peculiarly appropri- ate to its description. Being a felony, the word “felonious- ly” must, of course, be inserted.®7 In addition to this, it must be alleged that the act which caused death was done “with malice aforethought,” this being essential to the crime of murder at common law; and it must be stated, as a conclusion from the facts alleged, that so the defendant feloniously, “of his malice aforethought,” did kill and “mur- der” the deceased. Without these terms the indictment will, at common law, charge manslaughter only.°* In Massachusetts it has been held that the assault need not be alleged to have been made “with malice aforethought” if the term is used in the concluding part of the charge.®® It has also been held that, where the death arose from a wounding, beating, or bruising, the words “struck” or “did strike” are essential; °° and that the wound or bruise must be alleged to have been mortal; and that the latter word is not supplied by the allegation, which is also necessary, Hackett v. Com., 15 Pa. 95; State v. Sparks, 78 Ind. 166. But see State v. Edwards, 90 N. C. 710; Black v. State, 2 Md. 376; People vy. Wenk, 71 Misc. Rep. 368, 127 N. Y. Supp. 702. 56 Rex v. Crighton, Russ. & R. 62. 572 Hale, P. C. 186, 187; Dearing’s Case, Cro. Eliz. 193; Sarah v. State, 28 Miss. 268, 61 Am. Dec. 544; State v. Thomas, 29 La. Ann. 601; note 53, supra. 58 Fost. Crown Law, 424; 1 Hale, P. C. 450, 466; 2 Hale, P. C. 184, 187; Bradley v. Banks, Cro. Jac. 283; 2 Hawk. P. C. c 25, § 55; Com. v. Gibson, 2 Va. Cas. 70; Maile v. Com., 9 Leigh (Va.) 661; McElroy v. State, 14 Tex. App. 235; Witt v. State, 6 Cold. (Tenn.) 5; Simmons v. State, 32 Fla. 387, 13 South. 896; State v. Rector, 126 Mo. 328, 23 S. W. 1074; Sanders v. State, 2 Ala. App. 18, 56 South. 69. But see State v. Banks, 118 Mo. 117, 23 S. W. 1079. 59 Com. v. Chapman, 11 Cush. (Mass.) 425. 60 Long’s Case, 5 Coke, 122; Rex v. Griffith, 3 Mod. 202; 2 Hawk. P.Cc. 23, § 82; White v. Com., 6 Bin. (Pa.) 179, 6 Am. Dee. 448. 232 PLEADING—THE ACCUSATION (Ch. 6 that the deceased died in consequence of the wound or bruise.*+ In an indictment for rape, the words “feloniously ravish- ed” and “carnally knew” are necessary; and the want of the former is not supplied by the insertion of the latter.*? There is some authority to the effect that the words “car- nally knew” are not absolutely necessary,** but it would be unsafe to omit them.** If these words are used, it is not necessary to further allege that the offense was committed forcibly and against the will of the woman.** Every indictment for burglary, in addition to the allega- tion that the entry was made feloniously, must allege that it was made “burglariously.” The use of this word is ab- solutely essential at common law,®* though, as we shall see, it may sometimes be omitted in indictments for statu- tory burglaries.°7 It has been said that it is also necessary that the felony committed or intended shall be set forth in technical language, but, as we have seen in another connec- tion, this is doubtful.®* By referring to the definition of larceny,*®® it will be seen that a taking and a carrying away, with a felonious intent, 61 Rex v. Lad, 1 Leach, Crown Cas. 96; Reg. v. Mawgridge, J. Kel. 125; 2 Hale, P. C. 186; 2 Hawk. P. C. c. 23, § 82; State v. Wimberly, 3 McCord (S. C.) 190; Respublica v. Honeyman, 2 Dall. (Pa.) 228, 1 L, Ed. 359. 621 Hale, P. C. 628; 2 Hale, P. C. 184; 2 Inst. 180; 1 Hast, P. C. 447; 2 Hawk. P. C. c. 25, § 56; Harman v. Com., 12 Serg. & R. (Pa.) 69: Gouglemann v. People, 3 Parker Cr. R. (N. Y.) 15; Howel’s Case, 5 Grat. (Va.) 672; Christian vy. Com., 23 Grat. (Va.) 954. 631 Hast, P. C. 448; State v. Jim, 12 N. C. 142. 841 Chit. Cr. Law, 248; Davis v. State, 3 Har. & J. (Md.) 154. 65 Harmany. Com., supra. But see State v. Jim, supra. 66 Vaux v. Brook, 4 Coke, 39, 40; Long’s Case, 5 Coke, 121; Ryle’s Case, Cro. Eliz. 920; 2 Hale, P. C. 172, 184; 2 Hawk. P. C. c. 25, § 55; Portwood v. State, 29 Tex. 47, 94 Am. Dec. 258; State v. Mc Clung, 35 W. Va. 280, 18 S. E. 654; State v. McDonald, 9 W. Va. 456. As to indictments for statutory house-breaking, in which the term is not necessary, see post, p. 236. 67 Post, p. 236. 681 Hale, P. C. 550; Com. v. Brown, 3 Rawle (Pa.) 207. But see State v. McClung, supra. And see ante, p. 222. 69 Clark, Cr. Law (3d Ed.) 305. § 83) TECHNICAL TERMS AND PHRASES 233 are absolutely essential to constitute the crime. A taking without an asportation, or an asportation by one who has lawful possession, is not larceny. In an indictment for simple larceny, therefore, the words “feloniously took and carried away” the property, or “feloniously took and led away” the cattle, are necessary.7° It is not sufficient to allege that the defendant “feloniously took and carried,” omitting the word “away.” 7 An indictment for robbery must allege that the assault was “feloniously” made,’? and that the property was taken “from the person,” or in the presence of the owner.7? The words “against his will” are required in some jurisdictions.”* The word “violently,” or “by violence,” is necessary.”® “Feloniously” and “piratically” are both necessary in an indictment for piracy.7® There are also some misdemeanors which must be de- scribed by particular terms.77 Common barretors, common scolds, etc., must be indicted as such.7* The word “riot” 701 Hale, P. C. 504; 2 Hale, P. C. 184; Com. v. Adams, 7 Gray (Mass.) 44; Gregg v. State, 64 Ind. 223; Green v. Com., 111 Mass. 418 (in this case it was held that the allegation “did feloniously take and steal” was sufficient, and that the defect was only formal) ; Rountree v. State, 58 Ala. 381. 71 Com. v. Adams, supra. The indictment for larceny and other offenses has been simplified by statute in some states. In Massa- chusetts the form for larceny is: “That A. B. did steal one horse, of the value of more (or less) than one hundred dollars, of the prop- erty of C.D.” St. 1899, ec. 409. 72 The word “feloniously” should characterize the assault, as well as the putting in fear and the taking of the property. 2 East, P. C. 783. ‘73 State v. Lawler, 130 Mo. 366, 32 S. W. 979, 51 Am. St. Rep. 575; Stegar v. State, 39 Ga. 583, 99 Am. Dec. 472. And see People v. Ah Sing, 95 Cal. 654, 30 Pac. 796. 74 Kit v. State, 11 Humph. (Tenn.) 167. Contra, State v. Kegan, 62 Iowa, 106, 17 N. W. 179; People v. Riley, 75 Cal. 98, 16 Pac. 544. 75 Rex vy. Smith, 2 East, P. C. 783. See Craig v. State, 157 Ind. 574, 62 N. HH. 5.: 761 Hawk. P. C. c. 37, § 15; 3 Inst. 112. 77 As we have already stated, the word “feloniously” is out of place in an indictment for misdemeanor; but, if used, it may be re- jected as surplusage. Ante, p. 230. 78 Reg. v. Foxby, 6 Mod. 11, 178, 213, 239; Com. v. Davis, 11 Pick. (Mass.) 482. 234 PLEADING—THE ACCUSATION (Ch. 6 must be inserted in all indictments for rioting;7® the word “maintained” in all indictments for maintenance; *® the words “with strong hand” in an indictment for forcible entry.§? There are many technical expressions which, though usual, are not necessary. In cases of treason and felony, it was at one time usual, by way of inducement, to state that the accused, “not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil,” perpetrated the crime for which he was indicted, but it was probably never necessary to insert these words. It certainly is not necessary now; and the same is true, in in- dictments for murder, of the statement that the deceased was in the peace of God and of the king.®? The words “with force and arms,” anciently “vi et armis,” were at common law necessary in indictments for offenses amounting to an actual disturbance of the peace, or consisting in any way of acts of violence,®? and were formerly followed by the words “videlicet cum baculis cultellis arcubus et sagittis.” °* But the statute 27 Henry VIII, c. 8, reciting that several indictments had been deem- ed void for want of these words, when in fact no such weapons had been employed, enacted “that the words ‘vi et armis videlicet cum baculis cultellis arcubus et sagittis’ shall not, of necessity, be put in any indictment.” ** This 79 Rex v. Johnson, 1 Wils. 325. 80 Id. 81 Rex y. Wilson, 8 Term R. 357. 821 Chit. Cr. Law, 239; 2 Hawk. P. C. c. 25, § 73; 2 Hale, P. C. 186; Heyden’s Case, 4 Coke, 41b; Rex v. Philipps, 6 East, 472; Com. vy. Murphy, 11 Cush. (Mass.) 472. 83 Hart’s Case, Cro. Jac. 472; 2 Hale, P. C. 187; 2 Hawk. P. C.ec. 25, § 90. But they were not necessary where the offense consisted of a cheat or nonfeasance or a mere consequential injury. Rex vy. Burks, 7 Term R. 4,5; 2 Hawk. P. C. c. 25, § 90. 842 Hawk. P. C. c. 25, § 90. 85 Some of the old cases have held that this statute did not intend to abolish the necessity for the words “with force and arms” in in- dictments for offenses accompanied with actual violence, but that it intended merely to abolish the necessity for the words following the “videlicet”; and such indictments have been held insufficient for omitting the words ‘with force and arms.” Rex v. Mariot, 2 Lev. § 83) TECHNICAL TERMS AND PHRASES 2385 statute is old enough to have become a part of our common law, and has been held to be in force in some of the states.*® The word “larceny” is not one of those terms of art which it is indispensable to use in an indictment, and as a substitute for which no synonymous word and no descrip- tion or definition is admissible. Therefore, under a statute punishing the breaking and entering a house “with intent to commit the crime of * * * larceny,” the indictment need not use the term “larceny” to describe the intent, but may state that the intent was “feloniously, to steal, take, and carry away.” §? In an indictment for perjury it must be charged that the defendant willfully and corruptly swore falsely.®* The terms “forge” and “counterfeit” have a definite mean- ing in the law. They imply the idea of falsity, and it is 221; Roy v. Inhabitants de Yarton, 1 Sid. 140; Gollins v. Goldsmith, 1 Bulst. 205; Rex v. Gakes, 1 Keb. 101; Rex v. Singer, 2 Keb. 154. But other cases have held the contrary. Rex v. Sterling, 1 Lev. 126; Rex v. Cramlington, 2 Bulst. 208; Rex v. Burridge, 3 P. Wms. 464, 498. Chitty states that the latter seems the better opinion, “for otherwise the terms of the statute appear to be destitute of mean- ing.” “It seems to be generally agreed,’ he continues, “that where there are any other words implying force, as, in an indictment for rescue, the word ‘rescued,’ the omission of ‘vi et armis’ is sufficiently supplied. But it is at all times safe and proper to insert them when- ever the offense is attended with an actual or constructive force, or affects the interests of the public.’”’’ 1 Chit. Cr. Law, 241. 86 State v. Kean, 10 N. H. 347, 34 Am. Dec. 162; State v. Munger, 15 Vt. 290; Tipton v. State, 2 Yerg. (Tenn.) 542; Territory v. Mc- Farlane, 1 Mart. (La.) 217. 87 Josslyn v. Com., 6 Mete. (Mass.) 238. 88U. S. v. Edwards (C. C.) 43 Fed. 67; State v. Morse, 90 Mo. 91, 2S. W. 137; State v. Day, 100 Mo. 242, 12 S. W. 365. Contra, by statute, State v. Peters, 107 N. C. 876, 12 8. EB. 74; State v. Gates, 107 N. C. 832, 12 8. HB. 319. The charge that he “willfully and cor- ruptly” testified to what is averred’to be untrue sufficiently alleges that the testimony was false to his knowledge. State v. Smith, 63 Vt. 201, 22 Atl. 604. And see State v. Stein, 48 Minn. 466, 51 N. W. 474; State v. Bush, 47 Kan. 201, 27 Pac. 836, 18 L. R. A. 607; Fin- ney v. State, 29 Tex. App. 184, 15 8S. W. 175. That “willfully” may be omitted where the indictment uses the words “feloniously,” “falsely,” “corruptly,” “knowingly,” and “maliciously,” see State v. Spencer, 45 La. Ann. 1, 12 South. 135. But see U. 8. v. Edwards, supra. 236 PLEADING—THE ACCUSATION (Ch. 6 not necessary to allege that the defendant “falsely” forged or counterfeited.*® The common-law rules requiring technical expressions do not always apply to statutory crimes. “We think the distinction is this,” it was said in a Massachusetts case: “When the statute punishes an offense by its legal -desig- nation, without enumerating the acts which constitute it, then it is necessary to use the terms which technically charge the offense named at common law; as, for instance, Rev. St. c. 125, § 1, declares that every person who shall commit the crime of-murder shall suffer the punishment of death. Here the statute does not enumerate the acts which constitute murder; it refers for that to the common law.®° In such cases the forms and technical terms used at com- mon law to describe and define the murder must be used. But we think this is not necessary when the statute de- scribes the whole offense, and the indictment charges the crime in the words of the statute.®* It was therefore held that an indictment under a statute imposing a penalty upon any person who should break and enter a dwelling house in the nighttime, with intent to commit a felony, but not defining the offense as “burglary,” need not allege the of- fense to have been committed “burglariously.” °? And in the Supreme Court of the United States, under an act of Congress which declared that any person who should commit certain enumerated acts, with intent to defraud the United States, should “be deemed and adjudged guilty of felony,” it was held that the acts need not be alleged to have been committed “feloniously.” After admitting the com- mon-law rule in cases of felony where “the felonious intent 892 Hast, P. C. 985; People v. Mitchell, 92 Cal. 590, 28 Pac. 597, 788; State v. McKiernan, 17 Nev. 224, 30 Pac. 831. 90 See Clark, Cr. Law (8d Ed.) 35; Prindle v. State, 31 Tex. Cr. R. 551, 21 S. W. 360, 37 Am. St. Rep. 833; Pitcher v. People, 16 Mich. 142; Benson v. State, 5 Minn. 19 (Gil. 6). 91 Tully v. Com., 4 Metc, (Mass.) 358; U. S. v. Staats, 8 How. 44, 12 L. Ed. 979. 92 Tully v. Com., supra. And see State v. Meadows, 22 W. Va. 766; Sullivan v. State, 13 Tex. App. 462; People v. Rogers, 81 Cal. 209, 22 Pac. 592. § 84) AGGRAVATING CIRCUMSTANCES 237 is of the essence of the offense,” the court said: “But in cases where this felonious intent constitutes no part of the crime, that being complete, under the statute, without it, and depending upon another and different criminal intent, the rule can have no application in reason, however it may be upon authority. The statute upon which the indictment in question is founded describes the several acts which make up the offense, and then declares the person to be guilty of felony, punishable by fine and imprisonment. * * * The felonious intent is no part of the description, as the offense is complete without it. Felony is the conclu- sion of law from the acts done with the intent described, and makes part of the punishment, as, in the eye of the com- mon law, the prisoner thereby becomes infamous and dis- franchised. These consequences may not follow, legally speaking, in a government where the common law does not prevail; but the moral degradation attaches to the punish- ment actually inflicted.” 8 The necessity for an indictment under a statute to follow the language of the statute, and use the technical terms used in the statute, will be presently considered.** AGGRAVATING CIRCUMSTANCES—SECOND OR THIRD OFFENSE 84. Where an increased punishment is imposed for an of- fense when it is accompanied by certain aggravat- ing circumstances—as under statutes imposing a higher penalty for a second or third offense, as- saults when committed. with a specific intent to commit a certain crime, larceny when committed in a certain place, etc.—the aggravating circum- stances must be alleged in the indictment. 93U. S. v. Staats, supra. And see Cundiff v. Com., 86 Ky. 196, 5 8. W. 486; Cohen v. People, 7 Colo. 274, 8 Pac. 385; People v. Oliv- era, 7 Cal. 403; Jane v. Com., 3 Metc. (Ky.) 18; State v. Murphy, 17 R. I. 698, 24 Atl. 473, 16 L. R.A. 550. 94 Post, Dp. 305.. 238 PLEADING—THE ACCUSATION (Ch. 6 This rule necessarily results from the rule already stated, that the indictment must state every fact and circumstance which enters into the offense. In most jurisdictions, by statute, a person who has been convicted of certain offenses, like larceny or the unlawful sale of intoxicating liquors or drunkenness, for instance, is rendered liable to an increased punishment for a second or third offense. The previous conviction enters into the second or third offense to the extent of aggravating it, and increasing the punishment; and, where it is sought to impose the greater penalty for a second or third offense, the previous conviction or convic- tions, like every other material fact, must be distinctly alleged in the indictment.®® “When the statute imposes a higher penalty upon a second and a third conviction, respectively, it makes the prior conviction of a similar offense a part of the descrip- tion and character of the offense intended to be punished; and therefore the fact of such prior conviction must be charged as well as proved. It is essential to an indict- ment that the facts constituting the offense intended to be punished should be averred.” °® And in like manner, when a statute, besides imposing a higher penalty up- on a second or third conviction than upon the first, pro- vides that any person convicted of two or more offenses upon the same indictment shall be subject to the same pun- ishment as if he had been successively convicted on two indictments, still the second and- third, offenses must be alleged in the indictment to be second and third offenses in order to warrant the increased punishment.®? A verdict of guilty without the entry of a judgment thereon would not be such a prior conviction as could render the offender lia- ble to the increased penalty, on a subsequent prosecution for a similar offense. An indictment, therefore, for a second 95 Tuttle v. Com., 2 Gray (Mass.) 506; Com. v. Harrington, 130 Mass. 35; Reg. v. Willis, 12 Cox, Cr. Cas. 192; State v. Adams, 64 N. H. 440, 18 Atl. 785; Haynes v. Com., 107 Mass. 198. 96 Tuttle v. Com., 2 Gray (Mass.) 505. 97 Maherty v. Thomas, 12 Allen (Mass.) 432; Garvey v. Com., 8 Gray (Mass.) 382. §§ 85-89) SETTING FORTH WRITTEN INSTRUMENTS 239 offense, must allege, not merely a conviction for a prior of- fense, but a judgment thereon.*® As we have already seen, an indictment for an aggravated assault—that is, an assault with intent to kill, to rape, etc. —must aver the intent, or it charges a simple assault only, and the defendant cannot be punished for aggravated as- sault.°° The rule applies also to indictments for larceny from the person, from the dwelling house, from a shop, etc. Unless the aggravating circumstances are averred, the in- dictment charges simple larceny only. The same is true in all other cases where an act is punished more severely be- cause accompanied by circumstances of aggravation. SETTING FORTH WRITTEN INSTRUMENTS 85. When a written instrument forms part of the gist of the offense charged, as in case of forgery, libel, threat- ening letters, etc., it must be set out in the indict- ment according to its tenor, or verbatim, The rule is changed by statute in some jurisdictions. 86. When a written instrument must be mentioned or de- scribed in describing the offense, but is not of the gist of the offense, its substance or purport only need be given. 87. When an instrument is set out as having a certain pur- port, the meaning is that upon its face its legal effect is that which it is said to purport to be. 88. When an instrument is set out in an indictment “in sub- stance as follows,” “to the effect following,” “in manner and form following,” etc., the meaning is that the writing is in substance what it is alleged to be. 98 Reg. v. Ackroyd, 1 Car. & K. 158; Reg. v. Stonnell, 1 Cox, Cr. Cas. 142. 89 Ante, D. 221. 240 PLEADING—THE ACCUSATION . (Ch.6 89. When an instrument is set out in an indictment with the words “according to the tenor following,” “in the words and figures following,” “in these words,” or “as follows,” the meaning is that it is recited. verbatim, though not so as to exclude misspelling. At common law, whenever a writing is of the gist of the offense to be charged, it is absolutely essential, in describ- ing the offense, to set out in the indictment the very words relied upon, if it is possible to do so, so that the court may see on the face of the indictment whether the offense has been committed. A failure to set out the writing word for word, if possible, will render the indictment fatally defec- tive, not only on demurrer or motion to quash, but on mo- tion in arrest of judgment, or on error.1 Stating that the defendant published of a certain person a false and malicious libel, purporting thereby that such person had committed a crime, or had committed the crime of larceny, or that he was a person of bad moral character, without stating the exact words used, would not be sufficient.? In an indictment for forgery, or uttering a forged instru- ment, it is not sufficient to set forth the writing according to its purport or in substance merely, but it must be set forth in words and figures according to its tenor; that is it must be given verbatim.* An exact copy is required, in 1 Sacheverell’s Case, 15 How. St. Tr. 466; Rex v. Gilchrist, 2 Leach, Crown Cas. 661; Rex vy. Nield, 6 East, 418-426; Bradlaugh v. Reg., 3 Q. B. Div. 607; Com. v. Stow, 1 Mass. 54; Com. v. Wright, 1 Cush. (Mass.) 46; Com. v. Gillespie, 7 Serg. & R. (Pa.) 469, 10 Am. Dec. 475; Rooker v. State, 65 Ind. 86; Smith v. State, 18 Tex. App. 299; Com. v. Tarbox, 1 Cush. (Mass.) 66; Com. v. Sweney, 10 Serg. & R. (Pa.) 173; State v. Townsend, 86 N. C. 676. And see the cases hereafter cited. 2 Wood v. Brown, 1 Marsh. 522, 6 Taunt. 169; page 241, note 6, infra. 3 Rex v. Powell, 1 Leach, Crown Cas. 78; 2 W. Bl. 787; 2 East, LP. C. 976; Rex v. Gilchrist, 2 Leach, Crown Cas. 660, 661; Com. v. Houghton, 8 Mass. 110; Com. y. Stow, 1 Mass. 54; U.S. v. Britton, 2 Mason, 464, Fed. Cas. No. 14,650; Smith v. State, 29 Fla. 408, 10 South. 894; State v. Wheeler, 19 Minn. 98 (Gil. 70); State v. Riebe, 27 Minn. 315, 7 N. W. 262; Rooker y. State, 65 Ind. 86; Smith v. State, 18 Tex. App, 399. But see State v. Curtis, 39 Minn. 357, 40 §§ 85-89) SETTING FORTH WRITTEN INSTRUMENTS 241 order that the court may be able to determine on the face of the indictment whether the instrument is one the false making of which can constitute forgery, for every writing is not the subject of forgery. The same rule applies, at common law, to indictments for sending threatening let- ters;* for publishing a defamatory libel against a private person,® or an obscene‘ or blasphemous * libel; or for hav- ing possession of a forged instrument or counterfeit bank note or other security, with intent to pass it.® Ii the instrument is in a foreign language, it should be set out in that language, and then translated. The indict- ment is bad if the translation only is given.?° Where it is necessary to mention a written instrument in describing the offense, but the writing is not of the gist of the offense, it is not necessary to set it out verbatim in the indictment.11 N. W. 263. Contra, by statute, State v. Wright, 9 Wash. 96, 37. Pac. 318. 4 Rex v. Hunter, 2 Leach, Crown Cas. 624; Rex v. Gilchrist, Id. 657, 661; 2 East, P. C. 975; People v. Kingsley, 2 Cow. (N. Y.) 522; People v. Wright, 9 Wend. (N. Y.) 198; U. S. v. Britton, 2 Mason, 464, Fed. Cas. No. 14,650; State v. Gustin, 5 'N. J. Law, 862. A com- mon statute in the United States abrogates the common-law rule re- quiring, in indictments for forgery, that the writing be set out ver- batim. See State vy. Childers, 32 Or. 119, 49 Pac. 801; Bostick v. State, 34 Ala. 266; State v. Pullens, 81 Mo, 387. 52 Hast, P. C. 976, 1122; Wood v. Brown, 1 Marsh. 522, 6 Taunt. 169; Rex vy. Nield, 6 East, 418. Contra, State v. Stewart, 90 Mo. 507, 2 8. W. 790. 6 Com. v. Wright, 1 Cush. (Mass.) 46; State v. Brownlow, 7 Humph. (Tenn.) 68; Com. v. Sweney, 10 Serg. & R. (Pa.) 173; State v. Town- send, 86 N. C. 676; State v. Walsh, 2 McCord (8. C.) a State v. Twitty, 9 N. C. 248. 7 Com. v. Tarbox, 1 Cush. (Mass.) 66; Bradlaugh v. — 3 Q. B. Div. 607.. But see Com. v. Sharpless, 2 Serg. & R. (Pa.) 91, 7 Am. Dec. 632. It need not be given if so obscene that it would be im- proper for it to appear or be perpetuated upon the record. Post, p. 242, 8 Com. v. Kneeland, 20 Pick. (Mass.) 206; Sacheverell’s Case, 15 How. St. Tr. 466. 9 Stephens v. State, Wright (Ohio) 73; page 240, notes 3, 4, supra. 10 Rex y. Goldstein, 7 Moore, 1, 3 Brod. & B. 201, and Russ. & R. 473; State v. Marlier, 46 Mo. App. 233. 11 See cases hereafter cited. Where it is not necessary to set out CriarK Cr.PR0c.(2D Hp.)—16 242 PLEADING—THE ACCUSATION (Ch. 6 An indictment for resisting or obstructing an officer while executing a warrant, for instance, need not set out the war- rant, but may merely allege that he was acting under a law- ful warrant.1?, And an indictment for the larceny of writ- ten instruments need not set them out in hec verba. It is sufficient to merely describe them like any other chattel, with such certainty that it may clearly appear what is alleged to have been stolen.1* So, in an indictment for ob- taining property by false pretenses, it may be alleged that the defendant falsely pretended that a certain instrument was a valid promissory note, etc., without setting it out verbatim.1* And an indictment for selling a lottery ticket need not set out the ticket.*® In some cases it is not necessary to set out the instrument or writing according to its tenor, even though the words constitute the gist of the offense. It is held with us, but not in England, that an obscene libel need not be set out if it is so obscene that it would be improper for it to appear on the record. A statement of its contents may be omitted alto- gether, and a description thereof, sufficient to identify it, substituted, provided the reason for the omission appears in the indictment by proper averments.*® And in indict- an instrument according to its tenor, care should be taken that the indictment does not purport to do so; for, if it does, the proof must correspond verbatim with the instrument as set out. Com. v. Gil- lespie, 7 Serg. & R. (Pa.) 469, 10 Am. Dec. 475; Clay v. People, 86 Ill. 147; State v. Townsend, 86 N. C. 676. 12 State v. Dunn, 109 N. C. 839, 18 8. E. 881; State v. Copp, 15 N. H. 212; State v. Roberts, 52 N. H. 492; Bowers v. People, 17 Ill. 373; McQuoid v. People, 3 Gilman (Ill.) 76. It has been held, how- ever, that an indictment against an officer for nonfeasance in fail- ing to execute a warrant should set out the warrant according to its tenor. Rex v. Burroughs, 1 Vent. 305. 13 Post, p. 257. 14 Reg. v. Coulson, 1 Denison, Crown Cas. 592; Com. v. Coe, 115 Mass. 481. 15 People v. Taylor, 8 Denio (N. Y.) 99; Freleigh v. State, 8 Mo. 613. \ 16 Com. v. Holmes, 17 Mass. 336; Com. v. Tarbox, 1 Cush. (Mass.) 72; People v. Girardin, 1 Mich. 90; State v. Brown, 27 Vt. 619; Com. v. Sharpless, 2 Serg. & R. (Pa.) 91, 7 Am. Dec. 632; Thomas v. State, 103 Ind. 419, 2 N. E. 808; State v. Hayward, 83 Mo. 299. Con- tra, Bradlaugh v. Reg., 3 Q. B. Div. 607. §§ 85-89) SETTING FORTH WRITTEN INSTRUMENTS 243 ments for forgery, counterfeiting, etc., the instrument need not be set out if “it has been destroyed by the defendant, or has remained in his possession, and perhaps in other cases, where the instrument cannot be produced and there are no laches on the part of the government or prosecutor”; but in every such case the reason of the omission must appear on the indictment.” In an indictment for perjury, only the substance of the false oath need be stated.7® If only a part of a writing constitutes the offense, that part only need be set out,.provided the part omitted does not in any way alter the sense of the part which is set out.*® And it is not necessary to set out the matter which, though appearing on the paper, constitutes no part of the writing or instrument.?° In an indictment for a defamatory libel or an obscene libel, for instance, only the libelous or obscene portion of the writing need be shown, if it is not affected 17 Com. v. Houghton, 8 Mass. 110; Com. v. Sawtelle, 11 Cush. (Mass.) 142; Hooper v. State, 8 Humph. (Tenn.) 93; Pendleton v. Com., 4 Leigh (Va.) 694, 26 Am. Dec. 342; People v. Kingsley, 2 Cow. (N. Y.) 522, 14 Am. Dec. 520; People v. Badgley, 16 Wend. (N. Y.) 53; \People v. Bogart, 36 Cal. 245; Wallace v. People, 27 Ill. 45; State v. Potts, 9 N. J. Law, 26, 17 Am. Dec. 449; State v. Callahan, 124 Ind. 364, 24 N. E. 732; Munson v. State, 79 Ind. 541; Du Bois vy. State, 50 Ala. 1389; State v. Davis, 69 N. C. 318. If it is alleged that the instrument has been destroyed, when it has not, and is pro- duced at the trial, the variance will be fatal. Smith vy. State, 33 Ind. 159. The fact that the loss is due to the prosecutor’s negligence does not change the rule, if the negligence was not so great as to show fraud. State v. Taunt, 16 Minn. 109 (Gil. 99). ‘ 18 Rex v. May, 1 Leach, Crown Cas. 192, 1 Doug. 193; People v. Warner, 5 Wend. (N. ¥.) 271; Campbell v. People, 8 Wend. (N. Y.) 636; State v. Hayward, 1 Nott & McC. (S. C.) 546; Weathers v. State, 2 Blackf. (Ind.) 278; People v. Phelps, 5 Wend. (N. Y.) 9. 19 Rex v. Bear, 2 Salk. 417; Cartwright v. Wright, 5 Barn. & Ald. 615; Com. v. Harmon, 2 Gray (Mass.) 289; Buckland v. Com., 8 Leigh (Va.) 732; Perkins v. Com., 7 Grat. (Va.) 651, 56 Am. Dec. 123; Hess v. State, 5 Ohio, 5, 22 Am. Dec. 767; Langdale v. People, 100 Ill. 263. And see the cases hereafter referred to. 20 Com. v. Ward, 2 Mass. 397; People v. Franklin, 8 Johns. Cas. (N. ¥.) 299; Langdale v. People, 100 Ill. 263; State v. Wheeler, 35 Vt. 261; Wilson v. People, 5 Parker, Cr. R. (N. Y¥.) 178; Perkins v. Com., 7 Grat. (Va.) 651, 56 Am. Dec. 123; Miller v. People, 52 N. Y. 304, 11 Am. Rep. 706; Mee v. State, 23 Tex. App. 566, 5 S. W 243; State v. Grant, 74 Mo. 33. 244 PLEADING—THE ACCUSATION (Ch. 6 by the other part.2?. And, in an indictment for forging a promissory note, a forged indorsement on the note need not be set out. “The indorsement is no part of the note, but an act presumed to be done after the note is completed. It need not be set out in the indictment, if forged.” ?* An in- dictment for forging a draft need not set out the figures cut in the paper,** or the residence of the drawee, written there- on.2* A name written on a forged note, to show in whose hands it was placed for collection, need not be recited in describing or reciting the note.2® And an indictment for forging an order drawn by a county board need not set out the words “Not intended as a circulating medium,” printed at the top of the order.?® Clearly, it is never necessary to set out writing put upon a forged instrument subsequent to the forgery.?”. So, in an indictment for forging a bill of exchange, bank bill, or other instrument of this character, “it is not necessary to insert the marginal ciphers or marks in the indictment, for they make no part of the bill. It might as well be required that the water marks, and a fac- simile of all the engraved ornaments used in a bank bill, for the more easy detection of forgeries, should be inserted in an indictment.” ?° 21 Tabart v. Tipper, 1 Camp. 350. 22 Com. v. Ward, 2 Mass. 397; Com. v. Adams, 7 Metc. (Mass.) 51; Perkins v. Com., 7 Grat. (Va.) 651, 56 Am. Dec. 123. But, if the in- dictment is for forging the indorsement, the indictment must contain allegations showing affirmatively that the offense was committed. Cocke v. Com., 13 Grat. (Va.) 750; Com. v. Spilman, 124 Mass. 327, 26 Am. Rep. 668. 2 23 White v. Territory, 1 Wash. St. 279, 24 Pac. 447. 24 Trask v. People, 151 Ill. 523, 38 N. BE. 248. 25 State v. Jackson, 90 Mo. 156, 2 S. W. 128. 26 Smith v. State, 29 Fla. 408, 10 South. 8%. 27 Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; State v. Jack- son, 90 Mo. 156, 2 S. W. 128. 28 People v. Franklin, 3 Johns. Cas. (N. Y.) 299; Griffin v. State, 14 Ohio St. 55; Buckland v. Com., 8 Leigh (Va.) 732; Com. vy. Bailey, 1 Mass. 62, 2 Am. Dec. 3; Com. v. Stevens, 1 Mass. 208; State v. Carr, 5 N. H. 367; Com. v. Searle, 2 Bin. (Pa.) 332, 4 Am. Dec. 446. The name of the state in the margin of a bank bill is a material part of it if not repeated in the body of the bill, as it fixes the situs of the bank, the place where the contract is made and to be per- §$§ 85-89) SETTING FORTH WRITTEN INSTRUMENTS 245 The indictment must not only set out the tenor of the instrument where this is necessary, but it must, by a proper use of words, profess to do so.2® This is done by the use of the words, “to the tenor following,” or “in these words,” or “as follows,” or “in the words and figures following.” Any one of these expressions will import that an exact copy is given.®° The words “to the effect following” or “in sub- stance as follows” would not be sufficient, for they import that the substance only is given.*t “The word ‘tenor’ im- ports an exact copy—that it is set forth in the words and figures—whereas the word ‘purport’ means only the sub- stance or general import of the instrument ;” ** so that the use of word ‘purport’ in an indictment does not purport to give the exact words.** Nor are mere marks of quotation sufficient to indicate that’ the words thus designated are an exact copy, for quotation marks are often used when it is formed, and the law by which it is to be interpreted. Com. v. Wil- son, 2 Gray (Mass.) 70. But where the words “three dollars” and the name of the state, in the margin of a bank note, are repeated in the body of the note, so that the contract is complete without them, they are no part of the note, and need not be stated. Com. v. Tay- jor, 5 Cush. (Mass.) 605. Where a revenue stamp is required by law to be affixed to an instrument, but the instrument is not void with- out such stamp, the presence of a stamp need not be alleged. Cross v. People, 47 Ill. 152, 95 Am. Dec. 474; Horton v. State, 32 Tex. 79. 29 Rex v. Lyon, 2 Leach, Crown Cas. 597; Rex v. Gilchrist, Id. 660, 661; State v. Brownlow, 7 Humph. (Tenn.) 63; State v. Twitty, 9 N. GC. 441, 11 Am. Dec. 779; Com. v. Wright, 1 Cush. (Mass.) 65; Com. v. Tarbox, 1 Cush. (Mass.) 66; State v. Goodman, 6 Rich. Law (S. GC.) 387, 60 Am. Dec. 132. 30 Reg. v. Drake, 3 Salk. 225; Rex v. Powell, 1 Leach, Crown Cas. 77; Rex v. Gilchrist, 2 Leach, Crown Cas. 660; McDonnell v. State, 58 Ark. 242, 24 S. W. 105. 31 Rex v. Bear, 2 Salk. 417; Withers v. Harris, Id. 600; Reg. v. Drake, 11 Mod. 78; Anon., Id. 84; Wood v. Brown, 1 Marsh. 522, 6 Taunt. 169; Wright v. Clements, 3 Barn. & Ald. 503; Cook v. Cox, 8 Maule & S. 115; Com. v. Sweney, 10 Serg. & R. (Pa.) 173; State v. Walsh, 2 McCord (S. C.) 248. 322 Gabb. Cr. Law, 201; Com. v. Sweney, supra; State v. Pullens, 81 Mo. 387; State v. Brownlow, 7 Humph. (Tenn.) 63; State v. Witham, 47 Me. 165; State v. Bonney, 34 Me. 383; Dana v. State, 2 Ohio St. 91. 83 Com. vy. Wright, 1 Cush, (Mass.) 65; Rex v. Wilkes, 4 Burrows, 2527. 246 | PLWADING—THE ACCUSATION (Ch. 6 not intended to give an exact quotation.’ Nor is the mere attaching of the original writing to the indictment suffi- cient, where the indictment does not show that it is the original.35 In setting forth in the same count different parts of a written instrument, not following each other, they should not be professedly stated continuously, and as immediately following each other; for if they are so stated, and a part is not proved, the whole count will fail. The proper course is to allege that in one part of the writing there were cer- tain words, giving them, and in another part thereof there were certain words, giving them.*° As we have already seen, where the writing as set out does not on its face show that it is such that the crime was committed, the extrinsic facts showing that it is of such a character must be stated. This is done by an inducement or innuendo, or both. In an indictment for libel, for in- stance, if the matter written is not in itself prima facie libel- ous, but requires some explanatory facts to show that it is so, it is necessary to insert in the indictment a positive aver- ment of such facts, by a formal inducement in the introduc- tory part of the indictment. And if, after this, the matter alleged in the inducement and charge is not obviously libel- ous, or is not necessarily applicable to the party charged to have been libeled, it is necessary to render it so by explain- ing its meaning by an innuendo.*” The same is true of forgery. In order to maintain an in- dictment for forgery at common law, it must appear that the instrument is of such a character that it might defraud or deceive if used with that intent. If the fraudulent char- 84 Com. v. Wright, supra. 85 Com. v. Tarbox, 1 Cush. (Mass.) 66. 361 Chit. Cr. Law, 235; 3 Chit. Cr. Law, 875; Rex v. Leefe, 2 Camp. 134; Tabart v. Tipper, 1 Camp. 353. 87 People v. Collins, 102 Cal. 345, 36 Pac. 669; People v. Jackman, 96 Mich. 269, 55 N. W. 809; Rogers v. State, 30 Tex. App. 462, 17 S. W. 548. In an indictment for mailing a letter giving information as to where, how, and by whom certain illegal operations would be performed, the letter set out need not be such that a stranger would know what information it gave. U.S. v. Breinholm (D. C.) 208 Fed. 492. §§ 85-89) SETTING FORTH WRITTEN INSTRUMENTS 247 acter of the instfument alleged to have been forged is not manifest on its face, the defect must be remedied by such averments as to extrinsic matter as will enable the court judicially to see that it has such a tendency.*® Thus, an in- dictment for forging an instrument of the tenor following: “Boston, Aug. 6th, 1868. St. James Hotel. I hereby certify that L. W. Hinds & Co. have placed in my hotel a card of advertisements as per their agreement. J. P. M. Stetson, Proprietor”—without any averment of extrinsic matter to show how the instrument may be used to defraud, is bad.*° And an indictment for forging an indorsement on a promis- sory note is bad if it contains no averments to show that the words alleged to have been forged bore such a relation to the note as to be the subject of forgery.*® We have already explained the general use and effect of inducements and innuendoes.*+ Many of the cases hold that an indictment for forgery must not only set out the instrument according to its tenor, but must state the character of the instrument, as that it was a bank bill, promissory note, order for the payment of money, etc., and that, where the indictment is founded on a statute punishing the forgery of certain instruments, it is necessary for the indictment to describe the instrument by one of the terms used in the statute.¢2 Others, with more reason, hold that it is not necessary to do more than set out the instrument in the indictment, if it is such that its char- acter may be seen on its face.** 38 Rex v. Hunter, 2 East, P. C. 928; Rex v. Testick, Id. 925; Rex v. Martin, 7 Car. & P. 549; Com. v. Hinds, 101 Mass. 209; Com. v. Spilman, 124 Mass. 327, 26 Am. Rep. 668; Com. v. Dunleay, 157 Mass. 886, 32 N. HE. 356; King v. State, 27 Tex. App. 567, 11 S. W. 525, 11 Am. St. Rep. 203; Fomby v. State, 87 Ala. 36, 6 South. 271; Shannon y. State, 109 Ind. 407, 10 '‘N. E. 87. 39 Com. v. Hinds, 101 Mass. 209. 40 Com. v. Spilman, 124 Mass. 327, 26 Am. Rep. 668. 41 Ante, pp. 207, 208. 42 Rex v. Wilcox, Russ. & R. 50; State v. Stephen, 45 La. Ann. 702, 12 South. 883; State v. Ward, 6 N. H. 529; State v. Hayden, 15 N. H. 355. 43 Reg. v. Williams, 2 Denison, Crown Cas. 61; Com. v. Castles, 9 Gray (Mass.) 124; Com. v. Bailey, 199 Mass. 583, 85 N. E. 857; State vy. Wheeler, 19 Minn. 98 (Gil. 70). 248 PLEADING—THE ACCUSATION (Ch. 6 Though a statute in terms punishes the passing of any false, forged, or counterfeited instruments issued under au- thority of certain statutes, it meanS any writing pprporting to be such an instrument, but which is not genuine or valid, and an indictment may describe the writing as a false, forged, and counterfeited writing, purporting to be such an instrument. Indeed, this is the better description. On the other hand, however, an indictment is not bad because it describes the writing as being, and not merely purporting to be, such an instrument, “false, forged, and counterfeited.” The latter words necessarily imply that it is not a genuine instrument, just as the terms “void will” or “void note” im- ply that the instrument merely purports to be a will or note.** ; If any part of a true instrument be altered, the indictment may allege it as a forgery of the whole instrument.*® But where the forgery is of a mere addition to an instrument, like the indorsement on a bill or note, or interest coupons attached to a bond, or an acknowledgment to a deed, etc., and has not the effect of altering the instrument itself, but is merely collateral to it, the forgery must be specially alleged; *® and it must, as we have seen, be expressly shown by proper allegations that the part thus forged bore such a relation to the instrument proper that it could be the sub- ject of forgery. To charge the forgery of an indorsement on a note, merely describing it as such, without showing its relation to the note, is not enough.*7 Ordinarily, where the instrument is given according to its tenor, it must be proven verbatim as laid. This question we shall hereafter consider.** If the instrument as described by name in the indictment 44U. S. v. Howell, 11 Wall. 482, 20 L. Ed. 195; Rex v. Birch, 2 East, P. C. 980. 451 Hale, P. C. 684; 2 Hast, P. C. 978; Com. v. Woods, 10 Gray (Mass.) 480; Rex v. Atkinson, 7 Car. & P. 669; Com. v. Butterick, 100 Mass. 18. Or it may specially allege the alteration, Bittings v. State, 56 Ind. 101. 46 Com. v. Woods, supra. 47 Com. v. Spilman, 124 Mass. 327, 26 Am. Rep. 668, 48 Post, p. 381. § 90) SETTING FORTH SPOKEN WORDS 249 does not correspond with the instrument as set out, the in- consistency has been held fatal.t® This, however, is errone- ous in principle, and against the weight of authority.°° SETTING FORTH SPOKEN WORDS 90. When spoken’ words are the gist of the offense, they must be accurately set out in the indictment. The rules are substantially the same as in the case of written words.*? We have just explained the necessity of setting out writ- ten words where they constitute the gist of the offense charged. For the same reason, where the offense consists of spoken words, they must be set out, or the indictment will be fatally defective.*? But, where the words do not consti- tute the gist of the offense, as in extorting money by threat of criminal accusation, only their substance need be stated.®3 The rules under this head are substantially the same as those just stated in treating of written words. In indictments for attempting to extort money from a person by threatening to accuse him of a crime, it is suffi- cient to set out the exact words used by the defendant. If these clearly import a threat of accusation of crime, and they are alleged to have been uttered with the unlawful in- tent to extort, money, the offense is sufficiently described. The indictment need not set out with technical accuracy the crime the accusation of which is alleged to have been threat- 49 Com. v. Clancy, 7 Allen (Mass.) 537; Com. v. Lawless, 101 Mass. 82. 50 People v. Kemp, 76 Mich. 410, 43 N. W. 439. 51 Ante, p. 239, 52 Bradlaugh v. Reg., 3 Q. B. Div. 607, 616; Sacheverell’s Case, 15 How. St. Tr. 467; Updegraph v. Com., 11 Serg. & R. (Pa.) 394; State vy. Bradley, 2 N. C. 403; State v. Caffey, 6 N. C. 320; State v. Brew- ington, 84 N. C. 783; Com. v. Moulton, 108 Mass. 307; Robinson v. Com., 101 Mass. 27; Walton v. State, 64 Miss. 207, 8 South. 171; McMahan v. State, 13 Tex. App. 220; State v. Townsend, 86 N. C. 676. : 53 Com. v. Moulton, 108 Mass. 307. 250 PLEADING—THE ACCUSATION (Ch. 6 ened.** The question of variance between the words set out in the indictment and the words proven to havé been spoken will be considered when we come to treat of vari- ance.®> DESCRIPTION OF REAL PROPERTY 91. When real property is the subject of the offense charg- ed, the premises must be so described as to show their character and ownership or occupancy, where that is material; and, in addition to this, they must be described with sufficient particularity to identify them. Whenever real property is the subject of the offense, it must be described to such an extent that the court may see on the face of the charge that the premises are such as could have been the subject of the offense; otherwise the indict- ment would fail to set out everything necessary to constitute the offense. An indictment for burglary or arson at com- mon law, describing the premises simply as a certain house or building, would clearly be insufficient, for these offenses would not be committed by breaking into or burning a warehouse or store, or any building other than a dwelling house or outhouse used in connection with it.56 And an indictment for the statutory offense of breaking and enter- ing or burning a certain kind of building, as a warehouse, shop, schoolhouse, etc., must show that the building is with- in the statute.°’ One who burns, or breaks and enters with intent to commit a felony, a house owned or occupied by himself, does not commit arson or burglary; hence an in- 54 Com. v. Murphy, 12 Allen (Mass.) 449; Com. v. Dorus, 108 Mass. 488. 55 Post, p. 381. 56 State vy. Atkinson, 88 Wis. 1, 58 N. W. 1034; Thomas v. State, 97 Ala. 3, 12 South. 409; State v. Miller, 3 Wash. 181, 28 Pac. 375. 57 State v. Bedell, 65 Vt. 541, 27 Atl. 208; State v. Atkinson, 88 Wis. 1, 58 N. W. 1034; Thomas y. State, 97 Ala. 3, 12 South. 409; Bigham v. State, 31 Tex. Cr. R. 244, 20 S. W. 577; Kincaid vy. Peo- ple, 189 Ill. 218, 28 N. E. 1060; State v. Fleming, 107 N. C. 905, 12 S. E. 131. § 92) DESCRIPTION OF PERSONAL PROPERTY 251 dictment for these offenses must show the ownership or occupancy of the premises.°? ~ Further than this, the premises must be so described, as to location and otherwise, as to identify the offense, and to apprise the defendant of the particular charge against him. In all indictments, therefore, for burglary and other house- breakings, arson and other malicious burnings, forcible en- try and detainer, trespass, fraudulent conveyance of land, etc., the premises must be described and the description must be borne out by the evidence.®® An indictment for erecting a nuisance in a public high- way which merely described the erections as “a number of sheds and buildings” was held bad for uncertainty.®° But an indictment for a nuisance in keeping a house of ill fame, a gaming house, or house for the unlawful sale of intoxi- cating liquors, or other disorderly house, need not further describe the premises than as a certain house or tenement, giving the city and county in which it is located.*+ DESCRIPTION OF PERSONAL PROPERTY 92. When personal property is the subject of the offense, it must be described; and in those cases in which the value is material, as in case of larceny, the value must be stated. Property may and should be described by the name usually appropriated to it; or, as it is sometimes expressed, the common ac- ceptation governs the description. In all indictments for offenses in relation to personal property it is necessary to describe the property. In some 58 State v. Keena, 63 Conn. 329, 28 Atl. 522; post, p. 268. 59 Com. v. Brown, 15 Gray (Mass.) 189; State v. Malloy, 34 N. J. Law, 410. As to the question of variance between the pleading and proof, see post, p. 384. In describing buildings, the description is usually by stating the parish or town in which the building is sit- uated. State v. Burdett, 145 Mo. 674, 47 8S. W. 796; Com. v. Tolman, 149 Mass. 229, 21 N. E. 377, 3 L. R. A. 747, 14 Am. St. Rep. 414. 60 Com. v. Hall, 15 Mass. 240. 61 Com. v. Skelley, 10 Gray (Mass.) 464; State v. Nixon, 18 Vt. 70, 46 Am. Dec. 135. 252 PLEADING—THE ACCUSATION (Ch. 6 cases the particular kind, quantity, number, or value of the property enters into the nature of the offense, and must be stated for this reason. Some things, for instance, are not the subject of larceny,®? and an indictment for larceny must, at the very least, so describe the thing stolen that the court may see that it could be the subject of larceny, or it does not state any offense. An indictment alleging the felonious taking and carrying away of a railroad ticket was held bad because it failed to state that the ticket was stamped, dated, and signed, since, unless it was, it was worthless, and not the subject of larceny.** And, as we shall presently see, an indictment for stealing animals which may have been fere nature, or for stealing minerals, must show, in the first case, that the animals had been killed or reclaimed, and, in the second, that'the minerals had been severed from the realty, and become personal property.®* Even, where the description is not necessary to show that an offense has been committed, it is necessary to describe the property with certainty, in order that the accused may know. with what offense he is charged; in order that it may be seen that the property with reference to which the of- fense is proven to have been committed is the same as that with reference to which the offense is charged in the indict- ment; and in order that the accused may be able to plead an acquittal or conviction in bar of a subsequent indictment for the same cause.®* An indictment charging that the ac- cused took and carried away a certain person’s goods and chattels, without describing them, or a case of merchandise, without further description of it, or a certain paper, without further description, is bad for uncertainty.°* It has been held that an indictment under a statute for wounding or stealing cattle, without stating the species of the cattle, is 62 Clark, Cr. Law (3d Ed.) 307. 63 McCarty v. State, 1 Wash. 377, 25 Pac. 299, 22 Am. St. Rep. 152; State v. Holmes, 9 Wash. 528, 37 Pac. 283. 64 Post, pp. 259, 264. 652 Hale, P. C. 182; Com. vy. Strangford, 112 Mass. 289. 662 Hale, P. C. 182; State v. Dawes, 75 Me. 51; State v. Dowell, 8 Gill & J. (Md.) 310; Com. v. Kelly, 12 Gray (Mass.) 176; Com. v. Gavin, 121 Mass. 55, 23 Am. Rep. 255; State v. Edson, 10 La. Ann. § 92) DESCRIPTION OF PERSONAL PROPERTY 253 insufficient.*7 And an indictment against a bankrupt for concealing his effects, describing a part of them as “100 other articles of household furniture,’ and “a certain debt due from one A. to the defendant to the value of £20 and up- wards,” was held bad.®8 _ No satisfactory rule can be extracted from the cases as to the minuteness with which the property must be described. A description has been held sufficient by some courts that has been held insufficient by others. Thus one English court has held that a lamb is sufficiently described by the word “sheep,” ** and another English court has held that it is not;7° and while the courts in Illinois 74 and Missouri 7? hold that a gelding is properly designated by the word “horse,” the Kansas 7* and Montana ** courts hold the con- trary. The tendency of the courts, especially in recent years, is toward the allowance of greater latitude of de- scription.7® 229; Com. v. Strangford, 112 Mass. 289; Robinson v. Com., 32 Grat. (Va.) 866; State v. Silverman, 76 N. H. 309, 82 Atl. 586... In this case it was held that a statute authorizing a conviction of embezzlement on an indictment that does not describe the property embezzled was unconstitutional. 67 Rex v. Chalkley, Russ. & R. 258. Contra, People v. Littlefield, 5 Cal. 355. : 68 Rex v. Forsyth, Russ. & R. 274. An indictment describing prop- erty embezzled as “furs of various kinds of the value of $965” was held bad, in State v. Silverman, 76 N. H. 309, 82 Atl. 536, 69 Rex vy. Spicer, 1 C. & K. 699. 70 Rex v. Birket, 4 C. & P. 216. 71 Baldwin v.' People, 1 Scam. (Ill) 304. 72 State v. Donnegan, 34 Mo. 67. 73 State v. Buckles, 26 Kan. 287. 74 State v. MicDonald, 10 Mont. 21, 24 Pac. 628, 24 Am. St. Rep. 25. In Marsh vy. State, 3 Ala. App. 80, 57 South. 387, it was held that on an indictment for stealing a cow the accused could not be con- victed of stealing a steer. 75 Thus, in Roman v. State, 64 Tex. Cr. R. 515, 142 S. W. 912, it was held that, where a compound was made of cotton seed oil and oleostearine, and was known in the trade as “lard,” it could be so styled in an indictment, though “lard,” as defined in the dictionaries and the pure food laws, means a product of the hog. This is a very healthy development. The rule of pleading governing this matter, and in the application of which hundreds of indictments have been 254 PLEADING—THE ACCUSATION (Ch. 6 But minute details are not necessary. If the descriptive terms used are sufficient in their common and ordinary ac- quashed, is that the defendant is entitled to be informed with what offense he is charged, so that he may prepare his defense, and so that he may be able to plead an acquittal or conviction in bar of a subsequent indictment for the same cause. But this principle is vio- lated in innumerable cases and without complaint of miscarriage of justice. It has always been held that it is sufficient to describe the property taken as a “horse,” a “cow,” or a “pig,” “of the goods and chattels” of X., without alleging the color, sex, or any other distin- guishing feature of the property. X. may have a herd of cows or horses or a drove of pigs, a number of them may be missing, and if the accused knew that it was a black horse or a dun cow that he was thought to have stolen he might prepare one defense, as that X. had loaned it to him, and if a white horse or brindle cow, the de- fense that it was dead, or that it was in Y.’s possession, yet it is never held that he is entitled to such description that he may pre- pare his defense; also, having been indicted for stealing a “horse” and convicted, he may the next day be indicted for stealing a “horse” again, and cannot plead former conviction, for it may be another horse that he is charged with stealing in the second indict- ment. But not only does the rule of pleading, so strictly adhered to in some cases, not always enable the accused to prepare his de- fense, but this rule, taken in connection with the rules as to vari- ance, may actually mislead him in preparing it. We shall presently see that at common law an indictment must always state the day, month, and year in which the defendant committed the crime. Yet, having charged it to be committed, say on July 1, 1916, and the de- fendant having come to trial prepared to show that on that day he was in a foreign country and could not have done the act in the place alleged, the prosecution may proceed to prove another day and month, though the accused may have been able to prove an alibi on that day also, if he had been informed by the indictment correctly as to the time of the alleged crime. The remedy in the last case is for the court to grant a continuance to allow the accused time to pre- pare his new defense. The same result could be obtained in the case of misdescription of property in the few cases in which the defendant is actually misled. A more complete remedy could be had by a statute allowing the indictment to be amended at the trial in cases both of misdescription of property and erroneous statement of date, with the granting of continuance where the erroneous misde- scription or statement prejudiced the defendant. The amended in- dictment would then be more available to the defendant in pleading former jeopardy. The Canadian Code (section 889, subsec. 2) per- mits the amendment of the indictment even in cases where there is “an omission to state, or a defective statement of anything requisite to constitute the offence,” provided “the accused has not been mis- led or prejudiced in his defense by such error or omission.” « § 92) DESCRIPTION OF PERSONAL PROPERTY 255 ceptation to show what the property was and to fully iden- tify it, they will be sufficient.”* In describing a handker- chief or a sheet, for instance, it may be described simply by those terms, without stating the color or size, or the ma- terial of which it is made.77_ So where six handkerchiefs are in one piece, uncut, each being designated by the pattern, they may be described as six handkerchiefs.7* And a 10- carat gold watch may be described simply as a gold watch, if it is commonly known as such, though it is not so known by jewelers.*® And it has been held that a hide may be de- scribed as one hide, of a certain value, without stating the kind of animal from which it was taken.*® And animals may be described, as “one mare, the property of W., of the value of,” etc., or “a certain hog, said hog being the proper- ty and chattel of one L.,” etc., without giving the color, kind, weight, mark, or brand. Such particularity is never required.** If an article has acquired in common parlance a particu- lar name, it is erroneous to describe it by the name of the material of which it is composed.*? An indictment, there- fore, for the larceny or embezzlement of cloth and other materials is not good as an indictment for the larceny or 78 Rex v. Jobnson, 3 Maule '& S. 5389; Alkenbrack v. People, 1 Denio (N. Y.) 80; Rex v. Gillham, 6 Term R. 267; Rex vy. Burdett, 1 La. Raym. 149; Reg. v. Mansfield, Car. & M. 140; Widner v. State, 25 Ind. 234; Pfister v. State, 84 Ala. 482, 4 South. 895; Com. v. James, 1 Pick. (Mass.) 376; Com. v. Campbell, 108 Mass. 486; Com. y. Shaw, 145 Mass. 349, 14 N. E. 159. 77 Rex v. Johnson, supra; Alkenbrack v. People, supra. 78 Rex vy. Gillham, 6 Term R. 267; Rex v. Burdett, 1 Ld. Raym. 149. 7° Pfister v. State, supra. 80 State v. Dowell, 3 Gill & J. (Md.) 310. 81 People v. Stanford, 64 Cal. 27, 28 Pac. 106; State v. Friend, 47 Minn. 449, 50 N. W. 692; post, p. 259. But in a recent case it was held that an indictment for larceny was insufficient that described the property stolen as “100 pounds of seed cotton.” Bright v. State, 10 Ga. App. 1, 7, 72 S. EB. 519. 82 Com. vy. Clair, 7 Allen (Mass.) 527; Rex v. Edwards, Russ. & R. 497; Rex v. Hollaway, 1 Car. & P. 128; Reg. v. Mansfield, Car. & M. 140. In Com. v. Clair, supra, it was held that an overcoat could not be described as “cloth”; and in Rex v. Hollaway, supra, that a fur- nace that had been taken apart could not be described as a furnace. 256 . PLEADING—-THE ACCUSATION (Ch. 6° embezzlement of an overcoat into which the materials had been made.*® If- articles have been chemically mixed, they should be described by the name of the mixture.** It has been held that, where articles have been mechanically mixed, they should be described as a certain mixture consisting of the specific articles, describing them, and not as a certain quan- tity of each article. Thus, an indictment for stealing “one bushel of oats, one bushel of chaff, and one bushel of beans” was held bad where these articles were mixed together. They should have been described, it was said, as mixed; as “a certain mixture, consisting of one bushel of oats,” etc.** But this is at least doubtful.8* If articles, when mechani- cally mixed, change their character, and are known by an- other name, as where wood and iron is manufactured into a wagon, or wool and silk into an overcoat, it is clear that they should be described as a wagon or an overcoat ;§? but where, though mixed, they still retain their nature and qual- ities, and are known by the same names, they should be de- scribed by those names. There seems no better way of de- termining the question than by applying the rule that the common acceptation governs the description. The description of property is subject to the rule that the law only requires such certainty as the nature and circum- stances of the case will permit.** In all cases, of course, the description must be sufficient to show that the offense was committed; but a more particular description than is neces- sary to meet this requirement is not essential if it is im- 83 Com. v. Clair, supra. 84 Reg. v. Bond, 1 Denison, Crown Cas. 521. 85 Rex v. Kettle, 3 Chit. Cr. Law, 947a. 86 In Reg. v. Bond, supra, Bayley, J., said: “I cannot help think- ing that, if a man steal wine and water, he may be charged with stealing wine.” 87 See page 256, note 83, supra. “Upon an indictment for stealing printed books * * * it is not necessary to do more than to name so many printed books.” Rex v. Johnson, 3 Maule & S. 555. 88 Com. v. Grimes, 10 Gray (Mass.) 470, 71 Am. Dec. 666; Wilson v. State, 69 Ga. 224; Com. v. Sawtelle, 11 Cush. (Mass.) 142; Larned vy. Com., 12 Metc. (Mass.) 240; Hamblett v. State, 18 N. H. 384; Low v. People, 2 Parker, Cr. R. (N. Y.) 37. § 92) DESCRIPTION OF PERSONAL PROPERTY 257 possible. The excuse, however, should be stated, as that further particulars are unknown.®® Written Instruments In indictments for the larceny or possession of written instruments, it is never necessary, as in the case of forgery, to set forth the instrument verbatim; but it is sufficient to describe it like any other chattel.°° An indictment under a statute for the larceny of particular instruments therein specified must so describe the instrument as to bring it within the statute. Ordinarily, to designate it by the term employed in the statute will be sufficient.°t Thus, where a statute punishes the larceny of bank notes, bank bills, prom- issory notes, receipts, acquittances, etc., these terms may be used in describing the instrument, and many of the cases hold that no further description is necessary. Under a stat- ute punishing the larceny of bank notes, it has been held sufficient to describe the instrument simply as a bank note of a certain value; ®*? but it would not do to describe it as “a note commonly called a ‘bank note.’” °* The statutes pun- ishing the larceny of written instruments vary in the differ- ent states, and, besides this, there is much conflict in the cases. The scope and size of this work will not permit us to do more than refer to some of the authorities.** 89 Hamblett v. State, 18 N. H. 384; Low v. People, 2 Parker, Cr. R. (N. Y.) 37. 90 Rex v. Johnson, 3 Maule & S. 539; Com. v. Richards, 1 Mass. 837; State v. Cassel, 2 Har. & G. (Md.) 407; State v. Stevens, 62 Me. 284; Baldwin v. State, 1 Sneed (Tenn.) 411; McDonald v. State, 8 Mo. 288; State v. Williams, 19 Ala. 15, 54 Am. Dec. 184; Com. v. brettun, 100 Mass. 206, 97 Am. Dec. 95. 91Com. v. Richards, 1 Mass. 387; State v. Cassel, 2 Har. & G. (Mid.) 407; McDonald v. State, 8 Mo. 283; Com. v. Brettun, 100 Mass. 206, 97 Am. Dec. 95. 92 Com. vy. Richards, 1 Mass, 337. 93 Rex v. Craven, Russ. & R. 14. And see Rex v. Chard, Id. 488; Damewood v. State, 1 How. (Miss.) 262. 94 The student will find the question discussed and the cases col- lected in Whart. Cr. Pl. & Prac. §§ 184-202. Bank notes and bank bills, Com. v. Richards, 1 Mass. 337; Larned v. Com., 12 Mete. (mass.) 240; Com. v. Ashton, 125 Mass. 384; People v. Holbrook, 13 Johns. (N. Y.) 90; Com. v. Boyer, 1 Bin. (Pa.) 201; State v. Cassel, 2 Har. & G. (Md.) 407; State v. Rout, 10 N. C. 618; McDonald v. CLarK Cr.Proc.(2D Ep.)—17 258 PLEADING—-THE ACCUSATION (Ch. 6 Money The term “money” includes everything that is legal ten- der and is current as money.®® It does not cover bank notes, bank bills, promissory notes, etc., unless they have been made legal tender.°® The cases are not in accord as to the minuteness with which money must be described. In the absence of statute, perhaps the weight of authority requires that the kinds and denominations of the separate pieces of money must be stated.°’ In these jurisdictions the money cannot be described simply as so many dollars in money, or money of a certain value, etc.,°* but should state the kind of State, 8 Mo: 283; Salisbury v. State, 6 Conn. 101; Craven’s Case, 2 East, P. C. 601; State v. Stimson, 24 N. J. Law, 9; State v. Stevens, 62 Me. 284. Promissory notes, Com. v. Brettun, 100 Mass. 206, 97 Am. Dec. 95; Spangler v. Com., 3 Bin. (Pa.) 533; Com. v. Ashton, 125 Mass. 384; Hobbs v. State, 9 Mo. 855; Stewart v. State, 62 Md. 413; Phelps v. People, 72 N. Y. 334. Bills of exchange, Reg. v. Har- per, 44 Law T. (N. 8.) 615; Reg. v. Cooke, 8 Car. & P. 582; Rex v. Birkett, Russ. & R. 251; Rex v. Wicks, Id. 149; People v. Howell, 4 Johns, (N. Y.) 296; Com. v. Butterick, 100 Mass. 12; Phelps v. Peo- ple, 72 N. Y. 334. United States treasury notes, U. S. v. Bennett, 17 Blatchf. 357, Fed. Cas. No. 14,572; Com. v. Cahill, 12 Allen (Mass.) 540; Hummel y. State, 17 Ohio St. 628; State v. Thomason, 71 N. C. 146; Dull v. Com., 25 Grat. (Va.) 965. Receipts, Rex v. Martin, 1 Moody, Crown Cas. 483; Reg. v. Boardman, 2 Moody & R. 147; Rex v. Goldstein, Russ. & R. 473; Testick’s Case, 2 East, P. C. 925; Com. y. Lawless, 101 Mass. 32; State v. Humphreys, 10 Humph. (Tenn.) 442. Acquittance, Com. v. Ladd, 15 Mass. 526. Checks, Bon- nell v. State, 64 Ind. 498; Hawthorn vy. State, 56 Md. 580; Whalen v. Com., 90 Va. 544, 19 S. E. 182. Railroad tickets, McCarty v. State, 1 Wash. 377, 25 Pac. 299, 22 Am, St. Rep. 152; ante, p. 251. 95 Reg. v. West, 7 Cox, Cr. Cas. 183. 96 Major’s Case, 2 East, P. C. 1118; State v. Jim, 3 Murph. (N. C.) 8; Com. v. Swinney, 1 Va. Cas. 146, 5 Am. Dec. 512; McAuly v. State, 7 Yerg. (Tenn.) 526; Williams v. State, 12 Smedes & M. (Miss.) 58; Johnson v. State, 11 Ohio St. 324. 97 People v. Bogart, 36 Cal. 245; State v. Denton, 74 Md. 517, 22 Atl. 305; Baggett v. State, 69 Miss. 625, 13 South. 816; Merwin v. People, 26 Mich. 298, 12 Am. Rep. 314; Lord v. State, 20 N. H. 404, 51.Am. Dec. 231; State v. Longbottoms, 11 Humph. (Tenn.) 39. 98 Rex v. Fry, Russ. & R. 482; Merwin v. People, 26 Mich. 298, 12 Am. Rep. 314; Lavarre v. State, 1 Tex. App. 685; Smith v. State, 83 Ind. 159; Staté v. Stimson, 24 N. J. Law, 9; State v. Longbot- toms, 11 Humph. (Tenn.) 39; People v. Ball, 14 Cal. 101, 73 Am. Dec. 631; Leftwich v. Com., 20 Grat. (Va.) 716; State v. Murphy, 6 Ala. § 92) DESCRIPTION OF PERSONAL PROPERTY 259 coin or paper, though it need not describe each particular coin or bill. Other cases hold that it is sufficient to describe money as a certain amount of lawful money, without stat- ing the kinds and denominations of the separate pieces.°° By statute in a growing number of states it is made un- “necessary to state the species, number or denominations of money.* Some of these statutes apply only to indictments for certain named crimes;*others to indictments for all crimes.’ In all jurisdictions, if the number, kind, or denomination of the money was unknown, this fact, if stated in the indict- ment, dispenses with the necessity of description.® ‘Animals, etc. At common law, an indictment for stealing an animal must describe it specifically, and any substantial variance between the indictment and the proof will be fatal. An in- dictment for stealing a colt, without stating whether it was 845; Wofford v. State, 29 Tex. App. 536, 16 S. W. 535; State v. Oakley, 51 Ark. 112,10 S. W. 17. Thus, an indictment describing the stolen property as “$200 in United States bank notes, of the value of $200; $200 United States currency, of the value of $200; and $200 of United States treasury notes, of the value of $200’—is bad for not more particularly describing the property, or alleging that a more particular description is unknown. Baggett v. State, 69 Miss. 625, 138 South. 816. But see Goldstein v. State (Tex. Cr. App.) 23 S. W. 686. 99 Lewis v. State, 28 Tex. App. 140, 12 8. W. 736; Porter v. State, 26 Fla. 56, 7 South. 145; State v. Knowlton, 11 Wash. 512, 39 Pac. 966. 1 State v. Rush, 95 Mo. 199, 8 S. W. 221; People v. Chuey Ying Git, 100 Cal. 487, 34 Pac. 1080; State v. Fogerty, 105 Iowa, 32, 74 N. W. 754; Moore v. State, 179 Ind. 353, 101 N. HB. 295. 2See State v. Palmer, 20 Wash. 207, 54 Pac. 1121; MeDivit v. State, 20 Ohio St. 231; State v. Shonhausen, 26 La. Ann. 421; Cook v. State, 80 Ark. 495, 97 S. W. 683; People v. Chuey Ying Git, 100 Cal, 437, 34 Pac. 1080; Frederick v. State, 127 Ga. 35, 55 8S. EB. 1044; Rains v. State, 187 Ind. 83, 36 'N. E. 532; Diaz v. State, 62 Tex. Cr. R. 317, 187 S. W. 377; St. Mass. 1899, c. 409, § 16. 2 Hoskins v. People, 16 N. Y. 344; People v. Bogart, 36 Cal. 245; State v. Taunt, 16 Minn. 109 (Gil. 99); State v. Williams, 118 Iowa, 494, 92 N. W. 652. + Post, p. 384. 260 PLEADING—THE ACCUSATION (Ch. 6 a mare or a horse, has been held bad.® And where the in- dictment charged the larceny of a gray horse, and the proof showed it was a gray gelding, the variance was held fatal.° And it has been held that an indictment for stealing a pig cannot be sustained under an act against stealing hogs.” At common law an animal may be described simply as “one horse,” “one mare,” “one hog,” etc., giving the ownership and value. It is not necessary to go further into details, and give the color, size, kind, weight, or marks.® This rule is qualified as applied to indictments under a statute. With regard to the description of animals under a statute punishing offenses in relation to them, the rule has been stated to be that, “where a statute uses a single gener- al term, this term is to be regarded as comprehending the several species belonging to the genus; but that, if it speci- fies each species, then the indictment must designate specifi- cally,” and “that, when a statute uses-a nomen generalissi- mum as such (e. g. cattle), then a particular species can be proved, but that when the statute enumerates certain spe- cies, leaving out others, then the latter cannot be proved under the nomen generalissimum, unless it appears to have been the intention of the legislature to use it as such.” ® Where a statute punishes the stealing of cows, bulls, steers, and calves, and does not specifically mention heifers, an indictment for stealing a heifer may describe it as a cow.'® But, if the statute mentions both cows and heifers, 5 Rex v. Beaney, Russ. & R. 416. Nor is “a yearling” sufficient. Stollenwerk v. State, 55 Ala. 142. 6 Hooker v. State, 4 Ohio, 350; Valesco v. State, 9 Tex. App. 76. But see Baldwin v. People, 1 Scam. (Ill.) 304, where it was held that proof of stealing a mare or gelding would sustain an indictment for stealing a horse; and in State v. Bassett, 34 La. Ann. 1108, that proof of stealing a hen sustained an indictment for stealing a chicken. 7 State v. M'Lain, 2 Brev. (S. C.) 448. But see Lavender v. State, 60 Ala. 60. 8 People v. Stanford, 64 Cal. 27, 28 Pac. 106; State v. Friend, 47 Minn. 449, 50 N. W. 692; State v. Crow, 107 Mo. 341, 17 S. W. 745; State v. Baden, 42 La. Ann. 295, 7 South. 582. ® Whart. Cr. Pl. & Prac. § 237; State v. Plunket, 2 Stew. (Ala.) 11. 10 People v. Soto, 49 Cal. 70. § 92) DESCRIPTION OF PERSONAL PROPERTY 261 it-must be described as a heifer.1t So, where a statute pun- ishes the stealing of horses only, a mare or a gelding may be described as a horse,?? though it is otherwise where the statute mentions mares and geldings.1® Where a statute punishes larceny or other offenses in re- lation to “cattle,” “neat cattle,’ or “beasts,” using one of those terms only, any description bringing the animal with- in the general term may be used, as horse, cow, sheep, hog, etc. It need not state, further, that the animal is a beast or cattle or neat cattle.1* In such a case, however, it would not do to describe the animal as a beast or cattle, but the kind of beast or cattle would have to be specified. It can- not in reason be supposed that the legislature, in using so general a term, intended to so far do away with the require- ment of certainty.t> “Four head of neat cattle” is a suffi- cient description, for neat cattle means a particular kind of cattle; it applies to animals of the genus bos only.*® 11 Cooke’s Case, 2 East, P. C. 616. 12 People v. Pico, 62 Cal. 50; Jordt v. State, 31 Tex. 571, 98 Am. Dec. 550; State v. Plunket, 2 Stew. (Ala.) 11. 18 State v. Plunket, 2 Stew. (Ala.) 11. 14 Moyle’s Case, 2 East, P. C. 1076; State v. Hambleton, 22 Mo. 452; Rex v. Whitney, 1 Moody, Crown Cas. 3; Rex v. Chapple, Russ. & R. 77; Mott’s Case, 2 Hast, P. C. 1075; Taylor v. State, 6 Humph. (fenn.) 285; State v. Bowers (Mo. Sup.) 1 8. W. 288. 15 As we have already stated, “it is an elementary principle of criminal pleading that where the definition of an offense, whether it be at common law or by statute, ‘includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species—it must descend to particulars.’” U.S. v. Cruikshank, 92 U. 8. 542, 23 L. Ed. 588; ante, p. 188; post, p. 308. As shown in a previous note, ante, page 253, note 75, this principle, while responsible for grave miscarriages of justice in the quashing of indictments in cases where the defendant in fact knows the offense with which he is charged, by no means always safeguards the defendant. There is authority for the further proposition that a person cannot be describ- ed as unknown if, though unknown, the grand jury have constructive notice of his name, and it may by reasonable diligence be ascertained; but some courts have held the contrary.7® lottery, seem to be erroneous. The contrary has been held, in in- dictments for the illegal sale of liquor, in Osgood v. People, 39 N. Y. 449; Rice v. People, 38 Ill. 435; State v. Gummer, 22 Wis. 441. 70 Ream v. State, 52 Neb. 727, 73 N. W. 227. 71 Com. v. Tompson, 2 Cush. (Mass.) 551; Rex v. Smith, 6 Car. & P. 151; Holford v. State, 2 Blackf. (Ind.) 103. This right to omit the description of persons and property by a simple statement in the indictment that the description is unknown shows that it is only in theory anu not in practice that such descriptions are vital to the de fendant’s rights and necessary to the preparation of his defense. It is unthinkable that, if a description in the indictment were in fact necessary to prevent an innocent defendant from being convicted, as is assumed by the rule requiring such description and stated by the courts in quashing indictments for lack of such description, that omission of the description would be excused for any cause, much less by a mere statement that it was unknown to the grand jury or the prosecuting officer. Yet such statement, if true, is a sufficient excuse, even though it can be shown that the theoretically vital in- formation could easily have been obtained. See Enson v. State, 58 Fla. 37, 50 South. 948, 188 Am, St. Rep. 92, 18 Ann, Cas. 940, and authorities there cited. 721 Chit. Cr. Law, 212; 2 Hale, P. C. 181. 781 Chit. Cr. Law, 212; 2 Hale, P. C, 181. 74 Ante, p. 269. 76 Post, p. 391. 76 Post, DP. 391. § 94) DESCRIPTION OF THIRD PERSONS 275 In naming a third person, all that is generally necessary is that he be described with such certainty that it is im- possible to mistake him for any other. Nothing more than this is required.77 He may, like the accused, be described by the name by which he is usually known; 7® and, if he is well known by more than one name, he may be described by either.7® It has been held, for instance, that an indict- ment for an assault on John, parish priest of D., without giving his surname, was sufficiently certain; °° and an in- dictment for larceny, laying the goods stolen to be the prop- erty of Victory Baroness Tuckheim, by which appellation she was generally known, was held good, though her real name was Selima Victoire.6+ So an indictment for forgery of a draft addressed to Messrs. Drummond & Co., Charing Cross, by the name of Mr. Drummond, Charing Cross, with- out stating the names of his partners, was held sufficient.®” A mere statement of the Christian name, without any addi- tion to show the precise individual, is bad for uncertainty.®* Much of what we have already said in treating of the name and description of the defendant applies as well to 771 Chit. Cr. Law, 215; Rex vy. Sulls, 2 Leach, Crown Cas. 861; State v. Crank, 2 Bailey (S. C.) 66, 23 Am. Dec. 117. But “John Smith” is a sufficient description, though there be any number of persons of that name in the locality, any one of whom might be the victim of the crime, and though the identification might be made perfect by adding “Junior,” it is not necessary to do so. Post, note 87. 78 Ante, p.173; Rex v. Berriman, 5 Car. & P. 601; Rex v. Lovell, 1 Leach, Crown Cas. 248;: Rex v. Norton, Russ. & R. 510; Willis v. People, 1 Scam. (Ill.) 401; Rex v. . 6 Car. & P. 408; Clark’s Case, Russ. & R. 358; Com. vy. Lampton, 4 Bibb (Ky.) 261; Rex v. Williams, 7 Car. & P. 298; State v. France, 1 Overt. (Tenn.) 434; Com. v. Gould, 158 Mass. 499, 33 N. E. 656; Slaughter v. State (Tex. Cr. App.) 21 S. W. 247; State v. Davis, 109 N. C. 780, 14 S. B. 55. 79 Ante, p. 172; 2 Hale, P. ©. 244, 245; Rogers v. State, 90 Ga. 463, 16 8. BE. 205; State v. France, 1 Overt. (Tenn.) 434. -And see the cases cited in the preceding note. This applies to names of cor- porations. Rogers v. State, supra. 80 Anon., Dyer, 285a; 1 Chit. Cr. Law, 215. 81 Rex vy. Sulls, 2 Leach, Crown Cas. 861. 82 Rex v. Lovell, 1 Leach, Crown Cas. 248; 1 Chit, Cr. Law, 215. Nee, also, Morville v. State, 63 Tex. Cr. R. 551, 141 §. W. 98, 831 Chit. Cr. Law, 215. 276 PLEADING—THE ACCUSATION (Ch. 6 the name and description of third persons. If a man has initials for his Christian name, or is in the habit of using initials therefor, and is known by them, they may be used to describe him.** In some states, as we have seen, a mid- dle name or initial is recognized by the law as a part of the name, and its omission, or a mistake in stating it, will render the indictment defective.*® But in most jurisdictions the law recognizes but one Christian name. The middle name or initial is no part of the name, and need not be stated.*® The words “junior,” “senior,” etc., are no part of the name.®? Where it is necessary to state the name of a corporation, 84 Reg. v. Dale, 17 Q. B. 64; Tweedy v. Jarvis, 27 Conn. 42; City Council of Charleston v. King, 4 McCord (S. C.) 487; State v. Kean, 10 N. H. 347, 34 Am. Dec. 162. The mere fact that initials are used in the indictment is not ground for quashing, as the court cannot judicially discern that they are initials and not names. People yv. Reilly, 257 Ill. 538, 101 N. BH. 54, Ann. Cas, 1914A, 1112. 85 Com. v. Perkins, 1 Pick. (Mass.) 388; Com. v. Hall, 3 Pick. (Mass.) 262; Com. v. Shearman, 11 Cush. (Mass.) 546; Com. v. Buck- ley, 145 Mass. 181, 18 N. E. 368; Reg. v. James, 2 Cox, C. C. 227; State v. Woodrow, 56 Kan. 217, 42 Pac. 714. 86 Choen v. State, 52 Ind. 347, 21 Am. Rep. 179; Franklin v. Tal- madge, 5 Johns, (N. Y.) 84; Roosevelt v. Gardinier, 2 Cow. (N. Y.) 463; Langdon v. People, 183 Ill. 382, 24 N. E. 874; Edmundson v. State, 17 Ala. 179, 52 Am. Dec. 169; Thompson v. Lee, 21 Ill. 242; Erskine v. Davis, 25 Ill. 251; Bletch v. Johnson, 40 Ill. 116; Wood v. Fletcher, 3 N. H. 61; State v. Martin, 10 Mo. 391; Dilts v. IKin- ney, 15 N. J. Law, 130; Isaacs v. Wiley, 12 Vt. 674; Allen v. Taylor, 26 Vt. 599; Hart v. Lindsey, 17 N. H. 285, 48 Am. Dec. 597; Bratton v. Seymour, 4 Watts (Pa.) 329; Keene v. Meade, 3 Pet. 1, 7 L. Ed. 581; McKay v. Speak, 8 Tex. 376; State v. Manning, 14 Tex. 402; People v. Lockwood, 6 Cal. 205; Ross v. State, 116 Ind. 495, 19 N. BB. 451; Tucker v. People, 122 Ill. 588, 18 N. EH. 809; People v. Lake, 110 N. Y. 61, 17 N. E. 146, 6 Am. St. Rep. 344. But in a few states, if it is unnecessarily alleged, it becomes material matter of descrip- tion. Price v. State, 19 Ohio, 423; State v. Hughes, 1 Swan (Tenn.) 261. 87 Com, y. Perkins, 1 Pick. (Mass.) 388; Geraghty v. State, 110 Ind. 103, 11 N. E. 1; De Kentland v. Somers, 2 Root (Conn.) 437; Kincaid v. Howe, 10 Mass. 205; Cobb v. Lucas, 15 Pick. (Mass.) 7; State v. Grant, 22 Me. 171; Brainard v. Stilphin, 6 Vt. 9, 27 Am. Dee. 532; People v. Collins, 7 Johns. (N. Y.) 549; Padgett v. Law- rence, 10 Paige, 170, 40 Am. Dec. 232; Headley v. Shaw, 39 Ill. 354; Com. v. Parmenter, 101 Mass. 211. But see State v. Vittum, 9 N. H. 519; Jackson ex dem. Pell v. Prevost, 2 Caines (N. ¥.) 164. § 94) DESCRIPTION OF THIRD PERSONS 277 as in indictments for stealing the property of a corporation, the name of the corporation, it has been held, must be stated with absolute precision. To describe the “Boston & Wor- cester Railroad Corporation” as the “Boston & Worcester Railroad Company” was held a fatal variance.** But by the better opinion the name by which the corporation is commonly known is sufficient.®® What constitutes a variance between the name or descrip- tion of third persons, as given in the indictment and as shown by the evidence, will be further considered when we come to treat of variance.°° Addition of Third Persons The Statute of Additions (1 Hen. V, c. 5) °t extends only to the accused, and does not at all affect the description either of the prosecutor, or any other individuals whom it may be necessary to name.®°? No addition, therefore, is nec- essary in any case unless two or more persons whose names are similar are referred to.°? Even this does not seem ab- solutely necessary, for where, upon an indictment for as- saulting Elizabeth Edwards, it appeared that there were mother and daughter of that name, and that the assault was upon the daughter, the indictment was held sufficient.** 88 Com. v. Pope, 12 Cush. (Mass.) 272. 89 Putnam v. U. S., 162 U. S. 687, 16 Sup. Ct. 923, 40 L: Hd. 1118; Rogers v. State, 90 Ga. 463, 16 S. E. 205. As to necessity to allege fact of incorporation, see Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098; Duncan v. State, 29 Fla. 489, 10 South. 815. See ante, p. 174, note 76. 90 Post, p. 390. 91 Ante, p. 174. 921 Chit. Cr. Law, 211; 2 Hale, P. C. 182; Rex y. Sulls, 2 Leach, 861; Rex v. Ogilvie, 2 Car. & P. 230; Com. v. Varney, 10 Cush. (Mass.) 402. 931 Chit. Cr. Law, 211; 2 Hale, P. C. 182; Rex v. Sulls, 2 Leach, Crown Cas. 861. 94 Rex v. Peace, 8 Barn. & Ald. 579. And see Rex v. Bailey, 7 Car. & P, 264. 278 PLEADING—THE ACCUSATION (Ch. 7 CHAPTER VII PLEADING—THE ACCUSATION (Continued) 95. Statement of Time. 96. Statement of Place. 97. Repeating Time and Place. STATEMENT OF TIME 95. At common law an indictment must state the day, month, and year in which the offense was commit- ted; but a variance between the statement and the _ proof in this respect is immaterial, unless the time is of the essence of the offense. Most crimes are crimes irrespective of the day, month, or year in which they were committed; a statement of the time at which the crime was committed is therefore, as to these crimes, not necessary in order that the indictment shall charge an offense. But, as we have seen, the indict- ment must not only technically charge an offense; it must also state sufficient facts and circumstances to identify the particular offense which is to be proved, so as to enable the defendant to prepare his defense, and to protect himself from a subsequent prosecution for the same offense. In accord- ance with this latter principle, it would seem to be necessary. that the indictment should identify the offense charged by stating the day, month, and year in which the alleged of- fense was committed. Such is the rule.* Strangely enough, 12 Hale, P. 0.177; 2 Hawk. P. C. c. 25, § 77; Id. c. 23, § 88; 4 Bl. Comm. 306; State v. Roach, 3 N. C. 352; State v. G. S., 1 Tyler (Vt.) 295, 4 Am. Dec. 724; State v. Johnson, 32 Tex. 96; State v. Brown, 7 N. C. 224; State v. Baker, 34 Me. 52; Shelton v. State, 1 Stew. & P. (Ala.) 208; State v. Anthony, 1 McCord (S. C.) 285; State v. Han- son, 39 Me. 337; Allen v. Com., 2 Bibb (Ky.) 210; State v. Beaton, 79 Me. 314, 9 Atl. 728; State v. Dodge, 81 Me. 391, 17 Atl. 318; State v. Beckwith, 1 Stew. (Ala.) 318, 18 Am. Dec.,46; Roberts v. State, 19 § 95) STATEMENT OF TIME 279 however, through the working of another rule equally well established—the rule that the time alleged need not be proved, but the defendant may be convicted on the indict- ment, though an entirely different date is proven—the rule requiring the day, month, and year not only fails utterly to accomplish the only object of its existence, but actually frustrates that object, inasmuch as it serves to mislead the defendant by stating a false date. Statutes in many juris- dictions have done away with the necessity for stating the time, except in charging those crimes in which time is of the essence of the offense.’ In the absence of statute, the statement of the year alone is not enough, and, if the day and month alone be given, without the year, the indictment is bad, and cannot be aided by intendment.* An allegation, for instance, that an of- fense was committed “on the 10th day of September now past,”.is insufficient, for failure to state the year.® It has ¢ Ala. 526; State v. Offutt, 4 Blackf. (Ind.) 355; Jane v. State, 3 Mo. 45; State v. O’Donnell, 81 Me. 271, 17 Atl. 66. An averment that the acts charged were committed “on sundry and divers days and times between” certain specified days has been held not sufficient. State v. Beaton, 79 Me. 314, 9 Atl. 728. But it has been lately held that, where time is not of the essence of the offense, the indictment is not bad because the day of the month is left blank. U.S. v. Conrad (C. C.) 59 Fed. 458; Ledbetter v. U. S., 170 U..S. 606, 18 Sup. Ct. 774, 42 L. Ed. 1162. “On or about” a certain specified day is sufficient, since the words “on or about” may be rejected as surplusage, and the date remaining is a specified date. State v. McCarthy, 44 La. Ann. 323, 10 South. 673; Rawson v. State, 19.Conn. 292. See Pruitt v. State (Ark.) 11 S. W. 822; State v. Thompson, 10 Mont. 549, 27 Pac. 349. 2 This requirement that the day, month, and year in which the act was done must be stated in the indictment, but that on the trial a different day, etc., may be proved, and the defendant convicted on the indictment, is another illustration of the sacrifice of substance for form in criminal procedure. 3 See State v. Hoover,.31 Ark. 676; People v. Hawkins, 106 Mich. 479, 64 N. W. 7386; Fleming v. State, 136 Ind. 149, 36 N. BH, 154; Rema v. State, 52 Neb. 375, 72 N. W. 474. 41 Chit. Cr. Law, 217; Com. v. Griffin, 3 Cush. (Mass.) 523; Com. v. Hutton, 5 Gray (Mass.) 89, 66 Am. Dec. 352; Serpentine v. State, 1 How. (Miss.) 260; Clark v. State, 34 Ind. 436. Contra, by statute, where day of month is blank. State v. Parker, 5 Lea (Tenn.) 568. 5 Com. v. Griffin, supra. 280 PLEADING—THE ACCUSATION (Ch. 7 been said that there is an exception to the rule that time must be stated in cases where a mere negative or omission is averred; that in such a case, as a rule, no time need be mentioned;* but this is doubtful. It cannot be, for instance, that an indictment against a public officer for neglect to per- form his duty need not state a certain day on which, or cer- tain days between which, he was guilty of the omission, or that time may be dispensed with in an indictment for man- slaughter by negligence.”| But where the offense is a con- tinuing one, as failure to open a road, or keep a road in re- pair, it may be stated as committed between certain days.® Generally, as we shall see, the time when the offense was committed need not be accurately stated. A time must al- ways be stated at common law, but any time before the finding of the indictment and within the period of limitation may be given, and a different time may be shown at the trial. This, however, only applies where the precise time is not material. If the offense could only be committed at a certain time, it must be alleged to have been then commit- ted. An act prohibited by statute on certain days only must be charged as having been committed on one of those days, for the time laid is a material element in the offense, and, unless laid on a day within the statute, no offense would be charged. Thus, where a statute prohibited the mainte- nance of closed weirs in certain waters on Saturdays and Sundays between the Ist of April and the 15th of July, and an indictment alleged that the offense was committed on the Ist day of June (Tuesday,) and “on divers other days” between the Ist of June and the 15th of July, the indictment was held bad, because it did not show on its face that the acts were done on Saturday or Sunday.® The rule also ap- plies to indictments for violation of the Sunday laws. The 6 Rex v. Hollond, 5 Term R. 616; 2 Hawk. P. C. c. 25, § 79; U.S. vy. Smith, 2 Mason, 146, Fed. Cas. No. 16,338, 7 See Com. v. Inhabitants of Sheffield, 11 Cush. (Mass.) 178; State vy. Behm, 72 Iowa, 533, 34 N. W. 319; State v. McDowell, 84 N. C. 798. 8 State v. City of Auburn, 86 Me. 276, 29 Atl. 1075. ® State v. Dodge, 81 Me. 391, 17 Atl. 313. § 95) STATEMENT OF TIME 281 acts must be shown by the indictment to have been commit- ted on that particular day of the week.?° To constitute a punishable homicide at common law, the death must occur within a year and a day after the stroke, and an indictment for homicide must show that it did so oc- cur, or it will state no offense.?! Sometimes it is of the essence of the offense that several acts shall have been simultaneous, and in such cases the in- dictment must show that they were so, or it will fail to de- scribe the offense. An indictment under a statute, for in- stance, for having in possession ten or more counterfeit bank bills, must show that the accused had them in his pos- session at the same time, and an averment that he had them in his possession on the same day is not sufficient.?? Where the time of day at which an act is done is not nec- essary to ascertain the offense, the indictment need not set 10 Megowan v. Com., 2 Metc. (Ky.) 3; State v. Land, 42 Ind. 311, “Sabbath” for “Sunday,” or vice versa, has been held sufficient. State v. Drake, 64 N. C. 589. The proof need not show commission of the offense on the particular day stated, but some other day, on which the offense could be committed, may be proven. Post, p. 396. 111 Chit. Cr. Law, 223; Brassfield v. State, 55 Ark. 556, 18 S. W. ‘1040; State v. Luke, 104 Mo. 563, 16 S. W. 242; Palmer v. People, 138 Ml. 356, 28 N. BH. 1380, 32 Am. St. Rep. 146; State v. Blakeney, 33 S. C. 111, 11 S. EB. 637; Timmerman v. Territory, 3 Wash. T. 445, 17 Pac. 624. 'The indictment, as will be seen from the above cases, need not allege in direct terms that death ensued within a year and a day from the fatal blow. The allegation of the respective dates of the injury and of the death are enough, if it appears from this that the death was within a year and a day from the blow. “This may be done either by stating that the deceased died instantly of the wound, or that he languished of the same till the day mentioned, when he died of the said mortal wound.” 1 Hale, P. C. 348, 344. In an Ar- kansas case the indictment alleged that the blow was given on Oc- tober 25, 1890, but did not expressly state when the death occurred. It did, however, allege that death ensued, and the caption of the in- dictment showed that it was returned by the grand jury at the Feb- ruary term, 1891, which term could not, under the law, have continu- ed to October 26, 1891. It was held that it sufficiently appeared that the death occurred within a year and a day from the blow. Brass- field v. State, 55 Ark. 556, 18 S. W. 1040. 12 Hdwards v. Com., 19 Pick. (Mass.) 124, 282 PLEADING—THE ACCUSATION (Ch. 7 forth the hour of the day ; 78 but when the time of day does give complexion to the crime the hour, or an hour, must be stated. Thus we find some courts holding that in indict- ments for burglary the hour must be averred.1* This ap- plies not only to burglary, but also to statutory offenses which must be committed in the nighttime or in the day- time, as the case may be.1® Where the nighttime is defined by statute, it is clear that an indictment for burglary need not allege the hour at which the offense was committed, but it will be sufficient to state that it was committed in the nighttime, since, “whenever ‘nighttime’ is now used in an indictment, as descriptive of the time of the commission of an offense, it is to be understood of the nighttime as defined by this statute.” 7° It was said by Chitty, and it seems to be established by the weight of authority, that, where the time for the prose- cution is limited by statute, the time averred in the indict- ment should appear to be within the limit, or else the facts necessary to take the case out of the operation of the stat- ute should be alleged, otherwise the indictment shows on its face that the prosecution is barred.” In some states, how- 181 Chit. Cr. Law, 219; 2 Hawk. P. C. c. 25, § 76. 14 State v. G.S., 1 Tyler (Vt.) 295, 4 Am. Dec. 724; Shelton v. Com., 89 Va. 450, 16 S. BE. 355; State v. Bancroft, 10 N. H. 105. ‘‘The rea- son for this seems to have been that one might, with a felonious in- tent, have broken and entered a building at a time properly called in popular language ‘nighttime,’ and yet not have committed the crime of burglary; the time in which that offense can be committed being not so far extended as to embrace the nighttime in the ordinary use of that word, but a period when the light of day had so far disap- peared that the face of a person was not discernible by the light of the sun or twilight.” Com. v. Williams, 2 Cush. (Mass.) 589. But see People v. Burgess, 35 Cal. 115, and Bethune v. State, 48 Ga. 505, as giving the correct rule. 152 Hale, P. C. 179. “About the hour of eleven in the night of the same day” has been held sufficient. Methard v. State, 19 Ohio St. 363; State v. Seymour, 36 Me. 225. 16 Com. v. Williams, 2 Cush. (Mass.) 589. 171 Chit. Cr. Law, 223; People v. Gregory, 30 Mich. 371; State v. Davis, 44 La. Ann. 972, 11 South. 580; State v. Robinson, 29 N. H. 274; State v. Beckwith, 1 Stew. (Ala.) 318, 18 Am. Dec. 46; Shelton vy. State, 1 Stew. & P. (Ala.) 208; State v. Hobbs, 39 Me. 212; State y. Roach, 3 N. C. 852; McLane v. State, 4 Ga. 335; State v. Ingalls, § 95) STATEMENT OF TIME 283 ever, it has been held that the time laid in the indictment is wholly immaterial for all purposes, and that an indictment, therefore, at least on motion in arrest of judgment, is not defective because it alleges that the offense was committed at such a time that the prosecution appears to be barred by the statute of limitations, since a later time may have been shown at the trial.1® When the alleged offense may have continuance, as is the case, for instance, .with the offense of keeping a disor- derly house, the time may be laid with,a continuando; that is, it may be alleged to have been on a single day certain and also on divers other days; but those other days must be alleged with the same legal exactness as is required in al- leging a single day.*® Such exactness is obtained by alleg- ing that the offense was committed on a day certain and on each day from that time until another day certain. A form generally held sufficient is to allege that the offense was committed on a certain day and on divers other days be- tween two days certain.2° The fact that the continuando is not sufficiently certain will not render the whole indictment bad, if it can be rejected, as surplusage, and the indictment be sustained as to the day certain. “And the general rule is well established that when an offense, which may have con- 59 N. H. 88; Hatwood v. State, 18 Ind. 492; Lamkin v. People, 94° Ill. 501; People v. Miller, 12 Cal. 291. In some states it is held, con- trary to some of the above cases, that an indictment need not state the facts bringing the case within the exceptions contained in the statute. Blackman v. Com., 124 Pa. 578, 17 Atl. 194. In sonie states, the indictment is not necessarily the commencement of the prosecu- tion, and for this reason it was held in Vermont that an indictment is not bad because it does not show that the offense was committed within the prescribed time before it was presented. State v. Stevens, 64 Vt. 590, 25 Atl. 838. 18 People vy. Van Santvoord, 9 Cow. (N. Y.) 655. And see Black- man v. Com., 124 Pa. 578, 17 Atl. 194; U.S. v. Cook, 17 Wall. 168, 21 L. Bd. 538. 19 Wells v. Com., 12 Gray (Mass.) 326; Com. v. Adams, 4 Gray (Mass.) 27. 20 Wells v. Com., supra; State v. Brown, 14 N. D. 529, 104 N. W. 1112; State v. Cofren, 48 Me. 364. T'o allege that the acts were com- mitted “on sundry and divers days between” certain specified days is not enough. State v. Beaton, 79 Me. 314, 9 Atl. 728. 284 PLEADING—THE ACCUSATION (Ch. 7 tinuance, is alleged to have been committed on a day certain and on divers other days, which are uncertainly alleged, the indictment is effectual for the act alleged on the day certain, and void only as to the act alleged on the other days.” 74 Cumulative offenses, which can be committed only by a rep- etition of acts of the same kind,—such as the offense of be- ing a common seller of intoxicating liquors, to constitute which there must be at least three sales,—should be laid with a continuando. If an indictment for this offense al- leges that the accused was a common seller on a single day certain, and on divers other days uncertainly alleged, it will not support a verdict and judgment, for the accused may have been found guilty, on proof, of sales, some or all of which were made on a day or days insufficiently alleged.?? An indictment in such a case, alleging that the accused was a common seller on a single day only, omitting the continu- ando altogether, would be sufficient, for it would be pre- sumed that three sales were proven on the day alleged.” If the indictment lay the offense to have been committed on an impossible day, as on the 30th day of February, or the 31st day of June, or on a future day, it is just as bad as if no time at all were stated.?* And the indictment will also 21 Wells v. Com., supra; Rex v. Dixon, 10 Mod. 335; People v. Adams, 17 Wend. (N. Y.) 475; State v. Munger, 15 Vt. 290; State v. May, 15 N. C. 328; U.S. v. La Coste, 2 Mason, 140, Fed. Cas. ‘No. 15,- 548. 22 Com. vy. Adams, 4 Gray (Mass.) 27. 23 Wells v. Com., supra. 241 Chit. Cr. Law, 225; 2 Hawk. P. C. c. 25, § 77; Pennsylvania v. McKee, Add. (Pa.) 36; State v. Litch, 33 Vt. 67; State v. Sexton, 10 N. C. 184, 14 Am. Dec. 584; Jacobs v. Com., 5 Serg. & R. (Pa.) 316; Serpentine v. State, 1 How. (Miss.) 256; State v. O’Donnell, 81 Me. 271, 17 Atl. 66; Com. v. Doyle, 110 Mass. 103; Markley v. State, 10 Mo. 291; Lee v. State, 22 Tex. App. 547, 3 S. W. 89; State v. Pratt, 14 N. H. 456; State v. Blaisdell, 49 N. H. 81; People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122; State v. Noland, 29 Ind. 212; State v. Smith, 88 Iowa, 178, 55 N. W. 198; Andrews v. State (Tex. App.) 14 S. W. 1014; Petty v. State, 60 Tex. Cr. R. 64, 131 S. W. 215; McKay v. State, 90 Neb. 63, 182 N.. W. 741, 39 I, R. A. (N. S.) 714, Ann. Cas. 1913B, 1034. This is changed by statute in some states. See State v. Crawford, 99 Mo. 74, 12 8S. W. 354; post, p. 288. As will be found from the cases above cited, an indictment charging the § 95) STATEMENT OF TIME 285 be insufficient if the same offense is alleged to have been committed at different times,?° or otherwise on such a day as renders it repugnant.?® And no defect of this nature is aided by verdict.27. An indictment for murder is vitiated by a repugnancy in this respect in the conclusion, as, if the as- sault and stroke be alleged on the 10th of December, and the death on the 20th of December following, and it is then alleged that the accused so murdered the deceased on the 10th of December aforesaid, since the felony is not complete until the death occurs.?8 offense to have been committed on the same day the indictment was found is bad if it does not show that it was committed before the finding of the indictment, since it may, so far as the charge shows, have been committed afterwards; and the indictment cannot be aid- ed by argument or inference, ante, p. 191; but where it does express- ly show commission of the offense before indictment, though on the same day, it is good. Sce Com. v. Miller, 79 Ky. 451; Gill v. State (Tex. Cr. R.) 20 S. W. 578. But see People v. Squires, 99 Cal. 327, 33 Pac. 1092. It was held in Kentucky that an indictment alleging that the offense was committed on a day subsequent to its return was not bad where it alleged that the defendant “did” do the acts alleged, since it was thought that this showed that the offense was commit- ted before the indictment was found. Williams v. Com. (Ky.) 18 8. W. 1024; Vowells v. Com., 84 Ky. 52. This, however, is contrary to the cases cited above. 251 Term R. 316; State v. Dandy, 1 Brey. (S. C.) 895; Hutchinson y. State, 62 Ind. 556. 262 Hawk. P. C. c. 25, § 7; Rex v. Stevens, 5 East, 244; Jeffries v. -Com., 12 Allen (Mass.) 145; State v. Jones, 8 N. J. Law, 307; Mc- Gehee v. State, 26 Ala. 154. The growing tendency away from techni- cal rules is shown in Com. v. Roberts, 145 Ky. 290, 140 S. W. 318, where it was held that an indictment was not bad on demurrer, though it charged the commission of the offense of bribery on two different dates. The court said: “We do not, however, think the discrepancy in the dates mentioned in the indictment was sufficient to invalidate it. In place of the words and figures ‘27th day of Feb- ruary, 1911,’ the words and figures ‘ day of November, 1910,’ should have been used, as it is manifest from the indictment that the offense intended to be charged was committed at the November elec- tion, 1910. The error in inserting the words and figures ‘27th day of February, 1911, did not and could not mislead the accused.” 271 Chit. Cr. Law, 225; 2 Hawk. P. C. ¢. 25, § 77; Rex v. Stevens, 5 East, 244; State v. Litch, 33 Vt. 67. 28 Heydon’s Case, 4 Coke, 42a; 2 Hawk. P. C. c. 23, § 88, 286 PLEADING—THE ACCUSATION (Ch. 7 An allegation that the offense was committed between a day certain and “the day of finding this indictment” fixes the time with sufficient certainty, notwithstanding the grand jury has power to find an indictment at any time dur- ing the term of the court, and even for an offense commit- ted after the term has commenced. When there is nothing on the record showing the contrary, the time of finding the bill is to be taken to be the first day of the term. When, therefore, an averment is made that an offense was commit- ted between a day certain and the day of finding the indict- ment, and there is nothing on the record showing the day when the indictment was found, it is equivalent to an aver- ment that it was committed between the first day’ alleged and the day on which the term of the court commenced.?® It is always competent to resort to the record for the pur- pose of fixing the exact day on which the indictment was found, whenever it becomes necessary to prove that it was found after the first day of the term, as it is sometimes done in order to avoid the objection that the offense was actually committed after the finding of the bill. The actual time can be shown by the certificate of the clerk indorsed on the in- dictment, or other proper entry.*° Since the day of finding and presentment of an indictment by the grand jury is not necessarily, or by any reasonable intendment, identical with the day of the filing of it by the clerk, but, on the contrary, several days may elapse between them, an allegation that an offense was committed between a specified day and “the day of the finding, presentment, and filing of this indict- ment” is bad for uncertainty.** The mere fact that the time is ungrammatically stated, if it is so stated that the time cannot be mistaken, will not vitiate the indictment; as, for instance, where an offense is alleged to have been committed on “the lst March” instead of “the Ist day of March.” #?. But an indictment laying the 29 Com. v. Wood, 4 Gray (Mass.) 11. 80 Com. v. Wood, supra; Com. v. Stone, 3 Gray (Mass.) 453. 31Com. v. Adams, 4 Gray (Mass.) 27; Com. v. Keefe, 9 Gray (Mass.) 290. : 32 Simmons vy. Com., 1 Rawle (Pa.) 142; ante, p. 905. § 95) ‘STATEMENT OF TIME 287 offense on the 2d day of March, A. D. “one thousand eight,” instead of “eighteen hundred,” ** or an indictment omitting the words “in the year,” or the letters “A. D.,” or words “Anno Domini,” before the number of the year,’* has in older cases been held insufficient, though it is doubtful if courts would so hold to-day. The words “in the year” need not be used if the letters “A. D.,” or words “Anno Domini,” are used, as they mean “in the year of our Lord”;*®* nor need the latter be used if the word “year” is used, or the figures as generally used for dates, for it will be taken to mean “year of our Lord.” 8* As we have already stated, by statute in England indictments must be in words at length, and abbreviations or figures cannot be used.*’ But in this country, in the absence of statute on the subject, it is gen- erally -held that the usual initials and figures may be used for dates.2* “On the Ist day of January, A. D. 1895,” for instance, would be sufficient. Though the allegation of a specified time is necessary in nearly all cases, yet, except where the time enters into the nature of the offense, it is not necessary to prove that the offense was committed on the precise day or year mentioned in the indictment.?® In other words, it is immaterial, except in those cases, whether the time is correctly stated or not. 33 State v. G. S., 1 Tyler (Vt.) 295, 4 Am. Dec. 724. 84 Com. v. Mcloon, 5 Gray (Mass.) 91, 66 Am. Dec. 354; Wells v. Com., 12 Gray (Mass.) 326; State v. Lane, 26 N. C. 121; Whitesides vy. People, Breese (Ill.) 21. But see, to the effect that the “year of our Lord,” or its equivalent, may be omitted, note 36, infra. 35 State v. Reed, 35 Me. 489, 58 Am. Dec. 727; State v. Hodgeden, 3 Vt. 481; Com. v. Clark, 4 Cush. (Mass.) 596; Rawson v. State, 19 Conn. 292; State v. Tuller, 34 Conn. 280; Winfield v. State, 3 G. Greene (Iowa) 339; State v. Seamons, 1 G. Greene (Iowa) 418. 36 Com. v. Doran, 14 Gray (Mass.) 38; Hall v. State, 3 Ga. 18; Engleman v. State, 2 Ind. 91, 52 Am. Dec. 494. 37 Ante, p. 203. 38 State v. Hodgeden, 3 Vt. 481; State v. Gilbert, 13 Vt. 647; Com. y. Clark, 4 Cush. (Mass.) 596; State v. Haddock, 9 N. C. 461; State vy. Reed, 35 Me. 489, 58 Am. Dec. 727; Barnes v. State, 5 Yerg. (Tenn.) 186; State v. Munch, 22 Minn. 67; Hall v. State, 3 Ga. 18; Lazier v. Com., 10 Grat. (Va.) 708. For the conflict on this point, see the cases cited in the preceding notes. 89 Post, p. 396. 288 PLEADING—THE ACCUSATION (Ch. 7 The rule applies to cases in which it is necessary to state the time of the day at which the offense was committed, as in an indictment for burglary.*° It has been held not to apply, however, to continuing offenses, such as that of being a common seller of intoxicating liquors.*? In some states it is provided by statute that time need not be stated, unless time is of the essence of the offense; and if the time is imperfectly stated the indictment shall never- theless be sufficient. Under such a statute, where an indict- ment for illegal voting, returned on November 3, 1886, charged that the offense was committed on November 4, 1886, “the same being the day upon which the general elec- tion was then and there held in said state * * * forthe election of governor * * * as was then and there re- quired and authorized by law,” it was held that this portion of the indictment had reference to a past offense, and show- ed that the offense had been committed before the return of the indictment; and that, time not being of the essence of the offense, the indictment must be upheld.*? STATEMENT OF PLACE 96. The indictment must always state the place where the offense was committed with sufficient particularity to show that it was committed within the jurisdic- tion of the court. Where the particular place with- in the jurisdictional limits of the court is of the essence of the offense, it must be stated in order to state the offense. The particular place should also be stated, not as venue, but as matter of local de- scription, in an indictment for a local offense, such as burglary, arson, larceny from a building, etc. Except where the particular place thus enters into 4° Post, p. 396. 41 Post, p. 397. 42 State v. Patte son, 116 Ind. 45, 10 N. BE. 289, and 18 N. E. 270. And see State v. McDaniel, 94 Mo. 301, 7 S. W. 634. And under such a statute, indictments giving no date at all have been sustained. Fleming v. State, 186 Ind. 149, 36 N. E. 154. As to the constitution- ality of such statutes, see ante, p. 165; post, pp. 364, 365. § 96) STATEMENT OF PLACE 289 the nature of the offense, or is alleged as matter of local description, it is sufficient to prove that the offense was committed at any place within the ju- risdiction of the court, though not at the place al- leged. The venue should be stated, not only in the margin and commencement of the indictment, as already explained, but also in the statement. Its omission will be fatal, and may be taken advantage of even in arrest of judgment.*? This is necessary, in order that it may appear that the grand jury had jurisdiction to inquire into the offense and present the indictment, for a grand jury can only inquire into offenses committed within their county; and it is also necessary in order that it may appear that the court has jurisdiction to try the accused, for generally an offense must be tried in the county in which it was committed.‘ For this reason, if the offense is alleged to have been committed at a certain town or other place, without naming the county by refer- ence or otherwise, the indictment will be fatally defective,*® 482 Hawk. P. C. c. 25, §§ 34, 83; Rex v. Burridge, 3 P. Wms. 496; Rex v. Hollond, 5 Term R. 624; Reg. v. O’Connor, 5 Q. B. 16; Rex v. Haynes, 4 Maule & S. ‘214; McCoy v. State, 22 Neb. 418, 35 N. W. 202; Thompson vy. State, 51 Miss. 353; People v. Craig, 59 Cal. 370; State v. Hobbs, 37 W. Va. 812, 17 S. E. 380; Connor v. State, 29 Fla. 455, 10 South. 891, 30 Am. St. Rep. 126; Jones v. Com., 86 Va. 950, 12 S. E. 950. Place must be repeated expressly or by reference in each count. Jones v. Com., 86 Va. 950, 12 S. E. 950; post, p. 344. In some states, however, it is provided by statute that it shall not be necessary to state any venue in the body of the indictment, but’ the jurisdiction named in the margin shall be taken to be the venue of all the facts alleged, except where a local description is required. People v. Schultz, 85 Mich, 114, 48 N. W..293; State v. Arnold (Mo.) 2S. W. 269; State v. Beaucleigh, 92 Mo. 490, 4 S. W. 666. And see Territory v. Pratt, 6 Dak. 483, 48 N. W. 711. And in some states the statute dispenses altogether with the necessity for a statement of venue, only requiring that it be proved at the trial. Toole v. State, 89 Ala. 131, 8 South. 95. 44 Com, v. Reily, 9 Gray (Mass.) 1; U. S. v. Burns (C. C.) 54 Fed. 351, 45 Com. v. Barnard, 6 Gray (Mass.) 488. It is not sufficient, how- ever, merely to allege that the offense was committed “within the jurisdiction of the court,” since that is a mere conclusion of law from CLARK Cr.PRoC.(2D Ep.)—19 290. PLEADING—THE ACCUSATION (Ch. 7 and will not be aided by the statement of the county in the margin.*® It is further necessary in some cases in order to make the accusation certain, and inform the accused of the charge against him.*” If the jurisdiction of the court does not extend over the entire county, the place of the commission of the offense must be laid with sufficient particularity to show that it was committed within the jurisdiction of the court.*® Where the county is mentioned in the margin or com- mencement, or perhaps even in the caption only, it will be sufficient to refer to it afterwards by the words, “in the county aforesaid,” or “then.and there.” #* It has been held that where two counties are mentioned—as where one is stated in the margin, and then a fact is alleged to have arisen in another county—a subsequent averment that the offense was committed at a certain place “in the county facts which should be stated. Early v. Com., 93 Va. 765, 24 S. E. 936. 46 Rex v. Burridge, 3 P. Wms. 496; 2 Hawk. P. C. ¢. 25, § 34; 2 Hale, P. ©. 166; Reg. v. O’Connor, 5 Q. B. 16; Stephen’s Case, 2 Leigh (Va.) 759; State v. Godfrey, 12 Me. 361. Otherwise by stat- ute. Note 43, supra. 47 Com. v. Barnard, 6 Gray (Mass.) 488. But see Tower v. Com., 111 Mass. 417. Where the indictment alleges that “P., of New Brain-, tree, in county of Worcester, sold intoxicating liquor at New Brain- tree,” it will be understood that he sold at the same New Braintree previously mentioned, and failure to repeat the county is not bad. Com. v. Cummings, 6 Gray (Mass.) 487. 48 People v. Wong Wang, 92 Cal. 277, 28 Pac. 270; McBride v. State, 10 Humph (Tenn.) 615; Taylor v. Com., 2 Va. Cas. 94. 492 Hale, P. C. 180; 2 Hawk. P. C. c. 25, § 34; Rex v. Burridge, 3 P. Wms. 496; Haskins v. People, 16 N. Y. 344; Barnes vy. State, 5 Yerg. (Tenn.) 186; Strickland v. State, 7 Tex. App. 34; State v. Con- ley, 839 Me. 78; Turns v. Com., 6 Metc. (Mass.) 224; State v. Ames, 10 Mo. 743; State v. Cotton, 24 N. H. 143; State v. Slocum, 8 Blackf. (Ind.) 315; Evarts v. State, 48 Ind. 422; State v. Bell, 25 N. C. 506; State v. Tolever, 27 N. ©. 452; Noe v. People, 39 Ill. 96; Hanrahan v. People, 91 Ill. 142; State v. Salts, 77 Iowa, 193, 39 N. W. 167, 41 N. W. 620; State v. Reid, 20 Iowa, 413. An information that did not state in its body the place where the offense was committed was nevertheless held sufficient, where the county was mentioned in the caption, and the words of reference, “‘then and there,” were used in charging the crime. State v. S. A. L., 77 Wis. 467, 46 N. W. 498. § 96) STATEMENT OF PLACE 291 aforesaid” will be insufficient.°° But it has been held that, where two counties are mentioned, and it is then alleged that the offense was committed at a certain town “in said county,” the indictment is sufficient if the town is one creat- ed by statute, since the court will take judicial notice of the statute, and can determine the county.®? If an indict- ment laid the offense in a certain town, without stating any county at all, it is doubtful whether this decision would be followed, even though there might be an incorporated town of that name in the county in which the indictment was found. There are many towns of the same name in the different states, and in some states there are more than one town of the same name. Such an indictment would certain- ly be uncertain under the rules of pleading. The statement that the offense was committed in the county must be cer- tain, and cannot be aided by inference. Thus, where the. offense was alleged to have been committed “near the town of Arizona City, in said county of Yuma, and territory of Arizona,” Arizona City being situated near the boundary of the county, the averment was held not sufficiently cer- tain, since the offense might have been committed near the town, and yet not in the county.®” Formerly the trial jury were summoned from the neigh- borhood in which the offense was committed, and not, as is now the practice, from the county at large. It was at that time necessary, therefore, to state in the indictment, not only the county, but also the particular parish, vill, hamlet, or other place within the county at which the offense was committed. It was not sufficient to give the county only.*# The practice, though not necessary, still exists in England, but to a much less extent than formerly.** Unless place is an element of the offense, such place, less than the county, need not be stated in this country. Since the trial jury are 501 Chit. Cr. Law, 194; Reg. v. Rhodes, 2 Ld. Raym. 888; 2 Hale, P. C. 180; State v. McCracken, 20 Mo. 411; note 78, infra. 51 People v. Breese, 7 Cow. (N. Y.) 429.” And see Com. vy. Inhabi- tants of Springfield, 7 Mass. 9. 52 Territory v. Do, 1 Ariz. 507, 25 Pac. 472. 53 1 Chit. Cr. Law, 196; 2 Hawk. P. C. c. 25, § 83; 2 Hale, P. C. 180. 541 Chit. Cr. Law, 196. 292 PLEADING—THE ACCUSATION (Ch. 7 drawn from the county at large, and not from any particu- lar neighborhood, the offense need only be laid in the coun- ty, and the charge will be sustained by proof that it was committed at any place in the county.®® By the weight of authority, in indictments for robbery,®* assaults,®” homi- cide,5* simple larceny,®® disturbance of an assemblage for religious worship, or of any other public assemblage,®® gam- ing,®? etc., it is sufficient to allege that they were committed in the county, without stating the particular place in the county; and generally, if a particular place is stated, it need not be proved.*? , Where the offense is of such a character that the place in which it is committed colors it, or “is of the essence of the crime,” °? the particular place within the county at which it was committed must be stated. Some offenses can only be committed in a certain place. Here, of course, the par- ticular place must be stated in order to state any offense at all. Thus, where a statute punishes the keeping of closed 55 Carlisle v. State, 32 Ind. 55; State v. Goode, 24 Mo. 361; State v. Smith, 5 Har. (Del.) 490; Com. v. Tolliver, 8 Gray (Mass.) 386, 69 Am. Dec. 252; Barnes v. State, 5 Yerg. (Tenn.) 186; State v. Lamon, 10 N. C. 175; Heikes v. Com., 26 Pa. 518; People v. Honeyman, 3 Denio (N. Y.) 121; Wingard v. State, 18 Ga. 396; Com. v. Lavery, 101 Mass. 207; Covy v. State, 4 Port. (Ala.) 186. In Massachusetts, how-. ever, it has been said that in indictments for capital offenses the strictness of requiring the indictment to lay the offense, not only in a certain county, but also in a certain town, has always been there adhered to, and in favor of life the court perhaps would not feel au- thorized to depart from the ancient rule. Com. v. Inhabitants of Springfield, 7 Mass. 9. 56 Rex v. Wardle, Russ. & R. 9. 57 Com. v. Tolliver, 8 Gray (Mass.) 386, 69 Am. Dec. 252, 58 State v. Lamon, 10 N. C. 175; Carlisle v. State, 82 Ind. 55. Con- tra, Com. v. Inhabitants of Springfield, 7 Mass. 9. 59 Rex y. Bullock, Moody, Crown Cas, 324, note; People v. Honey- man, 3 Denio (N. Y.) 121; Haskins v. People, 16 N. Y. 344; Com. v. Lavery, 101 Mass. 207. 60 State v. Smith, 5 Har. (Del.) 490. 61 Covy v. State, 4 Port. (Ala.) 186; Wingard v. State, 13 Ga. 396. Riot, Barnes v. State, 5 Yerg. (Tenn.) 186. Fornication and bastar- dy, Heikes v. Com., 26 Pa, 513. 62 Post, p. 399. 631 Chit. Cr. Law, 200. § 96) STATEMENT OF PLACE 293 weirs in a particular part only of a river, an indictment charging that they were kept in the river, without showing in what particular part of it, is insufficient. It states no offense, for they may, for all that appears, have been kept in a place where they were not prohibited.** Again, there are offenses which, though they may be committed in different parts of the county, can only be committed in relation to property which has a fixed loca- tion. This property must be described in stating the of- fense, and its location must be stated, not as venue, how- ever, but by way of description. By the weight of authority, burglary and house breaking,**® arson,®* statutory larcenies from a shop, warehouse, dwelling house, etc.,®°7 nuisances with respect to highways,®* such as failure to repair high- ways,°® and, according to some of the cases, other nui- sances,’° including the keeping of a disorderly house, and similar offenses,’+ desecration of, disfiguring, and other of- fenses in relation to cemeteries,”? being found armed in a 64 State v. Turnbull, 78 Me. 392, 6 Atl. 1. 65 Rex v. Bullock, Moody, Crown Cas. 324, note; Reg. v. St. John, 9 Car. & P. 40. But see State v. Meyers, 9 Wash. 8, 386 Pac. 1051. 66 Rex v. Woodward, Moody, Crown Cas. 323; People v. Slater, 5 Hill (N. Y.) 401. Contra, State v. Meyers, 9 Wash. 8, 36 Pac. 1051. 67 Rex v. Napper, 1 Moody, Crown Cas. 44; People v. Honeyman, 3 Denio (N. Y.) 121. 68 Rex v. White, 1 Burrows, 333. 69 Com. v. Inhabitants of North Brookfield, 8 Pick. (Mass.) 463; Rex v. Great Canfield, 6 Esp. 1386; Rex v. Marchioness Dowager, 4 Adol. & BH. 282; Rex v. Inhabitants of St. Weonard’s, 6 Car. & P. 582. 70 Com. v. Heffron, 102 Mass. 148; Cornell v. State, 7 Baxt. (Tenn.) 520. But see, contra, State v. Sneed, 16 Lea (Tenn.) 450, 1 S. W. 282; State v. Jacobs, 75 Iowa, 247, 39 N. W. 293. 71 State v. Nixon, 18 Vt. 70, 46 Am. Dec. 135; Com. v. Logan, 12 Gray (Mass.) 186. Unlawfully selling liquor. Murphy v. State, 59 Tex. Cr. R. 479, 129 S. W. 188. An indictment under a statute for soliciting a person to be at any “particular house, room, or place” for the purpose of having sexual intercourse need not state any par- ticular house or room to which the person was invited. It is sufficient if it states the town and county. Sanders v. State, 60 Tex. Cr. R. 34, 129 S. W. 608. But see Nichols v. State, 127 Ind. 406, 26 N. B. 839. 721 Chit. Cr. Law, 201; Com. v. Wellington, 7 Allen (Mass.) 300. / 294 PLEADING—THE ACCUSATION (Ch. 7 close at night,”* etc., are offenses of this character. Place must be stated, not as venue but as matter of local descrip- tion. As we shall see, the particular locality must not only be stated, but, being stated by way of local description, and not as venue, it must be proved as stated.’* As already stated, if the jurisdiction of the court does not extend over the whole county, then the place where the of- fense was committed must in all cases be more particularly alleged, for the indictment must show on its face that the offense was committed within the jurisdiction of the court.7® If the indictment fails to allege that the offense was com- mitted in the county in which it was found and in which the trial is had, the defect is fatal, for the court acquires no jurisdiction; and the objection may, therefore, be raised at any time. It is not a defect that can be aided by verdict or judgment.7* The same is true where the place is stated with repugnancy or uncertainty.77 If, for instance, two places are named, and afterwards a fact is laid as having happened “then and there,” the indictment is bad, because it is uncertain to which it refers.7® So it is, also, where an indictment lays an offense at B. “aforesaid,” when B. has not been previously mentioned; 7° or where an indictment for murder lays the stroke in one county, and the death in another, and concludes that so the accused murdered the deceased in the former county.®° The words “from” and “into” are construed in an exclu- sive sense. This an allegation from H. “into” G. has been held to exclude the latter place, and the words “to and from 73 Rex v. Ridley, Russ. & R. 515. The common way of describing the monument, building, etc., in these cases, is to state the town in which it is located. 74 Lee v. State, 114 Ark. 310, 169 S. W. 963; post, p, 401. 75 Note 48, supra. 76 Rex v. Cartwright, 4 Term R. 490; Rex v. Mathews, 5 Term R. 162; Rex v. Harris, 2 Leach, Crown Cas. 800; People v. Gregory, 30 Mich. 371. Cases cited in note 43, supra, and in the succeeding notes. 772 Hawk. P. C. ¢c. 25, § 83; Jane v. State, 3 Mo. 61. 782 Hale, P. C. 180; cases cited in note 50, supra. 79 Cholmley’s Case, Cro. Car. 465; Wingfield’s Case, Cro. Eliz. 739; 2 Hawk. P. C. c. 25, § 838; Com. v. Pray, 13 Pick (Mass.) 359, 802 Hawk. P. C. c. 25, § 83; Hume v. Ogle, Cro. Eliz. 196. § 97) REPEATING TIME AND PLACE 295 the town of B.” have been held to exclude that town itself.*+ The questions of repugnancy and of variance between the allegation and proof with respect to place are elsewhere con- sidered.*? REPEATING TIME AND PLACE—“THEN AND THERE” 97. The statement of time and place should be repeated to every issuable and triable fact. It may be so re- peated by using the words “then and there.” In general, the place ought not merely to be mentioned at the beginning of the indictment, or in connection with the first allegation of fact, but it should be repeated to every issuable and triable fact; and the same is true of time, for, as a rule, wherever a venue is necessary, time should be united with it.62 The mere conjunction “and” will in many cases be insufficient to apply previous statements of time and place to an allegation following it. In an indictment for robbery, for instance, it has been held that it is not suffi- cient to allege that the accused made an assault on the per- son robbed at a certain time and place, “and” took the prop- erty from him; but the taking must also be alleged to have been at that time and place.6* And in an indictment for murder it has been held that it is not sufficient to allege that the accused, at a certain time and place, made an assault on the deceased, “and” feloniously struck him, but the time 812 Rolle, Abr. 81; Rex v. Inhabitants of Gamlingay, 3 Term R. 513; Hammond v. Brewer, 1 Burrows, 376; State v. Bushey, 84 Me. 459, 24 Atl. 940; State v. Landry, 85 Me. 95, 26 Atl. 998. 82 Post, p. 398; ante, p. 201. 83 Rex v. Hollond, 5 Term R. 620; State v. Bacon, 7 Vt. 219; Critch- ton v. People, 6 Parker, Cr. R. (N. Y.) 363; Rex vy. Haynes, 4 Maule & S. 214; State v. Welker, 14 Mo. 398; State v. Beckwith, 1 Stew. (Ala.) 318, 18 Am. Dec. 46; Roberts v. State, 19 Ala. 526; State v. Lyon, 45 N. J. Law, 272. 842 Hale, P. C. 178; 2 Hawk. P. C. c. 23, § 88; Wingfield’s Case, Cro. Eliz. 739; State v. Willis, 78 Me. 70, 2 Atl. 848 But see Com. v. Bugbee, 4 Gray (Mass.) 206. 296 PLEADING—THE ACCUSATION (Ch. 7 and place must be repeated to the stroke.*® In an indict- ment for homicide it is not sufficient merely to state the day and place of the stroke, but the day and place of the death must also be stated, so that it may appear that the death was within a year and a day of the stroke, and within the jurisdiction of the court.*® And an indictment for a rescue must show the year and day both of the arrest and the res- cue.§? In indictments for misdemeanors there is not the same strictness in requiring repetition of time and place as there is in cases of felony.** Thus, where a mere trespass was charged, it was held sufficient to state that the accused, at . acertain place and time, made an assault on the prosecutor, and beat him, without saying that he beat him at that time and place, because the time and place mentioned in the be- ginning refer to all subsequent averments.®® In some states the rule has been disregarded even in cases of felony; °*° and under statutes providing that it shall be sufficient if the indictment contain the charge against the accused express- ed in a plain, intelligible, and explicit manner, it has been held that the strict rule of the common law does not apply.*? In repeating the place it is not necessary to repeat the whole description. Where the town and county, for in- stance, have once been mentioned, it will be sufficient to 85 2 Hale, P. C. 178, 180; 2 Hawk. P. C. ec. 23, § 88. But see Com. v. Barker, 12 Cush. (Mass.) 186. 862 Hale, P. C. 179; 2 Hawk. P. ©. c 25, § 77; Ball v. U. S., 140 U. S. 118, 11 Sup. Ct. 761, 35 L. Ed. 377; State v. Orrell, 12 N. C. 139, 17 Am. Dec. 563; State v. Blakeney, 33 S. C. 111, 11 S. E. 637; ante, p. 239. But see Davidson v. State, 185 Ind. 254, 34 N. E. 972; Cald- well v. State, 28 Tex. App. 566, 14 S. W. 122, 872 Hawk. P. C. c. 25, § 77. . 88 1 Chit. Cr. Law, 221; 2 East, P. C. 780; 2 Hale, P. C. 178; Cham- lington’s Case, Cro. Jac. 345. 892 Hale, P. C. 178; Stout v. Com., 11 Serg. & R. (Pa.) 177. And in an indictment for a forcible entry it is enough to state that the accused entered and dispossessed, without a second statement of time and venue. Baude’s Case, Cro. Jac, 41. #0 Com. v. Bugbee, 4 Gray (Mass.) 206; Com. v. Barker, 12 Cush. (Mass.) 186; State v. Price, 11 N. J. Law, 210. 91 State v. Cherry, 7 N. C. 7. § 97) _ REPEATING TIME AND PLACE 297 use the words “at ——— [the town] aforesaid.” °? And the same is true in repeating time. And generally, after the time and place have once been named with certainty in the statement, it is sufficient:to refer to them by the words “then and there,” which will have the same effect as if the time and place were repeated in full.°8 An indictment for murder, for instance, instead of alleging that the accused, “on the ——— day of ———, A. D. 1895, at ———, in the county of ———_, made an assault, and on the -——— day of ———, A. D. 1895, at ——— in the county of ———, feloniously struck” the deceased, may allege, after stating the assault, that he “then and there struck,” etc. This, of course, cannot apply where two times or places have been previously mentioned, because it would be uncertain to which the words referred.** Nor can it apply where it is necessary to show the particular act to have been done, not merely on the day named before, but at a certain time of that day.®® The word “immediately” is too uncertain an allegation when time constitutes part of the offense, and therefore, where, on an indictment for robbery, the special verdict found the assault, and then in a distinct sentence that the prisoners then and there immediately took up the prosecu- tor’s money, this was held to be insufficient to fix the pris- oners with the offense of robbery, because of the great lati- ®2 People v. Baker, 100 Cal. 188, 34 Pac. 649, 388 Am. St. Rep. 276. 932 Hale, P. C. 178; 1 Chit. Cr. Law, 220; 2 Hawk. P. C. c. 25, § 78; Id. c. 23, § 88; Jacobs v. Com., 5 Serg. & R. (Pa.) 315; State v. Cotton, 24 N. H. 148; Stout v. Com., 11 Serg. & R. (Pa.) 177; State v. Johnson, Walk. (Miss.) 392; State v. Ferry, 61 Vt. 624, 18 Atl. 451; State v. Bacon, 7 Vt. 219; State v. Bailey, 21 Mo. 484; State v. Wil- liams, 4 Ind. 235, 58 Am. Dec. 627; Davidson v. State, 185 Ind. 254, 34 N. E. 972; State v. Blakeney, 33 S. C. 111, 11 S. E. 637; Palmer v. People, 138 Ill. 356, 28 N. BE. 130, 32 Am. St. Rep. 146. 942 Hale, P. C. 180; Jane v. State, 3 Mo. 61; Connor v. State, 29 Fla. 455, 10 South. 891, 80 Am. St.*Rep. 126; State v. McCracken, 20 Mo. 411; State v. Hayes, 24 Mo. 358; Com. v. Goldstein, 114 Mass. 272; State v. Jackson, 39 Me. 291; Bell v. Com., 8 Grat. (Va.) 600. 95 Thus, in an indictment on a statute for having in possession 10 or more counterfeit bank bills, it is necessary to show that the de- fendant had them in his possession at the same time of the day, and 298 PLEADING—THE ACCUSATION (Ch. 7 tude of the word “immediately.” °* Nor is the word “in- stantly” or “whilst” equivalent to the words “then and there.” ®7 And it is said that the word “being” (existens) will, unless necessarily connected with some other matter, relate to the time of the indictment, rather than of the of- fense. It was therefore held that an indictment alleging a forcible entry on land “being” the prosecutor’s freehold, without saying “then being,” was insufficient.°® If the indictment allege that the defendant feloniously and of malice aforethought made an assault, and with a certain sword, etc., then and there struck, the previous omission will not be material; for the words “feloniously and of malice aforethought,” previously connected with the assault, are by the words “then and there” sufficiently applied to the murder.®® In a Massachusetts case, an indictment for man- slaughter, which, after averring an assault at a certain time and place, alleged that the accused then and there struck the deceased, “giving” him a mortal wound, etc., was held sufficient. In some cases the words “then and there” are even more certain than a repetition of the day and year, for the latter will not be sufficient where, in order to complete the offense, connected acts must be shown to have been done at the same time, but the terms “then and there” must be used.? Repetition of time and place in different counts is elsewhere considered.® an averment that he had them in his possession on the same day is not sufficient. Edwards v. Com., 19 Pick. (Mass.) 124. 961 Chit. Cr. Law, 220; Rex v. Francis, 2 Strange, 1015. 97 Reg. v. Brownlow, 11 Adol. & E. 119; Reg. v. Pelham, 8 Q. B. 959; Lester v. State, 9 Mo. 666; State v. Lakey, 65 Mo. 217. 981 Chit. Cr. Law, 220; Rex v. Ward, 2 Ld. Raym. 1467; Bridge’s Case, Cro. Jac. 639. But see Rex v. Boyall, 2 Burrows, 882. 991 Chit. Cr. Law, 220; Heydon’s Case, 4 Coke, 41b; 1 East, P. C. 346; Buckler’s Case, 1 Dyer, 69a. 1 Turns v. Com., 6 Metec. (Mass.) 224. 21 Chit. Cr. Law, 221; Rex v. Williams, 1 Leach, Crown Cas. 529; Com. v. Butterick, 100 Mass. 12; Com. v. Goldstein, 114 Mass. 272. 3 Ante, p. 167; post, p. 844. § 98) PLEADING—THE ACCUSATION 299 CHAPTER VIII PLEADING—THE ACCUSATION (Continued) 98. Indictments on Statutes. INDICTMENTS ON STATUTES 98. An indictment based on a statute is subject to the fol- lowing rules: (a) It is generally subject to the rules already stated as applying to indictments at common law. (b) It need not recite the statute upon which it is founded. ‘ (c) It must state all the facts and circumstances which go to make up the offense as defined in the statute, so as to bring. the defendant precisely within it; and the fact that it concludes “contra formam stat- uti” will not aid a defect in this respect. (d) The exact offense defined in the statute must be de- scribed with precision and certainty, and it is there- fore generally necessary to use the technical terms employed in the statute. Where, however, the of- fense may be exactly described by other expres- sions they may be used. It is always safer to fol- low the language of the statute. (e) It is not always sufficient merely to follow the lan- guage of the statute, without more. It will be sufficient to do so if the indictment will thereby comply with rule (c) above stated, and will state the particulars of the offense sufficiently to meet the requirement of certainty, but not otherwise. (f) Where the statute on which an indictment is found- ed, or some other statute, contains exceptions or provisos, which are not so connected with the clause defining the offense, generally called the “enacting clause,” that they are a part of the de- 300 /*- PLEADING—THE ACCUSATION (Ch. 8 scription of the offense, it is not necessary to nega- tive them; but it is otherwise if they are so con- nected with that clause, either by being contained in it, or by being made a part of it by reference. In treating of indictments founded on a statute, we shall only consider. the particulars in which they differ from in- dictments at common law, and mention those rules which are peculiar to them. Generally the rules which we have discussed as applicable to indictments at common law also apply to indictments on statutes. Reciting or Referring to the Statute An indictment on a public statute need never recite the statute—that is, state its date, title, contents, etc-—or by any other express reference show the particular statute up- on which it is based, for the court is bound to take judicial notice of all public statutes ; and, as we have seen, it is never necessary to state facts of which the court must take judi- cial notice.* By recital of a statute is meant stating its contents, quoting it, referring to it by its title, etc. The statute must be counted upon, and must be pleaded; but this is very different from reciting it. By saying that the statute must be counted upon, we mean that the indictment must purport to be based upon.it. This is done, as we shall see, by simply stating in the conclusion of the indictment that the offense was committed “contra formam statuti,” or, as it is now generally expressed, “contrary to the form of the statute in such cases made and provided.” ? By saying that the statute must be pleaded, we mean simply that the indict- ment must state the facts necessary to bring the case within the statute, not that it must expressly refer to the statute. If the indictment does recite the statute, and counts upon that particular statute, as by concluding “contrary to the form of said statute,” a variance will be fatal if it is ma- 1 Ante, p.194; 2 Hale, P. C. 172; 2 Hawk. P. C. c. 25, § 100; Reg. y. Pugh, 6 Mod. 140; Farr v. East, Cro. Eliz. 186; Wander v. Griffith, Id. 286; Com. v. Griffin, 21 Pick. (Mass.) 523; Com. v. Colton, 11 Gray (Mass.) 1; U.S. v. Nickerson, 17 How. 204, 15 L. Ed. 219; Com. v. Hoye, 11 Gray (Mass.) 462; Rex vy. Sutton, 4 Maule & S. 542. 2 Post, p. 356. § 98) INDICTMENTS ON STATUTES 301 terial, though not if it is immaterial; but if it concludes, “contrary to the form of the statute in such case made and provided,” omitting any reference to the recital, the recital may be rejected as surplusage, and a variance will be disre- garded.* If a statute, though unnecessarily recited, is so. misrecited as to make it senseless, as where it is referred to as an act entitled an act concerning the manufacture and sale of “spritiuous and intoxicating” liquor, the indictment will be bad.* If, in any case, an indictment can be founded on a private statute, it must set out the act specially, since the court can take judicial notice of public acts only.® It is never necessary to indicate in the indictment the particular statute, or section of the statute, on which it is founded. It is only necessary to set out such facts as bring the case within the provisions of some statute which was in force when the act was done, and when the indictment was found; and if the facts properly laid in the indictment, and found by the verdict, show that the act done was a crime punishable by any statute, it is sufficient to warrant the court in rendering judgment.° Where by different statutes, or by different sections of the same statute, there is a gradation of offenses of the same species, as in the various degrees of punishment an- nexed to the offense of malicious burning of buildings, or in the various grades of the offense of larceny, it is not neces- sary to set forth a negative allegation that the case is not embraced in some other statute or section than that which, upon the evidence, may be found to apply, and by virtue of 82 Hale; P. C. 172, 173; 2 Hawk. P. C. c. 25, § 104; Platt v. Hill, 1 Ld. Raym. 382; Rex v. Hill, Cro. Car. 232; Rex v. Marsack, 6 Term R. 773; People v. Walbridge, 6 Cow. (N. Y.) 512; Reg. v. Westley, Bell, Crown Cas. 193; Com. v. Burke, 15 Gray (Mass.) 408; note 4, infra. 4Com. v. A Man Whose Name is: Unknown, 6 Gray (Mass.) 489; The Nancy v. Fitzpatrick, 3 Caines (N. Y.) 38. 51 Chit. Cr. Law, 277; 2 Hale, P. C. 172; 2 Hawk. P. C. c. 25, § 103; Goshen & S. Turnpike Co. v. Sears, 7 Conn. 92; State v. Cobb, 18 N. C. 115. 6 Com. v. Griffin, 21 Pick. (Mass.) 523; Com. v. Thompson, 108 Mass, 461. 302 PLEADING—THE ACCUSATION (Ch. 8 which the punishment is to be imposed.” So if certain acts are by force of the statute made punishable with greater severity when accompanied with certain aggravating cir- cumstances, thus creating two grades of crime, it is no ob- ‘jection to an indictment that it charges the acts which con- stitute the minor offense, unaccompanied by any averment- that the aggravating circumstances did not exist. In such cases the offense charged is to be deemed the minor offense, and punishable as such.* On this principle it has been held that, where there are two statutes, one punishing the offense of breaking in the nighttime into an office adjoining a dwell- ing house, and the other that of breaking in the nighttime into an office not adjoining a dwelling house, each imposing a similar punishment, it is not necessary to state in the in- dictment whether or not the office was adjoining a dwelling house.® In no case is it necessary to state the time when the stat- ute was enacted so that it may appear on the face of the in- dictment that it was enacted before the offense was com- mitted. This is also a matter of which the court will take judicial notice.’® Description of the Offense It is the rule that all indictments upon statutes must state all the facts and circumstances which go to make up the of- fense as defined in the statute, so as to bring the defendant precisely within it. “I take it for a general rule,” it is said by Hawkins, “that, unless the statute be recited, neither the words ‘contra formam statuti’ nor any periphrasis, in- tendment, or conclusion will make good an indictment, which does not bring the fact prohibited or commanded, in the doing or not doing of which the offense consists, within ’ Larned vy. Com., 12 Metc. (Mass.) 241; Com. v. Squire, 1 Metce. (Mass.) 258. State v. Kane, 638 Wis. 260, 23 N. W. 488; Com. v. Thompson, 108 Mass. 461. 8 Larned v. Com., supra; Com. v. Cox, 7 Allen (Mass.) 577. 9 Larned v. Com., supra. And see Com. y. Hamilton, 15 Gray (Mass.) 480; State v. Kane, 63 Wis. 260, 23 N. W. 488. But see Rex y. Marshall, 1 Moody, Crown Cas. 158. , 10 Reg. v. Westley, Bell, Crown Cas, 198; Com. v. Keefe, 7 Gray (Mass.) 332; People v. Reed, 47 Barb. (N. Y.) 285; post, p. 305. § 98) INDICTMENTS ON STATUTES 303 all the material words of the statute.” 14 Offenses created by statute, as well as offenses at common law,’? must be ac- curately and clearly described in the indictment. It is a universal rule that no indictment, whether at common law or under a statute, can be good if it does not accurately and clearly allege all the ingredients of which the offense is composed.** Thus, under a statute making the failure to sound the whistle or ring the bell upon a locomotive, as it approaches a highway crossing, a public offense, an indictment charg- ing that a railroad company “did unlawfully fail and neglect to ring the bell and sound the whistle,” is bad, since it charges a failure to do both acts, when either one of them would have been a compliance with the law.'* An indict- ment under a statute for violation of a written contract to serve as a laborer must set out the contract, and show that it was of such a character as that described in the statute.?® So, where a man was indicted for robbery “in a certain king’s footway leading from London to Islinton,” he was admitted to the benefit of clergy, because the statute which took it away from the crime described the place as “in” or “near a king’s highway.” ** And, where a statute provided that if any person “shall, with any offensive weapon or in- strument, unlawfully and maliciously assault, or shall by menaces, Or in or by any forcible or violent manner, de- mand any goods or chattels, he shall be adjudged guilty of felony,” it was held not enough to state an assaulting and menacing with intent to rob, but that it must be alleged ei- ther that the assault was made with an offensive weapon, 112 Hawk. P. C. c. 25, § 110; 2 Hale, P. C. 170; 2 Hast, P. ©. 985; Brown v. Com., 8 Mass. 65; State v. Railroad Co., 54 Ark. 546, 16 S. W. 567; State v. O’Bannon, 1 Bailey (S. C.) 144; State vy. Bagwell, 107 N. ©. 859, 12 S. EH. 254, 9 L. R. A. 840; Updegraff vy. Com., 6 Serg. & R. (Pa.) 5; Giles v. State, 89 Ala. 50, 8 South. 121; State v. Jack- son, 43 La. Ann. 183, 8 South. 440. 12 Ante, p. 181. 18 U. 8. v. Cook, 17 Wall. 168, 21 L. Ed. 538. 14 State v. Railroad Co., 54 Ark. 546, 16 S. W. 567. 15 State v. Williams, 32 S. C. 123, 10S. E. 876. 161 Chit. Cr. Law, 282; Fuliambe’s Case, Moore, 5; 1 Hale, P. ©. 535. 304 PLEADING—THE ACCUSATION (Ch. 8 or that money or goods were demanded.*” And an indict- ment is bad if it charges the defendant with killing deer in a certain place where they are usually kept, without de- scribing the place as “inclosed,” as in the statute ;?® or with unlawfully killing fish, without adding, as in the statute, “without the consent of the owner of the water ;” 1° or with having a gun in his house, when the words of the statute are, “use to keep a gun in his house;” ?° or with insuring a ticket in the lottery without saying “the state lottery.” ** Where the scienter, or knowledge of particular facts, is by the statute expressly or impliedly made an essential in- gredient of the offense, it myst always be expressly alleged in the indictment.?? “Where a general word is used, and afterwards more spe- cial terms, defining an offense, an indictment charging the offense must use the most special terms; and if the general word is used, though it would embrace the special term, it is inadequate.” 7% If a statutory offense is correctly described in the indict- ment in the words of the statute, or their equivalent, or if the acts constituting it are stated, the indictment will not be vitiated by the fact that a name is given to the offense which is technically wrong, for the name may be rejected as sur- plusage.** 171 Chit. Cr. Law, 282; Rex v. Thomas, 1 Leach, Crown Cas, 330; 1 East, P. C. 419. 18 Reg. v. Moore, 2 Ld. Raym\ 791. 19 Rex v. Mallinson, 2 Burrows, 679. 20 Rex y. Lewellin, 1 Show. 48. 21 Rex v. Trelawney, 1 Term R. 222. 22 Ante, p. 225; Gatewood v. State, 4 Ohio, 386. 23 Whart. Cr. Pl. & Prac. § 223; State v. Bryant, 58 N. H. 79; State v. Raiford, 7 Port. (Ala.) 101; Rex v. Cook, 1 Leach, 105; State vy. Plunket, 2 Stew. (Ala.) 11; ante, pp. 188, 261. “When a statute uses a nomen generalissimum as such (e. g. cattle), then a particular species can be proved; but when the statute enumerates certain species, leav- ing out others, then the latter cannot be proved under the nomen generalissimum, unless it appears to have been the intention of the legislature to use it as such.” Whart. Cr. Pl. & Prac. § 237; Rex vy. Welland, Russ. & R. 494; Rivers v. State, 10 Tex. App. 177. 24U. 8. v. Elliot, 3 Mason, 156, Fed. Cas. No. 15,044; U.S. v. Lehman (D. C.) 39 Fed. 768; State v. Shaw, 35 Iowa, 575; State v. § 98) INDICTMENTS ON STATUTES 305 It is said by Chitty that where the statute is recent it is usual to allege expressly that the offense was committed after the making of the statute, but where the statute is an- cient this is not usual; and, he adds, it does not seem to be necessary in any case.?> It is now well settled that it is not necessary.2* ‘The indictment, as we have seen, should state the time of the offense, and it would not do for the time to be laid prior to the enactment of the statute, for it would then appear on the face of the indictment that the act was not prohibited when committed. Where a particular time is limited for the prosecution, the indictment, as we have seen, need not expressly allege that the prosecution was com- menced within that period, but this should appear. on the face of the proceedings.?7 If the indictment shows on its face that the prosecution is barred, by the weight of author- ity, it is bad.?8 Necessity to Follow Language of Statute It is generally necessary, subject to exceptions which we shall explain, not only to set forth all the facts and circum- stances which go to make up the offense as defined in the statute, but also to pursue the precise and technical lan- guage of the statute in which they are expressed. If the words are technical, and have no equivalent, it is well set- tled that no other words can be substituted for them, for no others are exactly descriptive of the offense.2® So an indict- Davis, 41 Iowa, 311; State v. Wyatt, 76 Iowa, 328, 41 N. W. 381; ante, p. 213. 251 Chit. Cr. Law, 285. 26 Ball v. Cobus, 1 Burrows, 366; State v. Chandler, 9 N. ©. 439; ante, p. 302. 27 Lee v. Clarke, 2 Hast, 333; Rex v. Steventon, Id. 362. 28 Ante, p. 282. 291 Chit. Cr. Law, 283; 2 Hale, P. C. 170; 2 Hawk. P. C. c. 25, § 110; Rex v. Johnson, 2 Leach, Crown Cas. 1107; U.S. v. Bachelder, 2 Gall, 15, Fed. Cas. No. 14,490; U. S. v. Lancaster, 2 McLean, 431, Fed. Cas. No. 15,556; U. S. v. Britton, 107 U. S. 655, 2 Sup. Ct. 512, 27 L. Ed. 520; U.S. v. Staats, 8 How. 41, 12 L. Ed. 979; Com. v, Twitchell, 4 Cush. (Mass.) 74; Com. vy. Burlington, 186 Mass. 435; State v. Brown, 4 Port. (Ala.) 410; State v. Briley, 8 Port. (Ala.) 472; Mason v. State, 42 Ala. 543; Com. v. Walters, 6 Dana (Ky.) 291; Com. v. Turner, 8 Bush (Ky.) 1; Respublica v. Tryer, 3 Yeates (Pa.) CLaeK Cr.Proc.(2p Ep.)—20 306 PLEADING—THE ACCUSATION (Ch. 8 ment for rape must use the word “ravished,” contained in the statute, and no expression of force and carnal knowledge will supply its omission.*° And, by the better opinion, an indictment under a statute using the word “willfully” or “maliciously” or “wantonly,” or two or more of such terms, in defining the offense, must also use the same term or terms, though at common law that precise term is not nec- essary, but may be supplied by others conveying the same idea.2+ The term “maliciously” will not supply the place of the term “willfully,” or the term “wantonly,” used in a stat- ute to define an offense.*? So, if the term “unlawfully” is used in a statute to define the offense, it is, by the weight of opinion, absolutély essential to use it in an indictment thereon.** 451; Hamilton v. Com., 3 Pen. & W. (Pa.) 142; Updegraff v. Com., 6 Serg. & R. (Pa.) 5; State v. Shuler, 19 8. C. 140; State v. Casados, 1 Nott & McC. (S. C.) 91; State v. Raines, 3 McCord (S. C.) 533; Chambers v. People, 4 Scam (Ill.) 351; Whiting v. State, 14 Conn. 487, 36 Am. Dec. 499; State v. Cady, 47 Conn. 44; State v. Bougher, 8 Blackf. (Ind.) 308; State v. Rust, 35 N. H. 438; State v. Keneston, 59 N. H. 36; State v. Perkins, 63 N. H. 368; People v. Allen, 5 Denio (N. Y.) 76; Phelps v. People, 72 N. Y. 334; People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am. St. Rep. 452; State v. Stanton, 23 N. C. 424; Ike v. State, 23 Miss. 525; State v. Hover, 58 Vt. 496, 4 Atl. 226; Sharp v. State, 17 Ga. 290; Jackson v. State, 76 Ga. 551; Com. v. Hampton, 3 Grat. (Va.) 590; Howel v. Com., 5 Grat. (Va.) 664; State v. Buster, 90 Mo. 514, 2 8. W. 834; State v. Davis, 70 Mo. 467; Kinney v. State, 21 Tex. App. 348, 17 S. W. 423; People v. Murray, 67 Cal. 103, 7 Pac. 178; People v. Burke, 34 Cal. 661. _ 302 Hawk. P. C. c. 23, §§ 77, 110. _ 312 Hale, P. C. 87; 2 Hawk. P. C. c 25, § 110; 3 Inst. 167; Rex v. Davis, 1 Leach, Crown Cas. 493; Lembro & Hamper’s Case, Cro. Eliz. 147; Anon., Id. 201; Roberts v. Trenayne, Cro. Jac. 508; U.S. v. Bachelder, 2 Gall. 15, Fed. Cas. No. 14,490; State v. Parker, 81 N. C. 548; State v. Massey, 97 N. C. 465, 2 S. E. 445; State ’v. Mor- gan, 98 N. C. 641, 3 8. E. 927; State v. Gove, 34 N. H. 510; State v. Nickleson, 45 La. Ann. 1172, 14 South. 134. But see, contra, Chap- man v. Com., 5 Whart. (Pa.) 427, 34 Am. Dec. 565; State v. Brown, 41 La. Ann. 345, 6 South. 541. ; 32 Rex v. Davis, 1 Leach, Crown Cas, 492; 1 Hast, P. C. 412. And see the cases above cited. 332 Hawk. P. C. c. 25, § 96; Rex v. Ryan, 2 Moody, Crown Cas. 15; Rex v. Turner, 1 Moody, Crown Cas. 239; Com. v. Twitchell, 4 Cush. (Mass.) 74. Contra, where there is a statute providing that the words § 98) INDICTMENTS ON STATUTES 307 All that is required in any indictment, whether under a statute or at common law, is that it shall describe the of- fense with sufficient certainty, as we have explained that term; that it shall state everything necessary to constitute the offense, and state it with certainty. To do this, techni- cal words used in the statute to describe the offense must be used in the indictment. This is the reason, and the only reason, why the technical language of the statute must be followed. If it were necessary to use the exact language of the statute, other than the technical terms, in order to fully and certainly describe the offense as defined in the statute, then it would be necessary to use it; but this is not always the case. Technical terms must generally be used, because no other terms exactly express their meaning. Other ex- pressions need not necessarily be followed with verbal ac- curacy. Ifthe words substituted for them express the same meaning, and are an exact equivalent, they are sufficient.** It has been held, for instance, that in an indictment against an accessory before the fact in murder the words “excite, procure, and move” were equivalent to “command, hire, or counsel,” which were used in the statute.°> So, in an indict- ment for obtaining money by false pretenses, it is not nec- essary to allege, as in the statute, that the defendant “false- ly pretended,” but it may be alleged that he pretended, and then that the pretenses were false.*® And under a statute of a statute defining the offense need not be strictly followed. Davis v. People, 151 U. S. 262, 14 Sup. Ct. 328, 88 L. Hd. 158. 34U. S. v. Bachelder, 2 Gall. 15, Fed. Cas. No. 14,490; State v. Little, 1 Vt. 331; Rex v. Fuller, 1 Bos. & P. 180; State v. Hickman, 8 N..J. Law, 299; Tully v. People, 67 N. ¥. 16; State y. Eames, 39 La. Ann. 986, 3 South. 93; People v. Enoch, 138 Wend. (N. Y.) 172, 27 Am. Dec. 197; State v. McGaffin, 36 Kan. 315, 13 Pac. 560; State v. Keen, 34 Me. 500; Eckhardt v. People, 83 N. Y. 462, 38 Am. Rep. 462; Williams v. State, 64 Ind. 553, 31 Am. Rep. 185; State v. Welch, 37 Wis. 196; McCutcheon v. People, 69 Tl. 601; State v. Shaw, 35 Iowa, 575; State v. De Lay, 30 Mo. App. 357; State v. Watson, 65 Mo. 115; Roberts v. State, 55 Miss. 421; State v. Thorne, 81 N. ©. 558. It is sufficient to charge shooting ‘‘on” a highway, instead of “in’’ a high- way. Woods v. State, 67 Miss. 575, 7 South. 495. 351 Hale, P. C. 521, 522; McDaniel’s Case, Fost. Crown Cas. 130; 1 And. 195. 36 Rex y. Airey, 2 Hast, 30; Rex v. Perrott, 2 Maule & S. 379. 308 " PLEADING—THE ACCUSATION (Ch. 8 punishing the disinterment and removal of “the remains of any dead person” it is sufficient to charge disinterment and removal of “the dead body of” a person named.*7 And an indictment may use the word “violently” instead of “forci- bly,” as in the statute.*® We have already seen that where a statute employs a general term, and afterwards more specific terms, defining the offense, an indictment which uses the general term only is bad, though in its meaning it comprehends the special term.?° While, as we have seen, it is not always absolutely neces- sary to follow the exact language of the statute in describ- ing the offense, it is always safer to do so, for by substitut- ing other words and phrases there is danger of failing to describe the offense by employing terms which the court may not deem equivalent to those used in the statute. A few illustrations will show how great this danger is. An indictment charging that the defendant had possession of tools for the purpose of counterfeiting current silver coins “of this state and of the United States” was held bad be cause the statute used the words, “which shall be made cur- rent by the laws of this or the United States,” since “money may be current in the United States that is not made so by any law.” *° And an indictment charging the defendant to have caused a vessel to sail away, with intent that she “should be employed” in the slave trade, was held bad be- cause the statute used the words “with intent to employ,” which import an intent on the defendant’s part to employ her, whereas an intent that she should be employed by a third person would come within the indictment.*? So, where a statute punished as a felony the shooting at a per- 37 State v. Little, 1 Vt. 331. 38 U. S. v. Bachelder, 2 Gall. 15, Fed. Cas. No. 14,490. The words “set fire to” in an indictment have been held in some states equivalent to ‘‘burn,’”’ used in the statute. State v. Taylor, 45 Me. 322. In others, the contrary has been held. See Mary vy. State, 24 Ark. 44, 81 Am. Dec. 60; State v. Hall, 98 N. C. 571; Cochrane v. State, 6 Md. 400. 39 Ante, pp. 261, 304; note 23, supra. 40 State v. Bowman, 6 Vt. 594. 41U. S. v. Gooding, 12 Wheat. 460, 6 L. Ed. 693. § 98) INDICTMENTS ON STATUTES 309 son “willfully and maliciously,” and the indictment used the words, “unlawfully, maliciously, and feloniously,” it was held bad.*? When Sufficient to Follow Language of Statute It is often said, and sometimes without qualification, that an indictment on a statute is sufficient if it sets out the of- fense in the language of the statute; but this is by no means true in all cases, for the rule that an indictment must state all the facts necessary to constitute the offense, and must state them with certainty, applies to indictments on stat- utes as well as to indictments at common law. There is no exception to this rule, nor, under most of our Constitutions, can there be any; and any rule that may be laid down in the text-books, or opinions of the judges, must be taken to be subject to it.4? “It is an elementary principle of crimi- nal pleading that where the definition of an offense, wheth- er it be at common law or by statute, ‘includes generic terms, it is not sufficient that the indictment shall charge. the offense in the same generic terms as in the definition; but it must state the species—it must descend to particu- larse=** Under a statute punishing any person “who shall act as the agent of any other person or persons for the sale of in- toxicating liquors,” it is not sufficient merely to follow the language of the statute, for this would leave the indictment uncertain. The indictment must go further, and name the person for whom the defendant acted, or aver that his name 42 Rex y. Davis, 1 Leach, Crown Cas. 493. . 431 Chit. Cr. Law, 275; 2 Hawk. P. C. c. 25, §§ 99, 111; Com. v. Pray, 18 Pick. (Mass.) 359; State v. Benjamin, 49 Vt. 101; State v. Bennett (Mo. Sup.) 11 8S. W. 264; Com. v. Clifford, 8 Cush. (Mass.) 215; Com. v. Barrett, 108 Mass. 308; U. S. v. Britton, 107 U. S. 655, 2 Sup. Ct. 512, 27 L. Ed. 520; Com. v. Bean, 11 Cush. (Mass.) 414; State v. Goulding, 44 N. H. 284; Com, v. Bean, 14 Gray (Mass.) 52; U.S. v. Goggin (C. C.) 9 Biss, 269, 1 Fed. 49; Com. v. Clark, 6 Grat. (Va.) 675; Com. v. Stout, 7 B. Mon. (Ky.) 248; U.S. v. Hess, 124 U. S. 488, 8 Sup. Ct. 571, 81 L. Ed. 516; Whiting v. State, 14 Conn. 487, 36 Am. Dec. 499; State v. Bierce, 27 Conn. 319; Lagrone v. State, 12 Tex. App: 426; Com. 7. Milby (Ky.) 24 S. W. 625; &nte, pp. 165, 188. 44U.S. v. Cruikshank, 92 U. S. 542, 23 L, Ed. 588; Com. y. Chase, 125 Mass. 202; Rex v. Chalkley, Russ. & R. 258. 310 PLEADING—THE ACCUSATION (Ch. 8 is unknown.*® So, also, an indictment under a statute, for disturbing a family by offensive conduct, must allege what constituted the offensive conduct, and not merely follow the language of the act; *® and indictments under the statutes punishing the obtaining of money by false tokens or false pretenses must always set out the particular false tokens or pretenses used.47 And under a statute making it a crime to break open, or to counsel, aid, or assist in breaking open, any jail or place of confinement, it certainly would not be enough to follow the words of the statute, without specify- ing how the defendant aided or assisted, or what counsel he gave.*® And an indictment alleging in the words of a stat- ute that the defendant did knowingly aid a person named in procuring intoxicating liquor, to be disposed of for other purposes than those recognized as lawful by the laws of the state, is bad for not setting out the facts, and for not alleg- ing that the defendant knew that the liquor was to be dis- posed of for an unlawful purpose, and for not alleging what that purpose was.*® So an indictment on a statute prohibiting the use of the United States mails in furtherance of a “scheme or artifice to defraud” must allege not only that the defendants had devised a scheme or artifice to defraud but must also state facts showing what the artifice was, wherein the fraud con- sisted, and how it was to be accomplished.®° Sometimes the court holds that the words used by the Legislature in the statute do not convey the intent the Leg- islature had in enacting the statute, and that certain words must be added to express that intent and describe the crime. In such cases the indictment must contain these words in order to charge the crime.*? 45 State v. Higgins, 53 Vt. 191. 46 Finch v. State, 64 Miss. 461, 1 South. 680. 472 Bast, P. C. 887; Rex v. Mason, 1 Leach, Crown Cas. 487, 2 Term R. 581; Rex v. Munoz, 2 Strange, 1127; Rex vy. Perrott, 2 Maule & 8S. 379. 48 State v. Benjamin, 49 Vt. 101. 497d. 50 Etheredge v. U. S., 186 Fed. 434, 108 ©. ©. A. 356. 51 In addition to the cases hereafter referred to, see Com, v. Col- lins, 2 Cush. (Mass.) 556; State v. Griffin, 89 Mo. 49, 1 S. W. 87; § 98) INDICTMENTS ON STATUTES 811 A city by-law punished any person having the care of certain cattle who should “permit or suffer the same to go at large or stop to feed on any street” within the city. A complaint thereon alleged that the defendant, having the care of two cows, “did permit and suffer the same to stop and feed” in certain streets, and it was held insufficient.. “The offense,” it was said, “is charged nearly in the words of the by-law. But it is not always sufficient to charge the offense in the words of the statute. We are first to ascer- tain by a careful examination of the statute what act the Legislature had in view, and intended to make penal, and then see if that act, thus ascertained, is charged in the com- plaint or indictment. If there is nothing in the context, or in other parts of the statute, or in statutes in pari materia, to control or modify the sense and meaning of the terms in which the offense is defined, then it may be presumed that the terms in the complaint are used in the same sense with those in the statute, and whatever that prohibits the com- plaint charges. In such case the offense may be described and charged in the words of the statute; otherwise it may be necessary to frame the complaint in such terms as to des- ignate the offense intended with precision. The effective words declaring the penalty in this law are, ‘no owner or person having the care of any cows,’ etc., ‘shall permit or suffer the same to stop to feed in the public streets.’ But in looking at the enumeration, it is, ‘any horses, cows, or other grazing animals.’ Then upon the ordinary rule of construction, taking the whole clause together, it is mani- fest that it was intended to prohibit cattle to go at large in the streets, or to stop to feed in the streets, by grazing, by permitting them to stop for the purpose of feeding on the grass growing in the street. If this is the act prohibited, and the offense intended by the by-law to be punished, the complaint, we think, should in some form charge that the accused suffered and permitted his cows to stop on their way for the purpose of feeding. But this complaint does not so charge. Suppose the defendant had suffered his Com. y. Slack, 19 Pick. (Mass.) 304; State v. Turnbull, 78 Me. 392, 6 Atl, 1. 312 PLEADING—THE ACCUSATION (Ch. 8 cows to eat grain from a trough or bucket standing in the street named. Such an act would be within the words of this complaint, but not the offense prohibited by this by- law.” 5? And in another case, an indictment charging, in the lan- guage of the statute, the malicious breaking of glass “in a certain building,” without stating that the glass was a part of the building, was held bad, because from the context of the statute it was evident that it was only intended to pun- ish the breaking of glass which was in a building in the sense of being a part of the building.** As a general rule, if every allegation in an indictment may be taken to be true, and yet the defendant be guilty of no offense, then the indictment is insufficient, though it fol- lows the very words of the statute.** Of course, this rule must be taken subject to the rules that facts necessarily im- plied need not be stated, and matters of defense need not be negatived.®® Often the statute does not set out the facts and circum- stances necessary to constitute the crime for which it pre- scribes a punishment, but merely describes it by its com- mon-law name, as “murder,” “rape,” “larceny,” “burglary,” “robbery,” etc. An indictment based upon the statute must therefore describe the offense as at common law. It is not enough to charge it simply in the language of the statute.®® Thus, under a statute punishing any person who “shall by force or violence, or by assault and putting in fear, feloni- ously rob, steal, and take from the person of another any money,” etc., an indictment must, instead of merely follow- ing the language of the statute, allege that the money was the property of the person robbed, or of some third person, 52 Com. v. Bean, 14 Gray (Mass) 52, 53 Com. v. Bean, 11 Cush. (Mass.) 414. 54 Com. v. Harris, 13 Allen (Mass.) 539. 55 See Jones v. Reg., Jebb & B. 161. 56 Reg. v. Nott, 4 Q. B. 783; Reg. v. Powner, 12 Cox, Cr. Cas. 235; Tully v. Com., 4 Metc. (Mass.) 358; State v. Simpson, 73 N. C. 269; State v. Higgins, 53 Vt. 191; State v. Absence, 4 Port. (Ala.) 397; State v. Stedman, 7 Port. (Ala.) 495; Bates v. State, 31 Ind. 72; Com. vy. Stout, 7 B. Mon. (Ky.) 247; Davis v. State, 39 Md. 355. § 98) INDICTMENTS ON STATUTES 313 and that it was carried away by the defendant; since these facts are necessary to constitute the offense intended to be punished. The statute does not set forth, nor is it intended to set forth fully, directly, and expressly, all that is neces- sary to constitute the offense.” It is sufficient to pursue the very words of the statute if, by doing so, the act in the doing of which the offense con- sists is fully, directly, and expressly alleged, without any uncertainty or ambiguity. In many cases no allegation of anything more than the words of the statute ex vi termi- norum import is necessary in order to show that the defend- ant has committed the offense, and to charge the offense with certainty. Here it is always sufficient to charge the offense in the words of the statute.°* The indictment is sufficient in these cases, not because it uses the words of the statute, but because, in using those words, it states every- thing necessary to constitute the offense, and states it with sufficient certainty. Thus, under a statute declaring it an offense to “keep a house of ill fame, resorted to for the pur- pose of prostitution or lewdness,” it was held sufficient to follow the language of the statute, without further alleging, according to precedents, that the house was resorted to by divers citizens, men as well as women, and that the defend- ant kept and maintained said house for her own lucre and gain.5® So, where’a statute punishes “every person, who 57 Com. v. Clifford, 8 Cush. (Mass.) 215. But see Rex v. Rossiter, Jebb, Crown Cas. 50. In Sumpter v. State, 62 Fla. 98, 57 South. 202, it was held that an indictment for murder was not insufficient for failing to state that the act causing death was ‘‘an act imminent- ly dangerous to another,” the words used in the statute, but that it was sufficient to describe the act, leaving it to the law and the court to say whether such act was dangerous to another. 582 Hawk. P. C. c. 25, § 111; Com. v. Ashley, 2 Gray (Mass.) 357; U. S. v. Mills, 7 Pet. 142, 8 L. Ed. 636; People v. Taylor, 3 Denio (N. Y.) 91; People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am, St. Rep. 452; State v. Click, 2 Ala. 26; State v. Scribner, 2 Gill & J. (Md.) 246; State v. Cassel, 2 Har. & G. (Md.) 407; State v. Kessler- ing, 12 Mo. 565; Com. v. Harris, 13 Allen (Mass.) 534; Huffman vy. Com., 6 Rand. (Va.) 685; U. 8. v. Gooding, 12 Wheat. 460, 6 L. Ed. 693; State v. Lockbaum, 38 Conn. 400; State v. Jackson, 39 Conn. 229. 59 Com. v. Ashley, 2 Gray (Mass.) 356. 314 PLEADING—THE ACCUSATION (Ch. 8 shall willfully and maliciously administer poison” to any horse, the language of the statute is sufficient, because those words ex vi terminorum import all that is necessary to a legal description of the offense. It need not be further averred that the poison was administered with intent to kill or injure the horse, or with any other intent than the words “willfully and maliciously” import, nor that the horse was injured or killed.®° Negativing Exceptions and Provisos We come now to treat of the necessity to negative in an indictment exceptions or provisos ** contained in the statute on which it is founded, or in some other statute which ap- plies to the offense. As we have seen, the indictment must state everything necessary to make out the offense.*? This rule admits of no departure from it, and if, therefore, a stat- utory offense cannot be correctly described without nega- tiving an exception or proviso, then such a negative is neces- sary. “Offenses created by statute, as well as offenses at common law, must be accurately and clearly described in an indictment; and if they cannot be in any case without an allegation that the accused is not within an exception contained in the statute defining the offense, it is clear that no indictment founded upon the statute can be a good one which does not contain such an allegation, as it is univer- sally true that no indictment is sufficient if it does not ac- curately and clearly allege all the ingredients of which the offense is composed.” ** On the other hand as we have 60 Com. v. Brooks, 9 Gray (Mass.) 302. 61 “Doubtless there is a technical distinction between an exception and a proviso, as an exception ought to be of that which would other- wise be included in the category from which it is excepted; and the office of a proviso is either to except something from the enacting clause, or to qualify or restrain its generality, or to exclude some ground of misinterpretation of it, as extending to cases not intended to be brought within its operation. But there are a great many ex- amples where the distinction is disregarded, and where the words are used as if they were of the same signification.” U. S. v. Cook, 17 Wall. 168, 21 L. Ed. 538, citing Gurley v. Gurley, 8 Clark & F. 764; Minis v. U. S., 15 Pet. 445, 10 L, Ed. 791. 62 Ante, p. 181. 63 U. S. v. Cook, 17 Wall. 168, 21 L. Ed. 588; State v. Renkard, 150 Mo. App. 570, 181 S. W. 168. § 98) INDICTMENTS ON STATUTES 315 seen, an indictment need not anticipate and negative mat- ters of defense, for they must come from the defendant.** By force of these two rules, the rule of pleading as regards the negativing of exceptions and provisos contained in a statute is as follows: Where the statute on which an indictment is founded, or some other statute, contains exceptions or provisos which are not so incorporated with the clause or clauses of the statute which define the offense that they enter into the description of the offense, and cannot be separated from it, it is not necessary to state in the indictment that the defend- ant does not come within the exceptions, or to negative the provisos, for the offense can be accurately and clearly de- scribed without doing so. “A prima facie case is stated, and it is for the party for whom matter of excuse is furnish- ed by the statute to bring it forward in his defense.” °° Where, however, the exceptions are themselves stated in the clause which defines the offense, and, in addition to this, are so incorporated with it that one cannot be read without the other, or if, even when contained in a subse- quent clause, section, or statute, they are clothed in such language, and so incorporated with the words used to define the offense, that they become a part of the definition, then it is necessary to negative them in order that the descrip- tion of the offense in the indictment may correspond with the’ description in the statute.** 64 Ante, p. 196. 65 Com. v. Hart, 11 Cush. (Mass.) 180; 2 Hawk. P. C. e. 25, § 112; 2 Hale, P. C. 171; Rex vy. Pemberton, 2 Burrows, 1035; Rex v. Bryan, 2 Strange, 1101; Rex v. Baxter, 5 Term R. 83; Gee Wo v. State, 36 Neb. 241, 54 N. W. 513; Com. v. Jennings, 121 Mass. 47, 23 Am. Rep. 249; Jefferson v. People, 101 N. ¥. 19, 3 N. EB. 797; Hewitt v. State, 121 Ind. 245, 23 N. E. 88; Matthews vy. State, 2 Yerg. (Tenn.) 233; Com. v. Shannihan, 145 Mass. 99, 13 N. E. 347; State v. Adams, 6 N. H. 583; Com. v. Hill, 5 Grat. (Va.) 682; Carson, v. State, 69 Ala. 235; State v. Sommers, 3 Vt. 156; Barber v. State, 50 Md. 170; Swartzbaugh v. People, 85 Ill. 457; Beasley v. People, 89 Ill. 571; State v. Jackson, 1 Lea (Tenn.) 680; State v. O’Brien, 74 Mo. 549; Kopke.v. People, 48 Mich. 41, 4 N. W. 551; Nelson v. U. S. (C. G.) 30 Fed. 112; Harding v. People, 10 Colo. 387, 15 Pac. 727; State v. Maddox, 74 Ind. 105. 66 Com. v. Hart, supra; 2 Hale, P. C. 170; Rex v. Jarvis, 1 Bur- 316 PLEADING—THE ACCUSATION (Ch. 8 “Text writers and courts of justice have sometimes said that, if the exception is in the enacting clause, the party pleading must show that the accused is not within the ex- ception; but, where the exception is in a subsequent section or statute, that the matter contained in the exception is matter of defense, and must be shown by the accused.®’ Undoubtedly that rule will frequently hold geod, and in many cases prove to be a safe guide in pleading, but it is clear that it is not a universal criterion, as the words of the statute defining the offense may be so entirely separable from the exception that all the ingredients constituting the otfense may be accurately and.clearly alleged without any reference to the exception.**® Cases have also arisen, and others may readily be supposed, where the exception, though in a subsequent clause or section, or even in a sub- sequent statute, is nevertheless clothed in such language, and is so incorporated as an amendment with the words antecedently employed to define the offense, that it would be impossible to frame the actual statutory charge in the form of an indictment with accuracy and the required cer- tainty, without an allegation showing that the accused was not within the exception contained in the subsequent clause, section, or statute. Obviously, such an exception must be pleaded, as otherwise the indictment would not present the actual statutory accusation, and would also be defective for rows, 148; Steel v. Smith, 1 Barn. & Ald. 99; Gee Wo v. State, 36 Neb. 241, 54 N. W. 513; Com. v. Maxwell, 2 Pick. (Mass.) 141; Him v. State, 1 Ohio St. 15; Com. v. Thurlow, 24 Pick. (Mass.) 374; Com. y. Jennings, 121 Mass. 47, 23 Am. Rep. 249; State v. Reynolds, 2 Nott & McC. (S. C.) 865; Jefferson v. People, 101 N. Y. 19, 3 N. E. 797; State v. Munger, 15 Vt. 290; Carson v. State, 69 Ala. 235; Matthews v. State, 2 Yerg. (Tenn.) 233; Barber v. State, 50 Md. 170; State v. Webster, 10 N. J. Law, 293; Beasley v. People, 89 Ill. 571; State v. Bloodworth, 94 N. C. 919; Jensen v. State, 60 Wis. 577, 19 N. W. 374; State v. O’Brien, 74 Mo. 549; People v. Telford, 56 Mich. 541, 23 N. W. 213; State v. Meek, 70 Mo. 355, 85 Am. Rep. 427; State vy. Narrows Island Club, 100 N. C. 477, 5 8. E.411,6 Am. St. Rep. 618; Chapman v. State, 63 Tex. Cr. R. 513, 140 S. W. 441. 67 See U. S. v. Nelson (D. C.) 29 Fed. 202; Bell v. State, 104 Ala. 79, 15 South. 557. 68 Citing Com. v. Hart, 11 Cush. (Mass.) 182. § 98) INDICTMENTS ON STATUTES 317 the want of clearness and certainty.°° * * * Com- mentators and judges have been sometimes led into error by supposing that the words ‘enacting clause,’ as frequently employed, mean the section of the statute defining the offense, as contradistinguished from a subsequent section in the same statute, which is a misapprehension of the term, as the only real question in the case is whether the excep- tion is so incorporated with the substance of the clause de- fining the offense as to constitute a material part of the description of the acts, omission, or other ingredients which constitute the offense. Such an offense must be accurately and clearly described, and, if the exception is so incorpo- rated with the clause describing the offense that it becomes in fact a part of the description, then it cannot be omitted in the pleading; but, if it is not so incorporated with the clause defining the offense as to become a material part of the definition of the offense, then it is a matter of defense, and must be shown by the other party, though it be in the same section, or even in the succeeding sentence.” 7° Whether, therefore, exceptions in a statute are to be nega- tived in pleading, or whether they are a mere matter of de- fense, depends upon their nature, and not upon their loca- tion with reference to the enacting clause.71 “In saying that an exception must be negatived when made in the enacting clause, reference is not made to sections of the statute, as they are divided in the act; nor is it meant that, because the exceptions are contained in the section contain- ing the enactment, it must for that reason be negatived. This is not the meaning of the rule. The question is wheth- er the exception is so incorporated with, and becomes a part of, the enactment, as to constitute a part of the defini- tion or description of the offense; for it is immaterial whether the proviso be contained in the enacting clause or 69 Citing State v. Abbey, 29 Vt. 66, 67 Am. Dec. 754; 1 Bish, Cr. Proc. (2d Ed.) § 639, note 3. See, also, State v. Carruth, 85 Vt. 271, 81 Atl. 922. 70 U. S. v. Cook, 17 Wall. 168, 21 L. Ed. 538. 71 State v. Abbey, 29 Vt. 60, 67 Am. Dec, 754; U.S. v. Cook, supra; State v. O'Donnell, 10 R. I. 472; State v. Rush, 13 R. I. 198; State v. Walsh, 14 R. I. 507; and cases above cited. 318 PLEADING—THE ACCUSATION (Ch. 8 section, or be introduced in a different manner. It is the nature of the exception, and not its location, which deter- mines the question. Neither does the question depend upon any distinction between the words ‘provided’ or ‘except’ as they may be used in the statute. In either case, the only inquiry arises whether the matter excepted, or that which is contained in the proviso, is so incorporated with, as to become, in the manner above stated, a part of the enacting clause. If it is so incorporated, it should be negatived; otherwise it is a matter of defense.” 7? In an indictment, for instance, under a statute declaring that the receiver of stolen goods shall be liable as for a mis- demeanor if the principal be not taken, it is not necessary to allege that the principal has not been taken.7* So, under a statute in the time of Queen Elizabeth, punishing persons for not going to church, “having no reasonable excuse to be absent,” it was held unnecessary to negative the existence of an excuse, since this was matter of defense.7* And under a statute providing in the enacting clause that no person shall sell intoxicating liquors “without being duly author- ized,” and in a subsequent clause stating, “provided, that nothing in this act shall be construed to prevent the manu- facture or sale of cider for other purposes than that of a beverage, or the sale and use of the fruit of the vine for the commemoration of the Lord’s supper,” and in another sec- tion providing that the act shall not apply to the importa- tion of liquor in original packages, it would be necessary to allege that the defendant was not authorized to make the sales with which he is charged, but it would not be neces- sary to allege that the liquors were not imported in original packages, or that they were not cider for other purposes than a beverage, or were not the fruit of the vine for com- memoration of the Lord’s supper.7® 72 State v. Abbey, supra. 73 Rex v. Taylor, 2 Ld. Raym. 1870. And see Rex v. Baxter, 5 Term R. 838, 2 Leach, Crown Cas. 578. 742 Hawk. P. C. ec. 25, § 112. , 75 Com. v. Hart, 11 Cush. (Mass.) 180; Com. v. Byrnes, 126 Mass. 248. § 98) INDICTMENTS ON STATUTES 319 On the other hand, in an indictment under a statute which provided that if any person should take, receive, pay, or put off any counterfeit milled money, or any milled money whatsoever unlawfully diminished, “and not cut in pieces,” for a lower rate than its nominal value, he should be guilty of a felony, it was held necessary to state that the money was not cut in pieces."* It would also be necessary to state that the money was milled money. So, where a statute pro- vides that,“no person shall do any manner of labor, busi- ness, or work, except only work of necessity or charity, on the Lord’s day,” or that “no person shall travel on the Lord’s day, except from necessity or charity,” the exception must be negatived. “Here the exception is in the enacting clause, and that clause cannot be read without reading the exception. In an indictment on either of these sections it is doubtless necessary to negative the exception, otherwise the case provided for is not made out. Labor or traveling merely is not forbidden, but unnecessary labor and travel- ing, and labor and traveling not demanded by charity. The absence of necessity and charity is a constituent part of the acts prohibited, precisely as if the statute had, in totidem verbis, forbidden unnecessary labor and traveling, and labor and traveling not demanded by charity.” 77 So, also, an in- dictment under a statute making it unlawful to catch cer- tain kinds of lobsters, and requiring them, if caught, to be liberated alive, under a certain penalty for each lobster “so caught * * * or in possession not so liberated,” must negative that the lobsters were liberated alive.7* And un- der a statute making it unlawful to remove buildings from land on which there is an unsatisfied mortgage, without first obtaining permission from .the mortgagee, an indictment must negative such permission.”® 76 Rex v. Palmer, 1 Leach, Crown Cas. 102. 77 Com. v. Hart, 11 Cush. (Mass.) 135. But under a statute pro- hibiting the keeping open of a shop on Sunday, and making, in a sep- arate section, certain exceptions to the general provision, an indict- ment need not negative the exceptions. Com. y. Shannihan, 145 Mass, 99, 18 N. B. 347. 78 State v. Trefethen (Me.) 8 Atl. 547. 7® State v. Decker, 52 Kan. 193, 34 Pac. 780. And see Blackman v. State, 98 Ala. 77, 18 South. 316.- 320 PLEADING—THE ACCUSATION (Ch. 8 The word “except,” as will have been seen from these illustrations, is not necessary in the statute in order to con- stitute an exception within the rules stated. The words “unless,” “other than,” “not being,” “not having,” etc., have the same legal effect, and require the same form of plead- ing.®° It has been said that it is not necessary to negative ex- ceptions and provisos simply because the purview or enact- ing clause expressly nofices them.* This is sometimes— perhaps generally—true,®? but it is not necessarily so.8 The contrary has also been said to be the rule. “There is a mid- dle class of cases,” said the Massachusetts court, “namely, where the exception is not, in express terms, introduced into the enacting clause, but only by reference to some sub- sequent or prior clause, or to some other statute, as when the words ‘except as hereinafter mentioned,’ or other words referring to matter out of the enacting clause, are used. The rule in these cases is that all circumstances of exemp- tion and modification, whether apply’ng to the offense-or to the person, which are incorporated by reference with the enacting clause, must be distinctly negatived. ‘Verba rela- tur inesse videntur.’” ®4 But neither is the rule thus stated necessarily true. Indeed, it is generally otherwise.*® Each case must, be determined by applying the rule heretofore stated, and will depend upon whether because of the lan- guage, or otherwise, the exception enters into and becomes a part of the definition of the offense.*® 80 Com. v. Hart, 11 Cush. (Mass.) 1386; Gill v. Scrivens, 7 Term R. 27; Spieres v. Parker, 1 Term R. 141; Rex v. Palmer, 1 Leach, Crown Cas. 120; Com. v. Maxwell, 2 Pick. (Mass.) 189; State v. Butler, 17 Vt. 145. : 811 Chit. Cr. Law, 283. 822 Hawk. P. C. « 25, § 118; Steel v. Smith, 1 Barn. & Ald. 9; Ward v. Bird, 2 Chit. 582; Com. vy. Tuttle, 12 Cush. (Mass.) 502; Hart v. Cleis, 8 Johns. (N. Y.) 41; Com. vy. Jennings, 121 Mass. 47, 23 Am. Rep. 249; Fleming v. People, 27 N. Y. 330; State v. Abbey, 29 Vt. 60, 67 Am Dec. 754. 83 Rex v. Pratten, 6 Term R. 559; Vavasour v. Ormrod, 9 Dowl. & R. 597. 84 Com. y. Hart, 11 Cush. (Mass.) 187. 85 Note 83, supra; Com. v. vEnnInES: 121 Mass. 47, 23 Am. Rep. 249. 86 Ante, D. 317, § 98) INDICTMENTS ON STATUTES 821 When Indictment Professedly on a s tatute is Good at Common Law It was at one time held that where an indictment was professedly framed upon a statute, and concluded contra formam statuti, if it was insufficient, under the statute, for failure to charge the statutory offense with accuracy, it could not be maintained at common law; *? but it is now well settled that the conclusion may be rejected as surplus- age, and that, where the indictment upon the facts stated may be supported at common law, judgment may be given against the defendant for the common-law offense.®* It may be, however, that the common law is altogether super- seded by the statute, so that the offense can no longer be punished except under the statute.®® Conclusion of Indictment—Statute or Common Law We shall in another place consider the conclusion of in- dictments based upon statutes,®° and the question whether an indictment must count upon a statute or be based upon the common law.** -871 Chit. Cr. Law, 286. 881 Chit. Cr. Law, 286; 2 Hale, P. C. 191; 2 Hawk. P. C. ¢. 25, § 115; Bennet v. Talbot, 1 Salk. 212, 218, 1 Ld. Raym. 149; Rex v. Mathews, 5 Term R. 162, 2 Leach, Crown Cas. 585; Reg. v. Wigg, 2 Salk. 460, 2 Ld. Raym. 1163; Rex v. Harris, 4 Term R. 202; Com. v. Hoxey, 16 Mass. 385; Haslip v. State, 4 Hayw. (fenn.) 273; People v. Enoch, 18 Wend. (N. Y¥.) 159, 27 Am. Dec. 197; State v. Phelps, 11 Vt. 116, 34 Am. Dec. 672; Gregory v. Com., 2 Dana (Ky.) 417; Davis v. State, 3 Har. & J. (Md.) 154; State v. Buckman, 8 N. H. 203, 29 Am. Dec. 646; Southworth vy. State, 5 Conn, 325; Kilbourn v. State, 9 Conn. 560. 89 Clark, Cr. Law, 29, 30. 90 Post, p. 356. 91 Post, p. 358. , CrarKk Cr.PRoc.(2p Ep.)—21 322 PLEADING—THE ACCUSATION (Ch. 9 CHAPTER IX PLEADING—THE ACCUSATION (Continued) 99-103. Duplicity. 104-110. Joinder of Counts—Election, 111-113. Joinder of Parties. 114. Conclusion of Indictment, 115-116. Amendment. 117. Aider by Verdict. 118. Formal Defects Cured by Statute. DUPLICITY 99. Duplicity is the joinder of two or more offenses in the same count. It renders the indictment bad on de- murrer or on motion to quash the indictment, and in some cases even on motion in arrest of judgment or on error or appeal. 100. A count is not double because it charges more acts than one, or acts with respect to more persons than one, if such acts were all part of the transaction constituting the offense charged. 101. Nor is a count double where it charges, in addition to the specific act, aggravating circumstances, which merely affect the penalty. 102. Nor is a count double where one of the offenses is in- sufficiently charged. 103. Allegations which may be rejected as surplusage do not render a count double. The question of duplicity is often treated with joinder of counts, under the head of “Joinder of Offenses,” but this is confusing. And there are judgments of the courts in which the joinder of offenses in separate counts of an indictment is spoken of as duplicity. This is wrong. Duplicity is the 8§ 99-103) DUPLICITY 823 joinder of more than one offense in the same count. The term does not apply to several counts, each of which charg- es only one offense, however distinct the offenses may be. An indictment consisting of a single count, charging that the defendant robbed and then murdered a person would be bad for duplicity, but an indictment charging the mur- der in one count and the robbery in another would not. There would be a misjoinder of counts, but no duplicity, as that term is used in the law. : It is well settled that an indictment is bad on motion to quash or demurrer if it charges more than one offense in a single count, even though the offenses are of the same na- ture, and arise out of the same facts.1 This rule applies not only to indictments for common-law offenses, but to indict- ments for statutory offenses as well. Thus an indictment charging in the same count two distinct offenses, described in two distinct sections of a statute, and for which distinct and different fines are provided, is bad for duplicity. It was so held where an indictment charged in the same count the offense of rudely behaving in a house of public worship, which offense was defined in one section of a statute, and made punishable by a fine of not more than forty nor less than five shillings, and the interruption of public worship, which another section of the statute made punishable by a fine of not more than ten pounds, nor less than twenty shil- lings.? 1 Com. v. Symonds, 2 Mass. 163; State v. Nelson, 8 N. H. 163; State v. Smith, 61 Me. 386; People v. Wright, 9 Wend. (N. Y.) 193; Miller vy. State, 5 How. (Miss.) 250; Heineman v. State, 22 Tex. App. 44, 2 S. W. 619; State v. Haven, 59 Vt. 399, 9 Atl. 841; People v. Jack- man, 96 Mich. 269, 55 N. W. 809; People v. Parker, 67 Mich. 222, 34 N. W. 720, 11 Am. St. Rep. 578. 2 Com. v. Symonds, 2 Mass. 163. So where one section of a statute punished any person who should, by application to a woman, of any means, procure an abortion, and another section punished as an ac- complice any person who should furnish the means for procuring an abortion, an indictment charging that the defendant furnished to A., a pregnant woman, an instrument for the purpose, on A.’s part, of procuring an abortion of herself therewith, etc., and did, by means of such instrument, procure an abortion of A., was held bad for du- plicity. Wandell v. State (Tex. Cr. App.) 25 8. W. 27. 324 PLEADING—THE ACCUSATION (Ch. 9 And since, under a statute prohibiting the sale of intoxi- cating liquors each sale is a separate offense, an indictment charging several sales, or laying a sale with a continuando, is bad for duplicity.® This rule does not prevent the charging in one count of more acts than one, or of acts with respect to more persons than one, if such acts were all part of a transaction consti- tuting one offense.* Thus, in an indictment for burglary, there is no duplicity in a count that charges a breaking and an entering; these two acts being necessary to constitute the crime of burglary. Nor is there duplicity in an indict- ment for fraudulently obtaining money because it embraces in one count various sums obtained, the sums so obtained making up the aggregate sum charged as having been fraudulently obtained.® The rule was applied in Massachusetts to an indictment charging an offer to sell, and an actual sale of, a lottery ticket, either of which acts was made an offense by statute. “It is true,” it was said, “that an offer to sell, without sell- ing, a ticket, is an offense by the statute; but an offer to sell and actually selling is but one offense. A sale ex vi termini includes an offer to sell.” ® So, where an indictment charg- ed the defendants with singing and publishing divers scan- dalous, obscene, and libelous songs, the court held that but one offense was charged; that, though the publishing of any one of the songs would have been an offense, several being published at the same time constituted but one offense.” 3 People v. Hamilton, 101 Mich. 87, 59 N. W. 401. So of an indict- ment that on a certain day, and on divers days between that and a subsequent date, the defendant did carry on a lottery. State v. Den- nison, 60 Neb. 192, 82 N. W. 628. 4 Barnes v. State, 20 Conn. 232; State v. Palmer, 35 Me. 9; Far- rell v. State, 54 N. J. Law, 416, 24 Atl. 723; Francisco v. State, 24 N. J. Law, 30; Jillard v. Com., 26 Pa. 169; State v. Hodges, 45 Kan. 389, 26 Pac. 676; State v. Parker, 42 La. Ann. 972, 8 South. 473; State v. Baldwin, 79 Iowa, 714, 45 N. W. 297; State v. Stout, 112 Ind. 245, 138 N. E. 715; Early v. Com., 86 Va. 921, 11 S. E. 795; U.S. v. Eccles (C. C.) 181 Fed. 906. 5 Young v. State, 4 Ga. App. 827, 62 S. HE. 558, 6 Com. vy. Eaton, 15 Pick. (Mass.) 273. 7 Rex v. Benfield, 2 Burrows, 980. §§ 99-103) DUPLICITY 825 And in an indictment for libel the defendant may be charg- ed in one count with writing, publishing, and causing to be published a libel.® If, therefore, an offense, whether it be a statutory or a common-law offense, is cumulative with respect to the acts done, although any one of those acts may be sufficient to constitute the crime, the cumulative offense may be charg- ed.° Under this rule, a complaint alleging that the defend- ant permitted swine “to go upon and injure” the sidewalks in violation of a city by-law forbidding any person to per- mit swine “to go upon any sidewalk in the city, or other- wise occupy, obstruct, injure, or incumber any such side- walk,” was sustained against objection for duplicity.’° And, under a statute prescribing a punishment for any per- son who should “willfully destroy, deface, or injure” a reg- ister of baptisms, etc., it was decided that a single offense only was charged in an indictment which alleged that the defendant willfully destroyed, defaced, and injured such a register.** So, under a statute prescribing a punishment for every person who should “buy, receive, or aid in the con- cealment of any stolen money, goods, or property, knowing the same to have been stolen,” it was held that an indict- ment which alleged that the defendant did buy, receive, and aid in the concealment of certain enumerated goods, know- ing them to be stolen, charged only one offense.*? And where a statute provides a punishment for forging, causing to be forged, or assisting in the forgery of instruments, an indictment charging a person with forging, and causing to be forged, and assisting in the forgery of an instrument, 8 Rex v. Horne, Cowp. 672. ®9 State v. Haney, 19 N. C. 403; State v. Nelson, 29 Me. 329; State v. Matthews, 42 Vt. 542; State v. Conner, 30 Ohio St. 405; Hoskins v. State, 11 Ga. 92; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Com. v. Hall, 4 Allen (Mass.) 305; State v. Murphy, 47 Mo. 274; Hinkle v. Com., 4 Dana (Ky.) 518; State v. Wood, 14 R. I. 151; State v. Murphy, 17 R. I. 698, 24 Atl. 473, 16 L. R. A. 550, 10 Com. vy. Curtis, 9 Allen (Mass.) 266. 11 Reg. v. Bowers, 1 Denison, Crown Cas. 22. 12 Stevens v. Com., 6 Metc. (Mass.) 241; State v. Nelson, 29 Me. 829. But see State v. Murphy, 6 Ala. 845, 326 PLEADING—THE ACCUSATION (Ch. 9 charges but one offense.** There are many similar deci- sions.** When one crime is included within another, so that it is necessary, in charging the greater offense, to charge the les- ser, the indictment for the greater is not double because it charges the lesser.1> A familiar example is the crime of as- sault and battery. A battery includes an assault. An in- dictment in one count for an assault and battery growing out of the same transaction is therefore not bad for du- plicity.*® A count for assault, with a deadly weapon, with 13 Rex v. Fauntleroy, 1 Moody, Crown Cas. 52; State v. Morton, 27 Vt. 314, 65 Am. Dec. 201. 14 See 2 Gabb. Cr. Law, 234; Com. v. Hope, 22 Pick. (Mass.) 1; Hinkle v. Com., 4 Dana (Ky.) 518. Charge that the defendant “did unlawfully keep, offer for sale, and sell” adulterated milk, Com. v. Nichols, 10 Allen (Mass.) 199; that he “unlawfully did expose and keep for sale intoxicating liquors,” Com. v. Curran, 119 Mass. 206; that he “did set up and promote” an unlawful exhibition, or a lot- tery, etc., Com. v. Twitchell, 4 Cush. (Mass.) 74; Com. v. Harris, 13 Allen (Mass.) 534; charge of assault with intent to rape, and a bat- tery, Com. v: Thompson, 116 Mass. 346; charge of administering or causing to be administered poison, Ben v. State, 22 Ala. 9, 58 Am. Dec. 234; charge of '!selling liquor in a place where women are both employed and allowed to assemble, State v. Marion, 14 Mont. 458, 36 Pac. 1044; charge of having in custody a forged writing and utter- ing the same, State'v. Murphy, 17 R. I. 698, 24 Atl. 478, 16 L. R. A. 550; charge of “shoot, wound and kill” cattle, State v. Currier, 225 Mo. 642, 125 S. W. 461; charge of being a “pickpocket and thief and haying no visible means of support,’ Com. v. Ellis, 207 Mass. 572, 93 N. E. 823: charge of receiving an order for liquor, and contracting for the sale of same, State v. Sherman, 81 Kan. 874, 107 Pac. 33, 135 Am, St. Rep. 403. But distinct acts of adultery, though committed with the same person, cannot be charged in one count, for they are separate crimes. Com. v. Fuller, 163 Mass, 499, 40 N. HE. 764. 15 The rule is thus expressed in Com. v. Tuck, 20 Pick. (Mass.) 360: “Where two crimes are of the same nature, and necessarily so con- nected that they may, and, when both are committed, they must, con- stitute but one legal offense, they should be included in one charge.” 16 Com. v. Tuck, supra; Bull. N. P. 15; Com. v. Eaton, 15 Pick. (Mass.) 275. And see State v. Inskeep, 49 Ohio St. 228, 34 N. E. 720. But an indictment charging an assault and battery and an aggra- vated assault with a dangerous weapon with intent to do great bodily harm was held bad. State v. Marcks, 3 N. D. 532, 58 N. W. 25; as was an indictment charging monopolizing, and attempting to monopo- lize, U. S. v. American Naval Stores Co. (C. C.) 186 Fed. 592. §§ 99-103) DUPLICITY 327 intent to murder, is not double, though it charges that which, separately, might be three distinct offenses.*7 Soa count charging assault, battery, and false Ppiiseument, has been held not to be open to the objection of duplicity.*® It is on a mistaken application of this principle that the rule has become established that in burglary and statutory breakings an indictment is not double that charges in one count a breaking and entering with intent to commit a fel- ony—larceny, for instance—and the actual commission of the felony.t® An indictment is not double because it charg- es both conspiracy and the overt act, for the conspiracy is merged in the act.2° Where two or more persons are in- jured by one blow, one offense only is committed, and-a charge of assault and battery on both of them is not dou- ble.2+, And if a person assaults two persons, and robs one of them of one shilling, and the other of two shillings, at the same time, he may be charged in the same count with the assault upon and the robbery of both of them.*? 17 People v. Beam, 66 Cal. 394, 5 Pac. 677. 18 Francisco v. State, 24 N. J. Law, 30. 19 Com. v. Hope, 22 Pick. (Mass.) 1; Jennings v. Com., 105 Mass. 587; Rex v. Withal, 1 Leach, Crown Cas. 102; Reg. v. Bowen, 1 Den- ison, Crown Cas. 28; Speers v. Com., 17 Grat. (Va.) 570; Vaughan v. Com., 17 Grat. (Va.) 576; State v. Johnson, 3 Hill (8. C.) 1; State v. Brady, 14 Vt. 353; Breese v. State, 12 Ohio St. 146, 80 Am. Dec. 340; Walker v. State, 97 Ala. 85, 12 South. 83; Farris v. Com., 90 Ky. 637, 14 S. W. 681; Turner v. State, 22 Tex. App. 42, 2 S. W. 619; Becker v. Com. (Pa. Sup.) 9 Atl. 510; State v. Nagle, 1386 Mo. 45, 37 S. W. 821; Contra, State v. Smith, 2 N. D. 515, 52 N. W. 320; State v. Rob- ertson, 48 La. Ann. 1024, 20 South. 166. A general verdict of guilty is a conviction of the burglary, and judgment may be entered for that offense. On the other hand, on such a verdict, the prosecuting attor- ney may enter a nolle prosequi on so much of the indictment as charges the breaking and entering, and the defendant may be sen- tenced for the larceny. Jennings v. Com., supra; State v. Smith, 2 N. D. 515, 52 N. W. 320. 20 Hoyt v. People, 140 Ill. 588, 30 N. H. 315, 16 L. R. A. 239; State v. Grant, 86 Iowa, 216, 53 N. W. 120; Anthony v. Com., 88 Va. 847, 14 8. B. 834. 21 Rex v. Benfield, 2 Burrows, 980 (overruling Rex v. Clendon, 2 Ld. Raym. 1572); Com. v. McLaughlin, 12 Cush. (Mass.) 619; Com. v. O’Brien, 107 Mass. 208; Anon., Lofft, 271. 22 Steph. Dig. Cr. Proc. 153; Reg. v. Giddins, Car. & M. 634. 328 PLEADING—THE ACCUSATION (Ch. 9 There is no duplicity in a count for libel on several per- sons by the same publication; ?* nor by the weight of au- thority, in a count for the larceny of several articles from the same person, or even from different persons, at the same time and place; ?4 nor in a count for the unlawful sale of liquor to several persons at the same time and place.”® And if an act is made criminal by the common law or by statute when committed with any one of several specific in- tents—as is the case with burglary—a count charging the act with several intents is not double.2* Under a statute punishing any one who shall bring into a town intoxicating liquor “with intent to sell the same himself, or have the same sold by another, or having reasonable cause to believe that the same is to be sold in violation of law,” an indict- ment may charge all of these intents in a single count.?” 28 Rex v. Jenour, 7 Mod. 400; Rex v, Benfield, 2 Burrows, 983; Tracy v. Com., 87 Ky. 578, 9 S. W. 822. 24 Com. v. Williams, 2 Cush. (Mass.) 588; State v. Stevens, 62 Me. 284; State v. Cameron, 40 Vt. 555; State v. Williams, 10 Humph. (Tenn.) 101; State v. Hennessey, 23 Ohio St. 339, 18 Am. Rep. 253; State v. Wagner, 118 Mo. 626, 24 S. W. 219; Lorton v. State, 7 Mo. 55, 87 Am. Dec. 179. Some courts hold that it is otherwise if the ar- ticles are charged to have been stolen from different persons. State y. Thurston, 2 MeMul. (8. C.) 382; Com. v. Andrews, 2 Mass. 409; State v. Newton, 42 Vt. 537. But see, contra, State v. Nelson, 29 Me. 329; State v. Hennessey, 23 Ohio St. 339, 13 Am. Rep. 253; Ben v. State, 22 Ala. 9, 58 Am. Dec. 234; Lorton v. State, 7 Mo. 55, 37 Am. Dec. 179; State v.:Morphin, 37 Mo. 373; State v. Merrill, 44 N. H. 624; State v. Warren, 77 Md. 121, 26 Atl. 500, 39 Am. St. Rep. 401; Fisher v. Com., 1 Bush (Ky.) 212, 89 Am. Dec. 620; State v. Egglesht, 41 Iowa, 574, 20 Am. Rep. 612; Fulmer v. Com., 97 Pa. 503; State v. Ward, 19 Nev. 297, 10 Pac. 183; Alexander v. Com., 90 Va. 809, 20 S. E. 782; People v. Johnson, 81 Mich. 573, 45 N. W. 1119; State v. Smith (Ohio Com. Pl.) 23 Wkly. Law Bul. 85. If the articles are charged to have been stolen at different times, the count is bad for duplicity. State v. Newton, 42 Vt. 537. 25 State v. Bielby, 21 Wis. 206; State v. Boughner, 5 S. D. 461, 59 N. W. 736; State v. Anderson, 8 Rich. (S. C.) 172. But see Com. v. Holmes, 119 Mass. 198. 26 State v. Christmas, 101 N. C. 749, 8 S. BE. 361; State v. Fox, 80 Iowa, 312, 45 N. W. 874, 20 Am. St. Rep. 425. 27 Com. v. Igo, 158 Mass. 199, 33 N. E. 339. See, also, People v. Swaile, 12 Cal. App. 192, 107 Pac. 134. §§ 99-103) DUPLICITY 829 There is no duplicity in a count that charges one offense to have been committed by different methods or means.** Certainly a count can never be bad for duplicity where it merely charges, in addition to the specific act, aggravating circumstances, which merely affect the penalty, as, for in- stance, where it charges a former conviction for a similar offense.?® Allegations which may be rejected as surplusage cannot render an indictment bad for duplicity.2° And if an indict- ment attempts to set out two distinct offenses in a single count, but sets out one of them insufficiently, it is not dou- ble, for duplicity is charging two crimes, and a crime in- sufficiently charged is not charged at all.34 Where the charge is such that it would be sustained by proof of any one of a number of similar offenses the court should not allow them all to be proved and submitted to the jury, but should at the proper time require the prosecuting officer to elect upon which act he will rely. This question 28In Andersen v. U. S., 170 U. S. 481, 18 Sup. Ct. 689, 42 L. Ed. “1116, an indictment for murder charged in one count that the defend- ant assaulted the deceased with a pistol by the discharge of which he inflicted on him several “grievous, dangerous, and mortal wounds,” and that he did “cast and throw from and out of the said vessel into the sea, and plunge, sink, and drown” the deceased, of which said mortal wounds, casting, throwing, plunging, sinking and drowning the deceased “then and there instantly died.” The court held the count was not bad for duplicity. See, also, Com. v. Brown, 14 Gray (Mass.) 419; Thomas v. State (Tex. Cr. App.) 26 8. W. 724; State v. McDonald, 67 Mo. 13; Heath v. State, 91 Ga. 126, 16 S. E. 657; State v. O’Neil, 51 Kan. 651, 33 Pac. 287, 24 L. R. A. 555; People v. Casey, 72 N. Y. 393. Charge of use of different means in committing abor- tion. Com. v. Brown, supra. The different means so charged must not render the indictment repugnant. State v. O’Neil, supra. If they are inconsistent, different counts should be used. Post, p. 331. 29 State v. Moore, 121 Mo. 514, 26 §. W. 345, 42 Am. St. Rep. 542; Reg. v. ease 6 Cox, Cr. Cas, 210. 30 Com. vy. Simpson, 9 Metc. (Mass.) 188; Com. v. Tuck, 20 Pick, (Mass.) 356: Green v. State, 23 Miss. 509; Breese vy. State, 12 Ohio St. 146, 80 Am. Dec. 340; State v. Comings, 54 Minn. 359, 56 N. W. 50; Com. v. Brown, 14 Gray (Mass.) 429; State v. Flanders, 118 Mo. 227, 23 S. W. 1086; Griffin v. State (Tex. Cr. App.) 20 8. W. 552. 31 State v. Palmer, 35 Me. 9; State v. Henn, 39 Minn. 464, 40 N. W. 564. And see the cases above cited. 330 PLEADING—THE ACCUSATION (Ch. 9 frequently arises in prosecutions for unlawful sale of intoxi- cating liquors. By the weight of authority, the prosecuting officer cannot go to the jury on proof of a number of sepa- rate and distinct sales, either one of which would sustain the charge; but should, when the evidence discloses several sales, be required to elect upon which sale he will rely.*? This, of course, could not apply to prosecutions for liquor nuisance.?* The question will be further considered in an- other place.** Effect of Duplicity There is some conflict of opinion as to the effect of du- plicity. By the weight of authority, where the two offenses charged are distinct in kind, and require distinct punish- ments, the objection may be raised even after a verdict of guilty, by motion in arrest of judgment, or on error or ap- peal.?® On the other hand, where the two offenses are simi- 32 King vy. State, 66 Miss. 502, 6 South. 188; State v. Crimmins, 31 Kan. 376, 2 Pac. 574; State v. Chisnell, 36 W. Va. 659, 15 S. E. 412; Lebkovitz v. State, 113 Ind. 26, 14 N. EB. 363, 597. There is some conflict of opinion on this point. Sanders v. State, 88 Ga. 254, 14 8. E. 570. The rule does not prevent evidence of several sales, but merely requires an election after the several sales have been disclos- ed. State v. Chisnell, supra. 33 State v. Estlinbaum, 47 Kan. 291, 27 Pac. 996; State v. Lund, 49 Kan. 209, 30 Pac. 518. ‘In the present case it was not necessary for the state to prove any sale, but only to prove that the defendant kept a place for the unlawful sale of intoxicating liquors; but in or- der to prove that the defendant kept such a place, and that the liq- uors were in fact kept for sale, the state had the right to prove that the defendant actually sold them at such place. In a case like the present the state may prove as many sales as it chooses, provided they are unlawful sales of intoxicating liquors made by the defend- ant at the place charged.” State v. Estlinbaum, supra. 34 Post, p. 898. 85 Com. v. Holmes, 119 Mass. 198; Com. v. Symonds, 2 Mass. 163; State v. Nelson, 8 N. H. 163; People v. Wright, 9 Wend. (N. Y.) 193. This rule has been applied, for instance, where a count charged the offense of rudely behaving in a church, which offense was defined in one section of a statute, and made the subject of a certain fine as punishment, and also the offense of interrupting public worship, which another section of the statute made punishable by a different fine, Com. v. Symonds, 2 Mass. 163; and where a count charged the forging of a mortgage and of a receipt indorsed thereon, which were distinct offenses, subject to different punishments, People v. Wright, §§ 104-110) JoINDER OF COUNTS—ELECTION 331 lar, the only reason against joining them in one count is that it subjects the defendant to confusion and embarrass- ment in his defense, and the objection is not open after a verdict of guilty. It must be raised by demurrer, motion to quash the indictment, or to compel the prosecutor to elect upon which charge he will proceed; and the fault is cured by his electing to proceed upon one charge only, and enter- ing a nolle prosequi as to the other, or by verdict.*® This distinction is not expressly drawn in all of the cases, but is based on sound reasons, and will, no doubt, be generally applied in proper cases. The student should consult the statutes and decisions in his own state. JOINDER OF COUNTS—ELECTION 104. SAME OFFENSE—Any number of counts charging the same offense in different ways may be joined in the same indictment, in order to meet the evidence, and avoid a variance in the proof; and the prosecu- tor cannot be required to elect upon which count he will proceed. 105. DIFFERENT OFFENSES—Any number of cunts charging the same transaction as constituting dif- ferent offenses may be joined, provided the offens- es charged are cognate, or of the same nature, and the mode of trial is the same, but not otherwise; and in such a case an election will not ordinarily be required. 9 Wend. (N. Y.) 193; and where a count charged ordinary larceny and horsestealing, for which different punishments were prescribed, State v. Nelson, 8 N. H. 163. 36 Com. v. Holmes, 119 Mass. 198; Com. v. Tuck, 20 Pick. (Mass.) 356; State v. Merrill, 44 N. H. 624; Com. v. Powell, 8 Bush (Ky.) 7; State v. Brown, 8 Humph. (Tenn.) 89; State v. Cooper, 101 N. C. 684, 8 S. E. 1384; State v. Henn, 39 Minn. 464, 40 N. W. 564; State v. Miller, 24 Conn. 522; Aiken v. State, 41 Neb. 263, 59 N. W. 888; State v. Armstrong, 106 Mo. 395, 16 S. W. 604, 13 L. R. A. 419, 27 Am. St. Rep. 361; Tomlinson v. Territory, 7 N. M. 195, 33 Pac. 950; State v. Lamb, 81 N. J. Law, 234, 80 Atl. 111. This rule has been ap- plied, for instance, where a count charged a number of sales of in- toxicating liquors to different persons. Com. vy. Holmes, supra. 332 PLEADING—THE ACCUSATION (Ch. 9 106. By the great weight of authority, a person cannot be tried for separate and distinct felonies at the same time; but where distinct felonies of the same na- ture are committed at the same time, or as part of the same transaction, the court will not quash the indictment, or compel an election before hearing the evidence, though it will, after hearing the evi- dence, confine the prosecutor to one charge. EXCEPTION—In Massachusetts and a few other states distinct felonies may be joined in the same indict- ment, and the defendant may be convicted on each count, where the offenses are of the same nature, and the mode of trial and nature of the punishment is the same, subject to the power of the court, in its discretion, to compel an election where the de- fendant may be embarrassed in his defense. 107. By the weight of authority, any number of misdemean- ors, though separate and distinct, may be thus joined, and the defendant may be convicted on each count. But it is believed that the court may, in the exercise of its discretion, compel an election as in other cases. . - EXCEPTION—lIn a few states joinder of separate and distinct misdemeanors is not allowed, but they are placed, in this respect, on the same footing as fel- onies. 108. FELONY AND MISDEMEANOR—At common law, felonies and misdemeanors could not be joined in the same indictment, and this rule has been recog- nized in some of our states. In most states, how- ever, the rule either is not recognized, or has been changed by statute, so that it is no longer any ob- jection that one count charges a felony and the other a misdemeanor, provided, as in other cases, they are cognate offenses. 109. EFFECT OF MISJOINDER—Misjoinder of counts charging separate and distinct offenses does not render the indictment bad as a matter of law. Ob- jection, therefore, must be taken by motion to §§ 104-110) JoINDER OF COUNTS—ELECTION 333 quash, or to compel the prosecutor to elect upon which count he will proceed. The objection can- not be raised by demurrer, nor, where there has been no motion to quash or compel an election, can it be raised in arrest of judgment, or on writ of error. 110. STATUTES—The rules above stated have been more or less changed by statute in some of the states. Same Offense Whenever it is uncertain what facts may be shown by the evidence, it is advisable to insert two or more counts, charging the offense in different ways,’so as to meet the facts as they may appear, and thus avoid the effect of a variance between the pleading and proof.*7 Each count is a separate and distinct charge, and is, in effect, a separate indictment.?® In an indictment for a homicide, for instance, it may be alleged in one count that the death was caused by striking with a stone or stick; in another, that it was caused by shooting ; in another, by poison, etc.*® And in an indict- ment for larceny, embezzlement, burglary, or arson the ownership of the goods or of the premises may be laid dif- ferently in several counts.*® And in an indictment for bur- glary, where it is uncertain whose goods the evidence may show that the defendant intended to steal, or whether the evidence may show that he intended to steal or to commit some other felony, the offense may be charged in different 372 Bast, P. C. 515; Castro v. Reg., 6 App. Cas. 229; Kane v. Peo- ple, 8 Wend. (N. Y.) 210; Mershon v. State, 51 Ind. 14; State v. Early, ‘8 Har. (Del.) 562; State v. Stewart, 59 Vt. 273, 9 Atl. 559, 59 Am. Rep. 710; State v. Haney, 19 N. C. 390; State v. Hogan, R. M. Charlt. (Ga.) 474. 38 Post, p. 344. 89 Smith v. Com., 21 Grat (Va.) 809; Lazier v. Com., 10 Grat. (Va.) 708; Reg. v. O’Brien, 1 Denison, Crown Cas. 9; Hunter v. State, 40 N. J. Law, 495; Donnelly v. State, 26 N. J. Law, 463, 601; Mer- rick v. State, 63 Ind. 327; Mershon v. State, 51 Ind. 14; Webster vy. Com., 5 Cush. (Mass.) 386. 40 Com. v. Dobbins, 2 Pars. Eq. Cas. (Pa.) 380; Reg. v. Trueman, 8 Car. & P. 727; State v. Nelson, 29 Me. 329; Newman v. State, 14 Wis. 393. 4 334 PLEADING—THE ACCUSATION (Ch. 9 ways in different counts, to meet the evidence. In one count it may be charged that the breaking and entry were with intent to steal the goods of one person; in another count that they were with intent to steal the goods of an- other person ; in another count that they were with intent to commit murder; in another that they were with intent to commit rape, etc.*+ If the counts do not charge separate and distinct offenses, but charge the same offense in different ways, to meet the evidence as it may appear at the trial—as, where a murder is alleged in different counts to have been committed in dif- ferent ways, or an indictment for larceny, burglary, etc., lays the ownership‘of the goods or the premises, as the case may be, in different persons in different counts—the prose- cutor will not be required to elect upon which count he will proceed. The defendant will be put to his trial upon all of them, and convicted upon that one upon which he is shown to be guilty.*? Different Offenses Not only may the same offense be thus charged in dif- ferent ways to meet the evidence, but the same transaction may, when it is uncertain what the evidence will show,, be charged in different counts, as constituting different offens- es, provided the offenses are of the same nature, and the mode of trial is the same. The offenses, though different, are not actually distinct. The same transaction is relied upon, and the charge is varied merely to avoid a possible variance between the pleading and proof. In such cases the prosecutor will not generally be required to elect, for the defendant cannot well be embarrassed in his defense by the 412 East, P. C. 515. 42 State v. Nelson, 29 Me. 329; Upshur v. State, 100 Ala. 2, 14 South. 541; Stewart v. State, 58 Ga. 577; Newman v. State, 14 Wis. 393; Carleton v. State, 100 Ala. 130, 14 South. 472; Hunter v. State, 40 N. J. Law, 495; State v. Bailey, 50 Ohio St. 636, 36 N. BE. 233; Vaden v. State (Tex. Cr. App.) 25 8. W. 777; Thompson vy. State (Tex. Cr. App.) 26 S. W. 987; State v. Harris, 106 N. C. 682, 11 S. E. 377; Lascelles v. State, 90 Ga. 347, 16 8. B. 945, 35 Am. St. Rep. 216; State v. Franzreb (Ohio Com. Pl.) 29 Wkly. Law Bul. 129; Murray v. State, 25 Fla. 528, 6 South. 498; State v. Mallon, 75 Mo. 355; State v. Jones, 86 S. C. 17, 67 S. B. 160. §§ 104-110) JoINDER OF COUNTS—ELECTION 335 multiplicity of charges.t? Thus an election will not be re- quired where one count charges larceny and another count charges the receiving of the same goods knowing them to have been stolen, and another count charges the aiding an- other person to conceal the same goods knowing them to have been stolen.44 In such a case the offenses are legally different, but the charges are not actually distinct, and can- not confound the defendant, or distract the attention of the jury ; and, where this is the case, an election will not be re- quired. For this reason the courts have also allowed the joinder of counts for burglary, larceny, and forcible entry and detainer ; *® of counts for robbery arid stealing privately from the person; #® of counts for arson at common law and statutory burnings;*7 counts for embezzlement and lar- ceny;*® counts for embezzlement and false pretenses; *°® 48 Dowdy v. Com.,'9 Grat. (Va.) 727, 60 Am. Dec. 314; Kane v. People, 8.Wend. (N. Y.) 211; People v. Rynders, 12 Wend. (N. Y.) 425; Com. v. Gillespie, 7 Serg. & R. (Pa.) 479, 10 Am. Dec. 475; Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208; Com. v. Hills, 10 Cush. (Mass.) 530; Young v. Rex, 3 Term R. 106, 1 Leach, Crown Cas. 510; Rex v. Kingston, 8 East, 41; Beasley v. People, 89 Ill. 571; People v. Costello, 1 Denio (N. Y.) 83; Armstrong v. People, 70 N. Y. 38; State v. Daubert, 42 Mo. 242; State v. Jackson, 17 Mo. 544, 59 Am. Dec. 281; Miller v. State, 51 Ind. 405; State v. Flye, 26 Me. 312; State v. Bell, 27 Md. 675, 92 Am. Dec. 658; Mayo v. State, 30 Ala. 32; Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544; People vy. Weil, 243 Ill. 208, 90 N. E. 731, 184 Am. St. Rep. 357. 44 Dowdy v. Com., 9 Grat. (Va.) 727, 60 Am. Dec. 314. And see Owen v. State, 52 Ind. 379; Keefer v. State, 4 Ind. 246; State v. Dau- bert, 42 Mo. 242; State v. Barber, 113 N. C. 711, 18 S. EB. 515; Wo- mack v. State (Tex. Cr. App.) 25 §. W. 772; Sanderson v. Com. (Ky.) 12 8. W. 136; Kennegar v. State, 120 Ind. 176, 21 N. B. 917; State v. Hazard, 2 R. I. 474, 60 Am. Dec. 96; Hampton v. State, 8 Humph. (Tenn.) 69, 47 Am. Dec. 599. 452 Hale, P. C. 162, 173; McCullough v. State, 132 Ind. 427, 31 N. E. 1116; Speers v. Com., 17 Grat. (Va.) 570; Com. v. Birdsall, 69 Pa. 482, 8 Am. Rep. 283; Lyons v. People, 68 Ill. 271. 46 Rex v. Sterne, 1 Leach, Crown Cas. 473; Womack y. State (Tex. Cr. App.) 25 S. W. 772. 47 Rex v. Pedley, 1 Leach, Crown Cas, 244. 48 Rex v. Johnson, 2 Leach, Crown Cas. 1108, 3 Maule & S. 539; Griffith v. State, 36 Ind. 406; State v. Porter, 26 Mo, 201; Coats vy. People, 4 Parker, Cr. R. (N. Y.) 662. 49 State v. Lincoln, 49 N. H. 464. 336 PLEADING—THE ACCUSATION (Ch. 9 counts charging the defendant as accessory after the fact, and accessory before the fact, to the same felony; °° counts for forging an instrument and for uttering it; ** counts for obtaining money by false pretense and by the confidence game.®? By the weight of authority, it is no objection that one count charges a statutory offense, while the other charges an offense at common law.*® Ii the offenses are not cognate—that is, of the same na- ture—or the mode of trial is different, they cannot be joined. If they are joined, and the court refuses to compel the prose- cutor to elect upon which count he will proceed, a convic- tion on one of the counts will be set aside. Clearly, it would not be permissible to charge murder and robbery, or rape and robbery, or murder and burglary in the same indict- ment, for the offenses are not cognate; and in a late Rhode Island case a conviction of burglary on an indictment charg- ing in one count burglary and in another assault with in- tent to rape was set aside because the court refused to com- pel an election.®* In some states it is expressly provided by statute that an indictment must charge but one crime, and in one form, except that the crime may be charged in separate counts to have been committed in a different manner or by differ- ent means. It has been held, however, that it was not the intention of the legislature to change the common-law rule that the same transaction may be alleged in different ways 50 Rex vy. Blackson, 8 Car. & P. 43; Tompkins v. State, 17 Ga. 356. 51 State v. Nichols, 38 Iowa, 110; Barnwell v. State, 1 Tex. App. 745; People v. Adler, 140 N. Y. 331, 35 N. EH. 644. 52 People v. Weil, 243 Ill. 208, 90 N. HE. 731, 184 Am. St. Rep. 357. 53 Rex v. Sterne, 1 Leach, Crown Cas. 473; Rex v. Johnson, 2 Leach, Crown Cas. 1103, 1108, 3 Maule & S. 539; State v. Smalley, 50 Vt. 736; State v. Thompson, 2 Strob. (S. C.) 12, 47 Am. Dec. 588; People v. Rynders, 12 Wend. (N. Y.) 425; State v. Williams, 2 Mc- Cord (S. C.) 301; Com. v. Sylvester, 6 Pa. Law J. 283; and cases cited in notes 48, 49, supra. But see, contra, Marler v. Com. (Ky.) 24 S. W. 608; Combs v. Com. (Ky.) 25 S. W. 276. 64 State vy. Fitzsimon, 18 R. I. 236, 27 Atl. 446, 49 Am. St. Rep. 766. §§ 104-110) JoINDER OF COUNTS—ELECTION 337 in separate counts, so as to meet the evidence, though this may result in charging different offenses. And it was there- fore held that with a count charging the forgery of an in- strument could be joined a count charging the uttering of the same instrument at the same time and place.°® Same—Distinct Offenses ' Generally, where the offenses are actually separate and distinct, both in fact and in law, and are felonies, the indict- ment should be quashed on, motion of the defendant, or the prosecutor should be required to elect upon which charge he will proceed. A person should not be tried for’ two-sepa- rate and distinct felonies at one time. And if a motion to quash or to compel an election is denied, and the defendant is convicted on one of the counts, the conviction should be set aside.°* A conviction was thus set aside, for instance, where the information contained two counts, charging crim- inal abortion under a statute, and an additional count charg- ing manslaughter at common law, committed upon a day subsequent to the time mentioned in the former counts.°” There are cases, even of felony, where the court will not quash the indictment, nor compel an election at the opening ' of the trial, though the offenses charged in the different counts are separate and distinct in law, and, to some extent, in fact. These are cases in which the offenses are of the same general nature, and were committed at the same time, or as part of the same transaction. The court will not let the defendant be tried and convicted for separate offenses, but it will not compel an election at the beginning of the 55 People v. Adler, 140 N. Y. 331, 35 N. E. 644. 56 People v. Aiken, 66 Mich. 460, 33 N. W. 821, 11 Am. St. Rep. 512; People v. Rohrer, 100 Mich. 126, 58 N. W. 661; State v. Fitzsimon, 18 R. I. 236, 27 Atl. 446, 49 Am. St. Rep. 766; Mayo v. State, 30 Ala. 32; State v. Smith, 8 Blackf. (Ind.) 489; Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544; McGregg v. State, 4 Blackf. (Ind.) 101; Baker v. State, 4 Ark. 56; Kane v. People, 8 Wend. (N. Y.) 203; People v. Rynders, 12 Wend. (N. Y.) 425; State v. Nelson, 8 N. H. 163; State v. Flye, 26 Me. 312; State v. Fowler, 28 N. H. 184; Bailey v. State, 4 Ohio St. 440; Bainbridge v. State, 80 Ohio St. 264; People v. Austin, 1 Par- ker, Cr. R. (N. Y.) 154; State v. Henry, 59 Iowa, 391, 18 N. W. 343. 57 People y. Aiken, 66 Mich. 460, 33 N. W. 821, 11 Am. St. Rep. 512, CLARK Cr.PROc.(2D ED.) —22 338 PLEADING—THE ACCUSATION (Ch. 9 trial. It will hear the evidence, and at the proper time con- fine the prosecutor to one of the charges. “When the sev- eral offenses charged, though distinct in point of law; yet spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction, or connected series of facts, the de- fendant cannot be prejudiced in his defense by the joinder, and the court will neither quash nor compel an election.” *8 A motion to quash or compel an election has been denied, for instance, where the defendant was charged in separate counts with robbing two different persons, it appearing that the offenses were committed at the same time, and as part of the same transaction; *® where different counts charged separate and distinct burglaries on the same night, and in the same neighborhood; *® where two murders were charg- ed. in separate counts, but it appeared that they were so closely connected in point of time, place, and occasion that it would be difficult, if not impossible, to separate the proof of one from the proof of the other; ** and where the defend- ant was charged with burning several houses, it appearing that one of them had been set on fire and the fire had com- municated to the others. “As it was all one transaction,” it was said in the case last mentioned, “we must hear the evi- dence; and I donot see how, in the present stage of the pro- ceedings, I can call on the prosecutor to elect. I shall take care that, as the case proceeds, the prisoner is not tried for more than one felony. The application for a prosecutor to elect is an application to the discretion of the judge, founded on the supposition that the case extends to more than one charge, and may, therefore, be likely to embarrass the pris- oner in his defense.” * 58 People v. McKinney, 10 Mich. 94; People v. Aiken, 66 Mich. 460, 33 N. W. 821, 11 Am. St. Rep. 512; and see Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Hd. 208; Reg. v. Giddins, Car. & M. 634; Rex v. Trueman, 8 Car. & P. 727; Rex v. Folkes, 1 Moody, Crown Cas. 354; Martin v. State, 79 Wis. 165, 48 N. W. 119. 59 Rex v. Giddins, Car. & M. 634. 60 Martin v. State, 79 Wis. 165, 48 N. W. 119. 61 Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208. 62 Reg. v. Trueman, 8 Car. & P. 727. §§ 104-110) JoINDER OF COUNTS—ELECTION 339 It has been held that in cases of misdemeanor no objec- tion at all can be made because of the joinder of separate and distinct offenses, and this is the general rule. “In point of law,” it has been said, “there is no objection to a man being tried on one indictment for several offenses of the same sort. It is usual, in felonies, for the judge, in his dis- cretion, to call upon the counsel for the prosecution to select one felony, and to confine themselves to that; but this. practice has never been extended to misdemeanors. It is the daily usage to receive evidence of several libels, and of several assaults, upon the same indictment.” ** It is be- lieved, however, that even in cases of misdemeanor the court should, in the exercise of its discretion, quash the indict- ment, or put the prosecutor to an election, where the de- fendant may be prejudiced in his defense.** In some states misdemeanors are put, in this respect, upon the same foot- ing as felonies, and a conviction on one of several counts for separate and distinct misdemeanors has been set aside on the ground that there was a misjoinder, and the prosecu- tor should, on the defendant’s motion, have been required to elect before trial.®® Same—Exceptional Doctrine in Mastachuserts and Other States In Massachusetts and a few other states it is sitowed even in cases of felony, to charge in different counts sepa- rate and distinct offenses of the same general description, 63 Rex v. Jones, 2 Camp. 131. And see Rex v. Kingston, 8 East, 41; 1 Chit. Cr. Law, 254; Rex v. Levy, 2 Starkie, 458; Rex v. Ben- field, 2 Burrows, 984; People v. Costello, 1 Denio (N. Y.) 83; Kane v. People, 8 Wend. (N. Y.) 211; Harman v. Com., 12 Serg. & R. (Pa.) 69; State v. Gummer, 22 Wis. 441; Quinn v. State, 49 Ala. 353; Com. . v. McChord, 2 Dana (Ky.) 242; State v. Kibby, 7 Mo. 317; Kroer v. People, 78 Ill. 294; Waddell v. State, 1 Tex. App. 720. Distinct sales of intoxicating liquors. Barnes v. State, 19 Conn. 398; Mullinix v. Peopie, 76 Ill. 211; Com. v. Tuttle, 12 Cush. (Mass.) 505. 64 Castro v. Reg., 6 App. Cas. 229; State v. Farmer, 104 N. ©. 887, 10 8S. E. 563. 65 People v. Rohrer, 100 Mich. 126, 58 N. W. 661. In this case the information charged in one count that the defendant kept open his saloon on Sunday, and in another count that he kept his windows curtained on the same day. 340 PLEADING—THE ACCUSATION (Ch. 9 where the mode of trial and the nature of the punishment is the same, and the defendant may be convicted of any one or more of the felonies charged. Whether the offenses shall be tried separately or together is a matter within the dis- cretion of the presiding judge, and, if they are tried to- gether, and a general verdict of guilty is returned, and no inquiry is made of the jury as to the counts upon which they found their verdict, the general verdict will apply to each count.®* This, as we have seen, is an exceptional doc- trine. Even here the court should require the prosecutor to elect, if it sees that there is danger that the defendant may be embarrassed by the multiplicity of the charges against him; but the matter rests within its discretion.®” Joinder of Felony and Misdemeanor At common law, as we have shown, the general rule was to allow several felonies or several misdemeanors to be charged in different counts of the same indictment, but a count for felony could not be joined with a count for mis- demeanor. The reason for the rule was that persons indict- ed for misdemeanors were entitled to certain advantages at the trial, such as the right to make a full defense by coun- sel, to have a copy of the indictment, and to have a special jury,—privileges not accorded to those indicted for a fel- ony.*8 The rule has been recognized as in force in a few of our states.°® In most states, however, the courts have refused to recognize the rule, on the ground that the rea- 66 Benson v. Com., 158 Mass. 164, 33 N. E. 384; Com. v. Costello, 120 Mass. 358; Com. v. Jacobs, 152 Mass. 276, 25 N. E. 463; Speers vy. Com., 17 Grat. (Va.) 570. And see State v. Tuller, 34 Conn. 280; Cash v. State, 10 Humph. (Tenn.) 111; Davis v. State, 85 Tenn. 522, 3 8. W. 348. 67 Benson v. Com., supra. 682 Hale, P. C. 173; Rex v. Fuller, 1 Bos. & P. 180; Rex v. Ben- field, 2 Burrows, 980; 1 Chit. Cr. Law, 208, 254; Rex v. Gough, 1 Moody & R. 71; Rex v. Johnson, 3 Maule & S. 550; Castro v. Reg., 6 App. Cas. 229; Hunter v. Com., 79 Pa. 503, 21 Am. Rep. 83; Storrs y. State, 3 Mo. 9; Scott v. Com., 14 Grat. (Va.) 687; Harman v. Com., 12 Serg. & R. (Pa.) 69; State v. Smalley, 50 Vt. 736. : 69 See U. S. v. Scott, 4 Biss. 29, Fed. Cas. No. 16,241; Hilderbrand v. State, 5 Mo. 548; State v. Montague, 2 McCord (S. C.) 257; Davis v. State, 57 Ga. 66; Scott v. Com, 14 Grat. (Va.) 687. §§ 104-110) JoINDER OF COUNTS—ELECTION 341 “sons upon which it was based do not exist here, or else the rule has been expressly abrogated by statute, so that now, in most states, counts for cognate offenses may be joined, though one may be a felony and the other a misdemeanor.”° The decisions on the question of joinder of felonies and misdemeanors are not uniform, but by the weight of au- thority they may be joined “in all cases, ‘except where the offenses charged are repugnant in their nature and legal incidents, and the trial and judgment so incongruous as to deprive the defendant of some legal advantage.’ In other words, the general rule is that felonies and misdemeanors forming part of the development of the same transaction may be joined in the same indictment.” 7* Where the offenses are cognate, whether or not an elec tion will be required rests in the discretion of the court. But where they are not cognate offenses—as where one count charges burglary, and the other charges assault with intent to commit rape—a refusal to compel an election has been held to be ground for setting aside a conviction on one of the counts.7? ln sustaining an indictment joining a count for common assault, which was a misdemeanor, with a count for assault with intent to rob, which was a statutory felony, the Massa- chusetts court said: “It is true that, generally speaking, of- fenses differing in their natures, one being a felony and the 70 Burk v. State, 2 Har. & J. (Md.) 426; Herman v. People, 131 Ill. 594, 22 N. EH. 471, 9 L. R. A. 182; Stevick v. Com., 78 Pa. 460; Hunter v. Com., 79 Pa. 503, 21 Am. Rep. 83; State v. Fitzsimon, 18 R. I. 236, 27 Atl. 446, 49 Am. St. Rep. 766; State v. Smalley, 50 Vt. 736; Henwood v. Com., 52 Pa. 424; Harman v. Com., 12 Serg. & R. (Pa.) 69; State v. Bell, 27 Md. 675, 92 Am. Dec. 658; Wall v. State, 51 Ind. 453; Com. v. McLaughlin, 12 Cush. (Mass.) 612; State v. Lin- coln, 49 N. H, 464; Stevens v. State, 66 Md. 202, 7 Atl. 254; Cawley v. State, 37 Ala. 152; State v. Stewart, 59 Vt. 273, 9 Atl. 559, 59 Am. Rep. 710; State v. Sutton, 4 Gill (Md.) 494; Dowdy v. Com., 9 Grat. (Va.) 727, 60 Am. Dec. 314; Com. v. Adams, 7 Gray (Mass.) 43; State v. Daubert, 42 Mo. 243; State v. Hood, 51 Me. 363; People.v. Ryn- ders, 12 Wend. (N: Y.) 426. 71 State v. Fitzsimon, supra; Herman vy. People, supra; and other cases above cited. 72 State v. Fitzsimon, supra. 342 PLEADING—THE ACCUSATION (Ch. 9 Ni other a misdemeanor, ought not to be joined. But the prac- tice in this commonwealth has fully sustained a joinder of such counts where they have been a kindred line of offenses. It is allowed always where several counts are introduced for the purpose of meeting the evidence as it may transpire on the trial, all the counts being substantially for the same offense. * * * Certainly, where the offense charged in the second count is necessarily embraced in the charge in the first count, and all the evidence to sustain it might have been given under the first count, and a conviction of the -charge well authorized as a substantive part of the first count, it cannot be objected that the same is stated in a second count; nor is a verdict of not guilty on the first count inconsistent with a verdict of guilty on the second count.” 78 Effect of Misjoinder A few of the cases hold, or seem to hold, that felonies arising from distinct transactions, even though they may be of the same nature—as, for instance, where several counts charge distinct larcenies—cannot be joined without making the indictment bad as a matter of law.7* By the great weight of authority, however, an indictment is never bad, as a matter of law, because of the joinder of several separate and distinct offenses in different counts, where they are of the same general nature, and where the mode of trial and the nature of the punishment is the same. An 72 Com. v. McLaughlin, 12 Cush. (Mass.) 612. In many jurisdictions statutes provide for the joinder of counts in certain specified cases. These statutes should be consulted by the student. 74 State v. Montague, 2 McCord (S. C.) 257; McKenzie v. State, 32 Tex. Cr. R. 568, 25 S. W. 426, 40 Am. St. Rep. 795; James v. State, 104 Ala. 20, 16 South. 94; Davis v. State, 57 Ga. 66. 75 Dowdy v. Com., 9 Grat. (Va.) 727, 60 Am. Dec. 314; Young v. Rex, 3 Term R. 106; Kane v. People, 8 Wend. (N. Y.) 211; People v. Rynders, 12 Wend. (N. Y.) 425; Castro v. Reg., 6 App. Cas. 229; 1 Chit. Cr. Law, 253; 2 Hale, P. C. 173; Rex v. Johnson, 2 Leach, Crown Cas. 1103; Rex v. Kingston, 8 Hast, 41; 2 East, P. C. 515; Rex v. Jones, 2 Camp. 131; Ketchingman v. State, 6 Wis. 426; Com. vy. Hills, 10 Cush. (Mass.) 530; Carlton v. Com., 5 Metc. (Mass.) 532; Lazier v. Com., 10 Grat. (Va.) 708; Com. v. Brown, 121 Mass. 69; State v. Nelson, 14 Rich. (8S. C.) 172, 94 Am. Dec. 130; State v. Scott, §§ 104-110) JoINDER OF COUNTS—ELECTION 343 indictment may, therefore, join several distinct felonies or several distinct misdemeanors, without being bad as a mat- ter of law. Since such a joinder does not render the in- dictment bad as a matter of law, it is no ground for demur- rer, motion in arrest of judgment, or writ of error. The only way in-which the objection can be raised is by motion to quash the indictment, or to compel the prosecutor to elect upon which count he will proceed. It has been held, for instance, that demurrer, motion in arrest, or writ of error will not lie because of the joinder of a count for bur- glary with a count for larceny;7* counts for separate and distinct arsons;77 counts for separate and distinct receipts of stolen goods; 7* forgery of an instrument, and the utter- ing of it;7® counts for separate embezzlements;*° counts for larceny and obtaining money by false pretenses.** It has been held that a misjoinder of counts is cured by a verdict of acquittal on the count improperly inserted; that, “having been negatived by the jury, it is as if it had never been inserted in the indictment.” ®* But, except in Massachusetts and.a few other states, where, as we have seen, the doctrine as to joinder of counts is exceptional, and a person is allowed to be tried, in the discretion of the court, for separate and distinct offenses at the same time, an error in overruling a motion to compel an election would not be 15 S. C. 435; Benson v. Com., 158 Mass. 164, 33 N. EB. 384; State v. Smalley, 50 Vt. 736; State v. Stewart, 59 Vt. 273, 9 Atl. 559, 59 Am. ~ Rep. 710; U.S. v. West, 7 Utah, 437, 27 Pac. 84; State v. Woodard, 88 S. C. 353, 17 S. E. 185; State v. Frazier, 79 Me. 95, 8 Atl. 347; Mills v. Com., 18 Pa. 631; Mershon vy. State, 51 Ind. 14; Johnson v. State, 29 Ala. 62, 65 Am. Dec. 383; State v. Nelson, 29 Me. 329; State v. Hodges, 45 Kan. 389, 26 Pac. 676; Orr v. State, 18 Ark. 540; State v. Kibby, 7 Mo. 317. : 76 Carlton v. Com., 5 Metec. (Mass.) 532; State v. Woodard, 38 S. C. 353, 17 S. E. 135. 77 State v. Smalley, 50 Vt. 736. 78 Com. y. Hills, 10 Cush. (Mass.) 530. 79 People v. Rynders, 12 Wend. (N. Y.) 425. 80 State v. Hodges, 45 Kan. 389, 26 Pac. 676. 81 Johnson v. State, 29 Ala. 62, 65 Am. Dec. 383. 82 Com. v. Packard, 5 Gray (Mass.) 103; Com. v. Chase,-127 Mass. 7. 344 PLEADING—THE ACCUSATION (Ch. 9 so cured.§* Of course, it would be otherwise if no such motion was made.*+ If offenses for which the punishment is different are join- ed, it would seem that a demurrer will lie, for, in case of a general verdict of guilty the court could not know what punishment to impose; and, after a general verdict of guilty, such a misjoinder is ground for motion in arrest of judgment. But judgment will not be arrested if the verdict specifies upon which count the defendant is found guilty, nor where the verdict is general, if one of the counts is in- sufficient, for, as we shall see, the verdict will be referred to the good count.*5 Construction and Form of Separate. Counts—Partial Insuffi- ciency Every separate count should charge the defendant as if he had committed a distinct offense, for it is upon the prin- ciple of the joinder of offenses that the joinder of counts is admissible; ®® and to each count should be prefixed a state- ment that the jury present upon oath, thus: “And the jurors aforesaid, upon their oath aforesaid, further present,” etc.; and there should, by the weight of opinion, be added a formal conclusion, “against the peace of the state,” or “against the peace of the state, and contrary to the form of the statute ;”®7 for each count is in fact a separate indict- ment. The fact, however, that the former words are pre- 83 See the cases cited in notes 56, 57, 65, supra. 84 See the cases cited in notes 75-81, supra. 85 James vy. State, 104 Ala. 20, 16 South. 94; Adams v. State, 55 Ala. 143; State v. Montague, 2 McCord (S. C.) 257; Davis v. State, 57 Ga. 66. 861 Chit. Cr. Law, 249; Rex v. Jones, 2 Camp. 1382; Young v. Rex, 3 Term R. 106, 107; U. S. v. Furlong, 5 Wheat. 201, 5 L. Ed. 64; Com. y. Burke, 16 Gray (Mass.) 83; Com. v. Carey, 103 Mass. 215. 87 State v. McAllister, 26 Me. 374; State v. Wagner, 118 Mo. 626, 24S. W. 219. As to the conclusion, see note 82, p. 860, infra. Under statutes in some states neither “the commencement nor conclusion” need be repeated in each count, if they appear at the beginning and end of the whole indictment. See West v. State, 27 Tex. App. 472, 11S. W. 482; Alexander v. State, 27 Tex. App. 533, 11 S. W. 628. §§ 104-110) JoINDER OF COUNTS—ELECTION » 845 fixed to a statement does not necessarily show that it is a second count.*8 Though every count should appear upon its face to charge the defendant with a distinct offense, yet one count may re- fer to matter in another count, so as to avoid unnecessary repetitions; as, for instance, to refer to the county stated in a prior count as “the county aforesaid,” or to the time stated in a prior count as “on the day and date aforesaid,” or to describe the defendant as “the said,” giving merely his Christian name, where his full name has been stated in a preceding count.2® And the fact that the count thus re- ‘ferred to is defective, or is rejected by the grand jury, will not vitiate the succeeding count.°° Statements in one count cannot aid defects and omissions in another, unless incorporated in the latter by some proper reference to therm contained in the latter; %+ and the refer- ence must be such as to draw to it the particular statement contained in the first count. Any qualities or adjuncts aver- red to belong to any subject in one count will not, if they are separable from it, be supposed to be alleged as belong- ing to it in a subsequent count, which merely introduces it by reference as the same subject “before mentioned,” or “the said” subject, or the subject “aforesaid.” There must be a repetition of or reference to the quality or adjunct, and not merely to the subject.°? The words, “the said infant female child,” in one count of an indictment, were held not 88 Rex y. Haynes, 4 Maule & S. 221. 89 State v. Hertzog, 41 La. Ann. 775, 6 South. 622; Boggs v. State (Tex. Cr. App.) 25 S. W. 770; Redman v. State, 1 Blackf. (Ind.) 431. And see, as to reference to other counts, People v. Graves, 5 Parker, Cr.,R. (N. Y.) 134; People v. Danihy, 63 Hun, 579, 18 N. Y. Supp. 467. 90 Phillips vy. Fielding, 2 H. Bl. 181; Com. v. Miller, 2 Pars. Eq. Cas. (Pa.) 480. But see State v. Longley, 10 Ind. 482. 91 People v. Smith, 103 Cal. 563, 87 Pac. 516; State v. McAllister, 26 Me. 374. Thus an allegation, in the first count of an indictment, as to the county in which the offense was committed, cannot aid the second count, which contains no averment, by reference or otherwise, as to place. Jones v. Com., 86 Va. 950, 12 S. B. 950. 92 See Reg. v. Waverton, 2 Denison, Crown Cas. 339; State v. Nel- son, 29 Me. 329; State v. Lyon, 17 Wis. 237; State v. Wagner, 118 Mo. 626, 24 S. W. 219. 346 , PLEADING—THE ACCUSATION (Ch. 9 to import into that count a description of the child in a preceding count as being of tender years.°? And the words “articles aforesaid,’ used in a count with reference to a prior count, will not draw into the count the allegations of value in the prior count.*4 On the other hand, if one count is bad for failure to state any offense, or to state it with sufficient precision, this will not render a good count bad.** And, generally, a defect in some of the counts will not affect the validity of the remain- der, or prevent judgment on a general verdict of guilty, for judgment may be rendered on those counts which are good.** 93 Reg. v. Waters, 1 Denison, Crown Cas. 356. 94 State v. Wagner, 118 Mo. 626, 24 S. W. 219. 95 Com. v. Gable, 7 Serg. & R. (Pa.) 423; State v. Nelson, 8 N. H. 163; Miller v. State, 5 How. (Miss.) 250; People v. Wright, 9 Wend. (N. Y.) 193. 96 Rex v. Fuller, 1 Bos. & P. 187; Reg. v. Jones, 8 Car. & P. 776; Claassen v. U. 8., 142 U. 8S. 140, 12 Sup. Ct. 169, 35 L. Ed. 966; Brown v. Com., 8 Mass. 63; State v. Coleman, 5 Port. (Ala.) 40; Jennings v. Com., 17 Pick. (Mass.) 80; Mead v. State, 58 N. J. Law, 601, 23 Atl. 264; U. S. v. Furlong, 5 Wheat. 184, 5 L. Ed. 64; Kane v. People, 3 Wend. (N. Y¥.) 363; Curtis v. People, Breese (Ill.) 256; Townsend v. People, 3 Scam. (Ill.) 828; Hudson v. State, 1 Blackf. (Ind.) 318; Har- man vy. Com., 12 Serg. & R. (Pa.) 69; State v. Crank, 2 Bailey (S. C.) 66, 23 Am. Dec. 117; Turk v. State, 7 Ohio, 240, Pt. 2; Hornsby v. State, 94 Ala. 55, 10 South. 522, But see Mowbray v. Com., 11 Leigh (Va.) 654; Clere v. Com., 3 Grat. (Va.) 615; Jones v. Com., 86 Va. 950, 12 S. E. 950. In this respect there is a difference between an indict- ment and a declaration in a civil action, for, if one part of a declara- tion is bad, and the jury find entire damages, the judgment must be arrested; and the reason of the distinction is that the court cannot apportion the damages, whereas it can impose such a sentence as is warranted by the good counts in an indictment. 1 Chit. Cr. Law, 249; Reg. v. Ingram, 1 Salk. 384. This was the common-law rule in England at the time this country was settled, and became a part of our common law. Since then the rule has been changed in England, and the. rule in civil cases is also applied in criminal cases. O’Con- nell v. Reg., 11 Clark & F. 155. But the old rule is still recognized with us. U.S. v. Furlong, 5 Wheat. 201, 5 L. Ed. 64; U. S. v. Plumer, 8 Cliff. 28, Fed. Cas. No. 16,056; People v. Curling, 1 Johns. (N. Y.) 320; Jennings v. Com., 17 Pick. (Mass.) 80; Com. v. Hawkins, 3 Gray (Mass.) 463. Where, on the trial of an indictment containing two counts, one of which is defective, evidence pertinent to both is re- ceived under a ruling that both are good, a verdict cannot be sus- §§ 111-118) JOINDER OF PARTIES 847 Some early English cases held that the court’ could not quash one count without vitiating the whole indictment, on the ground that the court cannot alter the finding of the grand jury.°7 The modern English doctrine is that one or more counts may be quashed, leaving others to stand.°® The authorities in the United States are not in accord on this question. The majority permit the quashing of some counts; °® others follow the early English doctrine.+ JOINDER OF PARTIES - 111. Where several persons join in the commission of an offense, whether it be a felony or a misdemeanor, they may be joined in the same indictment, and one or all may be convicted. 112. Some offenses—perjury, for instance—are of such a nature that one person only can commit them, and every person who commits any such offense must be indicted separately. 113. Some offenses—conspiracy and riot, for instance—can- not be committed by one person alone, and one de- fendant only could not be convicted and the others acquitted. Where the act constituting the offense was such that several persons could join in its commission as principals in the first or second degree,’ all who so joined in it may be tained because the evidence is sufficient to sustain a conviction on the count which is good. People v. Smith, 103 Cal. 563, 37 Pac. 516. See post, p. 571. ; 97 Rex v. Pewtress, 2 Strange, 1026; Rex v. Pewteruss, Cas. t. Hardw. 203. 98 Reg. v. Bell, 12 Cox, C. C. 37. 99 State v. McKiernan, 17 Nev. 224, 30 Pac. 831; State v. Wood- ward, 21 Mo. 265; Com. v. Stevenson, 127 Mass. 446. 1 Rose v. State, Minor (Ala.) 28. 2It must be remembered that these terms apply, in case of treason or misdemeanor, to all persons who join in the commission of the of- fenses, for they are all guilty as principals. It is in felonies. only that there are accessories. A person who so joins in treason or a 348 PLEADING—THE ACCUSATION (Ch. 9 indicted either jointly or severally. And a joint indictment against them all is also an indictment against each of them severally. Thus a joint indictment will lie against the par- misdemeanor that, if the offense were a felony, he would be an ac- cessory before the fact, is a principal. See Clark, Cr. Law, (3 Ed.) 109. 32 Hale, P. C. 173; 2 Hawk. P. C. c. 25, § 89; Rex v. Benfield, 2 Burrows, 984; Rex v. Hollond, 5 Term R. 607; Kane v. People, 8 Wend. (N. Y.) 203; State v. Gay, 10 Mo. 440; Com. v. Weatherhead, 110 Mass. 175; State v. O’Brien, 18 R. I. 105, 25 Atl. 910: Hess v. State, 5 Ohio, 5, 22 Am. Dec. 767; State v. Woodard, 38 S. C. 353, 17 S. E. 185; State v. Wadsworth, 30 Conn. 55; State v. Nowell, 60 N. H. 199; Fletcher v. People, 52 Ill. 395; Casily v. State, 32 Ind. 62; Weatherford v. Com., 10 Bush (Ky.) 196; note 44, infra. Husband and wife are no exception to the rule. Com. v. Murphy, 2 Gray (Mass.) 510; Reg. v. Cohen, 11 Cox, Cr. Cas. 99; Reg. v. Williams, 1 Salk. 384; Com. v. Tryon, 99 Mass. 442; Com. v. Ray, 1 Va. Cas. 262. Whether a wife can be convicted separately or jointly with her hus- band depends solely on whether she was coerced by him. Clark, Cr. Law, 102; Com. v. Murphy, supra. ‘Notwithstanding the offense of several persons cannot but in all cases be several, because the of- fense of one man cannot be the offense of another, but every one must answer severally for his own crime, yet if it wholly arise from any such joint act which in itself is criminal, without any regard to any particular personal default of the defendant, as the joint keep- ing of a gaming house, or the unlawful hunting and carrying away of a deer, or maintenance, or extortion, etc., the indictment or in- formation may either charge the defendants jointly and severally, * # * or may charge them jointly only, without charging them severally, because it sufficiently appears, from the construction of law, that if they joined in such act they could but be each of them guilty; and from hence it follows that on such indictment or infor- mation some of the defendants may,be acquitted and others convict- ed, for the law looks on the charge as several against each, though the words of it purport only a joint charge against all. But where the offense indicted doth not wholly arise from the joint act of all the defendants, but from such act joined with some personal and par- ticular defect or omission of each defendant, without which it would be no offense—as the following a joint trade without having served a seven-year apprenticeship required by the statute, in which case . it must be the particular defect of each trader which must make him guilty, and one of them may offend against the statute and the oth- ers not—the indictment or information must charge them severally, and not jointly; for it is absurd to charge them jointly, because the offense of each defendant arises from a defect peculiar to himself. ' And for the like reason a joint indictment against several for not re- pairing the street before their houses hath been quashed.” 2 Hawk. P. C. ¢. 25, § 89. §§ 111-118) JOINDER OF PARTIES 349 ties to an act of adultery, or to illicit cohabitation, and simi- lar offenses,* for conspiracy or riot,° for extortion,® for libel, where all join in publishing it,” for obtaining money by, false pretenses,® for selling intoxicating liquors without a license,® or for being common sellers of intoxicating liq- uors,*° for receiving stolen goods,** for violation of the law against labor on Sunday.?? And in all cases of felony, such as murder, assaults, robbery, burglary, arson, etc., where several were present aiding or abetting, they may be joined with the principal in the first degree, and charged in the in- dictment either as actual perpetrators or as aiders and abet- tors.*8 The parties need not necessarily act jointly in all cases, but it is sufficient if one and the same offense is committed by each. In the case of a nuisance, for instance, occasioned by the several acts of a number of persons, all of them may be jointly indicted.1* 4Com. v. Elwell, 2 Metc. (Mass.) 190, 35 Am. Dec. 398; State v. Mainor, 28 N. C. 340. 5 State v. Allison, 3 Yerg. (Tenn.) 428; People v. Howell, 4 Johns. (N. Y.) 296; Turpin y. State, 4 Blackf. (Ind.) 72; Com. v. Manson, 2 Ashm. (Pa.) 31. 6 Reg. v. Atkinson, 1 Salk. 382, 2 Ld. Raym. 1248, 7 Rex vy. Benfield, 2 Burrows, 984. And for jointly singing libelous words. “Cannot several persons join in singing one and the same song? Forty people may join in the same chorus. And if such song or chorus be libelous, the doing so is one joint act, criminal in itself, without regard to any peculiar personal default.” Rex vy. Benfield, supra. 8 Kex v. Young, 1 Leach, Crown Cas. 505, 3 Term R. 98. ®Com. v. Sloan, 4 Cush. (Mass.) 52; State v. Brown, 49 Vt. 437; State v. Simmons, 66 N. C. 622; Peterson vy. State, 32 Tex. 477. 10 Com. vy. Brown, 12 Gray (Mass.) 135. 11 Reg. v. Dovey, 2 Denison, Crown Cas. 92; Com. v. Slate, 11 Gray (Mass.) 68. To sustain a joint charge of receiving stolen goods, there must have been a joint receipt at one and the same time. Com. v. Slate, supra. 12 Com. v. Sampson, 97 Mass. 407. z 132 Hawk. P. C. c. 25, § 64; Young v. Rex, 3 Term R. 98; Coal- Heavers’ Case, 1 Leach, Crown Cas. 64; Rex v. Taylor, Id. 360; Rex v. Young, Id. 505; 2 Hale, P. C. 173; Com. v. Chapman, 11 Cush. (Mass.) 428; State v. Blan, 69 Mo. 317; White v. People, 32 N. Y. 465; State v. Pile, 5 Ala. 72. 14 Rex y. Trafford, 1 Barn. & Adol. 874. 350 PLEADING—THE ACCUSATION (Ch. 9 The parties, however, must commit the same crime, and not merely similar crimes, by their several acts.*® If two persons play at the same game of cards at the same time, they may be jointly indicted; **® but, if neither is present when the other plays, a joint indictment will not lie.1™ So, if two persons assault a third at the same time, they may be jointly indicted; 1* but it is otherwise if one of them com- mits the assault on one day, and the other commits it on another day.?® So, if two persons at the same time, acting together, kill a man, they may be jointly indicted for the murder; but it is otherwise if they each inflict a mortal blow at different times, and not acting in concert.?° Many offenses are of such a nature that they cannot be jointly committed; so that, even though several parties commit them at the same time, the indictments must be several.24, A joint indictment will not lie against two per- sons for jointly exercising a trade, as partners, for instance, without having served an apprenticeship, “for not being ap- prentices is that which occasions the crime, and that must of necessity be several.” ?* Nor will a joint indictment lie for perjury, though it may have been committed by swear- ing to the same thing at the same time.?* Nor will it lie for 15 Elliott v. State, 26 Ala. 78; Stephens v. State, 14 Ohio, 386; Baker v. People, 105 Ill. 452; People v. Hawkins, 34 Cal. 181; Reg. v. Devett, 8 Car. & P. 639; Lindsey v. State, 48 Ala. 169. 16 Com. v. M’Guire, 1 Va. Cas. 119; Covy v. State, 4 Port. (Ala.) 186. 17 Elliott v. State, 26 Ala. 78; State v. Homan, 41 Tex. 155; Gal- breath v. State, 36 Tex. 200. But see Com. v. McChord, 2 Dana (Ky.) 242, 18 Fowler v. State, 3 Heisk. (Tenn.) 154, 19 Reg. v. Devett, 8 Car. & P. 639. 20 Td. 212 Hawk. P. C. c. 25, § 89. And see the quotation therefrom in note 3, p. 848, supra. See, also, Elliott v. State, 26 Ala. 78; State v. Deaton, 92 N. C. 788. 222 Rolle, Abr. 81; Reg. y. Atkinson, 1 Salk. 382, 2 Ld. Raym. 1248. But see State v. McAninch, 172 Iowa, 96, 154 N. W. 399, holding that two may be jointly indicted for practicing medicine without a cer- tificate. 23 Young v. Rex, 3 Term R. 103; Rex v. Philips, 2 Strange, 921; Rex v. Benfield, 2 Burrows, 983. §§ i11-113) JOINDER OF PARTIES 851 being common barretors or common scolds,** or for drunk- enness,?° or against several persons holding different of- fices, and charged with different duties, like the judges, in- spectors, and clerks of an election, for malfeasance in of- fice.?® Where partners, as such, publish an obscene, seditious, or defamatory book or other libel, or, it has been held, where several persons jointly utter libelous words, as where they join in singing a libelous song, they may be jointly in- dicted.27 But if several persons at different times, and not by one and the same joint act, publish the same libel, or ut- ter the same obscene, blasphemous, seditious, or defamato- ry words, they must be indicted separately.”* It is difficult to see how words can in any way be jointly uttered by sev- eral persons. Where the principal in the second degree is not charged, as we have seen that he may be, as an actual perpetrator of the crime, but as an aider and abettor, it is not necessary to set forth in the indictment the means or manner by which he became thus guilty, but it is sufficient to merely charge that he was present, aiding and abetting, at the felony and murder (as the case may be), committed in the manner and form aforesaid.?® It will not do to merely charge him with being present, for that is not enough to make him guilty.*° It is not necessary to repeat, as to the principal in the sec- ond degree, the acts stated as constituting the crime.*4 Several persons may be charged with different degrees of crime in the same indictment. Thus, if one person with malice abets another, who, without malice, unlawfully gives a blow causing death, it is murder in the former, and man- 24 Rex v. Philips, 2 Strange, 921. 25 State v. Deaton, 92 N. C. 788. 26 Com. vy. Miller, 2 Pars. Eq. Cas. (Pa.) 481. 27 Rex v. Benfield, 2 Burrows, 985. 28 State v. Roulstone, 3 Sneed (Tenn.) 107; Cox v. State, 76 Ala. 66. 291 Hale, P. C. 521, 522; 2 Hawk. P. C. c. 25, § 64; Id. c. 29, § 17; Heydon’s Case, 4 Coke, 42b; Rex v. Towle, Russ. & R. 314, 302 Hawk. P. C. c. 25, § 64; Heydon’s Case, 4 Coke, 42b, 81 Everett v. State, 33 Fla. 661, 15 South. 543, 352 PLEADING—THE ACCUSATION (Ch. 9 slaughter in the latter, and it may be so charged in an in- dictment against them jointly.*? It seems that in some cases several persons who have committed different offenses of the same kind may be in- cluded in the same indictment, if the word “severally” is inserted, since that makes the indictment several as to each of them, though the court may, in its discretion, quash the indictment if it may cause inconvenience.** It has been held, for instance, that four persons could be joined for erecting four inns, which were common nuisances, where the word “severally” was inserted ; and the rule has been ap- plied to an indictment against several for keeping disorder- ly houses.** “As, at common law, the accessory cannot be tried before the principal, without his own consent, and as the crime of the former depends upon the guilt of the latter, and an ac- cessory must be convicted of a felony of the same species as the principal, it is both usual and proper to include them in the same indictment.” ** Both may be tried together, but at common law the principal must be first convicted. If he is acquitted, both must be acquitted.2® The rules of the common law in this respect have been greatly modified by statutes.*7 These statutes, however, do not prevent joint indictments against principals and accessories. Where the principal and an accessory before the fact are thus join- ed as such in the same indictment, the proper course is to 321 Chit. Cr. Law, 270; Mackalley’s Case, 9 Coke, 67b; Rex v. Cary, 3 Bulst. 206; Rex v. Taylor, 1 Leach, Crown Cas. 360. 331 Chit. Cr. Law, 271; Young v. Rex, 3 Term R. 106; Rex v. Kingston, 8 East, 46. 342 Hale, P. C. 174; Higges v. Henwood, 2 Rolle, 345; Rex v. Kingston, 8 East, 47; State v. Nail, 19 Ark. 563; Jobnson v. State, 13 Ark. 684; Com. v. McChord, 2 Dana (Ky.) 242; Lewellen v. State, 18 Tex. 538. 35 1 Chit. Cr. Law, 272; 1 Hale, P. C. 623; 2 Hale, P. C. 173; Com. v. Adams, 7 Gray (Mass.) 44; State v. Atkinson, 40 S. C. 363, 18 S. EH. 1021, 42 Am. St. Rep. 877; Id., 41 S. C. 551, 19 S. E. 691; State v. Lang, 65 N. H. 284, 23 Atl. 432; Com. v. Devine, 155 Mass. 224, 29 N. BE. 515. Thus a thief and the receiver of the stolen goods may be joined. Com. v. Adams, supra. / 361 Hale, P. C. 624; 2 Hale, P. C. 222; 2 Hawk. P. C. ¢. 29, § 47. 37 Clark, Cr. Law, (8 Ed.) 118. §§ 111-118) JOINDER OF PARTIES 353 first state the offense committed by the principal, and then to aver that “C. D. (the accessory) before the committing of the said felony and murder (or other felony, as the case may be) in form aforesaid, to wit, on, etc., did maliciously and feloniously incite, move, procure, aid and abet (or counsel, hire, and command) the said A. B. (the principal) to do and commit the said felony in manner aforesaid, against the peace,” etc.®® And where a person is indicted as accessory after the fact together with his principal, the principal’s offense is stated in the same way, and it is aver- red that the accessory did receive, harbor, and maintain, etc., the principal, well knowing that he had committed the felony, etc. The averment of knowledge is absolutely es- sential, for without it a person cannot be an accessory after the fact.2® In no case is it necessary to use the word “ac- cessory” in the indictment,*® or to set forth the means by which the accessory before the fact incited the principal, or the accessory after the fact received, concealed, or assisted him.*? - In an indictment against the accessory alone after the: principal has been convicted, it is not necessary to aver that the latter committed the felony, or on the trial to enter in detail into the evidence against him. It is sufficient to recite with accuracy the record of the conviction, because the court will presume everything on the former occasion to have been rightly and properly transacted.*? It is al- ways open to the accessory, however, to: show positively that the principal was innocent, and was erroneously con- victed, in which case he must be acquitted.*8 On an indictment against two or more persons, charging them with a joint offense, either may be found guilty; for 38 1 Chit. Cr. Law, 272, ‘ 39 Ante, p. 225; 1 Hale, P. C. 622; 2 Hawk. P. C. c. 29, § 83; Rex v. Thompson, 2 Lev. 208. 40 Rex v. Burridge, 3 P. Wms. 477. 411 Chit. Cr. Law, 273. 421 Chit. Cr. Law, 273; Holmes v. Walsh, 7 Term R. 465; Com, v. Knapp, 10 Pick. (Mass.) 477, 20 Am. Dec. 534.. 434 Bl. Comm. 324; Rex v. Baldwin, 3 Camp. 265; Com. v. Knapp, 10 Pick. (Mass.) 477, 20 Am. Dec. 534, CxLark Cr.PRoC.(2D ED.) —23 354 PLEADING—THE ACCUSATION (Ch. 9 the charge is several, as well as joint, against all and each of them. All or part may be convicted, and all or part may be acquitted.** “Except in indictments for offenses neces- sarily joint, joint defendants may be convicted of different grades; and they may be convicted of different degrees of criminality in the same offense, where the defendants may act different parts in the same transaction.” *® Thus, on a joint indictment for burglary and larceny, one of the defend- ants may be convicted of burglary and larceny, and the oth- er of simple larceny.*® And on a joint indictment for lar- ceny one may be convicted of.larceny, and the other of an attempt to commit larceny.*7 And on a joint indictment for murder one may be convicted of murder and the other of manslaughter.*® The rule that one of several joint defendants may be con- victed, and the others acquitted, does not apply to the full 44 Com. v. Brown, 12 Gray (Mass.) 135; Rex v. Hempstead, Russ. & R. 344; Reg. v. Dovey, 2 Denison, Crown Cas. 86; Com. v. Slate, 11 Gray (Mass.) 63; 2 Hawk. P. C. ¢c. 25, § 89; Brown v. State, 5 Yerg. (Tenn.) 367; Com. v. Griffin, 3 Cush. (Mass.) 523; State v. Smith, 37 Mo. 58; Com. v. Cook, 6 Serg. & R. (Pa.) 577, 9 Am. Dec. 465; State vy. O’Brien, 18 R. I. 105, 25 Atl. 910; State v. Bradley, 9 Rich. (S. C.) 168. ‘The case of Reg. v. Dovey, 2 Denison, Crown Cas. 92, and oth- er cases subsequent to that of Rex v. Messingham (1 Moody, Crown Cas. 257) explain and illustrate the principle and the extent to which it is to be carried in the matter of charging a joint felony in receiv- ing stolen goods knowing them to be such. To sustain a joint charge against two for one and the same offense, there must be a joint re- ceipt at one and the same time; and a receipt of goods by one of the parties at one time and place, and a subsequent receipt by another, will not sustain the joint charge, but will authorize the conviction of the party who first received them. He is properly found guilty of receiving stolen goods. So the entire acquittal of one of two parties charged exonerates that party, but leaves the indictment valid and effectual as against the one found guilty by the jury.” Com. v. Slate, supra. 45 Klein v. People, 81 N. Y. 229. See Shouse v. Com., 5 Pa. 83; Rex vy. Butterworth, Russ. & R. 520; White v. People, 32 N. Y. 465. 464 Chit. Cr. Law, 270; Rex v. Butterworth, Russ. & R. 520. But see Rex v. Hempstead, Russ. & R. 344; Rex v. Quail, 1 Craw. & D. 191. 47 Klein v. People, 31 N. Y. 229. 48U. S. v. Harding, 1 Wall. Jr. 127, Fed. Cas. No. 15,301; Mask v. State, 32 Miss. 406. §§ 111-113) JOINDER OF PARTIES 355 extent in the case of crimes which cannot be committed by one person alone, as in the case of riot, which cannot be committed by less than three,*® and conspiracy, which re- quires at least two.°° If so many are acquitted that there remains less than the number necessary to commit the crime, all must be acquitted.5* Effect of Misjoinder of Parties If the fact that there is a misjoinder of parties appears on the face of the indictment, the objection, at common law, may be raised by demurrer, or by motion in arrest of judg- ment, or on writ of error; or the court, in its discretion may quash the indictment on motion.®? If the objection does not so appear, it may be raised by plea in abatement, or the defendants may wait until the fact of misjoinder appears from the evidence, and then claim an acquittal.5* There is some conflict in the authorities on these points, and’in some jurisdictions the common-law rules have been changed by statute. Severance ‘Where several persons are rightly joined in one indict- ment, the court may, in its discretion, grant them a sever- ance; that is, separate trials.*4 Several Counts The fact that several defendants are charged in different counts of the same indictment with different offenses of the same nature does not render the indictment bad in law, so that objection may be taken by demurrer, motion in arrest 49 Clark, Cr. Law, 456. 501d. 155. 51 Rex vy. Kinnersley, 1 Strange, 193; Rex v. Heaps, 2 Salk. 593; Rex v. Nichols, 18 East, 412, note; State v. O’Donald, 1 McCord (S. C.) 582, 10 Am. Dec. 691; State v. Allison, 3 Yerg. (Tenn.) 428; Penn- sylvania v. Huston, Add. (Pa.) 334; Turpin v. State, 4 Blackf, (Ind.) 72; Stephens v. State, 14 Ohio, 388. 52 Young v. Rex, 3 Term R. 103; Rex vy. Weston, 1 Strange, 623; Reg. v. Devett, 8 Car. & P. 639; People v. Hawkins, 34 Cal. 181; Galbreath v. State, 836 Tex. 200; Elliott v. State, 26 Ala. 78. 53 Blliott v. State, supra; Stephens v. State, 14 Ohio, 386; Lind- sey v. State, 48 Ala. 169; Baker vy. People, 105 Ill. 452, 54 Post, D. 503. 356 PLEADING—THE ACCUSATION (Ch. 9 of judgment, or on writ of error; but the court, in the ex- ercise of its discretion, may quash the indictment.®> In overruling a-demurrer to such an indictment it was said that “this would have been a good ground of application to the discretion of the court to quash the indictment for the inconvenience which may arise at the trial from joining dif- ferent counts against different offenders; but where, to the offenses so charged in different counts, there may be the same plea and the same judgment, there is no authority for saying that such joinder in one indictment is bad in point of law, nor is there any legal incongruity on the face of it, to warrant us in giving judgment for the defendants on de- murrer.” °¢ CONCLUSION OF INDICTMENT 114. An indictment for an offense, either at common law or by statute, except for mere nonfeasance, must con- clude, “against the peace of the state;” ®’ and an indictment for an offense against a statute must also expressly count upon the statute, and must therefore conclude, “against the form of the stat- ute, and against the peace of the state.” In the absence of statutory provision to the contrary, ev- ery indictment, whether under a statute or at common law, except for a mere nonfeasance,°* must conclude, “against the peace of the state.” In England it is, “against the peace of the king,” and in some of our states it is the practice to use the word “commonwealth,” or the words “people of the state,” instead of “state.” ‘This conclusion is essential at common law, and its omission is fatal to the indictment.®? 55 Rex y. Kingston, 8 East, 41. 56 Rex y. Kingston, supra. 57 Or “of the commonwealth,” or “of the people of the state,” where it is the practice in the particular state to use these terms. 58 Reg. v. Wyat, 1 Salk. 380. 59 2 Hale, P. C. 188; 2 Hawk. P. C. c. 25, § 92; Holmes’ Case, Cro. Car. 377; Palfrey’s Case, Cro. Jac. 527; Reg. v. Langley, 3 Salk. 190; Rex v. Cook, Russ. & R. 176; Damon’s Case, 6 Greenl. (Me.) 148: § 114) CONCLUSION OF INDICTMENT 357 It is usual to use the words “against the peace and dignity of the state’ but the word “dignity” is not necessary.® “Against the peace,” without adding “of the state,” would not be sufficient.*4_ In some states a form of conclusion is prescribed by the Constitution or by statute, and the form so prescribed must be followed,*? at least substantially, though an immaterial variance therefrom will not render the indictment bad.®* In a few states a literal compliance with the Constitution has been held necessary.** — Whoever commits an offense indictable either by statute or common law is guilty of a breach of the peace of that government which exercises jurisdiction, for the time be- ing, over the place where such offense is committed; and in setting forth the offense an omission to charge it as hav- ing been done against the peace of that government is fatal.°° Thus, where an indictment, in England, for an of- fense committed in the reign of a previous sovereign, con- cluded against the peace of the sovereign reigning at the time of the indictment, the defect was held fatal.°* And an indictment in Maine, after it had become a state, for an offense committed when its territory was a portion of Massachusetts, was held bad because it concluded against State v. Evans, 27 N. C. 603; Rogers v. Com., 5 Serg. & R. (Pa.) 463; Com. v. Carney, 4 Grat. (Va.) 546; State v. Washington, 1 Bay (S. C.) 120, 1 Am. Dec. 601; Browne’s Case, 3 Greenl. (Me.) 177; State vy. Soule, 20 Me. 19; State v. Kean, 10 N. H. 347, 834 Am. Dec. 162; Thompson v. Com., 20 Grat. (Va.) 724. But see Gragg y. State, 8 OkL Cr. 409, 106 Pac. 350. ; 602 Hale, P. C. 188; 2 Hawk. P. ©. c. 25, § 94; 2 Rolle, Abr. 82; Com. y. Caldwell, 14 Mass. 330. 612 Hale, P. C. 188; Damon’s Case, 6 Greenl. (Me.) 148. | 62 State v. Lopez, 19 Mo. 254; Com. v. Carney, 4 Grat. (Va.) 546; Anderson v. State, 5 Ark. 444; Rogers v. Com., 5 Serg. & R. (Pa.) 463. Contra, Chemgas v. Tynan, 31 Colo. 35, 116 Pac. 1045. 63 State v. Kean, 10 N. H. 347, 34 Am. Dec. 162, supra; Anderson vy. State, 5 Ark. 445; State v. Allen, 8 W. Va. 680; Zarresseller v. People, 17 Tl. 101. 64 See page 357, note 62, supra. 65 Damon’s Case, 6 Greenl. (Me.) 148; Reg. v. Lane, 3 Salk. 190, 2 Ld. Raym. 1084; 2 Hawk. P, C. ¢. 25, § 95; 2 Hale, P. C. 188; Rex v. Lookup, 3 Burrows, 1903. 66 Rex v. Lookup, supra. ‘358 PLEADING—THE ACCUSATION (Ch. 9 the peace of Maine, instead of against the peace of Massa- chusetts.°” Every indictment on a statute, except for mere nonfeas- ance,®® must also have this conclusion.°® In addition to this, every indictment founded on a statute, including in- dictments for nonfeasance, must conclude contra formam statuti, by the words “against the form of the statute in such case made and provided,” or words to that effect.” Both of these conclusions are necessary. The latter will not supply an omission of the former, nor the former an omis- sion of the latter.7: The conclusion contra formam statuti is to show that the prosecution proceeds upon a statute in contradistinction to the common law, and is essential. “A judgment by statute shall never be given on an indictment at common law, as every indictment which doth not con- clude contra formam statuti shall be taken to be. And therefore, if an indictment do not conclude contra formam statuti, and the offense indicted be only prohibited by stat- ute, and not by common law, it is wholly insufficient, and no judgment at all can be given upon it.” 7? The conclusion contra formam statuti is necessary at 67 Damon’s Case, supra. 681 Chit. Cr. Law, 246. 692 Hale, P. C. 188; Palfrey’s Case, Cro. Jac. 527; Reg. v. Lane, 2 Ld. Raym. 1034; Reg. v. Langley, 3 Salk. 190; Rex v. Cook, Russ. & R. 176. 702 Hawk. P. C. c. 25, § 116. And see cases hereafter cited. 71 Com. vy. Town of Northampton, 2 Mass. 116; Rex vy. Cook, Russ. & R. 176. : 722 Hawk. P. C. c. 25, § 116; 1 Hale, P. C. 172, 189, 192; Rex v. Clerk, 1 Salk. 370; Rex v. Winter, 13 Bast, 258; Reg. v. Harman, 2 Ld. Raym. 1104; Wells v. Iggulden, 3 Barn. & C. 186; Com. v. In- habitants of Springfield, 7 Mass. 9; State v. Soule, 20 Me. 19; State v. Evans, 7 Gill & J. (Md.) 290; McCullough v. Com., Hardin (Ky.) 102; State v. Jim, 7 N. C. 3; Crain v. State, 2 Yerg. (Tenn.) 390; State v. Humphreys, 1 Overt. (Tenn.) 307. The same is true of a complaint for violation of a city by-law or ordinance, where the prosecution can only be maintained by virtue of a statute. It must conclude, not merely “against the form of the by-laws of said city,” but also “against the form of the statute.’ Com. v. Worcester, 3 Pick. (Mass.) 475; Com. v. Gay, 5 Pick. (Mass.) 44; Stevens v. Di- mond, 6 N. H. 330. § 114) CONCLUSION OF INDICTMENT 859 common law where an offense is entirely created by statute, and did not exist at common law; 7? or where an offense at common law is by statute made an offense of a higher na- ture, as’ where a misdemeanor is made a felony; 7* or where the statute expressly or impliedly repeals the common law in relation to the offense;7> or where an increased punish- ment is prescribed by statute for an existing common-law offense accompanied by certain circumstances of aggrava- tion.7® But this conclusion is only necessary where the in- dictment is founded ona statute. It is not necessary where the offense exists at common law, and a statute merely de- prives the offender, under particular circumstances, of some benefit to which he was entitled, as formerly of the benefit of clergy;77 or where a common-law offense committed abroad is made punishable here; 7* or where a statute mere- ly changes a rule of evidence in relation to a common-law offense;7® or where a common-law offense is merely de- clared by statute; ®° or where the punishment of a com- mon-law offense is merely fixed by statute.*? Where an indictment contains several counts, each count 732 Hawk. P. C. c. 23, § 99, Id. c. 25, § 116; 1 Hale, P. C. 172, 189, 192; Com. v. Town of Northampton, 2 Mass. 116; Com. v. Inhabit- ants of Springfield, 7 Mass. 18. 742 Hale, P. C. 189; 2 Hawk. P. C. c. 25, § 116; State v. Wright, 4 McCord (S. C.) 358; Anderson v. State, 5 Ark. 445; State v. Kean, 10 N. H. 347, 10 Am. Dec. 162; State v. Johnson, 1 Walk. (Miss.) 392; State v. Ripley, 2 Brev. (S. C.) 300; State v. Jim, 7 N. C. 3; State v. Evans, 7 Gill & J. (Md.) 290; State v. Soule, 20 Me. 19. 75 Com. v. Cooley, 10 Pick. (Mass.) 87; Com. v. Ayer, 3 Cush. (Mass.) 152; Com. v. Dennis, 105 Mass. 162. 76 State v. McKettrick, 14 8. C. 346; People v. Enoch, 18 Wend. (N. Y¥.) 159, 27 Am. Dec. 197. 772 Hale, P. C. 190; Rex v. Dickenson, 1 Saund. 135, note 3. 78 Rex vy. Sawyer, Russ. & R. 294. 792 Hale, P. C. 190, 288; 2 Hawk. P. C. c 46, § 43; J. Kel. 32. 802 Hale, P. C. 189; People v. Enoch, 13 Wend. (N. Y.) 175, 27 Am. Dec. 197; State v. Evans, 7 Gill & J. (Md.) 290. 81 Russel v. Com., 7 Serg. & R. (Pa.) 489; Rex vy. Chatburn, 1 Moody, Crown Cas. 403; Williams v. Reg., 7 Q. B. 250; Rex v. Ber- ry, 1 Moody & R. 463; State v. Burt, 25 Vt. 873; Chiles v. Com., 2 Va. Cas. 260; State v. Ratts, 63 N. C. 503; Com. v. Searle, 2 Bin. (Pa.) 382, 4 Am. Dec. 446; White v. Com., 6 Bin. (Pa.) 179, 6 Am. Dec. 448. But see 2 Hale, P. C. 190; 2 Rolle, Abr. 82. 360 PLEADING—THE ACCUSATION (Ch. 9 is a separate charge, and must have a proper conclusion. By the weight of authority, the conclusion of one count cannot supply the omission of a conclusion in another.*? ‘These exact words need not be used, but the words sub- stituted must be an equivalent. “It may be going too far,” it has been said, “to say that no other form of words can be devised which would be equivalent to contra formam statuti; but it is certain that no words would be sufficient unless they clearly and explicitly refer to the statute as the foundation of the suit.” ®* The words “against the law in such case provided” have been held not sufficient,** but “against the peace and the statute” are sufficient.®* We have already seen that a conclusion contra formam statuti cannot aid an indictment which does not contain sufficient averments to bring the case within a statute.®® We have also seen that an indictment need not recite the particular statute on which it is founded.§” “Where there are two statutes which relate to the offense, there have been various distinctions taken, respecting the conclusion against the form of the ‘statutes’ in the plural, or ‘statute’ in the singular, only. Thus it was formerly holden by several authorities that where an offense is pro- hibited by several independent statutes, it is necessary to conclude in the plural; ** but now the better opinion seems to be that a conclusion in the singular will suffice, and it will be construed to refer to that enactment which is most 82 State v. Soule, 20 Me. 19; State v. Johnson, Walk. (Miss.) 392. But see McGuire v. State, 37 Ala. 161. 83 Com. v. Inhabitants of Stockbridge, 11 Mass. 279; Lee v. Clarke, 2 Wast, 333; State v. Holly, 2 Bay (S. C.) 262. But see State v. Turnage, 2 Nott & McC. (S. C.) 158; U.S. v. Smith, 2 Ma- son, 148, Fed. Cas. No. 16,338. 84 Com. vy. Inhabitants of Stockbridge, supra. But see Hudson v. State, 1 Blackf. (Ind.) 318; Fuller v. State, 1 Blackf. (Ind.) 65. 85 Com. v. Caldwell, 14 Mass. 330. 86 Ante, p. 302. . 87 Ante, p. 300. 88 Broughton v. Moore, Cro. Jac. 142; Dormer’s Case, 2 Leon. 5; Petchet v. Woolston, Aleyn, 49; Rex y. Cox, 2 Bulst, 258; State v. Cassel, 2 Har. & G. (Md.) 407. § 114) CONCLUSION OF INDICTMENT 361 for the public benefit.” ®° It has been held that where an offense is created by one statute, and the punishment pre- scribed or affixed by another, the conclusion should be in the plural; °° but this is not necessary “where the statute creating the offense is only amended or regulated, or altered in parts thereof which do not relate to the offense or to the punishment thereof.” ®t It has been held that where an in- dictment or information is. founded on a single statute, a conclusion contra formam statutorum is fatal, °? but on this point there is a direct conflict in the authorities, and the weight of opinion is to the contrary.®* Where the conclusion contra formam statuti is unneces- sarily inserted, and the indictment may be sustained at common law, these words may be rejected as surplusage, and the judgment given as at common law.*# 891 Chit. Cr. Law, 291; 1 Hale, P. 0. 173; 2 Hawk. P. C. c. 25, § 117; Horthbury v. Levingham, Sid. 348; Owen, 135; Rex v. Collins, 2 Leach, Crown Cas. 827; 4 Coke, 48a; People v. Walbridge, 6 Cow. (N. Y.) 512; U.S. v. Furlong, 5 Wheat. 184, 5 L. Ed. 64; Kenrick v. U. S., 1 Gall. 268, Fed. Cas. No. 7,713; State v. Dayton, 23 N. J. Law, 49, 61, 53 Am. Dec. 270; State v. Berry, 9 N. J. Law, 374. 902 Hale, P. C. 173; Dormer’s Case, 2 Leon. 5; Broughton vy. Moore, Cro. Jac. 142; State v. Cassel, 2 Har. & G. (Md.) 407; Kane v. People, 8 Wend. (N. Y.) 212. But see 1 Chit. Cr. Law, 292; 2 Hawk. P. C. c 25, § 117; Parker v. Webb, 3 Lev. 61; U.S. v. Gi- bert, 2 Sumn. 19, Fed. Cas. No. 15,204; Butman’s Case, 8 Greenl. (Me.) 113. 81 Kane y. People, supra; Dingley v. Moor, Cro. Eliz. 750; Pink- ney v. Inhabitants, 2 Saund. 377, note 12; Rex v. Dickenson, 1 Saund. 135, note 3. 922 Hawk. P. C. c. 25, § 117; Andrews v. Hundred of Lewknor, Cro. Jac. 187, Yel. 116. 932 Hale, P. C. 173; Com. v. Hooper, 5 Pick. (Mass.) 42; State v. Townley, 18 N. J. Law, 311; Kenrick v. U. S., 1 Gall. 268, Fed. Cas. No. 7,718; U. S. v. Gibert, 2 Sumn. 21, 89, Fed. Cas. No. 15,204. 942 Hale, P. C. 190; Reg. v. Wyat, 1 Salk. 381; 2 Hawk. P. C. ¢. 25, § 115; Rex v. Mathews, 5 Term R. 162, 2 Leach, Crown Cas. 584; Reg. v. Wigg, 2 Ld. Raym. 1163; Rex v. Harris, 4 Term R. 202; Com. v. Hoxey, 16 Mass. 385; Pennsylvania v. Bell, Add. (Pa.) 171, 1 Am. Dec. 298; State v. Gove, 34 N. H. 510; Haslip v. State, 4 Hayw. (Tenn.) 273; Respublica v. Newell, 3 Yeates (Pa.) 407, 2 Am. Dec. 881; Davis v. State, 3 Har. & J. (Md.) 154; Southworth y. State, 5 Conn. 325; Knowles v. State, 8 Day (Conn.) 103; Fuller v. State, 1 Blackf. (Ind.) 65; State v. Phelps, 11 Vt. 116, 34 Am. Dee. 362 PLEADING—THB ACCUSATION (Ch: 9 In England, and in some of our states, statutes have been enacted declaring in substance that no indictment, informa- tion, or complaint shall be held insufficient for want of a proper conclusion.®* In some states, on the other hand, as we have seen, not only is there no such statute, but there are constitutional provisions declaring the formal conclu- sion necessary, so that no statute dispensing with the ne- cessity for it would be valid. Though it has sometimes been customary, it is altogether unnecessary, to insert in the conclusion of an indictment the words, “to the great damage of” the party injured by the crime, “to the evil example of all others,” or “to the great displeasure of Almighty God.” °* Nor, it seems, is it necessary, though it is customary, to insert the words “to the common nuisance of the citizens of the state,” or, in Eng- land, “of all the liege subjects of our lord the king,” in in- dictments against common barretors, common scolds, and for other common nuisances, though on this point there is a conflict.®? 672; Gregory v. Com., 2 Dana (Ky.) 417; State v. Buckman, 8 N. H. 203, 29 Am. Dec. 646; State v. Burt, 25 Vt. 373; State v. White, 15 S. C. 881. But where an offense which was a misdemeanor at com- mon law is made a felony by statute, there can be no judgment as for a misdemeanor at common law. See the cases cited in note 74, page 359, supra. 95 See State v. Cadle, 19 Ark. 613; Com. v. Kennedy, 15 B. Mon. (Ky.) 5381; State v. Dorr, 82 Me. 341, 19 Atl. 861. 961 Chit. Cr. Law, 245; Rex vy. Cooper, 2 Strange, 1246. 972 Hawk. P. C. c. 25, § 59; Com. v. Haynes, 2 Gray (Mass.) 73, 61 Am. Dec. 437; Com. v. Reynolds, 14 Gray (Mass.) 91, 74 Am. Dec. 665; Com. v. Parker, 4 Allen (Mass.) 318. Contra, 1 Chit. Cr. Law, 245; Rex v. Pappineau, 2 Strange, 688; Rex v. Cooper, Id. 1246; Com. v. Faris, 5 Rand. (Va.) 691; Reg. v. Holmes, 6 Cox, Cr, Cas. 216; Com. v. Smith, 6 Cush. (Mass.) 81; Com. v. Buxton, 10 Gray (Mass.) 9. §§ 115-116) AMENDMENT 363 ‘ AMENDMENT 115, At common law, an information could be amended by the prosecuting officer at any time by leave of the court; but an indictment, being a finding by the grand jury on oath, could not be so amended. 116. By statute, in most jurisdictions, either an indictment or information may now be amended in various particulars. Since an indictment is a finding by the grand jury upon oath, and, at common law, depends upon this fact, among others, for its validity, it follows that it cannot, at common law, be amended by the court, without the concurrence of the grand jury that presented it; and the rule, because of its reason, necessarily applies to every offense, whether it be a felony or merely a misdemeanor.®* In some states it is held that it cannot even be amended, with the defend- ant’s consent, as to matters of substance, where the prose- cution is required to be by indictment.®® It is, or was at one time, the practice in England for the grand jury to con- sent at the time they were sworn that the court should amend matters of form, altering no matter of substance; and mere informalities could be amended by the court at 981 Chit. Cr. Law, 298; 2 Hawk. P. C. ¢. 25, § 98; Rex v. Wilkes, 4 Burrows, 2570; State v. Sexton, 10 N. C. 184, 14 Am. Dec. 584; People v. Campbell, 4 Parker, Cr. R. (N. Y.) 386; Ex parte Bain, 121 U.S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849; Com. v. Mahar, 16 Pick. (Mass.) 120; Patrick v. People, 182 Ill. 529, 24 N. B. 619; Com. v. Inhabitants of Phillipsburg, 10 Mass. 78; State v. Squire, 10 N. H. 558; Sanders v. State, 26 Tex. 119; State v. McCarthy, 17 R. I. 370, 22 Atl. 282; State v. Kennedy, 36 Vt. 563; Com. v. Buzzard, 5 Grat. (Va.) 694; State v. Terrebonne, 45 La. Ann. 25, 12 South, 315. But see Miller v. State, 68 Miss. 221, 8 South. 273. 99 Com. v. Maher, 16 Pick. (Mass.) 120; People v. Campbell, 4 Parker, Cr. R. (N. Y.) 386; Com. v. Adams, 92 Ky. 184, 17 S. W. 276. Contra, McCorkle v. State, 14 Ind. 39; State v. Faile, 43 S. C. 52, 20 S. E. 798; State v. Cody, 119 N. C. 908, 26 S. E. 252, 56 Am. St. Rep. 692; by statute, State v. McCarthy, 17 R. I. 370, 22 Atl, 282; Reynolds v. State, 92 Ala. 44, 9 South. 398. 364 PLEADING—THE ACCUSATION (Ch. 9 any time before trial, or perhaps during the trial.* Some of the courts in this country have held it competent for the court to amend matters of form, but others hold the con- trary,- where such an amendment is not expressly allowed by statute. The omission of an averment which is essential is fatal at common law, though the averment is purely tech- nical and formal.? The caption of an indictment may, as we have seen, be amended at any time, so as to conform to the other records of the court; but this is no violation of the rule, for the caption is no part of the indictment? Informations, since they are not found upon the oath of a grand jury, may, at common law, be amended by leave of the court, at any time before trial, even after plea. “There is a great difference,” said Lord Mansfield in a leading case, “between amending indictments and amending informa- tions. Indictments are found upon the oaths of a jury, and ought only to be amended by themselves; but informations are as declarations in the king’s suit. An officer of the crown has the right of framing them originally, and may, with leave, amend, in like manner as any plaintiff may do. If the amendment can give occasion to a new defense, the defendant has leave to change his plea.” # _In England, and in many of our states, statutes have been enacted, allowing mistakes in the statement of time and place, names and description of persons, description of prop- erty, statements of ownership, etc., to be cured by amend- ment at the trial, in the discretion of the court, if the de- fendant cannot be prejudiced thereby in his defense on the merits. In some states it is merely provided that indict- 12 Hawk. P. C. c, 25, § 98. 2Com. v. Inhabitants of Phillipsburg, 10 Mass. 78; State v. Hughes, 1 Swan (Tenn.) 261. 3 Ante, p. 158, 4 Rex y. Wilkes, 4 Burrows, 2527, 2569. And see Anon., 1 Salk. 50; Rex v. Nixon, 1 Strange, 185; Rex v. Charlesworth, 2 Strange, 871; Rex v. Harris, 1 Salk. 47; Rex v. Holland, 4 Term R. 457; State v. Rowley, 12 Conn. 101; Com. v. Rodes, 1 Dana (Ky.) 595; State v. Terrebonne, 45 La. Ann. 25, 12 South. 315; State v. Weare, 88 N. H. 314; State v. White, 64 Vt. 372, 24 Atl. 250. §§ 115-116) AMENDMENT 365 ments, etc., may be amended in matters of form, where the defendant cannot be prejudiced thereby. These statutes must be read in connection with, and subject to, the consti- tutional provisions of the particular state. In some states, as we have heretofore shown, the Constitution requires all prosecutions to be by indictment. Clearly, in these states, a statute cannot be so construed as to authorize an indict- ment to be amended by the court, even with the defendant’s consent, either during the trial or before plea, in any matter of substance, for the accusation as amended would not bea finding by the grand jury.’ In most, if not all, of the states, the Constitution guarantees to persons accused of crime the right to be fully and substantially informed of the charge against them, before they can be called upon to answer, either by an express provision to that effect, or impliedly by the provision that no person shall be deprived of life, liberty, or property without due process of law. In no state, there- fore, can the Legislature authorize either an indictment or an information to be amended during the trial in matter of substance.®° It may authorize amendments in matters of form.’ The difficulty is in determining what defects are mere matter of form and what are matter of substance, and the authorities are conflicting. We may state as a rule, that no omission or misstatement which prevents the indictment 5 Ante, pp. 125, 165; People v. Campbell, 4 Parker, Cr. R. (N. Y.) 386; State v. Ham, 72 N. J. Law, 4, 60 Atl. 41;. State v. Armstrong, 4 Minn. 335 (Gil. 251); State v. Twining, 71 N. J. Law, 388, 58 Atl. 1098. 6 Ante, p. 165, and cases there cited; People v. Campbell, 4 Parker, Cr. R. (N. Y¥.) 386; Sharp v. State, 6 Tex. App. 650; Collins v. State, 25 Tex. Supp. 205; State v. Startup, 39 N. J. Law, 423; McLaughlin v. State, 45 Ind. 338; State v. Van Cleve, 5 Wash. 642, 32 Pac. 461; State v. McCarthy, 17 R. I. 370, 22 Atl. 282; Com. v. Harrington, 130 Mass. 35; Drummond v. State, 4 Tex. App. 150. But see note, 99, page 180. 7Com. v. Holley, 3 Gray (Mass.) 458; Peebles v. State, 55 Miss. 434 ;. State v. Nulty, 57 Vt. 543; McKinley v. State, 8 Humph. (Tenn.) 72; State v. Schricker, 29 Mo. 265; State v. Chamberlain, 6 Nev. 257; Rough v. Com., 78 Pa. 495; State v. Manning, 14 Tex. 402; State v. Freeman, 59 Vt. 661, 10 Atl. 752; and cases hereafter referred to. 366 PLEADING—THE ACCUSATION (Ch. 9 from showing on its face that an offense has been commit- ted, or from showing what offense is intended to be charged, is mere matter of form. It is matter of substance, and can- not be cured by amendment at the trial? And in no case can an indictment or information be amended at the trial so as to change the identity of the offense.® The name of the defendant is held mere matter of form, and may be amended, if a statute permits.1° Some of the courts have allowed the names of third persons to be sup- plied or changed by amendment—as the name of the owner of property in an indictment or information for larceny, and similar crimes;1?* the name of the owner of the premises in an indictment for burglary or arson;+? the name of the thief in an information for receiving stolen goods;** the name of the purchaser in an indictment for an unlawful sale of intoxicating liquors;1* the name of the person assaulted in a complaint for assault and battery,*® and murder; ?* the name of the woman in an indictment for adultery,?’ and seduction;?® of the purchaser in an indictment for liquor selling.?® 8 State v. Learned, 47 Me. 426. And see Com. v. Harrington, 130 Mass. 35; McLaughlin v. State, 45 Ind. 338; State v. Startup, 39 N. J. Law, 423; Bates v. State, 12 Tex. App. 26; cases cited in note 6, supra. And see ante, pp. 122, 125, 165. 9 Blumenberg v. State, 55 Miss. 528. 10 State v. Manning, 14 Tex. 402; State v. Schricker, 29 Mo. 265, Shiflett v. Com, 90 Va. 386, 18 S. E. 838; People v. Kelly, 6 Cal. 210; State v. Johnson, 93 Mo. 317, 6 S. W. 77; Miller v. State, 68 Miss. 221, 8 South. 273. 11 State v. Casavant, 64 Vt. 405, 23 Atl. 636; State v. Christian, 30 La. Ann. 367; State v. Hanks, 39 La. Ann. 235, 1 South. 458; State v. Ware, 44 La. Ann. 954, 11 South. 579; Baker v. State, 88 Wis. 140, 59 N. W. 570. Contra, State v. Van Cleve, 5 Wash. 642, 32 Pac. 461; State v. McCarthy, 17 R. I. 370, 22 Atl. 282. 12 People v. Hagan, 60 Hun, 577, 14 N. Y. Supp. 233. Contra, State vy. McCarthy, supra. And see, as contra, State v. Van Cleve, supra. 13 State v. Jenkins, 60 Wis. 599, 19 N. W. 406. 14 Rough v. Com., 78 Pa. 495. 15 Rasmussen v. State, 63 Wis. 1, 22 N. W. 835; State v. Sovern, 225 Mo. 580, 125 S. W. 769. 16 State v. Peterson, 41 La. Ann. 85, 6 South. 527. 17 State v. Arnold, 50 Vt. 731. 18 People v. Johnson, 104 N. Y. 213, 10 N. DB. 690. 19 Rough v. Com., 78 Pa. 495. § 117) AIDER BY VERDICT 367 Amendment has also been allowed to correct a mistake in the allegation of a former conviction in an indictment for a second offense,?° but not to supply an entire omission of such an allegation; *! to supply the certificate of oath to a complaint or information; ?? to change the description of property in an indictment or information for larceny ; 7° to change the name of the county; ?* and to change the time at which the offense was alleged to have been committed.”* AIDER BY VERDICT 117. A defective statement in an indictment will, at com- mon law, in most jurisdictions, be cured by a ver- dict of guilty, if the statement is sufficient to show that the offense has been committed, and to ap- prise the defendant of the charge against him, but not otherwise. In some states the doctrine of aid- er by verdict is not recognized in criminal cases. When we speak of a defect in pleading being cured by verdict, or a pleading being aided by verdict, we mean “the healing or remission, by a verdict rendered, of a defect or error in pleading, which might have been objected to before verdict,” or “the presumption of the proof of all facts nec- essary to the verdict as it stands, coming to the aid of a record in which such facts are not distinctly alleged.” 7° With respect to such imperfections as are aided by verdict 20 Com. v. Holley, 3 Gray (Mass.) 458. 21 See Com. v. Harrington, 130 Mass, 35. 22 State v. Freeman, 59 Vt. 661, 10 Atl. 752. 23 State v. Carter (La.) 9 South. 128; Baker v. State, 88 Wis. 140, 59 N. W. 570. Contra, People v. Campbell, 4 Parker, Cr. R. (N. Y.) 386. And see, as contra, State v. McCarthy, supra; State v. Van Cleve, supra. 7 24 State v. Chamberlain, 6 Nev. 257. 25 Myers v. Com., 79 Pa. 308. By statute, State v. Anderson, 125 La. 779, 51 South. 846; State v. May, 45 S. C. 509, 23 S. H. 513; Peo- ple v. Jackson, 111 N. Y. 362, 19 N. B. 54. Contra, Drummond y. State, 4 Tex. App. 150. 26 Black, Law Dict. “Aider by Verdict.” 368 PLEADING—THE ACCUSATION (Ch. 9 at common law, it has been said that: “Where an averment which is necessary for the support of the pleading is im- perfectly stated, and the verdict on an issue involving that averment is found, if it appears to the court after verdict that the verdict could not have been found oni this issue without proof of this averment, there, after verdict, the de- fective averment which might have been bad on demurrer is cured by the verdict.” ?" “Where a matter is so essen- tially necessary to be proved that, had it not been given in evidence, the jury could not have given a verdict, there the want of stating that matter in express terms in the declara- tion (or indictment), provided the matter contains terms sufficiently general to comprehend it in fair and reasonable intendment, will be cured by a verdict; and where a general allegation must, in fair construction, so far require to be re- stricted that no judge or jury could have properly treated it in an unrestrained sense, it may be reasonably presumed, after verdict, that it was so restrained at the trial.” ?° The doctrine of aider by verdict is founded on the com- -mon law, and is independent of any statutory enactment. Defects in pleading are aided by intendment; that is, the court will, after verdict, presume or intend that the particu- lar thing which is imperfectly stated was duly proved at the trial, when it was within the issue made by the pleadings, and must have been proved to authorize the verdict. There is authority for the proposition that a defective in- dictment cannot be aided by verdict; that no fault which would have been fatal on demurrer can be cured by the ver- dict; and, consequently, that any such fault may be taken advantage of by motion in arrest of judgment, or by writ of error.2® And such has been recognized as the rule in some of our states.2° But in England it is well settled that the common-law doctrine of aider by verdict applies equally to° 27 Heymann vy. Reg., L. R. 8 Q. B. 105. 28 Jackson v. Pesked, 1 Maule & S. 234. 291 Starkie, Cr. Pl. 361. And see 2 Hale, P, O. 193. 80 Com. v. Child, 13 Pick. (Mass.) 198; Com. v. Collins, 2 Cush. (Mass.) 557; Com. v. Bean, 14 Gray (Mass.) 52; People v. Wright, 9 Wend. (N. Y:) 198; State v. Gove, 34 N. H. 511; State v. Barrett, 42 N. H. 466. § 117) AIDER BY VERDICT 369 criminal as to civil cases,?? and the same rule is recognized in some of our states.3? Of course, the doctrine is affected to some extent by the requirement in most of our constitu- tions that no person shall be held to answer for a crime until the same is fully and plainly, formally and substantially, made known to him.** An indictment ‘which fails to meet this requirement could not be aided by verdict, but defects which do not make the indictment insufficient in this re- spect can be so aided. It will be noticed that the verdict cures imperfect and de- fective averments only, and it cures them because the facts alleged being in issue will be presumed to have been so proved as to warrant the verdict. The verdict cannot cure the total omission of an essential averment, for a fact not stated at all cannot have been in issue and there can be no room for presumption or intendment.** The following statement with reference to pleading in civil cases clearly shows the distinction: “Where the statement of the plain- . tiff’s cause of action, and that only, is defective or inaccu- rate, the defect is cured by a general verdict in his favor; because, to entitle him to recover, all circumstances neces- sary, in form or substance, to complete the title so imper- fectly stated, must be proved at the trial, and it is therefore a fair presumption that they were so proved. But, where no cause of action is shown, the omission is not cured; and, if a necessary allegation is altogether omitted from the pleading, or if the latter contains matter adverse to the right of the party pleading it, and so clearly expressed that no reasonable construction can alter its meaning, a verdict will afford no help. A more simple statement of the rule is that 81 Reg. v. Waters, 1 Denison, Crown Cas. 356; Reg. v. Goldsmith, L. R. 2 Crown Cas. 74; Reg. v. Aspinall, 2 Q. B. Div. 48; Bradlaugh v. Reg., 3 Q. B. Div. 607; Heymann vy. Reg., L. R. 8 Q. B. 105. 32 State v. Freeman, 63 Vt. 496, 22 Atl. 621; Nichols v. State, 127 Ind. 406, 26 N. E. 889; State v. Townsend, 50 Mo. App. 690; Lavelle v. State, 186 Ind. 233, 36 N. E. 135; Graeter v. State, 105 Ind. 271, 4 N. BE. 461; State v. Dunn, 109 N. C. 839, 13'S. E. 881. 33 Com. v. Child, 13 Pick. (Mass.) 198. 84 Bradlaugh v. Reg., 3 Q. B. Div. 636. CuLaRrk Cz.PRoc.(2D Ep.)—24 370, PLEADING—THE ACCUSATION (Ch. 9 a verdict will cure the defective statement of a title, but not the statement of a defective title.” °° ' In a prosecution for publishing an obscene book the in- dictment described the book by its title, but did not show its contents. This omission was held fatal, and not cured by a verdict of guilty. “The rule is very simple,” it was said, “and it applies equally to civil and criminal cases. It is that the verdict only cures defective statements. In the present case the objection is not that there is a defective statement, but an absolute and total want in stating that which constitutes the criminal act namely, the words com- plained of. * * * Here we have not the substance set out, we have not a mere defective averment; we have an ab- solute omission to aver that which was relied upon as lewd and indecent. My opinion is that the defect is not a matter cured by the verdict, and it is perfectly open to the plaintiffs in error to rely on this as a fatal defect in the indictment even after verdict.” 3% On the other hand, where a complaint for profane swear- ing charged that the defendant “did profanely curse,” with- out setting forth the language used, and no objection was made at the trial to the defect in the complaint, it was held that though the words should have been set out, and though the complaint would, because of the omission to do so, have been bad on demurrer, the defect was cured by a verdict of guilty.27 So, where an information charged that the defend- ant had enticed a female of chaste character to a certain city, for the purpose of prostitution, it was held that, though the failure to state the particular place or house in the city to which she was enticed would have been fatal on motion to quash or demurrer, the defect was cured by a verdict of guilty, since the information contained all the essential ele- ments of the offense.?® 35 Shipm. Com. Law Pl. 155. 36 Bradlaugh v. Reg., 3 Q. B. Div. 607, 642. And see Reyes v. State, 34 Fla. 181, 15 South. 875. 37 State v. Freeman, 63 Vt. 496, 22 Atl. 621. 38 Nichols v. State, 127 Ind. 406, 26 N. E. 839. The omission or de- fective statement of time may be cured by verdict when time is not of the essence of the offense. Ledbetter v. U. S., 170 U. S. 606, 18 Sup. § 118) FORMAL DEFECTS CURED BY STATUTE 371 Cure of formal defects under the statute of jeofails and amendments and waiver of objections by failure to raise them in a certain way must be distinguished from aider by verdict. The doctrine of aider by verdict is founded, as we have seen, upon the common law, and is independent of any statutory enactment. \ FORMAL DEFECTS CURED BY STATUTE 118. By statute, in most jurisdictions, objections because of formal defects in pleading must be raised at a certain time, or in a certain way, as by demurrer or motion to quash, or they will be waived. And by statute, in some states, no objection at all can be raised because of formal defects. At an early day, statutes called the “statutes of jeofails and amendments” were passed in England, for the purpose of curing defects in civil pleadings. They provided, inter alia, that after verdict no judgment should be arrested or reversed for any defect in form. These statutes did not ex- tend to criminal cases,?® but in most, if not in all, jurisdic- tions there are modern statutes enacted for a similar pur- pose. ; “Statutes of amendments and jeofails are distinct things, though a statute may be both of amendments and jeofails. One of amendments authorizes the cure of a defect by an amendment actually made in the record; of jeofails, directs Ct. 774, 42 L. Ed. 1162; Conner v. State, 25 Ga. 515, 71 Am. Dec. 184. The omission to.state the Christian name of defendant (Wilcox vy. State, 31 Tex. 586), the imperfect description of third persons men- tioned in the indictment (Frasher v. State, 3 Tex. App. 263, 30 Am. Rep. 131), and misdescription of property stolen (State v. Hanshew, 3 Wash. 12, 27 Pac. 1029), have also been held to be cured by verdict. 391 Chit. Cr. Law, 297; 4 Bl. Comm. 375; 1 Hale, P. CG. 193; 2 Hawk. P. C. c. 25, § 97; Reg. v. Tuchin, 1 Salk. 51, 2 Ld. Raym. 1061; State v. Sexton, 10 N. C. 184, 14 Am. Dec. 584; Com. vy. Tuck, 20 Pick. (Mass.) 356; Brown v. Com, 8 Mass. 65; State v. Squire, 10 N. H. 560; People v. Wright, 9 Wend. (N. Y.) 196. : 372 PLEADING—THE ACCUSATION (Ch. 9 the court not to recognize the defect after a time or step mentioned.” *#° “Jeofails” comes from the expression, “J’ai faillé,” which was at one time used by pleaders when they found that they had made an error or slip in the proceed- ings. The statutes of jeofails were so called because, when a pleader discovered, and thus acknowledged, a slip in his proceedings, he was allowed by these statutes to amend it. The amendment was seldom actually made, but the benefit of the statute was attained by the court’s considering the amendment as having been made, and overlooking the mis- take.*t Some statutes require an actual amendment, and are called “statutes of amendment.” Others, even though they may in terms allow amendment, do not require actual amendment, but allow the court to overlook formal de- fects.*2 Others, in their terms, merely require the latter course. We have already dealt with. statutes of amend- ment.** In addition to the statutes which may thus be de- scribed as statutes of jeofails there are modern statutes, in most jurisdictions, providing that certain objections must be raised, if at all, at a certain time, or in a certain way, or ‘be deemed waived; as that objections for formal defects must be taken by demurrer or motion to quash before plead- ing to the merits. As we have already shown, statutes thus curing merely formal defects are constitutional ; ** but it is not in the pow- er of the legislature to thus cure defects in matter of sub- stance. If an indictment omits an averment which is es- sential to the description of the offense, or fails to state the offense with such particularity as may be necessary in order to give the accused notice of the charge against him, the ob- 401 Bish. New Cr. Proc. § 705. 41 Black, Law Dict. tit. “Jeofails’; 38 Bl. Comm. 407; Rex v. Landaff, 2 Strange, 1011; Steph. Pl. Append. 38. 42 Rex v. Landaff, 2 Strange, 1011; Eakin v. Burger, 1 Sneed (Tenn.) 425; 1 Bish. New Cr. Proc. § 705, et seq. 48 Ante, p. 363. 44 Ante, pp. 165, 364; Com. v. Walton, 11 Allen (Mass.) 238; State v. Sides, 64 Mo. 383; Lambert v. People, 29 Mich. 71; State v. Smith, 63 N. ©. 234. § 118) FORMAL DEFECTS CURED BY STATUTE 373 jection may be made at any time, notwithstanding a statute to the contrary.*® The following defects have been held to be merely formal, and therefore curable under the statutes: Failure of an in- formation for embezzling mortgaged chattels to state where the crime was committed, or the value of the property, or that the crime was committed with intent to defraud the mortgagee, since these defects could have been cured by amendment if made at the trial before plea; *® failure of an information for receiving stolen goods to allege when, where, and by whom they were stolen; *’ failure of an in- dictment alleging that the defendant “unlawfully solicited K. falsely to depose” to allege that he did so corruptly ; *® failure to allege the day or month on which the offense was committed, where time was not of the essence of the of- fense; *® charging the offense in the alternative, where some of the alternative averments were good and some were bad;*° duplicity.6* Other illustrations of formal defects will be found under the head of “Amendment.” ®? 45 Collins v. State, 6 Tex. App. 647; Newcomb v. State, 37 Miss. 383; Pattee v. State, 109 Ind. 545, 10 N. BH. 421; Com. y. Doyle, 110 Mass. 103; State v. Reynolds, 106 Mo. 146, 17 S. W. 322; Hawthorn v. State, 56 Md. 530; State v. Amidon, 58 Vt. 524, 2 Atl. 154; People v. McKenna, 81 Cal. 158, 22 Pac. 488; Phillips v. Com, 44 Pa. 197. But see Serra v. Mortiga, 204 U. S. 470, 27 Sup. Ct. 343, 51 L. Ed. 571, in which it was held, even in the absence of a statute, that if defend- ant did not object in the trial court to a defective indictment, and the proof showed him guilty of the offense which the indictment was intended to charge, and he was not misled by the defect in the indict- ment, the conviction would not be disturbed. 46 People v. Schultz, 85 Mich. 114, 48 N. W. 293. 47 People v. Smith, 94 Mich. 644, 54 N. W. 487. 48 Com. v. Lane, 157 Mass. 462, 32 N. BH. 655. 49 Phillips v. State, 86 Ga. 427, 12 S. E. 650; State v. Peters, 107 N. C. 876, 12 8. E. 74; Arrington v. Com., 87 Va. 96, 12 S. E. 224, 10 L. R. A, 242. 50 Hornsby v. State, 94 Ala. 55, 10 South. 522. 51 People v. Tower, 185 N. Y. 457, 832 N. E. 145. See ante, p. 199. 52 Ante, p. 366. 374 PLEADING AND PROOF (Ch. 10 CHAPTER X PLEADING AND PROOF—VARIANCE—CONVICTION OF MINOR OFFENSE 119-121. Pleading and Proof—Vaniance, 122. Conviction of Minor Offense. 123. Conviction of Higher Offense. PLEADING AND PROOF—VARIANCE 119. An omission to prove any essential allegation of the indictment, or, what amounts to the same thing, any material variance between such allegation and the proof, will entitle the defendant to an acquittal. 120. An allegation which is wholly unnecessary and redun- dant, and is not descriptive of that which is essen- tial, may be rejected as surplusage, and need not be proved. But if an unnecessary allegation is de- Scriptive of the identity of anything which it is necessary to state and prove, it cannot be so re- jected, but must be proved. 121. It is not necessary to prove the whole of the charge, if that which is proved is sufficient to constitute the offense, and the part not proved is not essential to the charge, and does not describe or limit that which is essential. The rule governing variance is based on principles that we have already had occasion to refer to in other connec- tions. These principles are: (1) No one can be convicted of an offense without an accusation. (2) The accusation must set forth the facts sufficiently to enable the defendant to prepare his defense. It follows, from the first principle, that to authorize a conviction it is absolutely essential to prove so much of the indictment as is sufficient to show that an offense charged in it has been committed by the de- §§ 119-121) PLEADING AND PROOF—VARIANCH 875 fendant. The proof must correspond with the charge, for to put a person on trial for one offense and convict him of another offense would be to try him and convict him with- out an accusation. Any variance, therefore, between the allegations and the proof with respect to those facts and circumstances which are, in point of law, essential to the charge, will be fatal, and will entitle the defendant to an acquittal. It will not do to prove that some crime has been committed. It must be shown that a crime charged in the. indictment has been committed. It follows, from the second principle above noted, that when certain facts identifying the particular offense the de- fendant is alleged to have committed are set out in the in- dictment, the facts so set out must be proved; to allow a conviction on proof of other facts would be to mislead the defendant in preparing his defense. As said by the Massa- chusetts court: “By the familiar rules of pleading, a party charged with an offense is entitled to a statement in the indictment of the facts which constitute the offense; and if an offense may be committed in either of various modes, the party charged is entitled to have that mode stated in the indictment which is proved at the trial; and when one mode is stated, and proof of the commission of the offense by a different mode. is offered, such’ evidence is incompetent by reason of the variance.” + In a Massachusetts case, the indictment charged that the defendant “unlawfully and scandalously did print and pub- lish certain obscene pictures of naked girls, manifestly tend- ing to the corruption of the morals of youth.” The court admitted evidence that the defendant took pictures of girls naked. down to the waist, and instructed the jury that if. they found such pictures to be obscene and indecent, and to have been published, they should convict the defendant. The conviction was set aside on the ground that the proof did not correspond with the allegation. “The government,” it was said, “having described the pictures, is bound by the description, and the defendant could not be convicted upon 1 Com. v. Richardson, 126 Mass. 34, 30 Am. Rep. 647. 376 PLEADING AND PROOF (Ch. 10 proof that he printed and published pictures substantially different from the description, though the jury might find such pictures to be obscene.” ? So, where the defendant is charged with shooting “into” a dwelling house, and the proof shows that he shot “in” the house, he and the person at whom he shot both being in the dwelling, there is a fatal variance.’ In a prosecution for perjury, a description of the court and judge before whom, and the action or proceeding in which, the false oath was taken, is essential, and a variance in this respect between the indictment and the proof will be fatal. So, on an indictment for malicious prosecution, the defendant is entitled to an acquittal if there is a variance between the description and the proof of the prosecution, or of the court in which the prosecution took place;* or on indictment for obtaining property by false pretenses, a vari- ance between the allegation and proof of the pretenses used.® 2 Com. vy. Dejardin, 126 Mass. 46, 30 Am. Rep. 652. In Lanier v. State, 141 Ga. 17, 80 S. E. 5, the indictment charged a killing to have been done by “choking, strangling, beating, and striking.” The trial court charged the jury in effect that defendant was guilty if he “choked or smothered” the deceased. Held error, as “smothering” was not equivalent to “strangling.” 3 State v. Kye, 46 La. Ann. 424, 14 South. 883. 4 Rex vy. Bellamy, 1 Ryan & M. 171; Rex v. Eden, 1 Esp. 98; Rex v. Alford, 1 Leach, Crown Cas. 150; Walker v. State, 96 Ala. 53, 11 South. 401. In the latter case the indictment described the action as being by G. against the defendant, and the proof showed that it was by “G. et al.” See, also, State v. Peters, 107 N. C. 876, 12 S. E. 74. For variance as to authority under which the judge was sitting, see Rex v. Lincoln, Russ. & R. 421. _ 8 Woodford v. Ashley, 2 Camp. 193; Thompson v. Richardson, 96 Ala. 488, 11 South. 728. 6 Rex v. Plestow, 1 Camp. 494; Sharp v. State, 53 N. J. Law, 511, 21 Atl. 1026; State v. Metsch, 87 Kan. 222, 15 Pac. 251; Com. Vv. Wood, 142 Mass. 459, 8 N. E. 482. On indictment for obtaining credit under false representations, by mortgaging “a dark bay mare mule” and representing it to be defendant’s, conviction cannot be had on proof of mortgaging a “mouse-colored mare mule, named Mag.” Berrien y. State, 83 Ga. 381, 9 S. H. 609. But, as we shali presently see, part only of the pretense need be proved. Note 11, infra. §§ 119-121) PLEADING AND PROOF—VARIANCE 377 On indictment for assault or homicide the means used must be substantially proved as stated. An indictment for assault or murder by poison would not be sustained by proof of assault or murder by shooting or stabbing, and an indict- ment for assault or murder by shooting would not be sus- tained by proof of an assault or murder by poison or with a knife or stick.” Surplusage It is never necessary to prove those allegations which are wholly redundant and useless, and may be rejected as sur- plusage. We have already fully considered the question of 7 Reg. v. Bird, 5 Cox, Cr. Cas. 11; Phillips v. State, 68 Ala. 469. And see Morgan v. State, 61 Ind. 447; Porter v. State, 57 Miss. 300. If the means are substantially proved, it is sufficient. Reg. v. War- man, 2 Car. & K. 195; Patterson v. State, 3 Lea (Tenn.) 575. Thus the charge of cutting with a knife would be sustained by proof of cutting with some other sharp instrument. Mackalley’s Case, 9 Coke, 67a. See Hernandez v. State, 32 Tex. Cr. R. 271, 22 S. W. 972. And an allegation of shooting with a pistol will be sustained by proof of shooting with a gun, for the weapons are of the same char- acter, and inflict the same kind of wound. Turner v. State, 97 Ala. 57, 12 South. 54. But see Morgan y. State, 61 Ind. 447. And a charge of assault and battery with a gun is not sustained by proof of a striking with the hand. Walker v. State, 73 Ala. 17. An alle gation of strangling and choking with the hands is supported by proof of strangling and choking with a scarf. Thomas v. Com. (Ky.) 20 S. W. 226. The fact that the wound which caused death was in the throat, instead of on the head, as alleged, or that its size or shape was not exactly as alleged, does not constitute a variance. Com. v. Coy, 157 Mass. 200, 32 N. E. 4. Under an indictment charg- ing murder by poison, by mingling it with water in a bucket, proof is admissible that the death was caused by poison mixed with coffee in a kettle. The manner in which the poison was administered is not descriptive of the offense, and need not be proved as charged. Johnson v. State, 29 Tex. App. 150, 15 S. W. 647. In Long v. State, 23 Neb. 33, 36 N. W. 310, the indictment charged the killing to be with a “bludgeon.” The court instructed the jury that they might convict if the killing was done with “a bludgeon, bolt, or club.” Held no error. But a charge of assault with “a pitchfork, a sharp, dangerous, weapon,” is not sustained by proof of a striking with the handle of a pitchfork, since the handle is not a sharp, dangerous, weapon. Filkins v. People, 69 N. Y. 101, 25 Am. Rep. 143. 8 Ante, p. 209, where the subject is explained at length; Scott v. Com., 6 Serg. & R. (Pa.) 224; Com. v. Randall, 4 Gray (Mass.) 36; 378 PLEADING AND PROOF (Ch. 10 surplusage, and it is unnecessary to do more than refer to what we have said on the subject. It will be remembered that allegations which, though altogether unnecessary, are descriptive of that which is essential, cannot be rejected, but must be proved as laid.® Proof of Part of Charge The fact that the whole.charge is not sustained by the proof does not entitle the defendant to an acquittal, if enough is proved to make out the offense charged, and the part not proved is not essential to the charge, and does not describe or limit that which is essential.?° Upon an indictment for obtaining money by false pre- tenses, for instance, it is not necessary to prove the whole of the pretenses charged.1? And on indictment for perjury it is sufficient to prove one of the assignments.1? Com. v. Adams, 127 Mass. 15; Stevens v. Com., 4 Leigh (Va.) 683; Com. v. Jeffries, 7 Allen (Mass.) 571, 88 Am. Dec. 712; Com. v. Ba- ker, 10 Cush. (Mass.) 405. Allegation of intent as surplusage. Notes 20, 21, infra. Allegation of knowledge as surplusage. Note 24, in- fra. Allegation as to property as surplusage. Notes 49 et seq. in- fra. Allegation as to ownership of property. Notes 64-66, infra. Names and description of persons. ‘Notes 81, 86-89, infra. Allega- tions as to time. Notes 91, 99. Allegations as to place. Notes 9-27. 9 Ante, p. 214; post, pp. 386, 389, 395, 401; U. 8. v. Howard, 3 Sumn. 12, Fed. Cas. No. 15,403; Alkenbrack v. People, 1 Denio (N. ¥.) 80; State v. Moore, 33 N. C. 70; Com. v. Gavin, 121 Mass. 54, 23 Am. Rep. 255; Com. v. Luscomb, 130 Mass. 42. 10 Com. v. Morrill, 8 Cush. (Mass.) 573; Reg. v. Rhodes, 2 Ld. Raym. 887; People v. Wiley, 8 Hill (N. Y.) 194; Haskins v. People, 16 N. Y. 344; State v. Cameron, 40 Vt. 555; Com. v. Williams, 2 Cush. (Mass.) 583; Lorton v. State, 7 Mo. 55, 87 Am. Dec. 179; Rex vy. Gillham, 6 Term R. 267; Com. v. McKenney, 9 Gray (Mass.) 114; Murphy v. State, 28 Miss. 638. In Bennett v. U. S., 194 Fed. 680, 114 GO. CG. A. 402, an indictment charging defendant with transporting X. and Y. for immoral purposes was held to be sustained by proof that he transported X.; the proof failing as to Y. 11 Rex y. Hill, Russ. & R. 190; People v. Haynes, 11 Wend. (N. Y.) 557; Com. v. Morrill, 8 Cush. (Mass.) 573; Webster v. People, 92 N. Y. 422. 12 Reg. v. Rhodes, 2 Ld. Raym. 887; Com. v. Johns, 6 Gray (Mass.) 274; Williams v. Com., 91 Pa. 493; State v. Hascall, 6 N. H. 358; De Bernie v. State, 19 Ala. 23; Marvin v. State, 53 Ark. 395, 14 S. W. 87; Harris v. People, 64 N. Y. 148. §§ 119-121) PLEADING AND PROOF—VARIANCH 379 So, if an indictment charge that the defendant did and caused to be done a certain act, as that he forged and caused to be forged, it is enough to prove either, if the one proved is a crime in itself;?% and the same is true where, on a charge of composing, printing, and publishing a libel, pub- lication only is proved.'* And as we shall presently see more at length, it is not necessary in a prosecution for larceny to prove that all the property alleged was stolen. We shall find other illustra- tions of the rule in the following pages. Conviction of a distinct minor offense included in the charge will be sepa- rately considered. Name and Addition of the Defendant As we have already seen, a variance between the state- ment of the defendant’s name and addition and the proof will not prevent a conviction. A misnomer or misdescrip- tion of the defendant can be taken advantage of only by plea in abatement.?® Intent Where a particular intent is necessary to constitute the offense charged, it must not only be alleged, but must be proved. A material variance between the allegation and proof will be fatal.t® On indictment for assault with intent to rape, there could be no conviction on proof of an intent to rob or to murder, nor on indictment for assault with in- tent to murder could there be any conviction on proof of intent to maim, or of an intent to kill under such circum- 18 Rex v. Hunt, 2 Camp. 584; Rex v. Middlehurst, 1 Burrows, 399; People v. Rynders, 12 Wend. (N. Y.) 480; Hoskins v. State, 11 Ga. 92. 14 Rex v. Hunt, 2 Camp. 584; Rex v. Williams, Id. 646; Com. v. Morgan, 107 Mass. 205. 15 Ante, p. 176. 16 Rex v. Williams, 1 Leach, Crown Cas. 529; Robinson v. State, 53 Md. 151, 36 Am. Rep. 399. But see Woodburne’s Case, 16 How. State Tr. 54. -An allegation of intent to defraud one person will not be sustained by proof of intent to defraud another person. Schayer y. People, 5 Colo. App. 75, 37 Pac. 43; State v. Reynolds, 106 Mo. 146, 17 S. W. 322; Com. v. Harley, 7 Metc. (Mass.) 506; Com. vy. Kellogg, 7 Cush. (Mass.) 476; ante, pp. 223, 224.. From some acts a criminal intent is presumed. Here proof of the act is sufficient proof of the intent. Ante, p. 218, 380 PLEADING AND PROOF (Ch. 10 stances that an actual killing would not have been murder. So, on indictments for attempts, the specific intent alleged must be proved. In an indictment under a statute for an assault, where the intent laid in several counts was to murder, to disable, or to do some grievous bodily harm, and the intent found by the jury was to prevent being apprehended, the variance was held fatal, because the intent should be stated according to the fact.17 So, on indictment for burglary, if the entry be alleged to have been made with intent to commit a spe- cific felony, the indictment will not be sustained by proof of intent to commit some other and altogether different fel- ony.*8 To avoid a possible variance it is usual, as we have seen, to lay the same act with different intents in different counts of the indictment.?® It is not necessary to prove the whole intention as stated in the indictment if it is divisible, but it will be enough to prove so much as is sufficient to constitute the offense.?° 17 Rex vy. Duffin, Russ. & R. 365. 181 Hale, P. C. 561; 2 East, P. C. 51; Rex v. Monteth, 2 Leach, Crown Cas. 702; Rex v. Jenks, Id. 774; Robinson v. State, 53 Md. 151, 36 Am. Rep. 399; People v. Crowley, 100 Cal. 478, 35 Pac. 84; State v. Carroll, 18 Mont. 246, 33 Pac. 688; State v. Halford, 104 N. C. 874, 10 S. E. 524; Neubrandt v. State, 53 Wis. 89,9 N. W. 824; People v. Mulkey, 65 Cal. ‘501, 4 Pac. 507. It has been held that where the intent alleged and the intent proved are substantially the same, as where an intent to commit larceny is alleged, and an intent to commit robbery is proved, there is no variance. People v. Crow- ley, supra; State v. Halford, supra. But see State v. Carroll, supra, in which it was held that, where the indictment alleges intent to steal an overcoat, that specific intent must be proved. And see Neu- brandt v. State, supra, in which it was held that an allegation of in- tent to steal the goods of a person named must be specifically proved. . ‘ 19 Ante, p. 331. 201 Chit. Cr. Law, 233; Rex v. Dawson, 3 Starkie; 62; State v. Dineen, 10 Minn. 407 (Gil. 325); State v. Moore, 12 N. H. 42; People vy. Hall, 94 Cal. 595, 30 Pac. 7. Where an indictment for burglary alleges an intent to commit both grand and petit larceny, proof of an intent to commit either is sufficient. People v. Hall, supra. And see generally, as to conviction of minor offense not involving the whole intent charged, post, p. 403. §§ 119-121) PLEADING AND PROOF—VARIANCH 381 On an indictment charging an assault with intent to abuse and to carnally know, the accused may be convicted of an assault with intent to abuse simply.** And generally if the allegation of intent is wholly imma- terial, it may be rejected as surplusage, and a variance be- tween the allegation and the proof will not be fatal. Knowledge When knowledge is necessary to constitute the offense it is not only necessary to allege it, but it is also essential that it be proved.?? But where knowledge is unnecessarily stated, as where it must be presumed, because the event, fact, or circumstance lay alike in the knowledge of all men, or where it is not necessary at all to constitute the offense, the allegation may be rejected as surplusage, and need not ’ be proved.?4 Written Instruments and Spoken Words When a written instrument is professedly given accord- ing to its tenor, as heretofore explained, in an indictment for forgery, threatening letters, libel, etc., it must be proven verbatim as laid. Any material variance between the in- strument as set out and the instrument introduced in evi- dence will be fatal.2* Thus, when an indictment alleges the forgery of an indorsement, “B. F. Humes, Mer.,” on a 21 Rex v. Dawson, supra. In Veazie’s Case, 7 Greenl. (Me.) 131, it was held that an indictment for forgery with intent to defraud A. was supported by proof of an intent to defraud A. and B. 22 Rex vy. Higgins, 2 East, 5. 23 Ante, p. 225, 24 Com. v. Squire, 1 Metc. (Mass.) 258; ante, p. 227, 252 Hast, P. C. 976; Rex v. Hunter, Russ. & R. 511; Rex v. Pow- ell, 1 Leach, Crown Cas. 78; Rex v. Gilchrist, 2 Leach, Crown Cas. 660, 661; Rex v. Birkett, Russ. & R. 251; Com. v. Stow, 1 Mass. 54; Com. v. Gillespie, 7 Serg. & R: (Pa.) 469, 10 Am. Dec. 475; Clay v. People, 86 Ill. 147; Reg. v. Drake, 2 Salk. 660; Id., 3 Salk. 224; Rex v. Beach, Cowp. 229, 1 Leach, Crown Cas. 133; Luttrell v. State, 85 Tenn. 232, 1 S. W. 886, 4 Am. St. Rep. 760; State v. Townsend, 86 N. C. 676; State v. Molier, 12 N. C. 263; State v. Weaver, 35 N. C. 491; Dana v. State, 2 Ohio St. 91; People v. Marion, 28 Mich. 255; Com. v. Kearns, 1 Va. Cas. 109; State v. Owen, 73 Mo. 440; State v. Snell, 9 R. I. 112. 382 _ PLEADING AND PROOF (Ch. 10 draft, the abbreviation, “Mgr.,” being a material part of the indorsement, must be proved.?® As we shall presently see, the offense need not generally be shown to have been committed on the day alleged in the indictment. ‘This rule, however, does not dispense with the necessity to prove the date of a written instrument as alleg- ed in the indictment. The date is a part of the description of the instrument, and a variance will be fatal.?? The variance must be material. A mere-variance of a let- ter, or even of a word, will not be fatal, if the meaning is not in any degree altered or obscured.?® On an indictment for forging a bill of exchange, where the tenor was “value received,” but the bill introduced in evidence was “for value received,” the variance was held immaterial.?® So, where an indictment charged the forgery of an order signed “McNicole & Co.,” and the order intro- duced in evidence was signed “McNicoll & Co.,” and where an indictment charged the forgery of a note signed “C. R. Droun,” and the note introduced was signed “C. R. Drown,” the variances were disregarded.®° If the sense is altered at all, a variance even in a letter or a word will be fatal.2+ In- deed, in an early English case it was held that any variance would be fatal, whether it altered the sense or not, as whiere the word “nor” was substituted for the word “not.” 3? We have seen that matter appearing on an instrument, but forming no part of it, need not be set out in the indict- 26 Roush vy. State, 34 Neb. 325, 51 N. W. 755. 27 Whart. Cr. Hv. § 108a; Dill v. People, 19 Colo. 469, 86 Pac. 229, 41 Am. St. Rep. 254. 28 Rex vy. Hart, 1 Leach, Crown Cas. 145; State v. Bean, 19 Vt. 530; State v. Bibb, 68 Mo. 286; State v. Weaver, 35 N. C. 491; State vy. Leak, 80 N. C. 403; Com. v. Parmenter, 5 Pick. (Mass.) 279; ' Ba- ker v. State, 14 Tex. App. 332; Allgood v. State, 87 Ga. 668, 13 S. H. 569; People v. Phillips, 70 Cal. 61, 11 Pac. 493. 29 Rex v. Hart, 1 Leach, Crown Cas. 145. 30 Reg. v. Wilson, 1 Denison, Crown Cas. 284; Com. v. Woods, 10 Gray (Mass.) 482. And see State v. Collins, 115 N. C. 716, 20 S. E. 452. 31 Potter v. State, 9 Tex. App. 55. 32 Reg. v. Drake, 2 Salk. 660; Id., 3 Salk. 224; Rex v. Kinnersley, 1 Strange, 201. §§ 119-121) PLEADING AND PROOF—VARIANCH 383 ment; and of course a difference in this respect between the instrument as set out and the instrument introduced in ev- idence cannot constitute a variance.** Where the purport or substance of a written instrument may be and is given in the indictment, verbal accuracy is ‘ not necessary. If the proof agrees in substance with the al- legations it is enough.** Where an instrument when introduced in evidence does not on its face appear to be that which the indictment states it purports to be, the variance is fatal.3> Such is the case where an instrument is described as a bond, and it is not un- der seal.*® So where an indictment for forging a railroad ticket describes the ticket as signifying to the holder that it must be used continuously, and without stopping at inter- mediate stations, after once entering the car, and the ticket introduced in evidence merely expresses on its face the lim- itation, “Good this day only,” the variance is fatal.” As we have seen, where the purport of an instrument is stated, and does not agree with the purport of the instru- 83 Com. v. Bailey, 1 Mass. 62, 2 Am. Dec. 3; Com. v. Stevens, 1 Mass. 203; People v. Franklin, 3 Johns. Cas. (N. Y.) 299; Com. v. Ward, 2 Mass. 397; Langdale y. People, 100 Ill. 263; State v. Wheel- er, 35 Vt. 261; Wilson v. People, 5 Parker, Cr. R. (N. Y.) 178; Per- kins v. Com., 7 Grat. (Va.) 651, 56 Am. Dec. 123; Miller v. People, 52 N. Y. 304, 11 Am. Rep. 706; Mee v. State, 28 Tex. App. 566, 5 S W. 248; State v. Grant, 74 Mo. 33; Tobart v. Tipper, 1 Camp. 350; Com. v. Adams, 7 Metc. (Mass.) 51; White v. Territory, 1 Wash. St. 279, 24 Pac. 447; Trask v. People, 151 Ill. 523, 88 N. E. 248; State v. Jackson, 90 Mo. 156, 2 S. W. 128; Smith v. State, 29 Fla. 408, 10 South. 894; Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; Griffin v. State, 14 Ohio St. 55; Buckland v. Com., 8 Leigh (Va.) 732; Com. v. Searle, 2 Bin. (Pa.) 332, 4 Am. Dec. 446; Com. v. Taylor, 5 Cush. (Mass.) 605; ante, pp. 243, 244. 34 Wdsall’s Case, 2 East, P. C. 984; ante, p. 241. 35 Rex v. Jones, Doug. 300; Edsall’s Case, 2 East, P. C. 984; Com. vy. Kearns, 1 Va. Cas. 109; Com. v. Ray, 3 Gray (Mass.) 441; State y. Molier, 12 N. C. 263; State vy. Wimberly, 3 McCord (S. ©.) 190; People v. Wiley, 3 Hill (N. Y¥.) 194; Downing v. State, 4 Mo. 572. An indictment for obtaining by false pretenses a note described as the note of S. P. is not sustained by proof of obtaining the joint note of S. P. and another. People v. Reed, 70 Cal. 529, 11 Pac. 676. 36 People vy. Wiley, supra. 37 Com. v. Ray, supra. 384 PLEADING AND PROOF (Ch. 10 ment as afterwards set out according to its tenor, the in- dictment is bad. This, however, is not a question of vari- - ance, but a question of repugnancy between the allegations of the indictment.*® By the weight of authority, where spoken words are al- leged in the indictment, as in an indictment for perjury, slander, profane cursing, obtaining money by false pretens- es, all that is necessary is to prove the words substantially as alleged, and to prove so much of them as is sufficient to make out the offense.2® A variance in a word, or in several words, where the sense is not in any degree changed, will not be fatal. But if the sense is changed, or if the words proved are not in substance the same as the words alleged, even though they may be sufficient to constitute the offense, the variance will be fatal.*° Description of Real or Personal Property Where real property is the subject of the offense charged, the description of it in the indictment must be borne out by the evidence. A variance between the description of the premises and the proof, on indictment for burglary, or stat- utory housebreakings, arson, or statutory burnings, forcible 38 Becker v. State (Tex. App.) 18 S. W. 550; English v. State, 30 Tex. App. 470, 18 8. W. 94; State v. Horan, 64 N. H. 548, 15 Atl. 20; State v. Farrand, 8 N. J. Law, 333; ante, pp. 201, 249. 39 Whart. Cr. Ev. § 120a; Reg. v. Drake, 2 Salk. 660; Re Crowe, 8 Cox, Cr. Cas. 123; People v. Warner, 5 Wend. (N. Y.) 271; Litman v. State, 9 Tex. App. 461; People v. Fay, 89 Mich. 119, 50 N. W. 752; Com. v. Morrill, 8 Cush. (Mass.) 573; People v. Haynes, 11 Wend. (N. Y.) 557; Rex v. Hill, Russ. & R. 190. 40 Reg. v. Fussell, 3 Cox, Cr. Cas. 291; Reg. v. Bird, 17 Cox, Cr. Cas. 387; Riddle vy. State, 30 Tex. App. 425, 17 S. W. 1073; Berry v. State, 27 Tex. App. 483, 11 S. W. 521; Frisby v. State, 26 Tex. App. 180, 9 S. W. 463; Wohlgemuth v. U. S., 6 N. M. 568, 30 Pac. 854; Sharp v. State, 53 N. J. Law, 511, 21 Atl. 1026; Leverette v. State, 32 Tex. Cr. R. 471, 24 S. W. 416; State v. Frisby, 90 Mo. 530, 2 S. W. 833; note 6, supra. Where an indictment for slander alleged words as spoken in Hnglish, and the proofs showed that they were spoken in German, the variance was held fatal, though when trans- lated into English the words were substantially as alleged. Stichtd y. State, 25 Tex. App. 420, 8 S. W. 477, 8 Am. St. Rep. 444. ® §§ 119-121) PLEADING AND PROOF—VARIANCH 385 entry and detainer, etc., will be fatal, for the description of the premises is essential to the charge.** The same rule applies to indictments for offenses relating to personal property. In prosecutions for larceny, embez- zlement, false pretenses, etc., a description of the property stolen, embezzled, or obtained is essential to the charge, and must be borne out by the evidence. Any material variance will be fatal.4? An indictment for the larceny or embezzle- ment of cloth and other materials is not supported by proof of the larceny or embezzlement of an overcoat made from such materials.4? So where an indictment charged the lar- ceny of “one bushel of oats, one bushel of chaff, and one bushel of beans,” and the proof showed that they were all mixed together, the variance was held fatal. They should have been described, it was said, as “a certain mixture, con- sisting of one bushel of oats,” etc.4* So where an indict- ment charges the larceny of a gray horse and the proof shows that it was a gray gelding; *® or the larceny of a pig, when it was a hog, or vice versa; *® or of a live bird or ani- mal, when it was dead when stolen.*7 So where an indict- 41 Ante, p. 250, and cases there cited. 42 Rex vy. Furneaux, Russ. & R. 335; Rex v. Tyers, Id. 403; Com. v. Clair, 7 Allen (Mass.) 527; State v. Harris, 3 Har. (Del.) 559; State v. Cockfield, 15 Rich. (S. C.) 316; Com. v. Luscomb, 180 Mass. 42; McGee v. State, 4 Tex. App. 625. An indictment for obtaining by false pretenses the note of a certain person is not sustained by proof of obtaining the joint note of that person and another. People v. Reed, 70 Cal. 529, 11 Pac. 676. 43 Com. v. Clair, 7 Allen (Mass.) 527. It has even been held that the defendant must be acquitted when the indictment charged lar- ceny of a “pair of boots,’ and the proof showed a taking of two boots, being the right boot of two pair. State v. Harris, 3 Har. (Del.) 559. 44 Rex v. Kettle, 3 Chit. Cr. Law, 947a. But see Roman v. State, 64 Tex. Cr. R. 515, 142 S. W. 912. 45 Hooker v. State, 4 Ohio, 350; Valesco v. State, 9 Tex. App. 76. But see Baldwin v. People, 1 Scam. (I1l.) 304, where it was held that proof of stealing a mare or gelding would sustain a charge of stealing a horse. 46 See State v. McLain, 2 Brev. (S. C.) 443. 47 Rex v. Halloway, 1 Car. & P. 128; Rex v. Edwards, Russ. & R. 497; Rough’s Case, 2 East, P. C. 607; Com, v. Beaman, 8 Gray (Mass.) 497. ? CLARK Cr.PrRoc.(2D Ep.)—25 386 PLEADING AND PROOF (Ch. 10 ment charged the larceny of a plowshare, and the proof showed the larceny of a plow, the variance was held fatal.*8 The fact that the property is described with unnecessary particularity will not dispense with strict proof, for the de- scription is of something which is essential.‘ Where, for instance, a complaint charged the larceny of “one white woolen flannel sheet,” and the evidence showed the larceny of a blanket made of cotton and wool, the warp being cotton and the filling woolen, the variance was held fatal. “A sheet,” it was said, “may be composed of various substances, as linen, cotton, or wool, singly or in combina- tion. The word has reference to the form and not the ma- terial of which the article is made; had this, therefore, been described by the term ‘sheet’ alone, it would have been suffi- ciently certain. But the accused was put on her trial for ‘stealing a sheet composed wholly of wool, for it is described as ‘one white woolen flannel sheet,’ and she was convicted of stealing an article, part cotton and part wool, called a cotton and woolen blanket. The quality and description of the property stolen must be shown with accuracy and cer- tainty. * * * If the property is described as a cow, and proved to be a heifer, the variance is fatal; so it.is if describ- ed as a sheep and proved to bea lamb. And where a party was indicted for stealing one bushel of oats, one bushel of chaff, and one bushel of beans, and the proof was that they were mixed together when stolen, the variance was held to be fatal. Here the property was described with unneces- sary minuteness and particularity, but, being so described, the proof must correspond with it.”*®° So where an indict- ment charged the larceny of two “barrels of turpentine,” and it was not shown that the turpentine was in barrels; ** and where an indictment charged the larceny of a number of “bottles” of liquor, and the proof showed that the defend- ant drew the liquor from casks into bottles which he took 48 State v. Cockfield, 15 Rich. (S. C.) 816. See, also, People v. Cronkrite, 266 Ill. 488, 107 N. BE. 703. 49 Ante, p. 214. 50 Alkenbrack v. People, 1 Denio (N. Y.) 80. 51 State v. Moore, 33 N. C. 70. §§ 119-121) PLEADING AND PROOF—VARIANCB 387 with him for the purpose;*? and where an indictment charged that the defendant had in his possession, with in- tent to sell the same “one pint of adulterated milk, to which milk water had been added,” and the proof showed that the milk in question was adulterated by adding water to pure milk,°’—the variance was in each case held fatal. The fact that the indictment, in its description of proper- ty, is not sustained as to all the articles will not be fatal if it is sustained as to enough to make out the offense. An in- dictment for stealing two horses would be sufficiently sup- ported to warrant a conviction, if the evidence corresponded with the description as to one of them, though it varied as to the other, for the larceny of one is sufficient to make out 52 Com. v. Gavin, 121 Mass. 54, 23 Am. Rep. 255. 53 Com. v. Luscomb, 130 Mass. 42. These decisions and numberless others of like character are the result of the application of the prin- ciple that the defendant must not be charged with one transaction and convicted of another. Yet the same courts find no difficulty in holding that on a charge of larceny, robbery, murder, or any other crime, stated to have been done on a particular day, month, and year, the defendant may be convicted on proof that it was done on an entirely different day, month, and year from that alleged. Yet it is clear that a larceny proved to have been done on.one day is just as different a transaction from a larceny done on another day as is the larceny of a linen sheet from the larceny of a woolen sheet, or the larceny of a heifer from the larceny of a cow. The reason given for the variance not being fatal in the case of time—that the statement of time is a mere “formal statement,” or that it is “immaterial’—is, of course, a begging of the question. If, in the language of the court quoted in the text, “the accused was put on her trial for steal- ing a sheet composed wholly of wool, for it is described as ‘one white woolen sheet,’ and she was convicted of stealing an article, part cot- ton and part wool,’ why should it not be said, if the variance had been in the date alleged and proven, “the accused was put on her trial for stealing a sheet on January 1st, and she was convicted of stealing a sheet on February 3d,” an entirely different crime? The prosecutor may have had two sheets stolen, one on January 1st and another on February 3d; the grand jury may have intended to indict defendant for the first larceny, as they did, and not for the second larceny, for which, indeed, they may have refused to indict defendant, yet a con- viction of defendant on proof of the second larceny is held to be no variance, though he is clearly convicted of a different crime from that for which he was indicted. 388 PLEADING AND PROOF (Ch. 10 the offense.5* In like manner, though it is often necessary that the number or quantity of property shall be stated, in order to meet the requirement of certainty,®® it is not neces- sary to prove the whole number or quantity, if, on the re- jection of the part not proved, the offense will be com- plete.®* On indictment for usury, for instance, it is not nec- essary to prove the exact sum laid in the indictment.®” Nor is it necessary, on a prosecution for extortion, to prove the exact sum alleged to have been extorted.*® In like manner, it is often necessary—always in indict- ments for larceny—to state the value of the property with reference to which the offense was committed, but, in gen- eral, it is not necessary to prove the whole value as stated, provided the value proved is sufficient to constitute the of- fense.5® Where, however, value to a particular amount is necessary to constitute the offense, and the value is ascribed to many articles of different kinds, collectively, the offense must be made out as to every one of those articles, for the grand jury has only ascribed that value to all the articles collectively.°° Where the articles are of the same kind, and they are thus valued collectively, the rule does not apply. Thus where an indictment for stealing sundry bank notes, or sundry gold 54 Haskins v. People, 16 N. Y. 344; Com. v. Eastman, 2 Gray (Mass.) 76; People v. Wiley, 3 Hill (N. Y.) 194; State v. Martin, 82 N. C. 672. 55 Ante, p. 264. 56 State v. Cameron, 40 Vt. 555; Com. v. Williams, 2 Cush. (Mass.) 583; Com. v. O’Connell, 12 Allen (Mass.) 452; State v. Fenn, 41 Conn. 590; State v. Williams, 10 Humph. (Tenn.) 101; State v. Martin, 82 N. C. 672; Lorton y. State, 7 Mo. 55, 37 Am. Dec. 179; State v. Hen- nessey, 23 Ohio St. 339, 18 Am. Rep. 253. 57 Rex v. Gillham, 6 Term R. 265. 58 Rex v. Burdett, 1 Ld. Raym. 149; Rex v. Gillham, 6 Term R. 267. 59 Com. v. McKenney, 9 Gray (Mass.) 114; Rex v. Carson, Russ. & R. 303; State v. Harris, 64 N. C. 127. 60 Rex v. Forsyth, Russ. & R. 274; Duppa v. Mayo, 1 Saund. 286; Pinkney v. Inhabitants of East Hundred, 2 Saund. 379; Hope v. Com., 9 Mete. (Mass.) 1384; Collins v. People, 39 Ill. 233; Com. v. Lavery, 101 Mass. 207; Com. v. Falvey, 108 Mass. 304; State v. Longbottoms, 11 Humph. (Tenn.) 39; Sheppard v. State, 42 Ala. 531; ante, p. 266. §§ 119-121) PLEADING AND PROOF—VARIANCB 389 coin, or a certain number of bushels of oats, etc., states an aggregate value, it is sufficient to prove the larceny of less than the quantity or number alleged, if a sufficient value is shown.®? Ownership of Property We have seen that indictments for larceny, embezzle- ment, false pretenses, malicious mischief, or other offenses in relation to personal property, or for burglary, arson, or other offenses in relation to real property, must state the ownership of the property or the premises.°? The allega- tion of ownership is essential to the charge, and must be supported by the proof. Any material variance will be fa- tal. We have already explained how ownership must be alleged, and in doing so have shown what will constitute a variance, and collected some of the cases on the subject.®* Where the ownership of property is not in any way ma- terial, it not only need not be stated, but, if stated, it need not be proved, but may be rejected as surplusage.** This rule does.not apply where the allegation of ownership is a part of the description of the offense. Here, though unnec- essarily alleged, it is material, because descriptive of that which is material, and cannot be rejected as surplusage.®® On a trial for conspiracy to commit robbery, if the indict- ment alleges possession of the property intended to be stol- en in one person and the title in another, both allegations must be proved, though the latter was unnecessary.®® 61 Com. v. O’Connell, 12 Allen (Mass.) 451; Com. vy. Grimes, 10 Gray (Mass.) 470, 71 Am. Dec. 666; Larned v. Com., 12 Mete. (Mass.) 240; State v. Taunt, 16 Minn. 109 (Gil. 99); ante, p. 266. 62 Ante, p. 267. 63 Ante, p. 267, and cases there cited. 64 Pye’s Case, 2 East, P. C. 785; Reg. v. Newboult, L. R. 1 Crown Cas. 344; U.S. v. Howard, 3 Sumn. 12, Fed. Cas. No. 15,408; Stevens y. Com., 4 Leigh (Va.) 683; Rivers v. State, 10 Tex. App. 177. In the case last cited the defendant was indicted under a statute making it an offense to wound a hog. The indictment laid the ownership of the hog in one S. It was held that the ownership of the hog was im- material, and might be rejected as surplusage. 65 Com. v. Wade, 17 Pick. (Mass.) 399. 66 Ward y. State (Tex. Cr. App.) 21 8. W. 250, 390 PLEADING AND PROOF (Ch. 10 Names and Description of Third Persons When it is necessary to name or describe third persons in the indictment,®? they must be named or described accu- rately. A material error in the names of third persons is much more serious than a mistake in the name of the accus- ed. A mistake in the name of the accused, as we have seen, can only be objected to by a plea in abatement, the effect of which is only to delay the ,trial.** A material variance in the name of a third person, however, is a variance in the description of the offense, and will be sufficient ground for arresting judgment, when the objection appears on the face of the indictment, or if it appears from the evidence it will cause an acquittal.°® As we have seen, if the names of third 67 Ante, p, 272. 68 Ante, p. 176. 692 Hawk. P. C. c. 25, § 72; 1 East, P. C. 514; 1 Chit. Cr. Law, 218, 216; Graham v. State, 40 Ala. 659; Lewis v. State, 90 Ga. 95, 15 8. E. 697; Osborne y. State, 14 Tex. App. 225; Owens v. State (Tex. Cr. App.) 20 8. W. 558; State v. Sherrill,.81 N. C. 550; State v. English, 67 Mo. 136; State v. Reynolds, 106 Mo..146, 17 S. W. 322; Humbard v. State, 21 Tex. App. 200, 17 S. W. 126; Cronin v. State, 30 Tex. App. 278, 17 8S. W. 410; Rex vy. Berriman, 5 Car. & P. 601; U.S. v. Howard, 3 Sumn. 12, Fed. Cas. No. 15,403; Reg. v. Wilson, 1 Denison, Crown Cas. 284; Timms v. State, 4 Cold. (Tenn.) 138; Rex v. Norton, Russ. & R. 509; Com. v. Gillespie, 7 Serg. & R. (Pa.) 469, 10 Am. Dec. 475; State v. Bell, 65 N. C. 318; State v. Scurry, 3 Rich. (S. C.) 68; State v. Trapp, 14 Rich. (S. C.) 203; State v. Owens, 10 Rich. (S. C.) 169. Name of the owner of the premises on indictment for arson or burglary, or larceny from the house. Com. v. Wade, 17 Pick. (Mass.) 398; Rex v. White, 1 Leach, Crown Cas. 252; State v. Rushing, 2 Nott & McC. (S. C.) 560; State v. Ellison, 58 N. H. 325; Graham v. State, 40 Ala. 659. But see Com. vy. Price, 8 Leigh (Va.) 757. Name of purchaser on indictment for unlawful sale of intoxi- cating liquors. Com. v. Shearman, 11 Cush. (Mass.) 546; Com. v. Brown, 2 Gray (Mass.) 358. Name of the owner or builder of a rail- road on indictment for obstructing an engine passing thereon. Com. v. Pope, 12 Cush. (Mass.) 272. Name of woman on indictment for rape, incest, etc. Taylor v. Com., 20 Grat. (Va.) 825; Owens v. State (Tex. Cr. App, 20 S. W. 558. Name of person to whom rooms were rented for gaming. Cronin y. State, 30 Tex. App. 278, 17 S. W. 410. Name of person libeled or slandered. Humbard v. State, 21 Tex App. 200, 17 8. W. 126. Name of person intended to be defrauded. State v. Reynolds, 106 Mo. 146, 17 S. W. 322; note 16, supra; ante, pp. 218, 223. Name of deceased, or person assaulted, on indictment for murder or assault. Hardin v. State, 26 Tex. 113; Lewis v. State, §§ 119-121) PLEADING AND PROOF—VARIANCE 391 persons are unknown, they may be described as persons to the grand jurors unknown; 7° but if a person is so described, and it appears that his name was in fact known, the variance will be fatal.74_ Some jurisdictions hold that where a person is described as unknown, and it appears that his name could have been ascertained by the exercise of reasonable dili- gence, this will constitute a variance.’? But the better rule is to the contrary. “These cases [cas- es holding that there is a variance under such conditions] “90 Ga. 95, 15 S. E. 697; Osborne v. State, 14 Tex. App. 225; U. S. v. Howard, 3 Sumn. 12, Fed. Cas. No. 15,403; Timms v. State, 4 Cold. (Tenn.) 188. A good illustration of the more liberal views entertained by the courts is seen in Bennett v. U. S., 194 Fed. 630, 114 C. C, A. 402. In this case the indictment charged defendant with transport- ing, for an immoral purpose, one Opal Clark. The proof was that the woman transported was known to defendant as Jeanette Clark and that her real name was wholly different from either. The court held that, as the record as a whole clearly indicated the identity of the woman named in the indictment with the woman whom defend- ant must have known to be the one intended to be named and with the woman who was actually transported, there was no fatal variance. Statutes in some states provide that an erroneous allegation as to the person intended to be injured is not material. Code Cr. Proc. N. Y. § 281. Under this section it was held that defendant could be convicted of assault with intent to kill B., though the indictment charged an assault with intent to kill X. People v. Castaldo, 146 App. Div. 767, 181 N. Y. Supp. 545. 70 Ante, p. 274. 712 Hawk. P. C. c. 25, § 71; 2 East, P. C. 561; Rex v. Walker, 3 Camp. 264; Rex v. Bush, Russ. & R. 372; White v. People, 32 N. Y. 465; Barkman v. State, 13 Ark. 703; State v. Wilson, 30 Conn. 500; Jones v. State, 63 Ala. 27; Com. vy. Tompson, 2 Cush. (Mass.) 551; Moore vy. State, 65 Ind. 213; State v. McIntire, 59 Iowa, 264, 18 N. W. 286; Jorasco v. State, 6 Tex. App. 238. But if the name was in fact unknown at the time the indictment was found, its subsequent discovery will not constitute a variance, or render the indictment defective. White v. People, 32 N. Y. 465; Com. v. Hill, 11 Cush. (Mass.) 187; Cheek v. State, 88 Ala, 227; Com. v. Gallagher, 126 Mass. 54; State v. Bryant, 14 Mo. 340; Zellers v. State, 7 Ind. 659; Reed v. State, 16 Ark. 499. 722 Wast, P..C. c. 16, § 163; Rex v. Walker, 3 Camp. 264; Rex yv. Deakin, 2 Leach, Crown Cas. 863; Reg. v. Campbell, 1 Car. & K. 82; Reg. v. Stroud, 2 Moody, Crown Cas. 270 (but see the report of this case in 1 Car. & K. 187); Presley v. State, 24 Tex. App. 494, 6 S. W. 540; Blodget v. State, 3 Ind. 403. 392 PLEADING AND PROOF (Ch. 10 would seem to be properly placed upon lack of diligence or carelessness in making the accusation, and not upon vari- ance between the allegation and proof. The ‘better rule would seem to be that to create a variance the fact of knowl- edge, not ability to acquire knowledge, must affirmatively appear from the evidence. * * * The fact that the county solicitor could easily have ascertained a better de- scription of the property may be evidence that he knew the same; but it is not conclusive, and cannot be made an abso- lute test of the sufficiency of the allegation that he did not know.” 78 A third person, like the accused, may be described by the name by which he is usually known, and if he is well known by more than one name ‘he may be described by either.’* Where the name of a person is misspelled, this will not ren- der the indictment bad if the name as given and the correct name are idem sonans.?> But where a person has two 73 Enson v. State, 58 Fla. 37, 50 South. 948, 188 Am. St. Rep. 92, 18 Ann. Cas. 940. Accord. Com. v. Sherman, 13 Allen (Mass.) 248; Com. v. Glover, 111 Mass. 401; Wells v. State, 88 Ala. 239, 7 South. 272; Jackson v. State, 102 Ala. 167, 15 South. 344. In Rex v. Bush, Russ. & Ry. 372, it was held that an indictment against an accessory of a principal therein alleged to be unknown was good, although the same grand jury had returned another indictment against the prin- cipal by name. 8 74 Rex vy. Sulls, 2 Leach, Crown Cas. 861; Rex v. Norton, Russ. & R. 510; Rex v. Berriman, 5 Car. & P. 601; Rex v. , 6 Car. & P. 408; Jones v. State, 65 Ga. 147; Taylor v. Com., 20 Grat. (Va.) 825; Com. vy. Trainor, 123 Mass. 414; State v. Peterson, 70 Me. 216; State v. Bundy, 64 Me. 507; State v. Johnson, 67 N. C. 58; Rogers v. State, 90 Ga. 463, 16 8. E. 205; State v. France, 1 Overt. (Tenn.) 434; Com. v. Gould, 158 Mass. 499, 33 N. E. 656; Slaughter v. State (Tex. Cr. App.) 21 9. W. 247; State v. Davis, 109 N. C. 780, 14 8. E. 55; ante, pp. 272, 275, and cases there cited. It is generally held, if a third person is so described that it is impossible to mistake him for any other, that a mistake in the name will be disregarded. Ante, pp. 272, 275. Thus, where an indictment against Charles “Herron” alleged that be killed Lula ‘Herring,’ but expressly described the woman as the defendant’s wife, the variance in her name was disre- garded on motion in arrest. Herron v. State, 93 Ga. 554, 19 S. B. 243. See Mason v. State, 55 Ark. 529,18 S. W. 827. 75 Rex v. Foster, Russ. & R. 412; Ahitbol v. Beniditto, 2 Taunt. 401; Willams v. Ogle, 2 Strange, 889. In the following cases the ~ §§ 119-121) PLEADING AND PROOF—VARIANCH 393 Christian names, a transposition of them, as James Richard for Richard James ———-, or Jules Henry for Henry Jules ———,, is fatal,’* except in those jurisdic- tions where only one Christian name is recognized, and the other, if alleged, need not be proved.?’ names were held idem sonans: “Gigger’” (pronounced “Jigger”) for “Jiger,” Com. v. Jennings, 121 Mass. 47, 23 Am. Rep. 249. “Willie Fanes” for “Willis Fain,” State v. Hare, 95 N. C. 682; “Chambles”. for “Chambless,” Ward v. State, 28 Ala. 60;. “Herriman” for “Har- riman,” State v. Bean, 19 Vt. 5380; “Lossene” for “Lawson,” State v. Pullens, 81 Mo. 387; “Banhart,” “Benhart,” “Bernhardt,” for ‘“Bern- hart,” State v. Witt, 34 Kan. 488, 8 Pac. 769; “Gidines” for “Gidings” or “Giddings,” State v. Lincoln, 17 Wis. 579; “Donnelly” for “Donly,” Donnelly v. State, 78 Ala. 458; “Anthron” for “Antrum,” State v. Scurry, 3 Rich. (S. C.) 68; “Whyneard” for “Winyard” (the latter being pronounced “Winnyard”), Rex v. Foster, Russ. & R. 412; “Segrave” for “Seagrave,” Willams v. Ogle, 2 Strange, 889; “Usrey” for “Usury,” Gresham vy. Walker, 10 Ala. 870; “Benedetto” for “Beniditto,? Ahit- bol v. Beniditto, 2 Taunt. 401; “McLauglin” for “McGloflin,” Me- Laughlin v. State, 52 Ind. 476; “Petris” for “Petrie,’’ Petrie v. Wood- worth, 3 Caines (N. Y.) 219; “Hutson” for “Hudson,” State v. Hut- son, 15 Mo. 512; “Georg” for “George,” Hall v. State, 832 Tex. Cr. R. 594, 25 S. W. 292; “Blankenship” for “Blackenship,” State v. Blan- kenship, 21 Mo. 504; “Preyer” for “Prior,” Page v. State, 61 Ala. 16; “Michal” for “Michaels,” State v. Houser, 44 N. C. 410; “Fourai” for “Forrest,” State v. Timmens, 4 Minn. 331 (Gil. 241); “Danner” for “Dannaher,” Gahan v. People, 58 Ill. 160. The following have been held not to be idem sonans: ‘‘M’Cann” for “M’Carn,” Rex v. Tannet, Russ. & R. 351; “Shutliff” for “Shirt- liff,’” 1 Chit. Cr. Law, 216; “Lynes’ for ‘“TI.yons,” Lynes v. State, 5 Port. (Ala.) 236, 30 Am. Dec. 557; “Woods” for “Wood,” Neiderluck v. State, 21 Tex. App. 320, 17 S. W. 467; ‘“‘Sedbetter” for “Ledbetter,” Zellers vy. State, 7 Ind. 659; “McInnis” for “McGinnis,” Barnes v. People, 18 Ill. 52, 65 Am. Dec. 699; “Tarbart” for “Tabart,’? Bing- ham y. Dickie, 5 Taunt. 814; “Shakepear” for “Shakepeare,” Rex v. Shakespeare, 10 East, 83; “Comyns” for “Cummits,’? Cruikshank y. Comyns, 24 Ill. 602; ‘‘Donnel’’ for “Donald,” Donnel v. U. S., Mor- ris (Iowa) 141, 39 Am. Dec. 457; “Franks” for “Frank, Parchman v. State, 2 Tex. App. 228, 28 Am. Rep. 4385; “Amann” for “Ammon,” Amann y. People, 76 Il. 188; ‘“Burral” for “Burrill,”’? Com. v. Gilles- pie, 7 Serg. & R. (Pa.) 469, 10 Am. Dec. 475; “Melville” for “Melvin,” State v. Curran, 18 Mo. 320; “Della” for “Dellia,” Vance v. State, 65 Ind. 460. 76 Jones v. Macquillin, 5 Term R. 195; Reg. v. James, 2 Cox, Cr. Cas. 227. 77 Ante, p. 275. 394 PLEADING AND PROOF (Ch. 10 If the name is stated with an alias dictus, as may be done,’® it is sufficient to prove either name.”® Following the rule above stated, that a person may be described either by his true name or by the name by which he is usually known, and that proof of either is sufficient, it would seem that a corporation could be described likewise either by its corporate name or by the name by which it is commonly called. There are cases to this effect.®° If the name is immaterial—that is, if it is not necessary to a statement of the offense—it may be rejected as surplus- age, and a variance therein will have no effect.®* Where it is claimed that the true name and the name given in the indictment are idem sonans, and that, therefore, there is no variance,®? the question, when it arises in evi- dence on the general issue, should be submitted to the jury as a question of fact, for it is not a question of spelling, but of pronunciation; depending less upon rule than upon usage.®? If, however, the accused does not ask that the jury be allowed to pass on the question, it has been held that he 78 Ante, p. 173. 79 State v. Peterson, 70 Me. 216; Haley v. State, 63 Ala. 89; Ken- nedy v. People, 39 N. ¥. 245; Hunter v. State, 8 Tex. App. 75. 80 Rogers v. State, 90 Ga. 463, 16 S. B. 205 (‘Central Railroad & Banking Company,” for “Central Railroad & Banking Company of Georgia”); Putnam! v. U. S., 162 U. S. 687, 16 Sup. Ct. 923, 40 L. Ed. 1118 (‘National Granite State Bank,” for ‘National Granite State Bank of Exeter”); Com. v. Jacobs, 152 Mass. 276, 25 N. B. 463 (‘“War- ren Club,” for “Warren Social Club”). Contra, Com. v. Pope, 12 Cush. (Mass.) 272 (“Boston & Worcester Railroad Company,” for “Boston & Worcester Railroad Corporation”); McGary v. People, 45 N. Y. 153 (“Pheenix Mills Company” for “the Phoenix Mills of Sena- ca Falls”). ie 81 Savory v. Price, 1 Ryan & M.1; 2 Hast, P. C. 593; Rex v. Mor- ris, 1 Leach, Crown Cas. 109; Com. v. Hunt, 4 Pick. (Mass.) 252; U. S. v. Howard, 3 Sumn. 12, Fed. Cas. No. 15,403; Farrow v. State, 48 Ga. 30. 82 Note 75, p. 392,, supra. 88 Com. v. Donovan, 13 Allen (Mass.) 571; Reg. v. Davis, 2 Deni- son, Crown Cas, 231, 5 Cox, Cr. Cas. 237; Girous v. State, 29 Ind. 93; Com. v. Jennings, 121 Mass. 47, 23 Am. Rep. 249; State v. Thompson, 10 Mont. 549, 27 Pac. 349; Lawrence v. State, 59 Ala. 61. In Com. v.’ Gill, 14 Gray (Mass.) 400, the Supreme Court declined to pass on the question on exceptions after a conviction, on the ground §§ 119-121) PLEADING AND PROOF—VARIANCH . 895 cannot, on appeal, object because the court decided it as a matter of law.8* On demurrer to a plea in abatement, the question is for the court.®® Ordinarily, it is not necessary to describe third persons further than by their name.8* If an addition, however, is stated, it must be proved, because it is descriptive of the identity of the person. Thus, in an indictment for bigamy, if the woman whom it is alleged that the defendant biga- mously married is described as a widow, and the evidence shows that she was a spinster, the variance will be fatal.*” So where the defendant was charged with procuring Laura A. Fairbanks, “of Worcester, in said county of Worcester,” in Massachusetts, to commit perjury, and the evidence showed that the Laura A. Fairbanks who testified on the occasion alleged was at the time and continued a resident of another state, the variance was held fatal, though the wo- man need not have been described further than by name.*® “Whenever a person or thing necessary to be mentioned in an indictment is described with unnecessary particularity, all the circumstances of the description must be proved; for they are essential to its identity.” ®° As to Time As we have seen, it is necessary in nearly all cases to allege that the offense was committed at a specified time, in order that the indictment may be certain.°° It is not neces- that as the question depended on pronunciation, and could only be determined by hearing the name spoken, they had no means of de- termining it. 84 Com. y. Gill, supra. But see Mindex v. State (Tex. Cr. App.) 38 S. W. 995. 85 State v. Havely, 21 Mo. 498. And see Rex v. Shakespeare, 10 East, 838. 86 Ante, p. 277. 87 Rex y. Deeley, 1 Moody, Crown Cas. 303. 88 Com. v. Stone, 152 Mass. 498, 25 N. E. 967. 89 Com. v. Wellington, 7 Allen (Mass.) 299; Com. v. Stone, supra. And see Wallace v. State, 10 Tex. App. 255. It was held, however, that, where an indictment for adultery alleged that the woman with whom the defendant committed the act was over 18 years old, the allegation might be rejected as surplusage, State v. Ean, 90 Iowa, 584, 58 N. W. 898. 90 Ante, p. 278. 396 PLEADING AND PROOF (Ch. 10 sary, however, except where time enters into the nature of the offense, to prove the exact time alleged. Any other time may be shown on the trial, if it is prior to the finding of the indictment, and within the period prescribed by the statute of limitations.** The rule applies to cases in which it is necessary®? to allege the time of the day at which the offense was commit- ted. Thus, though an indictment for burglary at common law must state at or about what hour it was committed, so that it may appear that it was committed in the nighttime, the evidence need not correspond with the allegation further than to show that the offense was committed at some time of the night, and not in the daytime. Neither the day nor the precise hour need be proved as laid.** An indictment for acts committed on Sunday in violation of the Sunday laws, or for acts committed on any other par- ticular day of the week on which alone they are prohibited,®** must, of course, state that the acts were done on that par- ticular day of the week, in order to describe the offense, and must give a day of the month and year; but the charge will be supported by proof of acts done on any such day of the week before the finding of the indictment, and during the 911 Chit. Cr. Law, 224, and authorities there cited; 3 Inst. 230; Vane’s Case, Kel. 14; People v. Van Santvoord, 9 Cow. (N. Y.) 655; State v. G. S., 1 Tyler (Vt.) 295, 4 Am. Dec. 724; State v. Munger, 15 Vt. 291; Willams v. State, 12 Tex. App. 226; State v. Haney, 8 N. C. 460; State v. Swaim, 97 N. C. 462, 2 S. E. 68; Jacobs v. Com., 5 Serg. & R. (Pa.) 316; Turner v. People, 33 Mich. 363; Com. v. Harrington, 3 Pick. (Mass.) 26; Com. v. Kelly, 10 Cush. (Mass.) 69; Com. v. Sego, 125 Mass. 210; Com. v. Dillane, 1 Gray (Mass.) 483; State v. Ferrell, 22 W. Va. 759; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; Jackson v. State, 88 Ga. 787, 15 S. E. 905; Clarke v. State, 90 Ga. 448, 16 S. E. 96; McDade v. State, 20 Ala. 81; Palin v. State, 38 Neb. 862, 57 N. W. 748; State v. Davis, 6 Baxt. (Tenn.) 605; Com. v. Davis, 94 Ky. 612, 23 S. W. 218; Medlock v. State, 18 Ark. 363; State v. Bell, 49 Iowa, 440; State v. Branham, 13 S. C. 389; State v. Magrath, 19 Mo. 678. 92 Ante, p. 281, 932 Hale, P. C. 179; 2 Hast, P. C. 518; State v. Bancroft, 10 N. H. 105; People v. Burgess, 35 Cal. 115. ‘ 94 Ante, D. 280. §§ 119-121) PLEADING AND PROOF—VARIANCB 397 period of limitation, though not on the day of the month named.*§ : In some states it has been held that the rule does not apply to continuing offenses,®* such as being a common seller of intoxicating liquors. “We take the rule to be well settled in criminal cases that when a continuing offense is alleged to have been on a certain day, and on divers days and times between that and another day specified, the proof must be confined to acts done within that time.” °’ The same is true where the indictment alleges that the continu- ing offense was committed on a single day. The state can- not prove acts on any other day than that specified.*® The better-rule, followed in other jurisdictions, allows a continuing offense to be proved, as any other offense, by proving a commission on any day previous to the indictment and within the statute of limitations.®® In prosecutions for homicide the death must not only be alleged, but must be proved to have occurred within a year and a day of the blow, or the crime is not proved,* but it need not be shown to have occurred at the exact time after the blow alleged in the indictment.’ It has been said that, in an indictment for perjury, the day on which the perjury was committed must be truly laid, and that a variance will be fatal. This rule is correct when the perjury is predicated on a false oath to a certain docu- ment, and the time alleged in the indictment is the date of the document. In such case the date is a part of the descrip- 95 Com. v. Harrison, 11 Gray (Mass.) 308; State v. Bryson, 90 N. C. 747; Megowan v. Com., 2 Metc. (Ky.) 38; Hoover v. State, 56 Md. 584; State v. Brunker, 46 Conn. 327. As to use of “Sabbath” for “Sunday,” see State v. Drake, 64 N. C. 589. 96 Ante, p. 283. 97 Com. v. Briggs, 11 Metce. (Mass.) 573. 98 Com. v. Elwell, 1 Gray (Mass.) 463; Com. v. Traverse, 11 Allen (Mass.) 260. 99 Howard v. People, 27 Colo. 396, 61 Pac. 595; Carter v. U. S., 1 Ind. T. 342, 37 S. W. 204. 12 Hawk. P. C. c. 23, § 90; ante, p. 281; Clark, Cr. Law, 130. 2 See Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010. 3 Whart. Cr. Hv. § 103. And see State v. Ah Lee, 18 Or. 540, 23 Pace. 424. 398 PLEADING AND PROOF (Ch. 10 tion of the written instrument, and, as we have seen, where written instruments are set out in the indictment, the date of the instrument as given must be proved. A variance will be fatal.* But, where the perjury is not based on a document, there seems to be no good reason why, if the offense is otherwise proved as laid, a variance should be fatal; and it has been held that a person charged with perjury in a proceeding alleged to have been had on a certain day may be convicted, though it is shown that the proceeding was had on a differ- ent day. While the state is not limited to proof of an offense on the day named in the indictment, it is limited to a trial for one offense. “When there are several offenses, for either one of which the accused may be convicted under the indict- ment, the prosecution should elect the offense which it will pursue, and the testimony should be confined to that of- fense, unless the case is within some of the exceptions which render the proof of other distinct offenses admissible. After one offense is proved, the prosecution should not have the liberty of the wind, to blow where it listeth. The authori- ties are not harmonious as to when the prosecution will be required to make election in such case, or as to how long a prosecuting officer will be permitted ‘to fish with his wit- nesses for evidence,’ before electing the offense for which he will ask conviction; but it is believed that justice is best promoted by allowing the testimony for the prosecution to go far enough to identify and show one distinct offense, and when this is done to restrict the evidence to that offense.” ® As to Place It is not only necessary to allege in the indictment that the offense was committed within the jurisdiction of the 4 Note 27, p. 382, supra. 5 Com. v. Davis, 94 Ky. 612, 23 8S. W. 218; Matthews v. U. S., 161 U. S. 500, 16 Sup. Ct. 640, 40 L. Ed. 786. And see Richey v. Com., 81 Ky. 524. 6 King v. State, 66 Miss. 502, 6 South. 188. And see State v. Crim- mins, 31 Kan. 3/6,'2 Pac. 574; State v. Lund, 49 Kan. 209, 30 Pac. 518; Golden v. State, 72 Tex. Cr. R. 19, 160 S. W. 957. §§ 119-121) PLEADING AND PROOF—VARIANCH 399 court, as that it was committed in the county, or in that particular part of the county, over which the court has ju- risdiction, in order that the jurisdiction may appear on the face of the indictment;‘ but it is also absolutely essential to prove that the offense was committed within the jurisdic- tion of the court. Proof that it was committed out of the ‘jurisdiction of the court, or an omission to prove any venue at all, will entitle the defendant to an acquittal, and the de- fect cannot be aided by verdict.’ If it is shown that the offense was committed within the jurisdiction of the court, it is not always necessary to further prove that it was committed at the particular place within the jurisdiction alleged in the indictment. Some offenses, as we have seen, are local in their nature, while others are transitory. In prosecutions for the former the particular place within the county must be stated, not as venue, but by way of local description, and the place must be proved as laid; but in prosecutions for the latter, place is not material, and if a particular place in the county 7 Ante, p. 288; People v. Barrett, 1 Johns. (N. Y.) 72. 8 Moore v. People, 150 Ill. 405, 837 N. E. 909; State v. Hobbs, 37 W. Va. 812, 17 S. E. 380; Justice v. State, 99 Ala. 180, 18 South. 658; Stazey v. State, 58 Ind, 514; McCombs v. State, 66 Ga. 581; Jones v. State, 58 Ark, 390, 24 S. W. 1073; State v. Hartnett, 75 Mo. 251; State v. Burgess, 75 Mo. 541; Randolph v. State, 100 Ala. 139, 14 South. 792; Tidwell v. State, 70 Ala. 33; Williamson v. State, 13 Tex. App. 514; Henderson v. State, 14 Tex. 503; Berry v. State, 92 Ga. 47, 17 S. BE. 1006; Harlan y. State, 134 Ind. 339, 33 N. E. 1102; Williams v. State, 21 Tex. App. 256, 17 S. W. 624; Frazier v. State, 56 Ark. 242, 19 S. W. 838. The proof of venue need not be direct, but may be inferential, as where, on a prosecution for homicide, it is shown that the body of the deceased was found in the county in such a condition, and under such circumstances, as to raise the inference that some one put it there. Com. v. Costley, 118 Mass. 2. And see Sullivan v. People, 114 Ill. 24, 28 N. E. 381; Cluck vy. State, 40 Ind. 263; Burst v. State, 89 Ind. 183; State v. Farley, 87 Iowa, 22, 53 N. W. 1089; Territory v. Hicks, 6 N. M. 596, 30 Pac. 872; State v. Mc- Ginniss, 74 Mo. 245; State v. Daugherty, 106 Mo. 182, 17 S. W. 303; Moore y. State, 22 Tex. App. 117, 2 8S. W. 634; Dumas v. State, 62 Ga. 58; State v. Sanders, 106 Mo. 188, 17 S. W. 223; Duncan v. State, 29 Fla. 489, 10 South. 815, 400 PLEADING AND PROOF (Ch. 10 is stated it need not be proved. Robbery,® assaults,?° by the weight of authority, homicide, simple larceny,?? dis- turbance of public assemblages for religious worship, or for other purposes,’ gaming, etc.,1* are transitory offenses, and if they are unnecessarily alleged to have been commit- ted at a particular town or other place within the county, they may nevertheless be shown to have been committed at some other place. All that is necessary to sustain the charge is to show that they were committed within the jurisdiction of the court.15 On the other hand, burglary and housebreaking,*® arson,1” statutory larcenies from the shop, dwelling house, or other particular place,4* nuisances with respect to highways, failure to repair highways,?° keeping disorderly house, and 9 Rex v. Wardle, Russ. & R. 9. Where an indictment for robbery stated that it was committed in a field near the king’s highway, and there was no proof that it was committed near any highway, a con- viction was nevertheless sustained. Rex v. Wardle, supra. 10 Com. y. Tolliver, 8 Gray (Mass.) 386, 69 Am. Dec. 252. 11 State v. Lamon, 10 N. C. 175; Carlisle v. State, 32 Ind. 55. Con- tra, Com. v. Inhabitants of Springfield, 7 Mass. 9. 12 Rex v. Bullock, 1 Moody, Crown Cas. 324, note; People v. Hon- eyman, 3 Denio (N. Y.) 121; Haskins v. People, 16 N. Y. 344; Com. v. Lavery, 101 Mass. 207; State v. Cotton, 24 N. H. 143. 13 State v. Smith, 5 Har. (Del.) 490. 14 Covy v. State, 4 Port. (Ala.) 186; Wingard v. State, 13 Ga. 396. Riot. Barnes v. State, 5 Yerg. (Tenn.) 186. Fornication and bastardy. Heikes v. Com., 26 Pa. 513. 15 Ante, p. 291; 1 Chit. Cr. Law, 200. 16 Rex v. Bullock, 1 Moody, Crown Cas. 324, note; Reg. v. St. John, 9 Car. & P. 40. But see State v. Meyers, 9 Wash. 8, 36 Pac. 1051. 17 Rex v. Woodward, 1 Moody, Crown Cas. 323; People v. Slater, 5 Hill (N. Y.) 401. Contra, State v. Meyers, supra. In People V. Slater, supra, the indictment described the building burned as sit- uated in the Sixth ward of the city of New York, and the evidence showed that it was in the Fifth ward, and the variance was held fatal. 18 Rex v. Napper, 1 Moody, Crown Cas. 44; People vy. Honeyman, 8 Denio (N. Y.) 121. 19 Rex v. White, 1 Burrows, 333. 20 Com. v. Inhabitants of North Brookfield, 8 Pick. (Mass.) 463; Rex v. Great Canfield, 6 Esp. 186; Rex v. Marchioness Dowager, 4 Adol. & E. 232; Rex. v, Inhabitants of St. Weonard’s, 6 Car. & P. 582. §§ 119-121) PLEADING AND PROOF—VARIANCD 401 similar nuisances,?* according to most of the cases, other nuisances,” offenses in relation to cemeteries, etc.,?* being found armed in a close at night, etc.,?* are local in their na- ture. An indictment therefor must not only state the par- ticular place within the county at which they were commit- ted, but must state it accurately. The particular place is stated not as venue, but by way of local description, and if the proof shows that the offense was committed at any oth- er place, though within the county, than the place alleged the variance will be fatal.?> If the place is stated unnecessarily, or with unnecessary particularity not as venue, but as matter of local descrip- tion, the statement is part of the description of the offense, and, like other allegations which are descriptive of that which is essential, must be proved.?® An indictment for desecrating a public burying ground, for instance, need not describe it by metes and bounds, but if it does, so, the metes and bounds must be proved as alleged.” In some cases the crime can only be committed in a par- ticular place. Here, of course, the place must not only be alleged, but it must be proved, in order to show that the offense has been committed.?® Indictments on Statutes The same rules with respect to variance apply to indict- ments on statutes as to indictments at common law, but ja Oe State v. Nixon, 18 Vt. 70, 46 Am. Dec. 185; Com. v. Logan, 12 Gray (Mass.) 156. But see State v. Crogan, 8 Iowa, 523. 22. Com. v. Heffron, 102 Mass. 148; Wertz v. State, 42 Ind. 161; Dennis v. State, 91 Ind. 291; Droneberger v. State, 112 Ind. 105, 13 N. E. 259; Cornell v. State, 7 Baxt. (Tenn.) 520. But see, contra, State v. Sneed, 16 Lea (Tenn.) 450, 1 S. W. 282; State v. Jacobs, 75 Iowa, 247, 39 N. W. 293. 231 Chit. Cr. Law, 201; Com. v. Wellington, 7 Allen (Mass.) 300. 24 Rex y. Ridley, Russ. & R. 515. 251 Chit. Cr. Law, 200, 201; ante, p. 293. 26 Moore v. State, 12 Ohio St. 387; Com. v. Wellington, 7 Allen (Mass.) 299; Withers v. State, 21 Tex. App. 210, 17 8S. W. 725; State v. Crogan, 8 Iowa, 523; Reg. v. Cranage, 1 Salk. 385; O’Brien v. State, 10 Tex. App. 544. 27 Com. v. Wellington, supra. 28 Ante, p. 292; State v. Turnbull, 78 Me. 392, 6 Atl. 1, CLARK Ox.PrRoc.(2D Ep.)—26 402 PLEADING AND PROOF (Ch. 10 there are a few questions peculiar to them. As we have seen, an indictment on a public statute need not recite the statute.?® If it does recite a statute, and then counts upon that particular statute, as by concluding “contrary to the form of said statute,” a material variance between the stat- ute and the recital will be fatal. If, however, it concludes “contrary to the form of the statute in such case made and provided,” thus counting generally on some statute, the re- cital of a particular statute may be rejected as surplusage, and a variance will be disregarded.*° Effect of Modern Statutes In discussing the question of variance we have merely stated the common-law rules. These rules have to some extent been changed by statute in most jurisdictions, so that it is necessary for the student at this point to consult the statutes of his state. It is provided in some jurisdictions that, whenever on the trial of an indictment or information, there appears to be any variance between the allegations and the evidence offer- ed in proof thereof (1) in the name of any place mentioned or described therein; or (2) in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which forms the subject of any offense charged therein; or (3) in the name and description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be in- jured or damaged, by the commission of such offense; or (4) in the Christian name or surname, or both Christian name and surname, or other description whatsoever, of any person or persons whomsoever therein named or described ; 29 Ante, p. 300. 302 Hale, P. C. 172; 2 Hawk. P. C. c 25, § 101; Vander Plunken y. Griffith, Cro. Eliz. 236; Boyce v. Whitaker, 1 Doug. 94; 4 Coke, 48a; Platt v. Hill, 1 Ld. Raym. 382; Rex v. Marsack, 6 Term R. 776; The Nancy v. Fitzpatrick, 3 Caines (N. Y.) 41; Com. v. Washburn, 128 Mass. 421. Even if it counts on a particular statute, an immaterial variance will not be fatal. Reg. v. Westley, Bell, Crown Cas. 193; People v. Walbridge, 6 Cow. (N. Y.) 512; Com. v. Burke, 15 Gray (Mass.) 408. And see ante, p. 301. § 122) CONVICTION OF MINOR OFFENSE 403 or (5) in the name and description of any matter or thing whatsoever therein named or described; or (6) in the own- ership of any property named or described therein—the court before which the trial is had, may, if it considers such variance not material to the merits of the case and that the defendant cannot be prejudiced thereby in his defense on such merits, order such indictment or information to be amended to conform to the proof, on such terms as to post- poning the trial, etc., as the court may think reasonable. In some states it is provided that the variance, instead of being cured by amendment, may be disregarded. Such statutes do not exist in all the states. We have already shown the effect of provisions like this under our constitutional provisions.** CONVICTION OF MINOR OFFENSE 122. If the whole of the offense charged is not proved, but so much of it as to constitute a substantive offense is proved, the defendant may be acquitted of the offense charged, and convicted of the offense prov- ed, provided, at common law, each offense is either a felony or a misdemeanor. In most of our states, either by statute, or independently of any statute, on indictment for felony, there may be a conviction of a misdemeanor included therein. The offense proved must be necessarily included in the charge. The jury in order to convict the defendant need not nec- essarily find the whole of the offense, or the highest offense, charged in the indictment, but may convict of any minor of- fense, included in the charge.*? “It is a general rule which 81 Ante, pp. 165, 365, 372. 324, Chit. Cr. Law, 250; People v. White, 22 Wend. (N. Y.) 167; Wyatt v. State, 1 Blackf. (Ind.) 257; Com. v. Hope, 22 Pick. (Mass.) 1; People v. McGowan, 17 Wend. (N. Y.) 386; Borum v. State, 66 Ala. 468; Clarke v. Com., 25 Grat. (Va.) 908; State v. Brannon, 55 Mo. 63, 17 Am. Rep. 643; State v. Brady, 14 Vt. 353; State v. Eno, 8 Minn. 220 (Gil. 190); State v. Burk, 89 Mo. 635, 2 S. W. 10; State 404 PLEADING AND PROOF (Ch. 10 runs through the whole criminal law, that it is sufficient to: prove so much of the indictment as shows that the defend- ant has committed a substantive crime therein specified.” 4 “Tt is a general rule at common law, ‘where the accusation in the indictment includes an offense of inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the less atrocious.’ ” §* This rule has been ex- pressly declared by statute in many of our states. At com- mon law, as we shall presently see more at length, there could be no conviction of a misdemeanor on indictment for a felony, and this rule is still recognized in a few states; but in most states it is not recognized, or has been changed by statute. To thus allow a conviction for a minor offense in- cluded in the charge, does not in any way prejudice the rights of the defendant, or deprive him of the constitutional right to formal notice of the charge against him, for he is not only accused of the highest offense charged in the in- dictment, but he is also formally accused of every other of- fense necessarily included in the charge.?* Illustrations of the Rule In accordance with the rule above stated, it is held that the defendant may be convicted of statutory larceny from the dwelling house, or of simple larceny, on an indictment charging burglary with intent to commit larceny, and an actual stealing, for the indictment charges these offenses as well as the offense of burglary. They are necessarily in- cluded in the charge.** For the same reason, there may be v. Taylor, 3 Or. 10; Stevens v. State, 19 Neb. 647, 28 N. W. 304; Beckwith v. People, 26 Ill. 500; Carpenter v. People, 4 Scam. (IIL) 197; Dinkey v. Com., 17 Pa. 126, 55 Am. Dec. 542; Herman v. Peo- ple, 131 Ill. 594, 22 N. BE. 471, 9 L. R. A. 182; Rogers v. People, 34 Mich. 345; People v. Jackson, 3 Hill (N. Y.) 92; and the numerous cases hereafter referred to. 331 Chit. Cr. Law, 250: ante, p. 378; Durham v. State, 1 Blackf. (Ind.) 33. 34 State v. Coy, 2 Aikens (Vt.) 181. 85 See State v. Burk, 89 Mo. 635, 2 S. W.. 10. 362 Hale, P. C. 302; 2 East, P. C. 518; Rex v. Withal, 1 Leach, Crown Cas. 88; Rex v. Vandercomb, 2 Leach, Crown Cas, 711; Com. vy. Tuck, 20 Pick. (Mass.) 860; State v. Cocker, 3 Har. (Del.) 554; State v. Grisham, 2 N. C. 17; Breese vy. State, 12 Ohio St. 146, 80 § 122) CONVICTION OF MINOR OFFENSE 405 a conviction of a lower degree of burglary than charged, if all the essential elements of the lower degree are charged; *” of petit larceny on indictment for grand larceny ; *® of grand larceny in the second degree on indictment for grand lar- ceny in the first degree; *® by the weight of authority, of simple larceny on indictment for robbery, or for stealing from the person,*® or for the statutory offense of stealing in a shop or dwelling house, etc.** So, also, there may be a conviction of voluntary man- slaughter on indictment for murder; ¢? of murder in the sec- Am. Dec. 340; State v. Colter, 6 R. I. 195; Polite v. State, 78 Ga. 3847; Com. v. Lowery, 149 Mass. 67, 20 N. E. 697; People v. Jacks, 76 Mich. 218, 42 N. W. 1134; People v. White, 22 Wend. (N. Y.) 176. But the actual larceny must be sufficiently charged. State v. Mc- Clung, 35 W. Va. 280, 13 8. B. 654. 37 State v. Fleming, 107 N. C. 905, 12 S. E. 131. Contra, State v. Alexander, 56 Mo. 131, where the proof showed that burglary of the first degree had been committed. Of burglary, without being armed with a dangerous weapon, on indictment for burglary, being so armed. State v. Morris, 27 La. Ann. 481; State v. Miller, 45 La. Ann. 1170, 14 South. 186. But on an indictment for burglary, with intent to commit rape, the defendant cannot be convicted of an as- sault with intent to commit rape. State v. Ryan, 15 Or. 572, 16 Pac. 417. 38 Bolling v. State, 98 Ala. 80, 12 South. 782; People v. McCallam, 103 N. Y. 587, 9 N. E. 502. 39 People v. McCallam, supra. 401 Chit. Cr. Law, 250; 1 Hale, P. C. 534; 2 Hale, P. C. 203; 2 Hawk. P. C. c. 47, § 6; 2 Hast, P. CO. 518, 515, 516, 736, 784; Rex v. Sterne, 1 Leach, Crown Cas. 473; Morris v. State, 97 Ala. 82, 12 South. 276; State v: Keeland, 90 Mo. 337, 2 8S. W. 442; State v. Stei- fel, 106 Mo. 129, 17 S. W. 227; Haley v. State, 49 Ark. 147, 4 S. W. 746; Stevens v. State, 19 Neb. 647, 28 N. W. 304; Brown v. State, 34 Neb. 448, 51 N. W. 1028; Sullivan v..Com. (Ky.) 5 S. W. 365; People v. White, 22 Wend. (N. Y.) 176. Some of the courts hold that this could not be allowed at common law. Rex y. Francis, 2 Strange, 1014; Haley v. State, supra. 41 Rex v. Etherington, 2 Leach, Crown Cas. 671; Brown vy. State, 90 Ga. 454, 16 S. EH. 204. 421 Hale, P. C. 449; 2 Hale, P. C. 802; Co. Litt. 282a; 2 Hawk. PC. c. 47, § 4; State v. Parish, 3 N. C. 73; Brown v. State, 31 Fla. 207, 12 South. 640; U.S. v. Leonard (C. C.) 2 Fed. 669; Boulden v. State, 102 Ala. 78, 15 South. 341; White v. Washington Territory, 8 Wash. T. 397, 19 Pac. 37. It is generally held that, on an indict- ment for murder, the defendant may be convicted of involuntary < . 406 : PLEADING AND PROOF (Ch. 10 ond degree on indictment for murder in the first degree; #3 of assault with intent to kill, or a less aggravated assault, or assault and battery, or simple assault, on indictment for murder, at least where, as is generally the case, there may be conviction for misdemeanor on indictment for felony, and provided, of course, all the essentials of the less offense appear in the charge; ** or of assault and battery on indict- ment for manslaughter.*® Subject to the same limitations, there may be conviction of assault with intent to rape, or a less aggravated assault, or assault and battery, or simple assault, or indecent assault, on an indictment for rape or carnal knowledge of a female under the age of consent; *° of fornication on indictment for rape,*? adultery,*® or se- duction ; *® or of incest where the defendant is charged with rape of his own daughiter.®° And generally where an aggravated assault is charged— as assault with intent to murder, to kill, to rape, or to rob, or any less aggravated assault—the defendant may be con- victed of any minor aggravated assault, all the essential ele- ments of which appear in the charge, or, in other words, manslaughter. Isham vy. State, 38 Ala. 213; People v. Pearne, 118 Cal. 154, 50 Pac. 376; Powers vy. State, 87 Ind. 144. Contra, Walters v. Com., 44 Pa. 135. 43 State v. Talmage, 107 Mo. 543, 17 S. W. 990; State v. Lindsey, 19 Nev. 47, 5 Pac. 822, 3 Am. St. Rep. 776. 44 Hx parte Curnow, 21 Nev. 33, 24 Pac. 430; Lang v. State, 16 Lea (Tenn.) 438, 1 S. W. 318; Bean v. State, 25 Tex. App. 346, 8 S. W. 278. 45 State v. Scott, 24 Vt. 127. 46 State v. Bagan, 41 Minn. 285, 43 N. W. 5; State v. Mueller, 85 Wis. 203, 55 N. W. 165; Polson v. State, 187 Ind. 519, 35 N. E. 907; People v. Abbott, 97 Mich. 484, 56 N. W. 862, 37 Am. St. Rep. 360; Pratt v. State, 51 Ark. 167, 10 S. W. 233; State v. May, 42 La. Ann. 82, 7 South. 60; State v. Kyne, 86 Iowa, 616, 53 N. W. 420; Reg. v. Williams, 5 Reports, 186, [1893] 1 Q. B. 820; Jones vy. State, 118 Ind. 39, 20 N. E. 634; State v. White, 52 Mo. App. 285. 47 Com. v. Parker, 146 Pa. 348, 23 Atl. 323. But the indictment must show that the woman was not the defendant’s wife. Com. v. Murphy, 2 Allen (Mass.) 163. 48 Respublica v. Roberts, 1 Yeates (Pa.) 6; State v. Cowell, 26 N. C. 231. But see Maull v. State, 37 Ala. 160. 49 Dinkey v. Com., 17 Pa. 126, 55 Am. Dec. 542, 50 Com. vy. Goodhue, 2 Mete. (Mass.) 193. o ‘ § 122) CONVICTION OF MINOR OFFENSE 407 which is necessarily included in the charge, or of assault and battery, where actual violence is charged, or of simple assault. 51 State v. Coy, 2 Aikens (Vt.) 181; State v. Evans, 40 La. Ann. 216, 3 South. 838; Foster v. State, 25 Tex. App. 548, 8 S. W. 664; Jenkins v. State, 92 Ga. 470, 17 S. E. 693; Pittman v. State, 25 Fla. 648, 6 South. 437; People v. Ellsworth, 90 Mich. 442, 51 N. W. 531; People v. Prague, 72 Mich. 178, 40 N. W. 243; O’Leary v. People, 4 Parker, Cr. R. (N. Y.) 187; Kennedy v. People, ‘122 Ill. 649, 13 N. E, 213. But see, for a doubtful case, State vy. Allen, 40 La. Ann. 199, 3 South. 537. Of assault with intent to abuse on indictment for as- sault with intent to carnally know and abuse. 1 Chit. Cr. Law, 251. Of assault on indictment for assault with intent to rape, or of as- sault and battery on such an indictment, where actual violence is charged. State v. Keen, 10 Wash. 93, 38 Pac. 880; State v. McAvoy, 73 Iowa, 557, 35 N. W. 630. Of simple assault on indictment for assault with intent to kill or to murder, or of assault and battery in such a case, where actual violence is charged. Stewart v. State, 5 Ohio, 241; State v. Coy, 2 Aikens (Vt.) 181; Horn v. State, 98 Ala. 23, 138 South. 329; People v. Chalmers, 5 Utah, 201, 14 Pae. 181; State v. Brent, 100 Mo. 531, 13 S. W. 874; Malone v. State, 77 Ga. 767; State v. Robinson, 31 S. C. 453, 10 S. H. 101; State v. Triplett, 52 Kan. 678, 35 Pac. 815; Chacon v. Territory, 7 N. M. 241, 34 Pac. 448; People v. Elsworth, 90 Mich. 442, 51 N. W. 531. Of assault with intent to kill on indictment for assault with intent to murder. State v. Waters, 39 Me. 54. Of assault and battery on indictment for assault (and battery) with intent to rob. Barnard v. Com., 94 Ky. 285, 22 S. W. 219. Of unlawfully pointing a pistol at another on indictment for assault with intent to murder by pointing, aiming, and discharging a loaded pistol at him. Jenkins v. State, 92 Ga. 470, 17 S. EB. 698. Of assault and battery, armed with a dangerous weapon, “with intent to do bodily harm,” on indictment for assault and battery committed with a deadly weapon, “with intent to kill.” State v. Johnson, 8 N. D. 150, 54 N. W. 547. And see State v. Coll- yer, 17 Nev. 275, 30 Pac. 891. Of assault with a deadly weapon on indictment for assault with such a weapon with intent to kill. Pitt- man v. State, 25 Fla. 648, 6 South. 487; State v. McLennen, 16 Or. 59, 16 Pac. 879, and cases there collected; State v. De Laney, 28 La. Ann, 484; People v. Bentley, 75 Cal. 407, 17 Pac. 486; Territory v. Evans, 4 Ariz. 257, 36 Pac. 209. Of assault on indictment for as- sault with a deadly weapon with intent to inflict great bodily harm, or of assault and battery, where actual violence is charged. Ken- nedy v. People, 122 Ill. 649, 13 N. E. 213; People v. Ellsworth, 90 Mich. 442, 51 N. W. 531. Of assault with intent to kill on indict- ment for assault with intent to kill while lying in wait. State v. Evans, 40 La. Ann. 216, 3 South. 838. And see State v, Price, 45 La. 408 PLEADING AND PROOF (Ch. 10 So where an indictment charged the burning of a barn ad- joining a dwelling house, which offense was made punisha- ble by one section of the statutes, and the proof showed that the house was not a dwelling, it was held that the defendant could be convicted under another section for burning a building not adjoining a dwelling house.*? This, however, is doubtful.5* It has been held that on an indictment for breaking and entering a house in the nighttime, the defendant may be convicted of the minor offense of breaking and entering in the daytime; ** but there are decisions to the contrary.5® Minor Offense Must be Charged In all cases the minor offense must be necessarily includ- ed in the charge. The indictment must on its face show Ann. 14380, 14 South. 250. Of assault with intent to commit man- slaughter on indictment for assault with intent to murder. State v. White, 41 Iowa, 316, 20 Am. Rep. 602; State v. Connor, 59 Iowa, 357, 13 N. W. 327, 44 Am. Rep. 686; Horn v. State, 98 Ala. 23, 13 South. 329. Of assault with intent to inflict great bodily injury, or to do bodily harm, on indictment for assault with intent to murder, or to kill. People v. Davidson, 5 Cal. 138; State v. King, 111 Mo. 576, 20 S. W. 299; Bean v. State, 25 Tex. App. 346, 8 S. W. 278; People v. Prague, 72 Mich. 178, 40 N. W. 243; State v. Schele, 52 Iowa, 608, 3.N. W. 632; Gatliff v. Territory, 2 Okl. 523, 37 Pac. 809. Contra, State v. Yanta, 71 Wis. 669, 38 N. W. 333. Of assault and battery on indictment for assault (and battery) with a deadly weapon with intent to kill,(or.assault,(and battery) with intent to maim. O'Leary v. People, 4 Parker, Cr. R. (N. ¥.) 187; State v. Jennings, 104 N. C. 774, 10 S. BE. 249. 52 State v. Thornton, 56 Vt. 35. 58 Contra, on the ground that the latter offense is not included in the former. Com. v. Hayden, 150 Mass. 332, 23 N. EB. 51. 54 State v. Jordan, 87 Iowa, 86, 54 N. W. 63. 55 Guynes v. State, 25 Tex. App. 584, 8 S. W. 667; In re McVey, 50 Neb. 481, 70 N. W. 51. In the case last cited the court said: “The crime of burglary as set forth in the Criminal Code differs from that of breaking and entering buildings in the daytime as described in section 53 of the same Code. A man may not be informed against for one crime and convicted of another and different one. * * * The statement of the time as to the crime of burglary is an averment of a material element thereof, and must be specifically proved as laid. The crime of breaking and entering buildings in the daytime is not included in a charge of burglary, and a prisoner cannot be convicted of the former under a charge of tHe latter.” § 122) CONVICTION OF MINOR OFFENSE 409 every essential element of it, otherwise the defendant would be convicted of an offense, without having been accused of it.6° “No one can be convicted of an offense which is not charged in the information, where the elements of the of- fense are not embraced in some greater offense charged.” °” “The lesser offense must be included in the greater by neces- sary words of description, so that, if the words defining the greater offense are stricken out of the information, there would remain a sufficient description of the lesser of- fense.” 5° On indictment for assault with intent to do great bodily harm, expressly alleging that the defendant “did beat, bruise, and ill-treat” the person assaulted, there may be a conviction of assault and battery, since a battery is charg- ed; ®° but if the information merely charges the assault with such intent, and does not show that there was actual vio- lence, there may be a conviction of simple assault, but not of assault and battery, for a battery is not necessarily in- cluded in the charge.®° So, on indictment for assault with intent to rape, though there may be conviction for simple assault, there cannot be conviction for assault and battery, unless actual violence is charged. Assault with intent to commit rape does not nec- 56 State v. Ackles, 8 Wash. 462, 36 Pac. 597; Com. v. Murphy, 2 Allen (Mass.) 163; Warner vy. State, 54 Ark. 660, 17 S. W. 6; State v. Melton, 102 Mo. 688, 15 S. W. 189.” 57 Turner v. Muskegon Circuit Judge, 88 Mich. 359, 50 N. W. 310. 58 State v. Shear, 51 Wis. 460, 8 N. W. 287; State v. Yanta, 71 Wis. 669, 38 N. W. 333. In the case last cited the rule does not seem to have been correctly applied. It was held that a charge of willfully, maliciously, and feloniously assaulting, cutting, stabbing, and wounding, with intent to murder, did not include the charge of assault with intent to do great bodily harm. It is difficult to sup- pose it possible to assault, cut, stab, and wound a man with intent to murder him, without intending to inflict rather serious bodily harm. See, contra, cases cited in note 51, p. 407, supra. 59 People v. Ellsworth, 90 Mich. 442, 51 N. W. 581. And see the cases cited in note 51, p. 407, supra. 60 Turner v. Muskegon Circuit Judge, 88 Mich. 359, 50 nN. W. 310 (explained in People v. Ellsworth, supra). “410 PLEADING AND PROOF (Ch. 10 essarily imply a battery.** It is otherwise, of course, where the consummated crime of rape is charged.*%? The same is true of assaults with intent to murder, to in- flict bodily harm, to rob, assault with a deadly weapon, etc. Conviction of simple assault may always be authorized, but not for assault and battery, unless the indictment shows on its face that there was actual violence. Under this rule it would seem that the defendant should not be convicted of burning or breaking and entering a building not a dwelling house, on an indictment for burn- ing or breaking and entering a dwelling house, nor for burn- ing or breaking and entering a building in the daytime, on an indictment for doing so in the nighttime, but, as we have seen, there is a conflict in the cases.** On a charge of murder by shooting or stabbing, or other acts of intentional violence, the defendant may well be con- victed of assault with intent to kill, or with intent to do great bodily harm.** On an indictment for murder which, as allowed by statute, does not set out the manner or means by which the crime was committed, there cannot be a con- viction, under a statute, of intentionally pointing a pistol, and accidentally discharging the same, and killing the de- ceased ; © nor of cruel and unusual treatment of a slave.*’ On indictment for rape, as we have seen, there may, in a proper case, be conviction of fornication, but there cannot be such a conviction unless the indictment shows that the woman was not the defendant’s wife.** dat v. Keen, 61 State v. McAvoy, 73 Iowa, 557, 35 ‘N.: W. 630; 10 Wash. 93, 38 Pac. 880. 62 Note 46, p. 406, supra. 63 Turner v. Muskegon Circuit Judge, supra; State v. Marcks, 3 N. D. 532, 58 N. W. 25; State v. Melton, 102 Mo. 683, 15 S. W. 139. 64 Notes 52-55, p. 408, supra. 65 Notes 42-44, 51, pp. 405, 407, supra. 66 Lucas v. State, 71 Miss. 471, 14 South. 587. 67 Wilson v. State, 29 Tex. 245. 68 Com. v. Murphy, 2 Allen (Mass.) 163. This results from the rule that an indictment for fornication must state that the woman was not the wife of defendant, but that an indictment for rape need not, and the indictment in the case cited did not contain such statement. There is no reason in principle for any distinction between these crimes in the matter of the necessity for alleging that the woman § 122) CONVICTION OF MINOR OFFENSE 411 So it has been held that on an indictment for rape (charg- ing that the defendant “feloniously, forcibly, and against her will, did carnally know J. J.,” saying nothing about her age) the defendant cannot be convicted of the offense of carnally knowing a fernale child under the age of puberty.®° Nor can there be conviction of malicious mischief on an in- | dictment for arson;7° nor of embezzlement on indictment for larceny, or vice versa,” unless a statute, as is the case in some states, expressly allows it.7? Nor of assault with in- tent to murder on indictment for robbery; 7* or for maim- ing; 7* nor of wounding, maiming, and disfiguring on an in- dictment for assault with a slung shot with intent to kill, which does not allege the infliction of an injury;7° nor of the statutory offense of stabbing another, not designing thereby to effect his death, nor in self-defense, nor in an at- tempt to preserve the peace, nor in doing any other legal act, whereby death resulted, on indictment for murder.”® Felony and Misdemeanor At common law, in England, because of the fact, as ex- plained on a former page,"” that.the defendant had certain was not the wife of the accused. The reason given by the court in the case cited why such allegation is necessary in the case of forni- cation, and not in the case of rape, is, that in the former, unless the fact that the woman was not defendant’s wife is averred, everything stated in the indictment might be true and yet defendant not be guilty of any crime, but that in an indictment for rape such aver- ment is not necessary, because a man may be a principal in the sec- ond degree in rape even on his own wife.. But there is no such dis- tinction, for the same facts that would make a man a principal in the second degree in a rape committed on his wife, would make him a principal in fornication. 69 Warner v. State, 54 Ark. 660, 17 S. W. 6. And see Whitcher vy. State, 2 Wash. 286, 26 Pac. 268. 70 Crockett v. State, 80 Ga. 104, 4 S. E. 254. 71 Griffin v. State, 4 Tex. App. 390; Lott v. State, 24 Tex. App. 723, 14 S. W. 277; State v. Harmon, 106 Mo. 635, 18 S. W. 128. 72 State v. Williams, 40 La. Ann. 732, 5 South. 16; State v. Har- mon, 106 Mo. 685, 18 S. W. 128; Reg. v. Gorbutt, 1 Dears. & B, Crown Cas. 166. 73 Munson vy. State, 21 Tex. App. 329, 17 S. W. 251. 74 Davis v. State, 22 Tex. App. 45, 2 S. W. 630. 75 State v. Melton, 102 Mo. 683, 15 S. W. 139. 76 Wood v. Com. (Ky.) 7 8S. W. 391. 77 Ante, p. 340. 412 PLEADING AND PROOF (Ch. 10 rights on trial for a misdemeanor which he could not claim on trial for a felony, a felony could not upon the trial be modified into a misdemeanor. In other words, on indict- ment for a felony the defendant could not be convicted of a misdemeanor.’* And this rule has been recognized in some of our states.7° The Massachusetts court based the rule on “the broader consideration that the offenses are, in legal contemplation, essentially distinct in their nature and char- acter,” ®° but this is not the reason of the rule. Where the rule is recognized there could not be a con- viction of simple assault, assault and battery, or assault with intent to kill (where such aggravated assault is a mis- demeanor only), on indictment for murder or manslaugh- ter; ®+ nor of simple assault, assault and battery, indecent assault, or assault with intent to rape (when a misdemeanor only), on an indictment for rape.*? The same would be true of indictments for robbery. So where several persons were indicted for a burglary, in breaking and entering a dwelling house in the nighttime with intent to maim and disfigure the owner by cutting off one of his ears, which was charged as a burglarious breaking and entry with a felonious intent, the court, on demurrer, being of opinion that the offense charged did not amount to a felony, the question was raised whether it would warrant a judgment for the misdemeanor of aggravated assault; but it was decided that at common law this could not be done, and the defendants were bound 781 Chit. Cr. Law, 251; 2 Hawk. P. C. c. 47, § 8; Rex v. Westbeer, 1 Leach, Crown Cas. 14, 2 Strange, 1133; Rex v. Monteth, 2 Leach, Crown Cas. 702; 2 Hast, P. C. 787, 738. 79 Com. v. Roby, 12 Pick. (Mass.) 496 (overruling Com. v. Cooper, 15 Mass. 187); Com. v. Newell, 7 Mass. 249; Com. v. Gable, 7 Serg. & R. (Pa.) 423; State v. Valentine, 6 Yerg. (Tenn.) 533; State v. Flint, 33 La. Ann. 1288; Black v. State, 2 Md. 376; Barber v. State, 50 Md. 161; McWhirt v. Com., 3 Grat. (Va.) 594, 46 Am. Dec. 196. In most of these states, however, the rule has been changed by statute. 80 Com. v. Roby, 12 Pick. (Mass.) 496. 81 Com. v. Roby, 12 Pick. (Mass.) 496; Com. v. Cooper, 15 Mass. 187. 821d, § 122) CONVICTION OF MINOR OFFENSE 413 over to answer for the misdemeanor upon another indict- ment.§$ Many, perhaps most, of our courts have refused to recog- nize-the rule that there cannot.be a conviction of misde- meanor on indictment for felony, on the ground that the reasons which made the rule proper in England do not ex- ist in this country, there being no privilege to which the de- fendant is entitled on trial for a misdemeanor that he could not claim on trial for a felony ; and so the maxim, “Cessante ratione legis, cessat et ipsa lex,” applies.** In many states the rule has been expressly abrogated by statute.*® In some states it is expressly provided by statute that where a person is charged with the actual commission of a crime, and the evidence shows that he was guilty only of an attempt to commit it, he miay be convicted of the attempt.*® Conviction of Minor, on Proof of Higher, Offense In most states it is held, where there is no statute to the contrary, that where a person is convicted of a minor of- fense necessarily included in the charge, he cannot complain that the evidence showed him to be guilty of the higher of- fense charged.87 But in some states, where the offense 83 Com. v. Newell, 7 Mass. 249. 84 Herman v. People, 131 Ill. 594, 22 N. BH. 471, 9 L. R. A. 182; People v. Jackson, 3 Hill (N. Y.) 92; People v. White, 22 Wend. (N. Y.) 175; Rogers v. People, 34 Mich. 345; State v. Scott, 24 Vt. 127; Prindeville v. People, 42 Ill. 217; State v. Kennedy, 7 Blackf. (Ind.) 233; Hunter v. Com., 79 Pa. 503, 21 Am. Rep. 83; Hess v. State, 5 Ohio, 5, 22 Am. Dec. 767; Stewart v. State, 5 Ohio, 241; State v. Stedman, 7 Port. (Ala.) 495; State v. Johnson, 30 N. J. Law, 185; State v. Wimberly, 3 McCord (S. C.) 190; State v. Shepard, 7 Conn. 54; State v. Watts, 82 N. C. 656; Cameron v. State, 18 Ark. 712; People v. Chalmers, 5 Utah, 201, 14 Pac. 131. 85 See Com. v. Drum, 19 Pick. (Mass.) 479; State v. Crummey, 17 Minn. 72 (Gil. 50); Hill v. State, 53 Ga. 125; State v. Purdie, 67 N. C. 26, 326; People v. Abbott, 97 Mich. 484, 56 N. W. 862, 87 Am. St. Rep. 360. 8sé6In re Lloyd, 51 Kan. 501, 33 Pac. 307; State v. Frank, 103 Mo. 120, 15 S. W. 330. 87 Polson v. State, 137 Ind. 519, 35 N. B. 907; Hamilton v. State, 86 Ind. 280, 10 Am. Rep. 22; State v. Keeland, 90 Mo. 337, 2 S. W. 442; Com. v. Creadon, 162 Mass. 466, 38 N. BH. 1119; Hardy v. Com., 17 Grat. (Va.) 592; State v. Archer, 54 N. H. 465; State v. Par- \ 414 PLEADING AND PROOF (Ch. 10 charged is a misdemeanor, and the offense proved is a fel- ony, it is held that there can be no conviction of the misde- meanor on the ground that it merges in the felony.®® In some jurisdictions, however, statutes have been enact- ed, providing, in substance, that no person shall be convict- ed of an assault with intent to commit an offense, or of any other attempt to commit an offense, when it shall appear that the offense intended or attempted was actually perpe- trated.°® Such a statute is valid, and does not conflict with a statute authorizing a conviction for any degree of offense inferior to that charged in the indictment, nor with a statute authorizing a conviction for a less offense where the charge is for an assault with intent to commit a felony, and author- izing the jury to convict “of any offense, the commission of which is necessarily included in that charged.” °° Indictment Bad as to Higher Offense It has been held that an indictment which is bad for the higher offense sought to be charged will not support a con- viction for a minor offense charged which if the indictment for the higher offense were good, would necessarily be in- cluded therein; °* but the rule seems to be established that, if the offense of which the defendant is convicted is suffi- ciently charged, it can make no difference that the higher offense which it was intended to charge, and of which the defendant was acquitted, was not sufficiently charged.*? melee, 9' Conn. 259; Lohman vy. Péople, 1 N. Y. 379, 49 Am. Dec. 340; Reg. v. Neale, 1 Car. & K. 591; Com. v. Burke, 14 Gray (Mass.) 100; Com, v. McPike, 3 Cush. (Mass.) 181, 50 Am. Dec. 727; Brown v. State, 31 Fla. 207, 12 South. 640. But see Brown v. State, 34 Neb. 448, 51 N. W. 1028. 88 Post, p. 460. 89 State v. Lacey, 111 Mo. 513, 20 S. W. 238; State v. White, 35 Mo. 500; State v. Mitchell, 54 Kan. 516, 38 Pac, 810. 90 State v. Lacey, supra. ®1 Territory v. Dooley, 4 Mont. 295, 1 Pac. 747. ®2 Crumbley v. State, 61 Ga. 582; State v. Triplett, 52 Kan. 678, 85 Pac. 815. \ § 123) CONVICTION OF HIGHER OFFENSE 415 CONVICTION OF HIGHER OFFENSE 123. There can be no conviction for a higher offense than is charged in the indictment. We should not take the space to state so obvious a prop- osition, except for the fact that an appellate court has ac- tually been called upon to decide that there can be no con- viction for grand larceny on an indictment for petit lar- ceny.*8 98 McCollough v. State, 182 Ind. 427, 31 N. BE. 1116; People v. Ho Sing, 6 Cal. App. 752, 93 Pac. 204. 416 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 CHAPTER XI MOTION TO QUASH, ARRAIGNMENT, DEMURRER, AND PLEAS OF DEFENDANT 124-126. Motion to Quash. 127-128. The Arraignment and Pleas. 129. Confession—Plea of Guilty—Nolo Contendere, 130. Plea to the Jurisdiction. 131. Plea in Abatement. 1382. Demurrer. 133-135. Pleas in Bar. 136-1388. Pleas of Autrefois Acquit and Convict, or Former Jeopardy. 139. Plea of Pardon. 140. Agreement to Turn State’s Evidence. 141, Plea of Not Guilty—General Issue. MOTION TO QUASH 124. A motion to quash the indictment will lie, if it is in- sufficient as a matter of law, because of any defect apparent on the face of it or of the record, or if counts are joined in it which, by law, ought not to be joined; and in the latter case the court may, in its discretion, quash one or more counts. In some states the motion will lie for defects not apparent on the face of the record. 125. The motion may be made at any time before verdict, unless it is otherwise provided by statute. 126. All motions to quash are, at common law, addressed to the discretion of the court; and it may, if it thinks proper, leave the defendant to his remedy by de- murrer, motion in arrest of judgment, or writ of error. The motion to quash is always a proper way of objecting to the indictment for insufficiency on its face, or on the face §§ 124-126) MOTION TO QUASH 417 of the record, in point of law, from whatever cause the in- sufficiency may arise;? and it is also a proper way to object that different counts or parties are improperly joined, though this, as we have seen, may not render the indictment bad, as a matter of law. In some states the motion will not ' lie for defects not apparent on the face of the indictment or record,’ but in others the rule is different.® There are various ways in which the defendant may raise objection to the sufficiency of the indictment in point of law. He may do so by motion to quash it, by plea, by demurrer, by motion in arrest of judgment, or on writ of error or ap- peal. He can attack it by demurrer or plea only after he has been arraigned or called upon to answer the charge, and generally before he has pleaded to the merits; by motion in arrest only after a verdict of guilty; by writ of error or appeal only after a judgment of conviction; but he may at- tack it by motion to quash at any time after the indictment is presented, and before verdict. It has been said that a motion to quash must be made before the defendant has been arraigned and pleaded; that it comes too late, for instance, after a plea of not guilty.* But this is not true. Ordinarily the indictment will not be quashed after plea, but whenever it is clear that no judgment could be rendered on a verdict of guilty, 1 Reg. v. Wilson, 6 Q. B. 620; Rex v. Combs, Comb. 243; Rex v. Stratton, 1 Doug. 239; State v. Dayton, 23 N. J. Law, 49, 538 Am. Dec. 270; State v. Albin, 50 Mo. 419; State v. Cole, 17 Wis. 674; Swiney v. State, 119 Ind. 478, 21 N. E. 1102. 2 State v. Ward, 60 Vt. 142, 14 Atl. 187; State v. Rickey, 9 N. J. Law, 293; Com. v. Fredericks, 119 Mass. 199; Com. v. Donahue, 126 Mass. 51; Bell-v. State, 42 Ind. 335. 3 See Com. v. Bradney, 126 Pa. 199, 17 Atl. 600; Com. v. Green, 126 Pa. 531, 17 Atl. 878, 12 Am. St. Rep. 894; State v. Wall, 15 Mo. 208; State v. Bishop, 22 Mo. App. 435; State v. Horton, 68 N. C. 595. 4 Rex v. Frith, 1 Leach, Crown Cas. 11; Rex v. Semple, Id. 420; Rex v. Wynn, 2 East, 226; State v. Burlingham, 15 Me. 104; People v. Watters, 5 Parker, Cr. R. (N. Y¥.) 661; People v. Monroe Oyer and Terminer, 20 Wend. (N. Y.) 108; Deitz v. State, 123 Ind. 85, 23 N. BE. 1086; People v. Jones, 263 Ill. 564, 105 N. E. 744. In some states, by statute, the time is limited. See State v. Taylor, 43 La. Ann. 1131, 10 South. 203; State v. Schumm, 47 Minn. 373, 50 N. W. 362; People v. Bawden, 90 Cal. 195, 27 Pac. 204. CLARK Cr.Proc.(2p Ep.)—27 418 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 because of the insufficiency of the indictment, or lack of ju- risdiction of the court a motion to quash may be made and granted, in the discretion of the court, at any time before verdict, for it would be absurd to require the trial to pro- ceed further, when it is clear that a conviction could not be sustained.> A motion to quash for misjoinder of counts or parties may also be made at any time before verdict. It cannot, in any case, be made after verdict.® At common law, a motion to quash an indictment is al- ways addressed to the discretion of the court, and, by the weight of authority, its ruling is not reviewable.’ But the court, in the exercise of its discretion, is guided by certain rules. It is commonly said that where the offense is a seri- ous one, such as a felony, or a misdemeanor which immedi- ately affects the public at large, the motion should not be granted except upon the clearest and plainest ground, but the party should be driven to a demurrer, or motion in arrest of judgment, or writ of error. The motion will be 5 Reg. v. James, 12 Cox, Cr. Cas. 127; In re Nicholls, 5 N. J. Law, 589; State v. Riffe, 10 W. Va. 794; Parrish v. State, 14 Md. 238; State v. Reeves, 97 Mo. 668, 10 S. W. 841, 10 Am. St. Rep. 349; Com. v. Chapman, 11 Cush. (Mass.) 422; State v. Collyer, 17 Nev. 275, 30 Pac. 891; State v. Eason, 70 N. C. 90; State v. Benthall, 82 N. C. 664. 6 State v. Barnes, 29 Me. 561. 71 Chit. Cr. Law, 300; 2 Hawk. P. C. ¢ 25, § 146; Rex v. Wheatly, 2 Burrows, 1127; Rex v. Inhabitants of Belton, 1 Salk. 372; Rex y. ‘Johnson, 1 Wils. K. B. 325; Rex v. Wynn, 2 Hast, 226; People v. Eckford, 7 Cow. (N. Y.) 5385; Com. v. Eastman, 1 Cush. (Mass.) 214, 48 Am. Dec. 586; State v. Dayton, 23 N. J. Law, 49, 58 Am‘ Dec. 270; Richards v. Com., 81 Va. 110; Strawhern v. State, 37 Miss. 422; State v. Barnes, 29 Me. 561; State v. Hurley, 54 Me. 562; State v. Jones, 5 Ala. 666; State v. Black (N. J.) 20 Atl. 255; Stout v. State, 96 Ind. 407; State vy. Conrad, 21 Mo. 271; State v. Keener, 225 Mo. 488, 125 S. W. 747. In some states the rule does not obtain. See Com. v. Bradney, 126 Pa. 199, 17 Atl. 600. In some states it is pro- vided by statute that for certain defects the defendant may have a motion to quash as of right. Pub. St. Mass. 1882, c. 214, § 25. And see Com. v. Alden, 143 Mass. 113, 9 N. EB. 15. 81 Chit. Cr. Law, 300; Rex y. Inhabitants of Belton, 1 Salk. 372; State v. Dayton, supra; People v. Eckford, 7 Cow. (N. Y.) 535; State y. Colbert, 75 N. C. 368; Proctor v. State, 55 N. J. Law, 472, 26 Atl. 804; Com! v. Litton, 6 Grat. (Va.) 691; State v. Flowers, 109 N. C. 841, 18 S. E. 718; State v. Rector, 11 Mo, 28. §§ 124-126) MOTION TO QUASH 419 granted when it is clear that the indictment would not sup- port a judgment of conviction, but not otherwise. “Such a motion should not be allowed to prevail in a doubtful case, but only when the insufficiency of an indictment is so palpa- ble as clearly to satisfy the presiding judge that a verdict thereon would not authorize a judgment against the defend- ant.” ® Indictments have been quashed because found on the tes- timony of an interested person, or of a person not under oath;+° because the time of the offense was not stated, or the offense was laid on a future day,? or appeared to be barred by the statute of limitation; 1? because of repugnan- cy;*® because the court in which it was found was with- out jurisdiction; 1* because it failed to state any offense; 1° because it failed to give the addition of the defendant; *® because of a defect in the caption;+7 because of omission of a material averment;?® and for misjoinder of parties,?® or offenses.?° In some states it is expressly provided by stat- 9 Com. v. Eastman, 1 Cush. (Mass.) 214, 48 Am. Dec, 596; Com. v. Hawkins, 3 Gray (Mass.) 464. 10 State v. Fellows, 3 N. C. 340; State v. Cain, 8 N. C. 352; U.S. v. Coolidge, 2 Gall. 364, Fed. Cas. No. 14,858; ante, p. 182, and cases there cited. 11 State v. Roach, 3 N. C. 352; State v. Sexton, 10 N. C. 184, 14 Am. Dec. 584; ante, p. 278, and cases there cited. 12 State v. J. P., 1 Tyler (Vt.) 283; ante, p. 282. 13 Ante, p. 201; State v. Johnson, 5 Jones (N. C.) 221. 14 Rex v. Williams, 1 Burrows, 389; Rex v. Bainton, 2 Strange,. 1088; Bell v. Com., 8 Grat. (Va.) 600; Justice v. State, 17 Ind. 56. 15 State v. Mitchell, 1 Bay (S. C.) 269; People v. Eckford, 7 Cow. (N. Y.) 535; State v. Albin, 50 Mo. 419; State v. Rickey, 9 N. J. Law, 293; Smith v. State, 45 Md. 49; Williams v, State, 42 Tex. 392. 16 Rex vy. Thomas, 3 Dowl. & R. 621; State v. Hughes, 2 Har. & McH. (Md.) 479. 17 Rex v. Brown, 1 Salk. 376; State v. Hickman, 8 N. J. Law, 299; Respublica v. Cleaver, 4 Yeates (Pa.) 69; ante, p. 159, and cases there cited. 18 Rex v, Trevilian, 2 Strange, 1268; Rex v. Lease, Andrews, 226; Rex v. Burkett, Id. 230; note 15, supra. 19 Rex y. Weston, 1 Strange, 623; ante, p. 347. 20 Ante, p. 331. Indictments have been quashed also for irregulari- ties in the organization of the grand jury, In re Nicholls, 5 N. J. Law, 589; disqualification ofa grand juror, Couch y. State, 68 Ala. 420 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 ute that no ground for demurrer shall be ground for motion to quash; ** and in some the grounds for a motion to quash are specified, and the motion will not lie for any other cause.” In some states it is provided by statute that the first of two indictments for the same offense shall be quash- ed, or shall be deemed suspended and quashed.?* Except where there is such a provision, however, it is no ground for quashing an indictment that another indictment is pending for the same offense, unless, under the particular circum- stances, the court may think the defendant may suffer in- justice.?# It has been said that the court must quash the whole in- dictment or none; that it cannot strike out one or more counts and leave others;?° but by the better opinion each count being a separate indictment, one or more of them may be quashed without affecting the rest of them which are good.?® “After an indictment against the defendant has been quashed, a new and more regular one may be preferred against him.?” He can gain therefore in general very little advantage, except delay, by such an application, and there- fore usually reserves his objections till after the verdict, when, if the indictment be found to be insufficient, the court is bound, ex debito justitiz, to arrest the judgment.” ?* By 163; presence of unauthorized persons at deliberations of grand jury, U.S. v. Edgerton (D. C.) 80 Fed. 374. 21 See State v. Mdlevitch, 77 Md. 144, 26 Atl. 406. 22 See People v. Schmidt, 64 Cal. 260, 30 Pac. 814; State v. Securi- ty Bank, 2 S. D. 538, 51 N. W. 337. 23 See State v. Arnold (Mo. Sup.) 2 S. W. 269; State y. Smith, 71 Mo. 45; State v. Vincent, 91 Mo. 662, 4 S. W. 430; Ball v. State, 48 Ark. 94, 2S. W. 462; State v. Hall, 50 Ark. 28, 6 S. W. 20. 24 Rowand v. Com., 82 Pa. 405. 25 Rex v. Pewtress, 2 Strange, 1026, Cas. t. Hardw. 203; Kane v. People, 3 Wend. (N. Y.) 863; Dukes v. State, 11 Ind. 557, 71 Am. Dec. 370. 26 Scott v. Com., 14 Grat. (Va.) 687; State v. Wishon, 15 Mo. 503; Williams v. State, 42 Tex. 8392; Jones v. State, 6 Humph. (Tenn.) 435; Com. v. Lapham, 156 Mass. 480, 81 N. E. 638; Com. v. Stevenson, 127 Mass. 446; ante, p. 344. 27 See Perkins v. State, 66 Ala. 457. 281 Chit. Cr. Law, 304; Rex v. Wheatly, 2 Burrows, 1127. ‘§§ 127-128) THE ARRAIGNMENT AND PLEAS : 421 statute now some objections are required to be raised by de- murrer or motion to quash, or they will be deemed to be waived, and no objection can be made after verdict. THE ARRAIGNMENT AND PLEAS 127. There can be no valid trial until the defendant is ar- raigned and pleads to the indictment. But in some ‘states a formal arraignment may be expressly or impliedly waived. 128. In the arraignment the defendant must be called to the bar of the court, the indictment must be distinctly read to him, and he must be asked whether he pleads guilty or not guilty. If he stands mute, and obstinately refuses to answer, a plea of not guilty is entered for him by the court. A trial without a proper arraignment and plea is a nullity, unless the defendant has expressly or impliedly waived a formal arraignment. Not only is the arraignment neces- sary unless waived,?® but the plea is equally so, for without a plea there can be no issue to try.2° And the fact of ar- 292 Hale, P. C. 218; 2 Hawk. P. C. c. 28, § 6; Parkinson v. People, 185 Tll. 401, 25 N. E. 764, 10 L. R. A. 91; State v. Hughes, 1 Ala. 655; State v. Williams, 117 Mo. 879, 22 8. W. 1104;. State v. Wilson, 42 Kan, 587, 22 Pac. 622; Stoneham v. Com., 86 Va. 523, 10 S. E. 238; State v. Montgomery, 63 Mo. 296; Miller v. People, 47 Ill. App. 472. 30 Jefferson v. State, 24 Tex. App. 5385, 7 S. W. 244; State v. Hun- ter, 43 La. Ann. 157, 8 South. 624; Territory v. Brash, 3 Ariz. 141, 32 Pac. 260; Munson v. State (Tex. App.) 11 8S. W. 114; State v. Wilson, 42 Kan. 587, 22 Pac. 622; Parkinson v. People, 135 Ill. 401, 25 N. EB. 764, 10 L. R, A. 91; Miller v. People, 47 Ill. App. 472;, Bowen v. State, 98 Ala. 83, 12 South. 808; State v. Barr, 7 Pennewill (Del.) 340, 79 Atl. 730; State v. Walton, 50 Or. 142, 91 Pac. 490,13 L. R. A. (N. S.) 811; United States v. Aurandt, 15 N. M. 292, 107 Pac. 1064, 27 L, R. A. (N. 8.) 1181; People v. Heath, 51 Colo. 182, 117’Pac. 138; State v. Moss, 164 Mo. App. 379, 144 S. -W. 1109;. Hoskins v. People, 84 Ill. 87, 25 Am. Rep. 433. That the defendant’s attorney may plead for him in his presence, and with his acquiescence, see Stewart v. ‘State, 111 Ind. 554, 13 N. E. 59. 422 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 raignment and plea must appear on the record.*2_ By the weight of authority, the arraignment and plea must precede the impaneling and swearing of the jury. An omission thereof cannot be cured by an arraignment and plea after the trial has commenced.*? In some states it is held that an 81 See the cases cited in the above notes. And see Aylesworth v. People, 65 Tl. 301; State v. Walker, 119 Mo. 467, 24 S. W. 1011; Clark v. State, 32 Tex. Cr. R. 412, 24 S. W. 29; State v. Taylor, 111 Mo. 448, 20 8S. W. 198; State v. Fontenette, 45 La. Ann. 902,12 South. 937; Bowen v. State, 98 Ala. 83, 12 South. 808; State v. Moss, 164. Mo. App. 379, 144 S. W. 1109; People v. Heath, 51 Colo. 182, 117 Pac. 1388. In the case last cited the court held that the omission of arraignment and plea was not cured,by a statute providing: ‘No motion in arrest of judgment, or writ of error shall be sustained for any matter not affecting the real merits of the offense charged in such indictment ;” nor by a statute providing: “No indictment shall be insufficient, nor shall the trial judgment or other: proceedings thereon be affected by any defect which does not tend to prejudice substantial rights of the party.” Sufficiency of showing on the rec- ord. Stoneham vy. Com., 86 Va. 523, 10 S. E. 238. If there has been an arraignment and plea, the record may be made to show the fact by an entry nunc pro tune. Long v. People, 102 Il]. 331; Parkinson y. People, 185 Ill. 401, 25 N. E. 764. The leading case in the United States holding that there could be no valid trial without arraignment and plea, and that the fact must be shown on the record, is Crain v. United States, 162 U. 8. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097. In this ease the court said: “It is true that the Constitution does not, in terms, declare that a person accused of crime cannot be tried until it be demanded of him that he plead, or unless he pleads, to the indict- ment. But it does forbid the deprivation of liberty without due pro- cess of law; and due process of law requires that the accused plead, or be ordered to plead, or, in a proper case, that a plea of not guilty be filed for him, before his trial can rightfully proceed.” This case is overruled by Garland v. Washington, 232 U. S. 642, 34 Sup. Ct. 456, 58 L. Ed. 772, in which the same court said: “Technical objections of this character were undoubtedly given much more weight formerly than they arenow. * * * But with improved methods of procedure, and greater privileges to the accused, any reason for such strict ad- herence to the mere formalities of trial would seem to have passed away.” 32 Parkinson v. People, 135 Ill. 401, 25 N. BE. 764; State v. Hughes, 1 Ala. 655; State v. Montgomery, 63 Mo. 296; United States v. Aurandt, 15 N. M. 292, 107 Pac. 1064. Contra, Morris v. State, 30 Tex. App. 95, 16 S. W. 757; State v. Straub, 16 Wash. 111, 47 Pac. 227. §§ 127-128) THE ARRAIGNMENT AND PLEAS 423 arraignment and plea is a mere matter of form, and may be expressly or impliedly waived by the defendant.** Where the defendant has been arraigned, tried, and con- victed, and obtains a new trial, he need not be again arraign- ed before the second trial; ** nor need there be an arraign- ment in the circuit court on appeal from a conviction in a justice’s court;®5 nor, where a change of venue is demand- ed and granted after arraignment, need there be a second arraignment in the court to which the case is taken.** But a second arraignment in these cases is not error.*” The arraignment formerly consisted of three parts: (1) Calling the prisoner to the bar by his name, and command- ing him to hold up his hand; (2) reading the indictment to him; and (3) demanding of him whether he is guilty or not guilty, and asking him how he will be tried. It is still nec- essary to call the defendant to the bar,?* but the practice of 38 U. S. v. Molloy (C. C.) 31 Fed. 19; People v. McHale, 61 Hun, 618, 15 N. Y. Supp. 496; State v. Glave, 51 Kan. 330, 33 Pac. 8; Ransom v. State, 49 Ark. 176, 4 S. W. 658; Allyn v. State, 21 Neb. 593, 33 N. W. 212; Hack v. State, 141 Wis. 346, 124 N. W. 492, 45 L. R. A. (N. 8S.) 664. By statute in some states arraignment may be waived. See State v. Thompson, 95 Iowa, 464, 64 N. W. 419; People v. Tower, 63 Hun, 624, 17 N. Y. Supp. 395; State v. Hoffman, 70 Mo. App. 271; State v. Brock, 61 8S. C. 141, 89 S. E. 359. The defendant should plead personally, if competent, and not by counsel; but where the plea was made by counsel, and defendant, when asked by the court if it was his plea, assented by nodding his head, it was held sufficient. State ex rel. Conway v. Blake, 5 Wyo. 107, 38 Pac. 354. Statutes in some states provide that arraignment shall not take place until a specified time after receiving the indictment. See McKay v. State, 90 Neb. 63, 132 N. W. 741, 39 L. R. A. (N. 8.) 714, Ann. Cas. 1913B, 1034. 34 State v. Stewart, 26 S. C. 125, 1S. E. 468; Byrd v. State, 1 How. (Miss.) 247; Hayes v. State, 58 Ga. 35; Curtis v. Com., 87 Va. 589, 13 S. E. 73. There need be no new arraignment after amendment of the indictment. State v. Sovern, 225 Mo. 580, 125 S. W. 769. 35 State v. Haycroft, 49 Mo. App. 488. 36 Davis v. State, 39 Md. 355; State v. Stewart, 26 S. C. 125,18. BE. 468. There need be no arraignment in the first court if there is an arraignment in the second. State v. Renfrow, 111 Mo. 589, 20 S. W. 299. 37 Shaw v. State, 32 Tex. Cr. R. 155, 22 S. W. 588. 882 Hale, P. C. 219. 424 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 compelling him to hold up his hand, which was for the pur- pose of identifying him, and which was probably never absolutely necessary,?® is no longer customary. When ar- raigned, the defendant should be free from any shackles or bonds, unless there is evident danger of an escape.*° In felonies he must be brought to the bar of the court in per- son,*? but in misdemeanors he may waive the right to be present, and appear and plead by attorney.*” It is always necessary to read the indictment to the de- fendant distinctly, in order that he may understand the charge; ** and this requirement is not dispensed with by the fact that he has had a copy of the indictment, as provid- ed by statute.*4 After the indictment has been read, the clerk asks: “How say you, A. B.? Are you guilty or not guilty?” If the defendant confesses the charge, he is said to plead guilty. The confession is recorded, and judgment is given as on a conviction.*® The defendant may, in some cases, instead of confessing in such a way as to say express- ly that he is guilty, do so impliedly, by a nolo contendere, which has the same effect, for the purposes of the prosecu- tion.*® If the defendant denies the charge, he answers “Not guilty,” to which the prosecuting officer replies that he is guilty. The answer of the defendant, and the replication or similiter, are entered on the record, and the general issue is thus formed. The court then proceeds to impanel and swear the jury and try the issue, unless a continuance or change of venue is asked and allowed. Formerly, after issue was joined, the clerk asked the de- fendant how he would be tried; but as the trial by jury is 39 2 Hale, P. ©. 219; 2 Hawk. P. C. ¢. 28, § 2; 1 Chit. Cr. Law, 415; 4 Bl. Comm. 323. 402 Inst. 315; 3 Inst. 34; 2 Hale, P. C. 119; 2 Hawk, P. C. ¢ 28, §1; J. Kelyng, 10; State v. Kring, 64 Mo. 591. 41 Post, p. 492. 42 Reg. v. St. George, 9 Car. & P. 483, post, p. 492. 432 Hale, P. C. 219; 4 Bl Comm, 323. While the indictment should be read in full, yet if the formal concluding part is omitted it will not vitiate a sentence pronounced on a plea of guilty. State v. Crane, 121 La. 1039, 46 South. 1009. 44 Rex v. Hensey, 1 Burrows, 643. 45 Post, D. 428. 46 Post, p. 480. §§ 127-128) THE ARRAIGNMENT AND PLEAS 425 now the only mode of trial in criminal cases, except in pro- ceedings before inferior courts, the question is not neces- sary nor usual.47 By general statutory provision, if the defendant stands mute, that is, does not answer at all, or answers irrelevantly, the court will direct a plea of not guilty to be entered, and the effect will be the same as if the defendant had so pleaded.*® If the defendant is deaf and dumb, he may nevertheless, if he understand the use of signs, be arraigned, and the mean- ing of the clerk in addressing him may be conveyed to him, by some proper person, by signs, and his signs in reply may be explained to the court.*® If he is insane he cannot be arraigned or tried at all until he becomes sane.®® If several persons are charged in the same indictment they ought all to be arraigned before any of them are brought to trial.5t They have the right to plead severally not guilty, but a plea of not. guilty by all of them will be deemed a several plea.®? The Various Pleas There are various objections which the defendant may raise before answering to the merits, and which, as a rule, he must raise before then, if he raises them at all. As we 47U. S. v. Gibert, 2 Sumn. 19, Fed. Cas. No. 15,204. 48 Com. y. Lannan, 13 Allen (Mass.) 563; Ellenwood v. Com., 10 Mete. (Mass.) 2283; Com. v. Place, 153 Pa. 314, 26 Atl. 620; Com. v. McKenna, 125 Mass. 397; Com. v. Quirk, 155 Mass. 296, 29 N. HE. 514. Formerly, if the defendant obstinately, or of malice, as it was ex- pressed, stood mute in cases of felony, a sentence of peine forte et dure followed, and he was slowly pressed to death with heavy weights; while in treason and misdemeanor it was equivalent to a conviction. Later it was equivalent to a conviction in all cases. If he was dumb ex visitatione Dei, the trial proceeded as if he had pleaded not guilty. Now, however, by statute, even where he stands moute of malice, a plea of not guilty will be entered in all cases. 49 Rex v. Jones, 1 Leach, Crown Cas. 102; Com. v. Hill, 14 Mass. 207; State v. De Wolf, 8 Conn. 93, 20 Am. Dec. 90; Rex y. Pritchard, 7 Car. & P. 308. 50 Post, p. 497. 511 Chit. Cr. Law, 418. 52 State v. Smith, 24 N. C. 402. 426 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 have seen, he may move to quash the indictment, but objec- tion may be made in this way at any time before verdict."? If the court has no jurisdiction, he may raise the question by a plea to the jurisdiction, though, as we shall see, he may take advantage of this objection in other ways, and the plea is not necessary.®* If there is any defect, whether apparent on the face of the indictment or record, or founded upon some matter of fact extrinsic of the record, which renders the particular indictment insufficient, he may take advan- tage of it by plea in abatement, and, if the plea is sustained, the indictment will be abated or quashed.*® The most fre- quent use of this plea is in cases where the defendant is mis- named in the indictment. If, admitting every fact properly alleged in the indict- ment to be true, it appears on the face of the indictment and record that, as a matter of law, the defendant cannot be re- quired to answer, because the indictment fails to charge any offense, or is otherwise insufficient or because of want of jurisdiction, the defendant may demur.®® If, without entering into the merits of the charge, and in- dependently of any question of guilt or innocence, there is some extrinsic fact which prevents any prosecution at all for the offense charged, and does not go merely to the suffi- ciency of the indictment, as where the defendant has al- ready been acquitted or ‘convicted of the same offense, or has been pardoned, he must specially plead this matter in bar of the indictment. This plea is called a special plea in bar.°7 After this comes the plea of not guilty, which is a plea to the merits, and forms the general issue. We will presently take up each of these pleadings in turn. Number of Pleas—Successive Pleas At common law it was the rule, both in civil and criminal cases, that the defendant must rely upon one ground of de- fense, and pleading double was never allowed. By the stat- ute 4 Anne, c. 16, §§ 4, 5, it was provided that in civil ac- 53 Ante, p. 416. 55 Post, p. 432. 57 Post, pp. 489, 471. 54 Post, p. 431. 56 Post, p. 486. §§ 127-128) THE ARRAIGNMENT AND PLEAS 427 tions the defendant might, by leave of court, plead as many matters as he should see fit, but the statute expressly pro- vided that it should not extend to criminal cases, so that the' rule remained that no more than one plea could be put in to answer any indictment or information.** The rule was general that, in all cases ot misdemeanor, if a defendant pleaded in abatement or specially in bar, and an issue of fact thereon was determined against him, or if he demurred, and the demurrer was overruled, he lost any right to a trial on the offense itself, and sentence could be pronounced as on a regular conviction,®® though the court could, in its dis- cretion, allow him to plead over.*® In case of felony, how- ever, if the defendant pleaded in abatement or specially in bar, or demurred, he was allowed at the same time, or even afterwards, to plead over to the indictment on the merits, as if he had never relied upon any other ground of defense; because it was thought that, though a man might lose his property by mispleading, he ought not to forfeit his life by any technical nicety or legal error.*? As we shall see, the defendant may, at any time before verdict, withdraw his plea of not guilty and confess or plead guilty. A fortiori may he withdraw a demurrer, plea to the jurisdiction, or in abatement, or specially in bar, to do so. We shall also see that at any time before sentence the de- fendant will generally be allowed to withdraw a plea of guilty and plead not guilty. 581 Chit. Cr. Law, 484; Com. v. Blake, 12 Allen (Mass.) 188; Reg. y. Charlesworth, 1 Best & S. 460. 592 Hawk. P. C. c« 31, § 7; 1 Chit. Cr. Law, 435; Rex v. Gibson, 8 East, 110; Kirton v. Williams, Cro. Eliz. 495. Contra, United States v. Rockefeller (D. C.) 226 Fed. 328. See State v. Copeland, 2 Swan (Tenn.) 626; Hill v. State, 2 Yerg. (Tenn.) 248; Wickwire v. State, 19 Conn. 477; State v. Potter, 61 N. C. 338. 60 Crosby v. Wadsworth, 6 East, 602; Rex v. Gibson, 8 East, 110; Reg. v. Goddard, 2 Ld. Raym. 922. 611 Chit. Cr. Law, 485; 2 Hale, P. C. 255; 4 Bl. Comm. 338; 2 Hawk. P. C. c. 23, § 128; Id. c. 31, § 6; Reg. v. Goddard, 2 Ld. Raym, 922; Rex v. Gibson, 8 Hast, 110; State v. Reeves, 97 Mo.. 668, 10 S. W. 841, 10 Am. St. Rep. 349; State v. McCoy, 111 Mo. 517, 20 S. W. 240. 428 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch.11 Time of Pleading When the defendant has any special matter to plead in abatement or in bar, as a misnomer, or a former acquittal or conviction, he should plead it at the time of his arraign- ment, before a plea of not guilty. He cannot so plead after a plea of guilty, unless by leave of the court.°? The same rule applies to a demurrer. The rule does not apply where matter sought to be pleaded in abatement or specially in bar arose after the plea of not guilty. In such a case the matter may be set up by a plea puis darrein continuance.® Duplicity We have seen that an indictment is bad for duplicity if it charges more than one offense in a single count.** In like manner, and for the same reason, a plea is bad if it sets up two distinct defenses, either in abatement or in bar.*® CONFESSION—PLEA OF GUILTY—NOLO CONTENDERE 129. If the defendant confesses his guilt, either expressly by a plea of guilty, or impliedly by a plea of nolo con- tendere, it is equivalent to a conviction; but he may generally retract and plead not guilty at any time before sentence. A confession of the defendant may be either express or implied. An express confession is where he pleads guilty, and thus directly, and in the face of the court, confesses the accusation.*® This is called a plea of guilty, and is equiva- lent to a conviction. The court must, however, pronounce 62 2 Hale, P. C. 219; 1 Chit. Cr. Law, 435; Com. v. Lannan, 13 Al- len (Mass.) 567; Com. v. Blake, 12 Allen (Mass.) 188. 63 Reg. v. Charlesworth, 1 Best & S. 460. 64 Ante, p. 322. 65 State v. Emery, 59 Vt. 84, 7 Atl. 129; Reg. v. Sheen, 2 Car. & P. 634. 66 2 Hawk. P. C. c. 31,§ 1; 2 Hale, P. C. 225; 1 Chit. Cr. Law, 428. § 129) CONFESSION—PLEA OF GUILTY 429 judgment and sentence as upon a verdict of guilty,®? but it will hear the facts of the case from the prosecuting officer, and any statement that the defendant or his counsel may wish to make. In the absence of a statutory provision to the contrary, the defendant may plead guilty in a capital case as well as in any other, and the court must pronounce the proper judgment and sentence, though it may be death.°* It cannot compel him to plead not guilty, and sub- mit to a trial, but it may, and generally will, advise him to withdraw his plea, and plead not guilty, and, instead of im- mediately directing the plea to be entered, will give hima reasonable time to consider and retract it.®® Before sentence has been passed the defendant will gen- erally, but not necessarily, be allowed to retract his plea of 671 Chit. Cr. Law, 429; 4 Bl. Comm. 329; People v. Luby, 99 Mich. 89, 57 N. W. 1092. “A plea of guilty may be supported when- ever a verdict of a jury finding a party guilty of a crime would be held valid. A conviction of crime may be had in two ways; either by the verdict of a jury, or by the confession of the offense by the party charged by a plea of guilty, ‘which is the highest conviction.’ And the effect of a confession is to supply the want of evidence. When, therefore, a party pleads guilty to an indictment, he confesses and convicts himself of all that is duly charged against him in that indictment.’’ In the case from which we have quoted it was therefore held that since, under the Massachusetts statutes, an indictment for murder, in the usual form, is sufficient to charge murder in the first degree, though it also includes the second degree, a plea of guilty is equivalent to a conviction of the first degree, and warrants a sentence of death. Green v. Com., 12 Allen (Mass.) 155, 172. 68 Green v. Com., 12 Allen (Mass.) 155. In some states, by statute, a plea of guilty is not allowed in a capital case. State v. Genz, 57 N. J. Law, 459, 31 Atl. 1087. But such a statute does not prevent a plea of guilty of a minor offense included in a capital charge. People vy. Smith, 78 Hun, 179, 28 N. Y. Supp. 912. In other states, if defend- ant pleads guilty to an offense which is divided into degrees, it is provided that a hearing shall be had to determine the degree in which the defendant is guilty. Act Pa., March 31, 1860 (P. L. 402) § 74; State v. Almy, 67 N. H. 274, 28 Atl. 372, 22 L. R. A. 744. At such hearing the defendant is not entitled to a jury. State v. Almy, supra. In those states where the penalty is assessed by the jury, and not by the judge, the hearing must be by the jury. Wartner v. State, 102 Ind. 51, 1 N. E. 65. 692 Hale, P. OC. 225; 2 Hawk. P. C. c« 31, § 2; 4 Bl. Comm. 329; Com. v. Battis, 1 Mass. 95. 430 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch: 11 guilty, and plead not guilty, but he cannot do so after sen- tence.7° A defendant may also retract a plea of not guilty, even after it is recorded, and plead guilty.”* A plea of guilty is a confession of guilt, but it is a formal confession before the court in which the defendant is arraigned. It is altogether different from a confession for- mally made before a magistrate, or to some other person. The latter is merely evidence of guilt.”? An implied confession, or, as it is termed, a plea of nolo contendere, “is where, in a case not capital, a defendant does not directly own himself to be guilty, but tacitly ad- mits it by throwing himself on the king’s mercy, and desir- ing to submit to a small fine, which the court may either accept or decline, as they think proper.”* If they grant the request, an entry is made to this effect, that the defendant ‘non vult contendere cum domina regina, et posuit se in gratiam curie,’ without compelling him to a more ditect confession.” 7* The chief advantage of such a confession is that it will not prevent a plea of not guilty in an action of trespass for the same injury, while a plea of guilty or direct confession will.7> The plea of nolo contendere has the same 70 Reg. v. Sell, 9 Car. & P. 846; State v. Shanley, 38 W. Va. 516, 18 S. E. 734; Mastronada v. State, 60 Miss. 86; Pattee v. State, 109 Ind. 545, 10 N. E. 421; State v. Yates, 52 Kan. 566, 35 Pac. 209; Purvis v. State, 71 Miss. 706, 14 South. 268; Monahan v. State, 185 Ind. 216, 34 N. BE. 967; State v. Williams, 45 La. Ann. 1356, 14 South. 32. Whether he shall be allowed to do this rests in the discretion of the trial court. For abuse of discretion in refusing permission, see Dobosky v. State, 183 Ind. 488, 109 N. E. 742. People v. Walker, 250 Jl. 427, 95 N. E. 475; Griffin v. State, 12 Ga. App. 615, 77 8. E. 1080. 712 Hawk. P. C.c. 31, §1; 4 Harg. St. Tr. 778, 779; State v. Shan- ley, 38 W. Va. 516, 18 S. EB. 734. 72 Post, p. 621. 73 Com. v. Horton, 9 Pick. (Mass.) 206. 741 Chit. Cr. Law, 431; 2 Hawk. P. C. « 31, § 3; Reg. v. Temple- man, 1 Salk. 55; Com. v. Horton, supra. 752 Hawk. P. C. ec. 31, §§ 1, 3; Reg. v. Templeman, 1 Salk. 55; Com. v. Horton, supra. In Chester v. State, 107 Miss. 459, 65 South. 510, it was held that the entry of a plea of nolo contendere in a city court could not be introduced as a confession of guilt on a trial in the state court involving the same facts. § 130) PLEA TO THE JURISDICTION 431 effect in a criminal case as a plea of guilty, to the extent that a judgment and sentence may be pronounced as if upon a verdict of guilty.7* It is not necessary that the court shall adjudge that the defendant is guilty for that follows by necessary legal inference from the implied confession. All that the court is required to do is to pass the sentence of the law affixed to the crime.7” Generally, after a plea of guilty, and a fortiori.after a plea of nolo contendere, the court will allow the defendant to > offer evidence in mitigation of the sentence.”® A plea of guilty or nolo contendere will not estop the de- fendant from taking exception in arrest of judgment to fatal defects apparent in the record;7® but it is a waiver of all merely formal defects to which he could have objected by some other plea.®° PLEA TO THE JURISDICTION 130. By a plea to the jurisdiction the defendant objects that the court before which the indictment is preferred has no jurisdiction of the offense, or of the person of the defendant. This plea is seldom used, as the objection may be taken in other ways. This plea will be proper when the court before which the indictment is preferred has no cognizance of the particular crime, either because of the nature of the crime, or because it was not committed within the territorial jurisdiction of the court, or when the court has no jurisdiction of the de- 761 Chit. Cr. Law, 428; Cor. v. Horton, supra; Com. v. Ingersoll, 145 Mass. 381, 14 N. E. 449. 77 Com. v. Horton, supra; Com. v. Ingersoll, supra; Com. vy. Hol- stine, 182 Pa. 357, 19 Atl. 273. 78 Com. v. Horton, supra. 791 Chit. Cr. Law, 431; 2 Hawk. P. C. ¢. 31, § 4. Ag that the in- dictment charges no offense. State v. Levy, 119 Mo. 484, 24 S. W. 1026; State v. Watson, 41 La. Ann. 599, 7 South. 125; Klawanski v. People, 218 Ill. 481, 75 N. BE. 1028, 80 Com. v. Hinds, 101 Mass. 210. 432 MOTION TO QUASH, ARRAIGNMENT, PLEAS, BTC. (Ch.11 fendant’s person.* Objection to the jurisdiction may gen- erally be taken advantage of under the plea of not guilty, or the general issue, and need not be specially pleaded,®? or it may be successfully raised by motion in arrest of judgment, or on appeal or writ of error, or by demurrer, when the want of jurisdiction appears on the face of the indictment or in the caption.** A plea to the jurisdiction is therefore seldom resorted to.®4 The plea, being dilatory, the highest degree of certainty is required. It must set forth specifically all the facts neces- sary to sustain it.®5 A plea to the jurisdiction will not lie on the ground that the presiding judge was not entitled to the office, since the right of the judge to office, at least if he is a de facto judge, cannot be tried in a collateral way, but only in a direct pro- ceeding in which he is one of the parties.*® PLEAS IN ABATEMENT 131. Any defect, whether apparent on the face of the indict- ment, or founded upon some matter of fact ex- trinsic of the record, which renders the indictment insufficient, may be taken advantage of by plea in abatement. Any defect apparent on the face of the indictment, or founded on some matter extrinsic of the record, rendering the indictment insufficient, may be made the ground of a plea in abatement, and, if found for the defendant, will abate the indictment.8? Thus, if the indictment does not de- scribe the defendant by any addition, where an addition is 814 Bl. Comm. 333; 2 Hale, P. C. 256. 82 Parker v. Elding, 1 East, 352; Rex v. Johnson, 6 Hast, 583. 88 Rex v. Fearnley, 1 Term R. 316, 1 Leach, 425; Fitch v. Com., 92 Va. 824, 24 S. E. 272. 84 Whart. Cr. Prac. & Pl. § 422. 85 Post, p. 178; Taylor v. State, 79 Md. 180, 28 Atl. 815. 86 State v. Conlan, 60 Conn. 483, 28 Atl. 150, and cases there cited. 872 Hale, P. C. 236, 238; Donald v. State, 31 Fla. 255, 12 South. 695; Day v. Com., 2 Grat, (Va.) 562; Com. v. Long, 2 Va. Cas. 318. § 131) PLEAS IN ABATEMENT 433 necessary, it is defective on its face, and the defendant may plead in abatement.** So, also, if the defendant is misnamed or misdescribed, which is an objection founded on an ex- trinsic fact, a plea in abatement will lie.8® So, where an in- dictment for failure to repair a highway does not sufficient- ly describe the highway, the objection may be raised in this way.°° If the defect is apparent on the face of the indict- ment, without reference to any extrinsic fact, it is more usual to move to quash the indictment or to demur. But in most jurisdictions, where extrinsic facts must be shown, the plea is necessary. As we have seen, all mistakes in the name or addition of the defendant must be taken advantage of in this manner, for the objection cannot be raised on motion in arrest, or on writ of error.**| When a misnomer is pleaded in abatement, the state may either allow the plea, for the defendant must give his true name therein, and will be concluded thereby,°? or it may reply, either denying the truth of the plea, or alleging that the defendant is as well known by one name as the other, so that he may be properly indicted by either, thus raising an issue of fact.%* It is well settled’ that the pendency of one indictment is no ground for a plea in abatement or in bar to another in- dictment for the same cause,®** though it might be ground 881 Chit. Cr. Law, 445; ante, p. 174. 892 Hawk. P. C. @ 25, § 70; Davids v. People, 192 Ill. 176, 61 N. E. 587. 90 Rex v. Hammersmith, 1 Starkie, 357, 358. 91 Ante, p. 176; Com. v. Inhabitants of Dedham, 16 Mass. 146; Com. v, Gillespie, 7 Serg. & R. (Pa.) 479, 10 Am. Dec. 475; People v. Collins, 7 Johns. (N. Y.) 549; Turns v. Com., 6 Metc. (Mass.) 225; Scott v. Soans, 3 East, 111; Com. vy. Fredericks, 119 Mass. 199; State v. Narcarm, 69 N. H. 287, 45 Atl. 744. 922 Hale, P. C. 238; 4 Bl. Comm. 335; Com. v. Sayers, 8 Leigh (Va.) 722. 93 State v. Malia, 79 Me. 540, 11 Atl. 602; Com, v. Gale, 11 Gray (Mass.) 320. Where a plea of misnomer is sufficient in form, the question of idem sonans, being a question of fact, must be raised by replication, and not by demurrer, State v. Malia, supra. 941 Chit. Cr. Law, 446; 2 Hawk. P. C. c. 34, § 1; Reg. v. Goddard, Ld. Raym. 922; Rex v. Stratton, Doug. 240; Withipole’s Case, Cro. Car. 134, 147; Com. v. Drew, 3 Cush. (Mass.) 282; Dutton yv. State, CLark Cr.PR0c.(2p Ep.) —28 434 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 for the exercise of the court’s discretion to quash one or the other of them. No prejudice to the defendant can well arise, for whenever either of them, and it is immaterial which, is tried, and a judgment rendered on it, the judgment may ibe pleaded i in bar to the other.®® A plea in abatement is merely a dilatory plea. If success- ful, the only advantage generally gained is delay, for the defendant may be detained in custody, and a new indict- ment may be presented, or, in some cases, as we have seen, the indictment may be amended.*® The plea must be verified by affidavit.°’ In these dilatory pleas the highest degree of certainty is required.®* A plea in abatement, being, as it is, an excuse for a refusal to answer the charge contained in the indictment, must be filed before any plea in bar.®° If the plea is insufficient either in point of form or in sub- stance, the prosecuting officer may demur, thereby forming an issue of law on the plea.t_ The court will not, on motion, 5 Ind. 534; Kalloch v. Superior Court of City and County of San Francisco, 56 Cal. 236; State v. Eaton, 75 Mo. 586; State v. Security Bank of Clark, 2 S. D. 538, 51 N. W. 337; White v. State, 86 Ala. 69, 5 South. 675; Eldridge v. State, 27 Fla. 162, 9 South, 448; Vaughn v. State, 32 Tex. Cr. R. 407, 24 S. W. 26; ante, p. 186; post, p. 442. The rule does not apply to qui tam’ and penal actions. Com. v. Drew, supra; Com. v. Churchill, 5 Mass, 175. 96 Com. v. Drew, supra; post, p. 439. 96 Rowland v. State, 126 Ind. 517, 26 N. BE. 485; ante, p. 363. 97 Com, vy. Sayers, 8 Leigh (Va.) 722; State v. Allen, 91 Me. 258, 39 Atl. 994. 984 Bac. Abr. 51; State v. Ward, 60 Vt. 142, 14 Atl. 187; State v. Emery, 59 Vt, 84, 7 Atl. 129; People v. Lauder, 82 Mich. 109, 46 N. W. 956; Dolan vy. People, 64 N. Y. 485; State v. Bryant, 10 Yerg. (Tenn.) 527; State v. Brooks, 9 Ala. 9; Hardin v. State, 22 Ind. 347; Reeves v. State, 29 Fla. 527, 10 South. 901; Tilley v. Com., 89 Va. 186, 15 S. BE. 526; Dyer v. State, 11 Lea (Tenn.) 509; State v. Dug- gan, 15 R. I. 412, 6 Atl. 597; Davids v. People, 192 Ill. 176, 61 N. E. 537. 992 Hale, P. ©. 175; 2 Hawk. P. C. c. 84, § 4; Martin v. Com., 1 Mass. 347; State v. Dibble, 59 Conn. 168, 22 Atl. 155; State v. Wat- son, 20 R. I. 354, 39 Atl. 193, 78 Am. St. Rep. 871. The prayer of the plea is that the indictment be quashed, or that defendant may not be compelled to answer. Rex v. Shakespeare, 10 East, 83. 11 Chit. Cr. Law, 449; Rex v. Dean, 1 Leach, Crown Cas. 476. § 131) PLEAS IN ABATEMENT 435 quash the plea,? nor can it be amended.? If the prosecuting officer denies the plea, he replies to that effect, and an issue of fact on the plea is thus formed.* If the replication is in- sufficient in law, the defendant may demur,® or he may an- swer it on the facts, by a rejoinder, and so on until an issue on the plea is reached. Issue must be thus taken on a plea in abatement, either by demurrer or reply, and the issue must be tried and determined. It is error to summarily overrule a plea, without an issue thereon.® When a plea in abatement to an indictment is found in favor of the defendant, he is not discharged, but is detained, as we have seen, until a new indictment can be presented.’ If a plea on the ground of misnomer by one of several de- fendants is sustained, the indictment will be quashed as to that one only.* If the plea is found against the defendant on the facts, he is allowed to plead over in cases of felony,® but in cases of misdemeanor the judgment is final, as upon a conviction.‘° The latter proposition does not apply to judgment against him on demurrer to his plea, or on his demurrer to the replication to his.plea; in such case he is entitled to plead over.11 These are the common-law rules, 2 Rex v. Cooke, 2 Barn. & C. 618. 3 Rex v. Cooke, 2 Barn. & C. 871. 4 Rex vy. Dean, 1 Leach, Crown Cas. 476; Baker v. State, 80 Wis. 416, 50 N. W. 518; note 93, supra. 5 Rex v. Knollys, 2 Salk. 509. 6 Martin v. State, 79 Wis. 165, 48 N. W. 119; Baker v. State, 80 Wis. 416, 50 N. W. 518. If the plea is bad on its face, the error is not ground for reversal. Baker v. State, supra. 72 Hale, P. C. 176, 238; 2 Hawk. P. C. ec. 34, § 2; Rowland v. State, 126 Ind. 517, 26 N. BE. 485; note 96, supra. 82 Hale, P. OC. 177. 92 Hale, P. C. 239, 255; 2 Hawk. P. C. c. 31,§ 6; 4 Bl. Comm. 338; Rex v. Gibson, 8 Hast, 107; Rex v. Goddard, 2 Ld. Raym. 922. 102 Hawk. P. C. c. 31, § 7; Rex v. Gibson, 8 East, 107; Hichorn v. Le Maitre, 2 Wils. 867; Rex v. Gibson, 8 Hast, 107; Guess v. State, 6 Ark. 147; Cont. v. Carr, 114 Mass. 280, 19 Am. Rep. 345. 11 Rex v. Johnson, 6 East, 583; Bowen vy. Shopcott, 1 Hast, 542; Hichorn v. Le Maitre, 2 Wils. 368. ‘This distinction between the re- sult of a verdict against the defendant on his plea in abatement, and a judgment against him on demurrer thereon, is founded on this prin- ciple, that wherever a man pleads a fact which he knows to be false, 436 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 but they may not now obtain under the practice of some of the states, and in some states they have been modified by statute."? DEMURRER 132. By a demurrer the defendant raises the objection that on the face of the indictment and record, admitting the truth of every fact which is well pleaded, he ought not, as a matter of law, be required to an- swer. A demurrer lies not only by the defendant to the indictment, but by the state to every plea of the defendant, and by the defendant to every plea of the state, if it is insufficient as a matter of law. A demurrer admits the truth of every fact which is suffi- ciently alleged, but raises the objection that, as a matter of law, the indictment does not charge an offense, or does not charge such an offense that the defendant can be, as a mat- ter of law, required to answer.1* If a defendant is indicted for stealing property which is not the subject of larceny, the indictment is bad on demurrer; for admitting the taking, it charges no offense. The demurrer puts the legality of the. whole proceedings in issue, and compels the court to ex- amine the whole record, so that, for instance, if it appears from the caption of the indictment that.the court has no jurisdiction, a demurrer will be sustained.t4 Facts which are not well pleaded, even though material, are not admit- and a verdict be against him, the judgment ought to be final, for every man must be presumed to know whether his plea be true or false in matter of fact; but upon demurrer to a plea in abatemrent, there shall be a respondeat ouster, because every man shall not be presumed to know the matter of law which he leaves to the judgment of the court.” Hichorn y. Le Maitre, 2 Wils. 368; 1 Chit. Cr. Law, 451. 12 See Harding v. State, 22 Ark. 210. 134 Bl. Comm, 334; State v. Ball, 30 W. Va. 382, 4 S. EB. 645; Lazier v. Com., 10 Grat. (Va.) 708; Holmes v. State, 17 Neb. 73, 22 N. W. 232; Com. v. Trimmer, 84 Pa. 65. , 141 Chit. Cr. Law, 440; Rex v. Fearnley, 1 Term R. 316, 1 Leach, Crown Cas. 425; Com, vy. Trimmer, 84 Pa. 65. § 132) DEMURRER 437 ted, nor does the demurrer admit allegations of the legal effect of the facts pleaded.1® In civil pleading a demurrer may be general or special. The former assigns no special ground of objection, while the latter does specify the objection. In criminal pleading, at common law, there is no such distinction.1® At common law, in cases of misdemeanor, the defendant cannot, as of right, plead over to the indictment, after the overruling of his demurrer, where the demurrer is general, but the decision on the demurrer operates as a conviction, for the demurrer admits the facts;+’ nor, it seems, can he plead over, as a matter of right, in cases of felony.1® The court, however, may, in the exercise of its discretion, allow him to plead over in cases of misdemeanor,’® and generally will do so in cases of felony.?® By statutes, in some juris- dictions, it is provided that in all cases where a demurrer is overruled the judgment shall be respondeat otster, thus giving the right to plead over, and in some states, even in the absence of a statute, this is the rule. : If the indictment contain two distinct and independent charges for two separate offenses, in separate counts, or in the same count, and the defendant demurs generally, though one of the offenses be not indictable, or be insufficiently alleged, the indictment will be sustained as to the good count or charge, for it may be good in part.?* 15 Whart. Cr. Pl. & Prac. § 408; Com, v. Trimmer, 84 Pa. 65. 16 Reg. v. Brown, 3 Cox, Cr. Cas. 133. 172 Hawk. P. C. c. 31, § 7; 2 Hale, P. C. 257; Rex v. Gibson, 8 Hast, 107; State v. Passaic Agr. Soc, 54 N. J. Law, 260, 23 Atl. 680; People v. Taylor, 3 Denio (N. Y.) 98; State v. Abrisch, 42 Minn. 202, 43 N. W. 1115; Wickwire v. State, 19 Conn. 477. 18 Bennett v. State, 2 Yerg. (Tenn.) 472; Reg. v. Faderman, 3 Car. & K, 353. 191 Chit. Cr. Law, 439. 202 Hawk. P. C. c. 31, § 6; Wilson v. Laws, 1 Salk. 59; Hume v. Ogle, Cro. Eliz. 196; Barge v. Com., 3 Pen. & W. (Pa.) 262, 23 Am. Dec. 81; Foster v. Com., 8 Watts & S. (Pa.) 77; Com. v. Goddard, 13 Mass. 456. 21 Ingram y. State, 39 Ala. 247, 84 Am‘ Dec. 782; Hendricks v. Com., 75 Va. 934; State v. McClung, 35 W. Va. 280, 18 S. BE. 654; Gibson v. State, 79 Ga. 344, 5 S. E. 76; ante, p. 346. 438 | MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 On demurrer to an information or complaint, defects may be cured by amendment,?* and the same is true of defects in the caption of an indictment.2® An indictment itself, how- ever, cannot be amended, unless it is allowed by statute.?4 A demurrer should regularly be interposed before plead- ing to the indictment. The defendant cannot, as a matter of right, withdraw his plea and demur. Whether he shall be allowed to do so rests in the discretion of the court.?® If the demurrer is on the ground that the facts stated do not constitute a crime, and it is sustained, the defendant must be discharged from custody.?* But, if the objection is to the form of the indictment, he only obtains a delay, for, though the indictment may be quashed, he may be detain- ed until a new indictment is found,?? or, by statute, until the indictment is amended. At common law the defendant could take the chance of a complete acquittal, and, failing in this, he could, on mo- tion in arrest of judgment, obtain almost any advantage that he could have obtained on demurrer,?® so that there was little to be gained by demurrer, unless the indictment clearly failed to charge any offense. In the latter case it was, and still is, advisable, for, if sustained, the defendant, as we have just seen, must be discharged from custody, and a trial will be avoided. By statutes now, in most states, the remedy by motion in arrest of judgment is not as effec- tual as formerly, and some defects, such as duplicity, un-- certainty, etc., must be raised by motion to quash, or de- murrer, if raised at all. 22 Rex v. Holland, 4 Term R. 458; ante, p. 363. 23 Ante, p. 161. 24 Ante, p. 363. 25 Reg. v. Brown, 3 Cox, Cr. Cas. 127; Reg. v. Purchase, Car. & M. 617; Com. v. Chapman, 11 Cush. (Mass.) 422; People vy. Villarino, 66 Cal. 228, 5 Pac. 154. 26 Rex y. Lyon, 2 Leach, Crown Cas. 600; Rex v. Haddock, An- drews, 137; Rex v. Fearnley, 1 Term R. 316; Rex v. Burder, 4 Term R. 778, 271 Chit. Cr. Law, 448; Rex v. Haddock, Andrews, 147; ante, p. 420. 284 Bl. Comm. 324; 1 Chit. Cr. Law, 442. §§ 1386-1388) PLEAS OF AUTREFOIS ACQUIT AND CoNVIcr 439 In some states it is provided that demurrer shall not lie for certain specified grounds, such as uncertainty; or the grounds of demurrer are specified by statute, and a demur- rer will not lie for any other ground.?® As we have seen, misjoinder of counts, since it does not render an indictment bad as a matter of law, is not ground for demurrer.®° PLEAS IN BAR 133. A plea in bar goes to show that the defendant cannot be punished for the offense charged. It may be: (a) Special, or _ (b) General. 134. A special plea in bar does not go to the merits, and deny the facts alleged in the indictment, but sets up some extrinsic fact, by reason of which the de- fendant cannot be tried at all for the offense charg- ed. The usual special pleas in bar are: (a) Autrefois acquit or convict, or former jeopardy. (b) Pardon. 135. The general plea in bar is the plea of not guilty. SAME—PLEAS OF AUTREFOIS ACQUIT AND CON- VICT, OR FORMER JEOPARDY 136. At common law an acquittal or conviction of an of- fense in a court having jurisdiction, and on a suffi- cient accusation, may be pleaded in bar of any sub- sequent prosecution for the same offense. 137. The Constitution of the United States, and the differ- ent state Constitutions, provide, in substance, that no person shall be twice put in jeopardy for the same offense. Most of the courts hold that this is merely a declaration of the common-law rule. 29 See People v. Schmidt, 64 Cal. 260, 30 Pac. 814; People v. Mark- ham, 64 Cal. 157, 30 Pac. 620, 49 Am. Rep. 700, 30 Ante, p. 342, 440 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 138. To constitute a former jeopardy— (a) The court in which the former prosecution took place must have had jurisdiction, and must have been legally constituted. (b) The indictment or other accusation must have been sufficient to sustain a conviction, and the proceed- ings must have been valid. (c) Jeopardy only begins when the jury have been sworn and charged with the trial of the issue. (d) There is no jeopardy if the prosecution fails through the fault or procurement of the defendant, or, by the weight of opinion, through necessity, as be- cause of the death or sickness of a juror or inabili- ty of the jury to agree. (e) The offenses must be the same in fact and in law. By the weight of authority, they are not the same if the defendant could not have been convicted un- der the first indictment on proof of the facts charg- ed in the second. A conviction or acquittal under one indictment will bar a prosecution under anoth- er for any offense of which the defendant could have been convicted under the first. It is a universal maxim of the common law that no per- son is to be twice placed in jeopardy for the same offense.** Whenever a man is once acquitted upon any indictment or other accusation, before any court having jurisdiction of the offense, he may plead such acquittal in bar of any subse- quent accusation of the same crime.*? This is called the plea of autrefois acquit. So if a person has, in like manner, once been tried and convicted, he may plead such convic- tion in bar of any subsequent accusation for the same of- fense.2* This is called a plea of autrefois convict. By the Constitution of the United States, it is declared that “no person shall be * * * subject, for the same offense, to 81 Staunford, P. C. lib. 2, c. 86, p. 105; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. 324 Bl. Comm. 335; Reg. v. Bird, 2 Denison, Crown Cas, 216. 834 Bl, Comm. 336. §§ 186-138) PLEAS OF AUTREFOIS ACQquIT AND convict 441 be twice put in jeopardy of life and limb.” This provision applies only to prosecutions in the federal courts, but there are similar provisions in the state Constitutions. Some of them omit the words “of life or limb,” and merely prohibit putting a person twice in jeopardy for the same offense, or twice trying him for the same offense, but the purpose and meaning are the same. They are “equivalent to a declara- tion of the common-law principle that no person shall be twice tried for the same offense.” °* “The question recurs, what is the meaning of the rule that no person shall be sub- ject for the same offense to be twice put in jeopardy of life or limb? Upon the fullest consideration which I have been able to bestow on the subject, I am satisfied that it means no more than this: that no man shall-be twice tried for the same offense. * * * The test by which to decide whether a person has been once tried is perfectly familiar to every lawyer—it can only be by a plea of autrefois ac- quit, or a plea of autrefois convict.” 25 Some of the courts thus construe the constitutional provision as being merely declaratory of the common-law rule. Others have given it a broader construction, and have sustained a plea of former jeopardy, when a common-law plea of autrefois acquit or convict could not have been sustained. It will not be possi- ble for us to go at length into the cases on the question of former jeopardy, and show the points on which they are conflicting. All that we can do is to state and explain the general rules. The student must then consult the decisions of his own state. Of course, a plea of autrefois convict can only be sus- tained by showing a verdict of guilty, for without this there 34 Com. v. Roby, 12 Pick. (Mass.) 501; People v. Goodwin, 18 Johns. (N. Y.) 202, 9 Am. Dec. 208. Some courts hold that the words “life or limb’ do not prevent a second prosecution for offenses punished by fine only. Jones vy. State, 15 Ark. 261. Other courts hold that the words “life or limb” restrict the prohibition against double jeopardy to capital cases. McCreary v. Com. 29 Pa. 323. In some Constitu- tions the words “life or liberty” are used. It has been held that the word “liberty’’ covers the right to vote or hold public office. Jen- kins v. State, 14 Ga. App. 276, 80 S. E. 688. 85 People v. Goodwin, supra. 442 MOTION TO QUASH, ARRAIGNMENT, PLEAS, BTC. (Ch. 11 can be no.conviction. A verdict of not guilty, however, was not necessary to a plea of autrefois acquit. If, after jeopardy really attached, the prosecution was discontinued unnecessarily, and without the defendant’s fault or consent, this was equivalent to an acquittal. What Constitutes Jeopardy Jeopardy does not begin until the defendant is put upon his trial before a court of competent jurisdiction, upon an accusation which is sufficient to sustain a conviction, and the jury has been sworn and charged with his deliverance. They are always so charged as they are sworn. In the first place, the defendant must be put upon his trial. The dis- charge of a prisoner by a committing magistrate, or the re- fusal of a grand jury to indict him, does not prevent a sub- sequent indictment, for there has been no jeopardy.**® Nor, for the same reason, does the quashing of an indictment, or the sustaining of a demurrer or plea in abatement, or plea to the jurisdiction, before a plea to the merits and swearing of the jury, prevent a subsequent indictment for the same offense.*7 And a plea of former arraignment,?® or that an- other indictment is pending,*® is bad. Jeopardy only begins when the defendant has been put upon his trial, and this is not until the jury has been fully impaneled and sworn. At any time before this the prosecution may be discontinued without prejudice to the right to institute another prosecu- 362 Hale, P. C. 243, 246; 2 Hawk. P. C. c. 35, § 6; McCann v. Com., 14 Grat. (Va.) 570; Gaffney v. Circuit Judge Missaukee Coun- ty, 85 Mich. 138, 48 N. W. 478; Com. v. Hamilton, 129 Mass. 479; Ex parte Crawlin, 92 Ala. 101, 9 South. 334; Com. v. Miller, 2 Ashm. (Pa.) 61; Jambor v. State, 75 Wis. 664, 44 N. W. 963; State v. Whipple, 57 Vt. 687; Ex parte Clarke, 54 Cal. 412; State v. Harris, 91 N. C. 656. 37 Com. v. Gould, 12 Gray (Mass.) 171; Stuart v. Com., 28 Grat. (Va.) 950; State v. Redman, 17 Iowa, 333. 38 Fost. Cr. Law, 104, 105. 39 Reg. v. Goddard, 2 Ld. Raymt 920; Rex v. Stratton, Doug. 240; Withipole’s Case, Cro. Car. 147; State v. Benham, 7 Conn. 418; Com. v. Drew, 3 Cush. (Mass.) 279; People v. Fisher, 14 Wend. (N. Y.) 9, 28 Am. Dec. 501; O’Meara v. State, 17 Ohio St. 515; Stuart v. Com., 28 Grat. (Va.) 950; State v. Dixon, 78 N. C. 558; State v. Webb, 74 Mo. 333; Miazza v. State, 36 Miss. 614; ante, p, 433. §§ 186-138) PLEAS OF AUTREFOIS ACQUIT AND CoNVIcT 443 tion.t° Swearing part of the jurors is not enough to put the defendant in jeopardy.*? By the weight of authority, as soon as the jury are en- tirely sworn, and charged with the deliverance of the de- fendant, jeopardy attaches; ‘** and if, after that, a nolle prosequi is entered,*® or the jury are unnecessarily dis- charged, without the defendant’s consent,** this will amount to an acquittal, and he cannot be again tried either on that indictment or on another indictment for the same offense.** 40 People v. Fisher, 14 Wend. (N. Y.) 9, 28 Am. Dec. 501; Com. v. Tuck, 20 Pick. (Mass.) 356; Stuart v. Com., 28 Grat. (Va.) 950; State v. Champeau, 52 Vt. 3183, 36 Am. Rep. 754; State v. Hastings, 86 N. C. 596; Ferris v. People, 48 Barb. (N. Y.) 17; Gardiner v. People, 6 Parker, Cr. R. (N. Y.) 155; Bryans v. State, 34 Ga. 323; Alexander v. Com., 105 Pa. 1; State v. Main, 31 Conn. 572; State v. Burket, 2 Mill, Const. (S. C.) 155, 12 Am. Dec. 662; State v. M’Kee, 1 Bailey (S. C.) 651, 21 Am. Dec. 499; Patterson v. State, 70 Ind. 841; Clarke v. State, 23 Miss. 261; State v. Paterno, 43 La. Ann. 514, 9 South, 442. 41 State v. Burket, supra. 42 See following notes. 43 Reynolds v. State, 3 Ga. 53; United States v. Farring, 4 Cranch, C. C. 465, Fed. Cas. No. 15,075. Bui not if the nolle prosequi was entered before trial, Ex parte Foss, 102 Cal. 347, 36 Pac. 669, 25 L. R. A. 593, 41 Am. St. Rep. 182; or even when entered after trial, if entered because the indictment was insufficient to warrant a con- viction, Walton vy. State, 3 Sneed (Tenn.) 687; or because of a mate- rial variance, Martha v. State, 26 Ala. 72. 44 People ex rel. Stabile v. Warden of City Prison of City of New York, 202 N. Y. 138, 95 N. E. 729; Hilands v. Com., 111 Pa. 1, 2 Atl. 70, 56 Am. Rep. 235; Com. vy. Fitzpatrick, 121 Pa. 109, 15 Atl. 466, 14L. RB. A. 451, 6 Am. St. Rep. 757. 45 State v. Robinson, 46 La. Ann. 769, 15 South. 146; Com. v. Cook, 6 Serg. & R. (Pa.) 577, 9 Am. Dec. 465; State v. M’Kee, 1 Bailey (S. C.) 651, 21 Am. Dec. 499; Morgan v. State, 18 Ind. 215; Com. v. Hart, 149 Mass. 7, 20 N. BE. 310; People vy. Webb, 38 Cal. 467; People v. Cage, 48 Cal. 323, 17 Am. Rep. 486; Bryans v. State, 34 Ga. 328; Nolan v. State, 55 Ga. 521, 21 Am. Rep. 281; Mount v. State, 14 Ohio, 295, 45 Am. Dec. 542; Teat v. State, 53 Miss. 439, 24 Am. Rep. 708; O’Brian v. Com., 9 Bush (Ky.) 333, 15 Am. Rep. 715; Klock v. People, 2 Parker, Cr. R. (N. Y.) 676; Stewart v. State, 15 Ohio St. 159; Wright v. State, 5 Ind. 290, 61 Am. Dee. 90; Price v. State, 19 Ohio, 423; People v. Barrett, 2 Caines (N. Y.) 304, 2 Am. Dec. 239; Lee v. State, 26 Ark. 260, 7 Am. Rep. 611; Joy v. State, 14 Ind. 139; State v. Walker, 26 Ind. 346; Hines v. State, 24 Ohio St. 184; Gruber v. State, 3 W. Va. 699; Bell v. State, 44 Ala. 393; 444 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 ‘The discharge of the jury does not amount to an acquit- tal if through the escape, death, sickness,*® or misconduct of a juror,*’ or the disqualification of a juror not discovered before the jury are sworn,*® or because of the illness of the prisoner or of the judge,*® or the expiration of the term of court,®°° or any other case of urgent necessity, the progress of the trial is interrupted. In such a case another jury may be impaneled, and the defendant may be again put upon his trial.®+ , State v. Redman, 17 Iowa, 329; McFadden vy. Com., 23 Pa. 12, 62 Am. Dec. 308; People v. Ny Sam Chung, 94 Cal. 804, 29 Pac. 642, 28 Am. St. Rep. 129. Where the jury separates after rendering a ver- dict which is void because delivered to the judge outside of the courthouse, the accused, having been once in jeopardy is entitled to be discharged. Jackson v. State, 102 Ala. 76, 15 South. 351. 46 Doles v. State, 97 Ind. 555; De Berry v. State, 99 Tenn. 207, 42 S. W. 31; State v. Emery, 59 Vt. 84, 7 Atl. 129. Insanity of ju- ror. Davis y. State, 51 Neb. 301, 70 N. W. 984. Illness of juror’s wife. Hawes v. State, 88 Ala. 37, 7 South. 302. Contra, Upchurch v. State, 36 Tex. Cr. R. 624, 38 S. W. 206, 44 L. R. A. 694. Death of juror’s son. State v. Davis, 31 W. Va. 390, 7 S. E. 24. Death of juror’s mother. Stocks v. State, 91 Ga. 831, 18 S. E. 847. 47 In re Ascher, 130 Mich. 540, 90 N. W. 418, 57 L. R. A. 806; Me- Kenzie v. State, 26 Ark. 334. 48 State v. Allen, 46 Conn. 581; Com. v. McCormick, 130 Mass. 61, 39 Am. Rep. 423. , 49 Nugent v. State, 4 Stew. & P. (Ala.) 72, 24 Am. Dec. 746. See also State v. Tatman, 59 Iowa, 471, 138 N. W. 632 (illness of judge’s wife). 50 Reg. v. Newton, 3 Cox, C. C. 489; State v. Jeffors, 64 Mo. 376. 51 Simmons v. U. S., 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968; Rex v. Stevenson, 2 Leach, Crown Cas. 546; Nugent v. State, 4 Stew. & P. (Ala.) 72, 24 Am. Dec. 746; Rex v. Edwards, 4 Taunt. 309; Stocks v. State, 91 Ga. 831,18 S. E. 847; State v. Hall, 9 N. J. Law, 256; State v. Allen, 46 Conn. 531; State v. M’Kee, 1 Bailey (S. C.) 651, 21 Am. Dec. 499; Com. v. Purchase, 2 Pick. (Mass.) 521, 138 Am. Dec. 452; Com. v. Roby, 12 Pick. (Mass.) 502; Com. v. McCormick, 180 Mass. 61, 39 Am. Rep. 423; Com. v, Fells, 9 Leigh (Va.) 618; Stone v. People, 2 Scam. (Ill.) 826; People v. Cage, 48 Cal. 323, 17 Am. Rep. 436; State v. Moor, Walk. (Miss.) 134, 12 Am. Dec. 541; People v. Ross, 85 Cal. 883, 24 Pac. 789; State v. Honeycutt, 74 N. C. 391; Hector v. State, 2 Mo. 166, 22 Am. Dec. 454; Barrett v. State, 35 Ala. 406; Mixon v. State, 55 Ala. 129, 28 Am. Rep. 695; Lester v. State, 33 Ga. 329; Ex parte McLaughlin, 41 Cal. 211, 10 Am. Rep. 272; Hoffman y. State, 20 Md. 425, — §§ 136-138) PLEAS OF AUTREFOIS ACQUIT AND ConvicT 445. Nor, by the great weight of authority, does it amount to an acquittal to discharge the jury without the defendant’s consent, even in a capital case, where they have been delib- erating so long that there is no reasonable expectation that they will be able to agree, and they state in open court that they will not be able to agree.°? “These decisions cannot be regarded as a violation of the maxim under considera- tion, because, although in a certain sense it may be said that the prisoner was put in jeopardy by the first trial, yet the event has shown that there was no legal trial, and, there- fore, that he was in no such jeopardy or danger of convic- tion as the maxim regards.” 58 52 Com. v. Purchase, 2 Pick. (Mass.) 521, 18 Am. Dec. 452; People vy. Goodwin, 18 Johns. (N. Y.) 187, 9 Am. Dec. 203; People v. Olcott, 2 Johns. Cas. (N. Y.) 301, 1 Am. Dec. 168; U. S. v. Perez, 9 Wheat. 579, 6 L. Ed. 165; Winsor v. Reg., L. R. 1 Q. B. 289; Com. v. Bow- den, 9 Mass. 494; Com. v. Roby, 12 Pick. (Mass.) 502; Ex parte Mc- Laughlin, 41 Cal. 212, 10 Am. Rep. 272; State v. Woodruff, 2 Day (Conn.) 504, 2 Am. Dec. 122; U. S. v. Gibert, 2 Sumn. 19, Fed. Cas. No. 15,204; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; State v. Whitson, 111 N. C. 695, 16 S. E. 332; State v. Cham- peau, 52 Vt. 313, 36 Am. Rep. 754; People v. Pline, 61 Mich. 247, 28 N. W. 88; Com. v. Olds, 5 Litt. (Ky.) 187; State v. Moor, Walk. (Miss.) 184, 12 Am. Dec! 541; People v. Greene, 100 Cal. 140, 34 Pac. 630. Contra, Com. v. Cook, 6 Serg. & R. (Pa.) 577, 9 Am. Dec. 465; Com. v. Clue, 3 Rawle (Pa.) 498; Com. v. Fitzpatrick, 121 Pa. 109, 15 Atl. 466,1 L. R. A. 451, 6 Am. St. Rep. 757; Williams v. Com., 2 Grat. (Va.) 570, 44 Am. Dec. 403. So by statute now in Virginia. Jones vy. Com., 86 Va. 740, 10 S. E. 1004. If the court abuses its dis- cretion in discharging the jury for failure to agree, the discharge will operate as an acquittal. Where a jury had been out for four days, the'judge sent the sheriff to inquire whether they could agree, and, on his bringing a reply that they could not, discharged the jury, without further inquiry as to their ability to agree. It was held that this amounted to an acquittal. People v. Cage, 48 Cal. 323, 17 Am, Rep. 436. See, also, People ex rel. Stabile v. Warden of City Prison of City of New York, 202 N. Y. 138, 95 N. H. 729. The dis- charge must not be in the defendant’s absence. Rudder v. State, 29 Tex. App. 262,15 S. W. 717. In Ohio a discharge of the jury through failure to agree will constitute jeopardy, where defendant does not consent to the discharge, and the court makes no finding that there was no probability of the jury being able to agree. State v. Rose, 89 Ohio St. 383, 106 N. B. 50, L. R. A. 1915A, 256, 58 Com. v. Roby, 12 Pick. (Mass.) 502. 446 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 The discharge of the jury, even unnecessarily, does not amount to an acquittal where the defendant consents, for he may waive his rights in this respect.** Jurisdiction cf Former Court To constitute a former jeopardy, the court in which the former prosecution took place must have been legally con- stituted, and must have had jurisdiction of the offense and of the person of the defendant; otherwise its judgment must have been null and void.** Thus, an acquittal or conviction in a court of the United States, on indictment for an of- fense of which that court has no’jurisdiction, is no bar to an indictment against him for the same offense in a state court.°° And a trial and acquittal or conviction which is void becatse one of the presiding judges was related to the defendant cannot support a plea of former jeopardy.°” 54 Reg. v. Deane, 5 Cox, Cr. Cas. 501; Com. v. Sholes, 13 Allen (Mass.) 554; People v. Kerm, 8 Utah, 268, 30 Pac. 988; People v. Gardner, 62 Mich. 307, 29 N. W. 19; State v. M’Kee, 1 Bailey (S. C.) 651, 21 Am. Dec. 499; Stewart v. State, 15 Ohio St. 155; People v. Nash, 15 Cal. App. 320, 114 Pac. 784, where defendant ‘consented to a discharge of the jury that he might withdraw a plea of not guilty, and demur. In State v. Van Ness, 82 N. J. Law, 181, 83 Atl. 195, it was held that even where the jury was discharged without authority of law—as where it was discharged by the deputy clerk in the ab- sence of the judge—that such discharge did not prevent defendant from being retried. 55 People v. Connor, 65 Hun, 392, 20 N. Y. Supp. 209; Id., 142 N. Y. 130, 36 N. E. 807; Reg. v. Bowman, 6 Car. & P. 337; Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54; McLain v. State, 31 Tex. Cr. R. 558, 21 S. W. 865; Com. v. Peters, 12 Metc. (Mass.) ‘387; Com. v. Dascom, 111 Mass. 404; State v. Odell, 4 Blackf. (Ind.) 156; Weaver y. State, 83 Ind.:289; State v. Green, 16 Iowa, 239; State v. Parker, 66 Iowa, 586, 24 N. W. 225; State v. Little, 1 N. H. 257; State v. Hoagkins, 42 N. H. 474; Phillips v. People, 88 Ill. 160; Campbell v. People, 109 Ill. 565, 50 Am. Rep. 621; State ex rel. Barbee v. Weath- erspoon, 88 N. C. 19; Com. v. Myers, 1 Va. Cas. 188; Com. v. Jack- son, 2 Va. Cas. 501; State v. Epps, 4 Sneed (Tenn.) 552; Foust v. State, 85 Tenn. 342, 3 S. W. 657; State v. Payne, 4 Mo. 376; State v. Phillips, 104 N. C. 786, 10 S. E. 468; Alford v. State, 25 Fla. 852, 6 South. 857. But see Rex v. Simpson, 136 L. T. J. 10. 56 Com. v. Peters, 12 Metc. (Mass.) 387; Blyew v. Com., 91 Ky. 200, 15 S. W. 356. 57 People v. Connor, 65 Hun, 392, 20 N. Y. Supp. 209; Id., 142 N. Y. 180, 36 N. B. 807. §§ 136-138) PLEAS OF AUTREFOIS ACQUIT AND CONVICT 447 Character of the Court If the court in which the defendant was formerly prose- cuted was legally constituted, and had jurisdiction, it makes no difference what court it was. The former jeopardy will bar a subsequent prosecution by the same sovereign in any tribunal whatever.®® Where two separate courts of the same sovereign have concurrent jurisdiction of the offense, the one which first rightfully assumes jurisdiction acquires control to the ex- clusion of the other.®? Errors and Irregularities on Former Prosecution Though the court may have had jurisdiction of the for- mer prosecution, yet if the proceedings were so illegally or irregularly conducted that a.conviction could not have been sustained, as where there was no arraignment or no plea, or waiver thereof, when such waiver is allowed, the acquittal therein will not constitute a bar.°° But errors or irregulari- ties which do not render the proceedings a nullity will not defeat a plea of autrefois acquit.*? The same is true to a certain extent of the plea of autre- fois convict. If the proceedings were so irregular that the conviction is an absolute nullity, and the sentence has not been performed, the conviction is no bar.*? But irregulari- 58 2 Hawk. P. C. c. 35, § 10; 1 Chit. Cr. Law, 458; Wemyss v. Hop- kins, L. R. 10 Q. B. 378; Com. v. Goddard, 13 Mass. 459; Com. v. Cunningham, 18 Mass. 247; Com. v. Miller, 5 Dana (Ky.) 320; Wortham vy. Com., 5 Rand. (Va.) 669; Bailey’s:Case, 1 Va. Cas. 258. But see note 93, infra. 59 Whart. Cr. Pl. & Prac. § 441; Burdett v. State, 9 Tex. 48. 60 State v. Mead, 4 Blackf. (Ind.) 309, 30 Am. Dec. 661; Finley v. State, 61 Ala. 201; Com. v. Bosworth, 113 Mass. 200, 18 Am. Rep. 467. Where the omission of arraignment and plea are regarded as mere formal defects, the rule is contra. State v. Kinghorn, 56 Wash. 131, 105 Pac. 234, 27 L. R. A. (N. 8.) 136. 612 Hawk. P. C. ¢. 35, § 8; 2 Hale, P. C. 274; Com. v. Goddard, 13 Mass. 458; Stevens v. Fassett, 27 Me. 266; Hines v. State, 24 Ohio St. 184; O’Brian v. Com., 9 Bush. (Ky.) 333, 15 Am. Rep. 715; State v. Brown, 16 Conn. 54. ; 62 People v. Connor, 65 Hun, 392, 20 N. Y. Supp. 209; Id., 142 N. Y. 130, 36 N. E. 807; Com. v. Alderman, 4 Mass. 477; Warriner v. State, 3 Tex. App. 104, 30 Am. Rep. 124. In Com. v. Endrukat, 231 Pa. 529, 80 Atl. 1049, 35 L. R. A. (N. S.) 470, the defendant, who 448 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 ties which do not render the proceeding an absolute nullity, but merely render it reversible on error, will not defeat the plea of former conviction, where the judgment has not been reversed.** If the prosecution was carried on without fraud on the defendant’s part, and he has not only been convicted, but has performed the judgment, he will be: protected against a subsequent prosecution, notwithstanding irregu- larities in the proceedings, though they may have been such as to render the judgment void.™* Insufficiency of Former Indictment—V ariance It is generally held that there must have been a sufficient accusation on the former prosecution; otherwise the pro-. ceedings were null and void, and the defendant never in jeopardy. If, therefore, the indictment was insufficient be- cause of fatal defects in the organization or constitution of the grand jury, or because it was so defective in form or substance that a conviction upon it could not have been sus- tained, an acquittal upon it cannot be pleaded.®* If, for in- was on trial for murder, set up the defense of insanity. The jury’s verdict was: Guilty of murder, but insane at the time of the trial. The jury was discharged, and the court of its own motion set aside the verdict. The defendant was later put on trial for the same of- fense. Held, that the verdict of guilty was a nullity, as defendant could not be tried if, as found by the jury, he was insane, and that he could be tried again. 68 Com. v. Loud, 3 Metec. (Mass.) 328, 87 Am. Dec. 139. 64 Com. v. Loud, 3 Metc. (Mass.) 328, 37 Am. Dec. 189; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872. In the latter case it was held that the provisions of the common law and of the federal Constitu- tion that no man shall be twice placed in jeopardy of life or limb, are mainly designed to prevent a second punishment for the same offense, and hence, when the court has imposed fine and imprison- ment where the statute only conferred power to impose fine or im- prisonment, and the fine has been paid, it cannot, even during the same term, modify the judgment by imposing imprisonment only. AS to the effect of fraud, see post, p. 454. 652 Hale, P. ©. 245; 2 East, P. C. 519; Rex v. Vandercomb, 2 Leach, Crown Cas. 708; Rex v. Emden, 9 East, 441; Reg. v. Vaux, 4 Coke, 44a; Weston v. State, 63 Ala. 155; People v. Barrett, 1 Johns. (N. Y.) 66; Munford y. State, 39 Miss. 558; Kohlheimer v. State, 39 Miss. 548, 77 Am. Dec. 689; Hite v. State, 9 Yerg. (Tenn.) 357; People v. Clark, 67 Cal. 99, 7 Pac. 178; Pritchett v. State, 2 Sneed (Tenn.) 285, 62 Am. Dec. 468; Com. v. Somerville, 1 Va. Cas. §§ 186-138) PLEAS OF AUTREFOIS ACQUIT AND coNnvicr 449 stance, a person who has been indicted and tried in one county is afterwards indicted in another, he cannot plead former jeopardy in bar of the latter indictment, because one indictment must be bad, since the offense will be proved to have been beyond the jurisdiction of the grand jury in one case or the other.*® And if an indictment for larceny lay the property in the goods in the wrong person, or errone- ously describe the property, and the defendant is acquitted, he may be tried on another indictment correctly stating the ownership or describing the property, for the former indict- ment was fatally defective, and there was no jeopardy; ° and the same is true of prosecutions for arson or any other offense, where the first indictment was bad for mistake in naming the owner of the premises.°* And the rule applies to other cases in which there has been an acquittal on the ground of variance.®® But it has lately been held by the Supreme Court of the United States that, though an indictment is fatally defec- tive, yet if the court has jurisdiction of the cause and of the defendant, and the defendant pleads not guilty and is tried on the merits, and acquitted, he cannot again be prosecuted for the same offense.”° 164, 5 Am. Dec. 514; Gerard v. People, 3 Scam. (Tll.) 863; State v. Ray, Rice (8. C.) 1, 33 Am. Dec. 90; State v. Smith, 88 Iowa, 178, 55 N. W. 198; State v. Meekins, 41 La. Ann. 543, 6 South. 822; McKay v. State, 90 Neb. 63, 182 N. W. 741, 39 L. R. A. (N. 8.) 714, Ann. Cas. 1913B, 1034; McCaskey v. State, 76 Tex. Cr. R. 255, 174 S. W. 338. 662 Hale, P. C. 245. 67 Rex vy. Forsgate, 1 Leach, Crown Cas. 464; Com. v. Clair, 7 Allen (Mass.) 525; Parchman v. State, 2 Tex. App. 228, 28 Am. Rep. 435; Thompson v. Com. (Ky.) 25 S. W. 1059; State v. Williams, 45 La. Ann. 936, 12 South. 932. But see Knox v. State, 89 Ga. 259, 15 S. E. 308. 68 Com. v. Mortimer, 2 Va. Cas. 325; Com. v. Wade, 17 Pick. (Mass.) 400; State v. Brown, 33 S. C. 151, 11 S. B. 641. ‘69 See Com. v. Chesley, 107 Mass. 223; Guedel v. People, 43 Ill. 226. 70 U.S. v. Ball, 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. Ed. 300. The rule of this case has been adopted by statute in some jurisdictions. See Croft v. People, 15 Hun (N. Y.) 484. It does not apply where the acquittal was not on the merits. State v. Littschke, 27 Or. 189, 40 Pac. 167. CiLarK Cr.Proc.(2p Ep.)—29 450 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETc. (Ch. 11 Nor will a conviction on an insufficient indictment bar a subsequent indictment, if the conviction has been set aside, or the judgment arrested.71_ Not even will an unreversed judgment constitute a bar in such a case where the sen- tence has not been executed.” If the sentence has been ex- ecuted, it is otherwise.7# If a verdict is erroneously set aside, or the judgment er- roneously arrested, on a good indictment, not on defendant’s application, he cannot be again tried.”4 Mistrial Through Defendant’s Fault or by Consent If there is a mistrial, through the defendant’s fault, he cannot set up the prosecution in bar of a subsequent trial. He is precluded from claiming an acquittal, for instance, if he absents himself when the verdict is rendered, so that there is a mistrial,’® or if he fails, before the jury are dis- charged, to raise objections to a verdict that is so defective that a judgment cannot be rendered on it. He cannot ac- quiesce in the verdict until it is too late to remedy the de- fect, and then claim the benefit of the defect.7® So if he withdraws a plea of guilty by leave of the court, and con- ‘ sents to a nolle prosequi he may be again tried.” And, as we have seen, if he consents to a discharge of the jury, he cannot claim an acquittal.”8 71 People v. Casborus, 13 Johns. (N. Y.) 351; Com. v. Hatton, 3 Grat. (Va.) 623; Guedel v. People, 43 Ill. 226; State v. Elder, 65 Ind. 282, 32 Am. Rep. 69; Robinson v. State, 52 Ala. 587; Com. v. Ches- ley, 107 Mass. 223. 72U. S. v. Jones (C. C.) 31 Fed. 725; State v. Gill, 33 Ark. 129; Kohlheimer y. State, 39 Miss. 548, 77 Am. Dec. 689. 73 Com. v. Loud, 3 Metc. (Mass.) 328, 37 Am. Dec. 139. 74 State v. Norvell, 2 Yerg. (Tenn.) 24, 24 Am. Dec. 458; note 45, p. 448, supra. 75 State v. Hughes, 2 Ala. 102, 36 Am. Dec. 411; People v. Higgins, 59 Cal. 357. ; 76 Wright v. State, 5 Ind. 527; Wilson v. State, 20 Ohio, 26; State v. Sutton, 4 Gill. (Md.) 494; Gibson v. Com., 2 Va. Cas. 111; Com. v. Smith, 2 Va. Cas. 327; Com. v. Gibson, 2 Va. Cas, 70; State v. Valentine, 6 Yerg. (Tenn.) 533; State v. Spurgin, 1 McCord (S. C.) 252; Com. v. Hatton, 3 Grat. (Va.) 623; State v. Redman, 17 Iowa, 329; Murphy v. State, 7 Cold. (Tenn.) 516; Cobia v. State, 16 Ala. 781. i 77 Ledgerwood v. State, 184 Ind. 81, 33 N. EB. 631. 78 Note 54, p. 446, supra. §§ 136-138) PLEAS OF AUTREFOIS ACQUIT AND CoNVICcT 451 Verdict Set Aside—Judgment Arrested or Reversed—New Trial We have just seen that where the defendant does not ob- ject to a verdict, which is so defective that no judgment can be entered on it, until after the jury have been discharged, he cannot claim an acquittal. Many of the courts seem to go further than this, and hold without qualification that, where the jury return a verdict upon which no lawful judg- ment can be entered, their discharge without the defend- ant’s consent does not operate as an acquittal.”® But it is not believed that if objection is made to-the form of the ver- dict before the jury are discharged, and the defect may be remedied by sending them back to correct it, the court may. discharge the jury without doing so. Such a discharge would, no doubt, operate as an acquittal. Whenever, on the defendant’s application, a verdict or judgment of conviction is set aside, arrested, or reversed, as on motion for,a new trial, motion in arrest of judgment, writ of error or appeal, he may be again tried.®° If a person is found guilty on one only of several counts, and obtains a new trial on motion, or reversal of the judg- ment on appeal or error, he cannot be again tried on the 79 Hx parte Brown, 102 Ala. 179, 15 South. 602, and cases there collected. 80 Reg. v. Drury, 3 Car. & K. 193; Com. v. Roby, 12 Pick. (Mass.) 502; Sutcliffe v. State, 18 Ohio, 469, 51 Am. Dee. 459; Com. v. Green, 17 Mass. 515; Clark v. State, 4 Humph. (Tenn.) 254; Gibson v. Com., 2 Va. Cas. 111; People v. Casborus, 18 Johns. (N. Y:) 351; People v. McKay, 18 Johns. (N. Y.) 212; Com. v. Gould, 12 Gray (Mass.) 178; Lane v. People, 5 Gilman (IIl.) 305; State v. Lee, 114 N. C. 844, 19 S. E. 375; Johnson v. State, 82 Ala. 29, 2 South. 466; Joy v. State, 14 Ind. 189; State v. Benjamin (La.) 14 South. 71; State v. Knouse, 33 Iowa, 365; State v. Redman, 17 Iowa, 329; Rob- inson v. State, 23 Tex. App. 315, 4 S. W. 904; People v. Barric, 49 Cal. 342; Lovett v. State, 33 Fla. 389, 14 South. 8837; Gannon v. Peo- ple, 127 Ill. 507, 21 N. B. 525, 11 Am. St. Rep. 147; People v. Schmidt, 64 Cal. 260, 30 Pac. 814; People v. Hardisson, 61 Cal. 378; State v. Rhodes, 112 N. C. 857, 17 S. E. 164; Veatch v. State, 60 Ind. 291. Contra, Nolan v. State, 55 Ga. 521, 21 Am. Rep. 281. The rule does not apply where a verdict is erroneously set aside, or the judgment erroneously arrested, and not on the defendant’s application. State v. Elden, 41 Me. 165; State v. Parish, 43 Wis. 395; State v. Norvell, 2 Yerg. (Tenn.) 24, 24 Am. Dec. 458. ' 452 MOTION TO QUASH, ARRAIGNMENT, PLHAS, ETC, (Ch. 11 other counts, for a verdict of guilty on the one count is an acquittal on the others.§2 And, by the weight of authority, if a person is convicted, not of the highest offense charged, but of a minor offense included in the charge, as of man- slaughter on an indictment for murder, or simple assault on an indictment for an aggravated assault, this is an ac- quittal of every higher offense of which he could have been convicted, and, on obtaining a new trial, he cannot be again tried for the higher offense.®? 81 Campbell v. State, 9 Yerg. (Tenn.) 333, 30 Am. Dec. 417; Bren- nan v. People, 15 Ill. 511; Morris v. State, 8 Smedes & .M. (Miss.) 762; Hurt v. State, 25 Miss. 378, 59 Am. Dec. 225; State v. Kattle- mann, 35 Mo. 105. So, if defendant is acquitted on one of several counts and the verdict is silent as to the other counts, this is an ac- quittal on all, and he cannot be tried again on the counts on which there was no finding. Roland v. People, 23 Colo. 283, 47 Pac. 269. This rule applies, even though the trial proceeded only on the count on which he was acquitted, the prosecuting attorney having, after the jury was impaneled and sworn, elected to proceed on this count only. Murphy v. State, 25 Neb. 807, 41 N. W. 792. 82 Brennan v. People, 15 Ill. 511; Johnson v. State, 29 Ark. 31, 21 Am. Rep. 154; People v. Gordon, 99 Cal. 227, 33 Pac. 901; State vy. Martin, 30 Wis. 216, 11 Am. Rep. 567; State v. Belden, 33 Wis. 121, 14 Am. Rep. 748; Huff v. State (Tex. Cr. App.) 24 S. W. 903; Robinson v. State, 21 Tex. App. 160, 17 S. W. 632; Johnson v. State, 27 Fla. 245, 9 South. 208; Slaughter v. State, 6 Humph. (Tenn.) 410; People v. McFarlane, 138 Cal. 481, 71 Pac. 568, 72 Pac. 48, 61 L. R. A. 245; post, p. 462. But see, contra, State v. Behimer, 20 Ohio St. 572; Com. v. Arnold, 83 Ky. 1, 4 Am. St. Rep. 114; State v. McCord, 8 Kan. 232, 12 Am. Rep. 469; Trono vy. U. S., 199 U. S. 521, 26 Sup. Ct. 121, 50 L. Hd. 292, 4 Ann. Cas. 773; Reg. v. Tancock, 138 Cox, Cc. C. 217; Waller v. State, 104 Ga. 505, 30 S. E. 835; State v. Brad- ley, 67 Vt. 465, 32 Atl. 238; U. S. v. Gonzales (D. C.) 206 Fed. 239. This doctrine does not apply to the penalty imposed on the second conviction. Therefore, where the defendant, after having been con- victed of murder, was sentenced to life imprisonment, was granted a new trial, at which he was again convicted of murder, it was held that his former sentence was no bar to a sentence of death on the second conviction. People v. Grill, 151 Cal. 592, 91 Pac. 515. In People v. Farrell, 146 Mich. 264, 109 N. W. 440, where defendant was found guilty of murder and sentenced for that crime after an appeal from a conviction of manslaughter, the appellate court re- manded. the case to the trial court with directions to sentence the defendant for manslaughter. §§ 136-138) PLEAS OF AUTREFOIS ACQUIT AND CONVICT 453 Writ of Error or Appeal by the State—New Trial After Ac- quittal : At common law, the state cannot appeal or sue out a writ cf error to review a judgment in favor of the defendant ina criminal case, even on demurrer, much less on a verdict of acquittal. Whether an appeal or writ of error will lie at the instance of the state under the constitutional provision as to double jeopardy would seem to depend on the construction given to the provision by the courts. As we have seen, the constitutional provisions differ in different states. Some provide that no one shall be twice put in jeopardy for the same offense; others that no one shall be twice put in jeopardy of life or limb. We have also seen that most courts hold these phrases to be synonymous, and to prohib- it a second trial for any offense. In jurisdictions so holding it would seem clear that it is not within the power of the Legislature to allow a writ of error by the state and a new trial after the defendant has been acquitted by the jury on the facts, notwithstanding errors of law may have been committed at the trial, and it is generally so held.** A few courts, however, hold that the phrase “life or limb, or liber- ty,” restricts the prohibition to felonies.2* It would seem that in these jurisdictions the state may appeal on the ac- quittal of one tried for a misdemeanor, and the defendant could be again put on trial. One court at least, has con- sistently so held.** Other courts, however, hold that the 83 Com. v. Cummings, 3 Cush. (Mass.) 212, 50 Am. Dec. 732; Peo- ple v. Corning, 2 N. Y. 9, 49 Am. Dec. 364; U.S. v. More, 8 Cranch, 159, 2 L. Ed. 397; State v. Reynolds, 4 Hayw. (Tenn.) 110; State v. Kemp, 17 Wis. 669; U. S. v. Sanges, 144 U. S. 312, 12 Sup. Ct. 609, 36 L. Ed. 445; People v. Dill, 1 Scam. (Ill.) 257; Martin v. People, 13 Ill. 341; Com. v. Steimling, 156 Pa. 400, 27 Atl. 297; Com. v. Har- rison, 2 Va. Cas. 202; State v. Lee, 49 Kan. 570, 31 Pac. 147; State vy. Solomons, 6 Yerg. (Tenn.) 360, 27 Am. Dec. 469; State v. Simmons, 49 Ohio St. 305, 31 N. E. 34; Com. v. Cain, 14 Bush (Ky.) 525; Com. v. Sanford, 5 Litt. (Ky.) 289; State v. Powell, 86 N. C. 640; State vy. Phillips, 66 N. C. 647; State v. Copeland, 65 Mo, 497; Ex parte Bornee, 76 W. Va. 360, 85 S. E. 529, L. R. A. 1915F, 1093. 84 Jones v. State, 15 Ark. 261; State v. Smith, 53 Ark. 24,13 8S. W. 891; McCreary v. Com., 29 Pa. 323. 85 Jones v. State, 15 Ark. 261. See, also, Com. v. Prall, 146 Ky. 109, 142 S. W. 202, Ann. Cas. 1918C, 768. 454 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 defendant cannot, after a verdict of acquittal, be again put on trial on appeal by the state.®® By statute, in many of the states, a writ of error or ap- peal is allowed the state from an adverse judgment on mo- tion to quash or demurrer, or motion in arrest of judgment, or where a statute has been held uncoristitutional ;®7 and it is also allowed by statute in case of an acquittal by the jury on the facts for the purpose of determining and settling questions of law, but not for the purpose of obtaining a anew trial.®® Recently, however, the Connecticut court has held that it is not putting a person twice in jeopardy for the same of- fense to grant a new trial on appeal by the state, under statutory authority, from an acquittal, because of error. in the exclusion of evidence offered by the state.*® Effect of Fraud in Former Prosecution A prosecution instituted and carried on by or in the in- terest of an offender, in order to escape punishment, ‘can never be relied upon to sustain a plea either of former ac- quittal or conviction. It may be treated as void by the state and ignored because of the fraud, or on the ground that the state was not in any sense a party to it.°® Thus, where an 86 Com. v. Steimling, 156 Pa. 400, 27 Atl. 297. 87 State v. Burgdoerfer, 107 Mo. 1, 17 S. W. 646, 14 L. R. A. 846; Com. vy. Wallace, 114 Pa. 405, 6 Atl. 685, 60 Am. Rep. 353; State v. Huffman, 51 Kan. 541, 33 Pac. 377. 88 State v. Ward, 75 Iowa, 637, 36 N. W. 765. Some courts allow it without a statute. Com. v. Steimling, 156 Pa. 400, 27 Atl. 297. 89 State v. Lee, 65 Conn. 265, 30 Atl. 1110, 27 L. R. A. 498, 48 Am. St. Rep. 202. And see State v. Buchanan, 5 Har. & J. (Md.) ba 9 Am. Dec. 534; State v. Stoll, 143 Cal. 689, 77 Pac. 818. 90 Shideler v. State, 129 Ind. 523, 28 N. E. 587, and 29 N. a 36, 16 L. R. A. 225, 28 Am. St. Rep. 206; Com. v. Alderman, 4 Mass. 477; State v. Lowry, 1 Swan (Venn.) 34; State v. Colvin, 11 Humph. : (Tenn.) 599, 54 Am. Dec. 58; State v. Yarbrough, 8 N. C. 78; Com. v. Dascom, 111 Mass. 404; State v. Little, 1 N. H. 257; State v. Wake- field, 60 Vt. 618, 15 Atl. 181; In re State ex rel. Battle, 7 Ala. 259; Com. v. Jackson, 2 Va. Cas. 501; State v. Epps, 4 Sneed (Tenn.) 552; State v. Green, 16 Iowa, 239; State v. Brown, 16 Conn. 54; State v. Simpson, 28 Minn. 66, 9 N. W. 78, 41 Am. Rep. 269; McFarland v. State, 68 Wis. 400, 32 N. W. 226, 60 Am. Rep. 867; State v. Cole, 48 Mo. 70. §§ 186-188) PLEAS OF AUTREFOIS ACQUIT AND CONVICT 455 offender fraudulently institutes a prosecution against him- self in a justice’s court, and pays or performs the judgment against him, for the purpose of preventing an indictment against him, which purpose may well be implied from the circumstances, he cannot set up his conviction to defeat an indictment subsequently presented.** This, it has been held, does not apply where the state is in fact a party to the prosecution. Where a prosecution in behalf of the state is regularly commenced by the prosecut- ing attorney, and carried on to final judgment, the state is a party to the prosecution, and it has been held that the judgment will bar a subsequent prosecution for the same of- fense, notwithstanding the fact that the prosecutor was cor- rupted during the pendency of the prosecution.®? Several Sovereignties Where the same act constitutes an offense against each of several sovereigns, a prosecution by one does not bar a prosecution by the other.?* Thus, an act which constitutes an offense both against a state and against the United States may be punished by both.** On this principle, it has even been held that a prosecution under a municipal ordinance for a violation thereof is no bar to a prosecution by the state for the same act as an of- 91 Com. v. Alderman, 4 Mass. 477; De Haven v. State, 2 Ind. App. 376, 28 N. E. 562; People v. Cuatt, 70 Misc. Rep. 453, 126 N. Y. Supp. 1114. And see Warriner v. State, 3 Tex. App. 104, 30 Am. Rep. 124. 92 Shideler v. State, 129 Ind. 523, 28 N. B. 537, and 29 N. B. 36, 16 L. R. A. 225, 28 Am. St. Rep. 206. 93 U. S. v. Barnhart (C. C.) 10 Sawy. 491, 22 Fed. 285; Bloomer v. State, 48 Md. 521; Com. v. Green, 17 Mass. 515; U.S. v. Amy, 14 Md. 149, note. Of course, one sovereign may, in his discretion, re- ‘frain from punishing a man who has already been punished for the same act by another sovereign, or the fact of such punishment may be considered by the court in mitigation of the punishment. See U. S. v. Furlong, 5 Wheat. 184, 5 L. Hd. 64. 94 Whart. Cr. Pl. & Prac. § 442; U. S. v. Barnhart, supra; Hend- tick v. Com., 5 Leigh (Va.) 707; Phillips v. People, 55 Ill. 4830; Moore v. Illinois, 14 How. 13, 14 L. Hd. 306; State v. Norman, 16 Utah, 457, 52 Pac. 986. 456 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETc. (Ch.11 fense against the state,®® and that a prosecution by the state will not bar a prosecution under the ordinance.*® So it has been held that a prosecution before a federal court-martial will not bar a prosecution by the state, or vice versa.°” Necessity for Former Judgment It has been held that not only a plea of former acquittal, but a plea of former conviction as well, may be sustained, though no judgment was ever rendered in the former pros- ecution.*® This is true, of course, of the plea of former ac- quittal; but there are many cases which hold the contrary in case of a plea of former conviction, since a verdict of guilty may be set aside in some cases, or the judgment may be arrested on defendant’s application, without prejudice to the right to institute another prosecution.®® It has been held that a plea of guilty, if outstanding, will support a plea of former conviction, though no judgment 95 State v. Clifford, 45 La. Ann. 980, 13 South. 281; Greenwood v. State, 6 Baxt. (Tenn.) 567, 32 Am. Rep. 5389; McRae v. Mayor, etc., of City of Americus, 59 Ga. 168, 27 Am. Rep. 390; Wragg v. Penn Tp., 94 Tl. 11, 34 Am. Rep. 199; Robbins v. People, 95 Tl. 175; People v. Stevens, 13 Wend. (N. Y.) 341; State v. Oleson, 26 Minn. 507, 5 N. W. 959; State v. Lee, 29 Minn. 445, 138 N. W. 918; Levy v. State, 6 Ind. 281; Ambrose v. State, 6 Ind. 351; Town of Van Buren v. Wells, 53 Ark. 368, 14 8. W. 38; State v. Muir, 164 Mo. 610, 65 S. W. 285. But see Preston v. People, 45 Mich. 486, 8 N. W. 96; and contra, by stat- ute, Gustin v. State, 10 Ala. App. 171, 65 South: 302. 96 See the cases above cited. 97 State v. Rankin, 4 Cold. (Tenn.) 145; 3 Op. Atty. Gen. 750; Steiner’s Case, 6 Op. Atty. Gen. 413; People v. Wendel, 59 Misc. Rep. 354, 112 N. Y. Supp. 301; In re Stubbs (C. C.) 1383 Fed. 1012; Whart. Cr. Pl. & Prac. § 4389. 98 State v. Parish, 43 Wis. 395; State v. Norvell, 2 Yerg. (Tenn.) 24, 24 Am. Dec. 458; Mount v. State, 14 Ohio, 295, 45 Am. Dec. 542; State v. Benham, 7 Conn. 414; Hurt v. State, 25 Miss. 378, 59 Am. Dec. 225; State v. Elden, 41 Me. 165; Kepner v. U. S. 195 U. S. 100, 24 Sup. Ct. 797, 49 L, Hd. 114, 1 Ann. Cas. 655. 99 Com. v. Lauy, 8 Gray (Mass.) 461; Com. v. Lockwood, 109 Mass. 829, 12 Am. Rep. 699; Com. v. Fraher, 126 Mass. 265; U. 8. v. Ol- sen (D. C.) 57 Fed. 579; Coleman v. Tennessee, 97 U. S. 530, 24 L. Ed. 1118; People v. Casborus, 13 Johns. (N. Y.) 351; Brennan v. People, 15 Til. 511. §§ 136-138) PLEAS OF AUTREFOIS ACQUIT AND Convict 457 has been entered on it.1 This would seem doubtful, how- ever, since, as we have seen, a plea of guilty ‘may be with- drawn by leave of the court, to allow a plea of not guilty. Identity of Offenses To sustain a plea of autrefois acquit or convict, the of- fense of which the party was acquitted or convicted must be the same offense as that for which he is subsequently put on trial. Neither an acquittal nor a conviction of one of- fense will bar a prosecution for another.? It is often very difficult to determine when the offenses are the same, and there is much conflict in the cases. All we can do in the limited space which we can devote to the subject is to state the general rules, and give such illustrations of them as may be necessary to make them clear. (1) It is the general rule that if the crimes are so distinct, either in fact or in law, that proof of the facts charged in the second indictment would not have supported a convic- tion under the first, the offenses are not the same, and the second indictment is not barred.® An indictment for uttering a forged instrument is not barred by an acquittal on an indictment for forging the 1 People v. Goldstein, 32 Cal. 432. 22 Hawk. P. C. c. 25, §§ 1, 3; Id. ¢. 36, § 10; 2 Hale, P. CG 258; 1 Chit. Cr. Law, 452, 462. The burden of proving that the offenses are the same is on the defendant. Jacobs v. State, 100 Ark. 591, 141 S. W. 489. It has been held that, though the offenses are not the same, yet, if they grew out of the same transaction and the only liti- gated question in the first trial was found in the defendant’s favor, and a conviction on the second indictment would necessarily involve a contrary finding, the defendant cannot be again tried. People v. Grzesczak, T7 Misc. Rep. 202, 187 N. Y. Supp. 538, 32 Hawk. P. C. ¢. 35, §§ 11, 12; 2 Hast, P. C. 522; 2 Hale, P. C. 244; Rex v. Vandercomb, 2 Leach, Crown Cas. 717; Rex v. Emden, 9 Hast, 487; Com. v. Roby, 12 Pick. (Mass.) 502; Rex v. Plant, 7 Car. & P. 575; Reg. v. Salvi, 10 Cox, Cr. Cas. 481, note; Com. v. Clair, 7 Allen (Mass.) 525; People v. Handley, 93 Mich. 46, 52 N. W. 1032; People v. Kerm, 8 Utah, 268, 30 Pac. 988; Winn v. State, 82 Wis. 571, 52 N. W. 775. This rule is not generally followed in cases where the first indictment was for an offense which forms an integral and nec- essary paft of the offense charged in the second indictment. See post, p. 462, and illustrations there cited. 458 MOTION TO QUASH, ARRAIGNMENT, PLWAS, ETC. (Ch. 11 same instrument,* unless by statute, as is the case in some jurisdictions, a person may be convicted of forgery on proof of uttering. Nor, it has been held, is an indictment for a burglarious entry with intent to steal barred by acquittal on an indictment charging the same burglarious entry and an actual stealing, since, though the burglary is the same, the defendant could not have been convicted on the first indict- ment on proof of a mere intention to steal. And it has been laid down as a general rule that an acquittal or con- viction of burglary is no bar to an indictment for larceny, committed after entry, or vice versa.® For the same reason, an acquittal or conviction on an in- dictment under a statute for a nuisance in keeping a tene- ment for the unlawful sale of intoxicating liquors is no bar to an indictment for being a common seller of intoxicating liquors at the same time and place, and the reverse of the proposition is also true.” “The gist of one offense is the keeping a tenement for an illegal purpose, which makes it a nuisance; of the other, the doing certain acts which consti- tute an offense, to the commission of which it is not neces- sary that the defendant should have been the keeper of any building or tenement’ whatever. On the trial of the first indictment the jury would have been properly instructed to -acquit the defendant if he did not keep the tenement de- scribed, however great a number of sales of intoxicating liquors he might have made within it. The rule has been often stated ‘that, unless the first indictment was such as 4 Hooper v. State, 30 Tex. App. 412, 17 S. W. 1066, 28 Am. St. Rep. 926; Reddick y. State, 31 Tex. Cr. R. 587, 21 8. W. 684. ; 52 Hawk. P. C. ¢. 35, § 5; 1 Chit. Cr. Law, 456; Rex v. Vander- comb, 2 Leach, Crown Cas. 716; Com. v. Roby, 12 Pick. (Mass.) 503. 62 Hale, P. C. 245, 246; 2 Hawk. P. C. c. 35, § 5; State v. Warner, 14 Ind. 572; Wilson v. State, 24 Conn. 57; State v. Hackett, 47 Minn. 425, 50 N. W. 472, 28 Am. St. Rep. 380; Bell v. State, 48 Ala. 684, 17 Am. Rep. 40; People v. Garnett, 29 Cal. 622; Smith v. State, 22 Tex. App. 350, 3 S. W. 238; Rust v. State, 31 Tex. Cr. R. 75, 19 S. W. 763; Morgan v. Devine, 237 U. S. 632, 35 Sup. Ct. 712, 59 L. Ed. 1153. 7Com. v. Bubser, 14 Gray (Mass.) 83; Com. v. Cutler, 9 Allen (Mass.) 486; Com. v. Hogan, 97 Mass. 122, And see Com. v. Brels- ford, 161 Mass. 61, 36 N. E. 677. §§ 136-138) PLEAS OF AUTREFOIS ACQUIT AND CONVICT 459 the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second.’”* In like manner, an acquittal of keeping a shop open on Sun- day will not bar an indictment for a nuisance in keeping the same shop at the same time for the illegal sale of intoxicat- ing liquors.® If, at common law, a person is indicted as an accessory after the fact, and acquitted, he may be indicted as a princi- pal, for on proof of the second charge he could not have been convicted on the first indictment.1° The same is true where a person is acquitted on an indictment as accessory before the fact, and is afterwards indicted as principal, or vice versa.‘t The rule is otherwise where by statute a per- son indicted as principal may be convicted as an acces- sory.*? We have seen that, if an acquittal results from a variance between the indictment and the proof, the defendant has not been in jeopardy for the offense proven, because the indict- ment is insufficient to support a conviction; 8 that, for in- stance, an acquittal on an indictment for stealing the prop- erty or burning the building of one person, because the ownership is proven to have been in another person, is no bar to an indictment laying the ownership in the proper 8 Com. v. Bubser, supra, ® Com. v. Shea, 14 Gray (Mass.) 386. And see Com. v. Trickey, 13 Allen (Mass.) 559. So the offense of behaving in an indecent manner in a public place, and of insulting a public officer by deed or word in his presence, are not so identical that a conviction of the first will bar a prosecution for the second, though the words and acts set forth in both charges were the same. Gavieres v. U. S., 220 U. S. 338, 31 Sup. Ct. 421, 55 L. Ed. 489. : 101 Hale, P. C. 625, 626; 2 Hale, P. C. 244; 1 Chit. Cr. Law, 457; 2 Hawk. P. C. ¢. 35, § 11. 112 Hale, P. C. 244; 1 Chit. Cr. Law, 457; 2 Hawk. P. C. ec 35, § 11; Rex v. Birchenough, 1 Moody, Crown Cas. 477; Rex v. Plant, 7 Car. & P. 575; Reynolds v. People, 83 Ill. 479, 25 Am. Rep. 410; State v. Larkin, 49 N. H. 36, 6 Am. Rep: 456; Morrow vy. State, 14 Lea (Tenn.) 475. 12 Davis v. People, 22 Colo. 1, 43 Pac. 122, 18 Ante, p. 448. 460 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC, (Ch. 11 person.** Another reason why this is true is because the offenses are not the same. Proof of the second indictment would not have sustained the first.*® As we shall presently see, an acquittal or conviction on one indictment will bar a subsequent indictment for a minor offense so included in the first charge that the defendant could have been convicted of it on the first trial.1® This rule cannot apply, however, where the first indictment was for a felony, and the second is for a misdemeanor, and the de- fendant was acquitted because in the particular jurisdiction there could be no conviction of misdemeanor on indictment for felony.1” In some states, where a felony merges a misdemeanor arising out of the same act, there can be no conviction on indictment for a misdemeanor on proof of a felony. In these states, where an aggravated assault, such as an assault with intent to rape, to murder, or to rob, is a felony, there can be no conviction on indictment for a simple assault or as- sault and battery on proof of an aggravated assault; and it is held that acquittal or conviction on indictment for simple assault or assault and battery will not bar a prosecution for aggravated assault; and on the same reasoning, where an aggravated assault is a misdemeanor, it is held that an ac- quittal or conviction on an indictment for assault with in- tent to rape, murder, or rob will not bar a prosecution for rape, murder, or robbery.*® ¢ 14 Rex v. Forsgate, 1 Leach, Crown Cas. 464; Com. v. Mortimer, 2 Va. Cas. 325; Parchman v. State, 2 Tex. App. 228, 28 Am. Rep. 435; Com. v. Wade, 17 Pick. (Mass.) 400. 15 Com. v. Wade, supra; Com. v. Clair, 7. Allen (Mass.) 525; State vy. Williams, 45 La. Ann. 936, 12 South, 932. 16 Post, p. 461. 171 Chit. Cr. Law, 456; 2 Hawk. P. C. c. 35, § 5; Rex v. Webster, 1 Leach, Crown Cas. 12; Crosby v. Leng, 12 East, 415; Com. v. Roby, 12 Pick. (Mass.) 504, ; 18 See Com. v. Roby, 12 Pick. (Mass.) 502; State v. Hattabough, 66 Ind. 223; Severin v. People, 37 Ill. 414; People v. Saunders, 4 Par- ker, Cr. R. (N. ¥.) 196; Murphy v. Com., 23 Grat. (Va.) 960; Reg. v. Morris, 10 Cox, Cr. Cas. 480. But see People v. Purcell (Gen. Sess.) 16 N. Y. Supp. 199; State v. Smith, 43 Vt. 324. But see post, pp. 461, 463. §§ 136-138) PLEAS OF AUTREFOIS ACQUIT AND Convict 461 (2) If the charges are in fact for the same offense, though the indictments differ, the defendant. may plead his former acquittal or conviction, with proper averments to show the identity of the charges. “It would be absurd to suppose that, by varying the day, parish, or any other allegation the precise aecuracy of which is not material, the prosecutor could change the rights of the defendant, and subject him to a second trial.”1® Thus, if a person is indicted for homicide on a certain day or by certain means, and acquitted, and is afterwards indicted for killing the same person on a different day or by different means, the difference between the indictments does not make the offenses different.2° And the same is true of oth- er offenses, for, though it is possible for several acts of the same kind to be committed at different times by the same person, it lies in averment, and the party indicted may al- ways show by parol evidence, the burden of proof being on him,?+ that the same charge is intended.*? (3) If the defendant could have been convicted under the first indictment of the offense charged in the second, an ac-- quittal under the former indictment is a bar to the second.?® 191 Chit. Cr. Law, 452; Rex v. Coogan, 1 Leach, Crown Cas. 448; Rex v. Emden, 9 Hast, 487; 2 Hawk. P. C. c. 35, § 3; Com. v. Roby, 12 Pick. (Mass.) 504; Com. v. Cunningham, 13 Mass. 245; People v. McGowan, 17 Wend. (N. Y.) 386; State v. Brown, 16 Conn. 54; State v. Wiseback, 189 Mo. 214, 40 S. W. 946. ° 202 Hale, P. C. 179, 244; 2 Hawk. P. C. c. 35, § 8; Rex v. Clark, 1 Brod. & B. 4738. 21 Com. v. Fredericks, 155 Mass. 455, 29 N. H. 622. Some courts hold that the production by the defendant of a record of a former conviction or acquittal on an indictment alleging such facts that the defendant might have been convicted on proof of the facts charged in the second indictment, raises a prima facie presumption that the two offenses are the same. Bainbridge v. State, 30 Ohio St. 264; State v. Smith, 22 Vt. 74. Contra, Com. v. Fredericks, 155 Mass. 455, 29 N. BH. 622. 222 Hale, P. C. 179, 244; Duncan v. Com., 6 Dana (Ky.) 295; Peo- ple v. McGowan, supra. So where the two indictments describe the person killed, differently, but sufficiently, it may be shown that the same person is intended. 2 Hale, P. C. 244. In such case the plea must show that the party was known by both names, so as to show that the first proceedings were valid. Id.; 2 Hawk. P. ©. ¢. 35, § 3. 28 This rule does not apply, where there are admittedly two differ- “ 462 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 As we have shown in another connection,?* on an indict- ment for murder the-defendant may be convicted of man- slaughter, or, in most jurisdictions, of assault with intent to kill, and, in some jurisdictions, of assault and battery or simple assault. So, on indictment for rape or robbery, there may be, in most jurisdictions, a conviction of assault with intent to rape or rob, or simple assault. The same is true of other offenses. The defendant may be acquitted of the highest offense charged, and convicted of a minor offense included in the charge. Wherever, therefore, the defend- ant is acquitted entirely on an indictment, this is not only an acquittal of the highest offense charged, but is an acquit- tal of every minor offense of which he could have been con-. victed under that indictment, and the acquittal may be pleaded in bar of a subsequent indictment for the minor of- fense.?5 So where the defendant, instead of being altogether ac- quitted on the indictment, is convicted of a minor offense included in the charge, this is an acquittal of the higher of- fenses charged, and bars any subsequent indictment, or a further prosecution on the same indictment, for a higher offense of which he might have been convicted.”® ent transactions, at different times, each constituting a distinct of- fense. For example, if A. were acquitted or convicted on an indict- ment charging him with larceny of goods belonging to a person un- known on January 1st, and subsequently were indicted for larceny on January 2d of goods of a person unknown, the offenses would not necessarily be identical, and the first acquittal or conviction neces- sarily be a bar to the second indictment, though the defendant might have been convicted under the first indictment of the offense charged in the second, since, as we have seen, the state is not restricted to the date alleged in the indictment. 24 Ante, p. 403. 252 Hale, P. C. 246; Wrote v. Wigges, 4 Coke, 45b; Com. v. Roby, 12 Pick. (Mass.) 504; Reg. v. Gould, 9 Car. & P. 364; Dinkey v. Com., 17 Pa. 126, 55 Am. Dec. 542; People v. McGowan, 17 Wend. (N. Y.) 386; State v. Brannon, 55 Mo. 63, 17 Am. Rep. 643; Hamilton ve State, 36 Ind. 280, 10 Am. Rep. 22. 262 Hale, P. C. 246; Rex v. Dawson, 3 Starkie, 62; State v. Dear- born, 54 Me. 442; Com. v. Herty, 109 Mass. 348; People v. Knapp, 26 Mich. 112; Rolls v. State, 52 Miss. 391; State v. Belden, 33 Wis. 121. 14 Am. Rep. 748; State v. Lessing, 16 Minn. 75 (Gil. 64); State v. §§ 136-188) PLuas OF AUTREFOIS ACQUIT AND CONVICT 463 As we have seen, in those jurisdictions in which there can be no conviction of a misdemeanor on indictment for a fel- ony, an acquittal on indictment for a felony will not bar a subsequent prosecution for a misdemeanor included in the charge.?7 (4) If the defendant could have been convicted of the of- fense charged in the first ‘indictment on proof of the facts charged in the second, though he could not have been con- victed of the whole offense charged in the second, then the second indictment is barred by an acquittal on the first, for the former acquittal has negatived the existence of the facts charged in the second. ’ If a person can be convicted of an offense charged on proof of a higher offense, his acquittal of the offense charg- ed necessarily negatives his guilt of the higher offense, and he cannot afterwards be prosecuted therefor. An acquittal on an indictment for voluntary manslaughter will bar a future prosecution for the same act as murder, for the defendant could have been convicted of manslaughter on proof of murder. The acquittal negatives the facts charged in the second indictment.?® Reed, 40 Vt. 603; Clem v. State, 42 Ind. 420, 18 Am. Rep. 369; Slaughter v. State, 6 Humph. (Tenn.) 410; Morris v. State, 8 Smedes & M. (imiss.) 762; State v. Brannon, 55 Mo. 68, 17 Am. Rep. 643; State v. Shepard, 7 Conn. 54; Golding y. State, 31 Fla. 262, 12 South. 525; People v. Jones, 53 Cal. 58; Brennan v. People, 15 Tl. 511; State v. Wooten, 136 La. 560, 67 South. 366; ante, p. 452, and cases there cited. The trial court cannot, by refusing to receive the verdict, prevent the jeopardy from attaching. Hall v. State, 12 Ala. App. 42, 67 South. 739. In People v. Ho-Sing, 6 Cal. App. 752, 93 Pac. 204, the accused was indicted for robbery. The indictment was insufficient to charge robbery, but dia sufficiently charge larceny. He was con- victed of robbery. It was held, reversing the conviction for robbery, that accused could not again be tried for the larceny; he having been in jeopardy for that offense under the first indictment. 27 Ante, p. 460. 281 Chit. Cr. Law, 455; 2 Hale, P. C. 246; Wrote v. Wigges, 4 Coke, 45b, 46; Com. v. Roby, 12 Pick. (Mass.) 504. And see Jackson v. State, 11 Okl. Cr. 523, 148 Pac. 1058. But the discharge of the defendant under an indictment for manslaughter on the ground that the jury failed to agree is no bar to a subsequent indictment for mur- der on the same facts: People ex rel. Bullock v. Hayes, 166 App. Div. 507, 151 N. Y. Supp. 1075. 464 MOTION TO QUASH, ARRAIGNMENT, PLEAS, ETC. (Ch. 11 For the same reason, an acquittal on an indictment for assault or assault and battery will bar a prosecution for the same act as an aggravated assault, such as an assault with intent to murder, to rape, or to rob, provided (and this qualification is important) that, in the particular jurisdic- tion, there could have been a conviction of the simple as- sault or assault and battery on proof of the aggravated as- sault; and, subject to the same qualification, an acquittal on an indictment for an assault with intent to rape, to rob, or to murder will bar a subsequent prosecution for the con- summated crime of rape, robbery, or murder.?® In some states, as we have seen, where the aggravated assault is a felony, it is held that it merges the misdemeanor of assault or assault and battery, so that there could be no conviction of the latter on proof of the former, and, there- fore, that acquittal of the misdemeanor cannot be.a bar to an indictment for the felony. And in other states, where the aggravated assault is a misdemeanor, it is held, on the same principle, that an acquittal thereof cannot bar a prose- cution for the consummated offense which is a felony.?° (5) In reason, and by the weight of authority, if the pros- ecuting officer elects to prosecute for an act as constituting a certain offense, and the defendant is convicted of that 29 People v. Purcell (Gen. Sess.) 16 N. Y. Supp. 199; State v. Smith, 43 Vt. 324; Com. v. Arner, 149 Pa. 35, 24 Atl. 83; Franklin v. State, 85 Ga. 570, 11 S. lu. 876; dissenting opinion of Biddle, J., in State v. Hattabough, 66 Ind. 223. In People v. Purcell, supra, it was held that an acquittal on a charge of assault and battery is a bar to an in- dictment for rape. In State v. Smith, supra, it was held that an ac- quittal or conviction of assault with intent to rape will bar a prose- cution for rape. In Com. v. Arner, supra, it was held that a person who has been convicted of fornication and bastardy cannot thereaft- er be tried for rape for the same act. In Franklin v. State, supra, it was held that an acquittal on an indictment for simple assault will bar a prosecution for aggravated assault. Of course, in all these cases the transaction on which both indictments were based was the same. 30 Com. v. Roby, 12 Pick. (Mass.) 502; State v. Hattabough, 66 Ind. 223; Severin v. People, 37 Ill. 414; People v. Saunders, 4 Parker, Cr. R. (N. Y.) 196; State v. Littlefield, 70 Me. 452, 35 Am. Rep. 335; Murphy vy. Com., 23 Grat. (Va.) 960; Reg. v. Morris, 10 Cox, Cr. Cas. 480. §§ 136-138) PLEAS OF AUTREFOIS ACQUIT AND CoNvicT 465 offense, he cannot afterwards be prosecuted for the same act under aggravating circumstances which change its legal character. But, if the aggravating circumstances do not in- tervene until after the first conviction, it is otherwise. Some of the cases, as we shall see, are in conflict with this rule. A conviction of larceny, for instance, under an indictment for burglary and larceny, was held a bar to an indictment charging the same felonious taking as a robbery. To hold otherwise, it was said, would be to subject the defendant to ‘a second prosecution for the same felonious taking.*t So, where a person has been convicted of assault with intent to commit rape, he cannot afterwards be prosecuted for rape.*? And, where a person has been convicted of fornication and bastardy, he cannot afterwards be prosecuted for the same act as rape.2* So, where a man is indicted and convicted of an assault and battery, he cannot be afterwards. indicted for the same transaction as a riot. “The state,” it was said in such a case, “cannot divide an offense consisting of several trespasses into as many indictments as there are acts of trespass that would separately support an indictment, and afterwards indict for the offense compounded of them all; as, for instance, to indict for an assault, then for a battery, then for imprisonment, then for a riot, then for a mayhem, etc. But, upon an indictment for any of these offenses, the court will inquire into the concomitant facts, and receive 31 State v. Lewis, 9 N. C. 98, 11 Am. Dec. 741; Floyd v. State, 80 Ark. 94, 96 S. W. 125. 82 State v. Smith, 43 Vt. 324. 33 Com. vy. Arner, 149 Pa. 35, 24 Atl. 83. But in some states an affidavit of prejudice of the judge cannot be resisted by counter affidavits.** The motion, when made on the ground of local prejudice, is addressed to the discretion of the presiding judge, and, if he is satisfied that the prejudice is not sufficient to prevent a fair and impartial trial, he may deny the motion; and, un- less there is a clear abuse of discretion in denying the mo- 49 Ex parte Curtis, 3 Minn. 274 (Gil. 188); Wanderkarr v. State, 51 Ind. 91; State v. Henning, 3 S. D. 492, 54 N. W. 536. Contra, Johnson v. State, 31 Tex. Cr. R. 456, 20 S. W. 985. 50 People v. Lee, 5 Cal. 353; People v. Graham, 21 Cal. 261; State v. Crafton, 89 Iowa, 109, 56 N. W. 257; Jamison v. People, 145 Ill. 857, 34 N. HB. 486; State v. Olds, 19 Or. 397, 24 Pac. 394; Garcia v. State, 34 Fla. 311, 16 South. 223; Bowman y. Com., 96 Ky. 8, 27 S. W. 870. 51 Com. v. Cleary, 148 Pa. 26, 23 Atl. 1110. 52 People v. Harris, 4 Denio (N. Y.) 150. 58 The requirement of affidavits is satisfied if witnesses in support of the motion are produced in open court, sworn by the judge, and their statements taken down by the official stenographer. State v. Sullivan, 39 S. C. 400, 17 S. E. 865. In some states affidavits of oth- ers than the defendant are necessary. See State v. Turlington, 102 Mo. 642, 15 S. W. 141. 54 People v. Bodine, 7 Hill (N. ¥.) 147; Wormeley v. Com., 10 Grat. (Va.) 658; Peters v. U. S., 2 Okl. 116. 33 Pac. 1031. Salm vy. State, 89 Ala. 56, 8 South. 66. As to examination of aftiants to test their credibility, see Jackson v. State, 54 Ark. 248, 15 S. W. 607. 55 State v. Belvel, 89 Iowa, 405, 56 N. W. 545, 27 L. R. A. 846; Baw v. State, 833 Tex. Cr. R. 24, 24 S. W. 293; Pierson v. State, 21 Tex. App. 14, 17 S. W. 468; Perrin v. State, 81 Wis. 135, 50 N. W. 516. 56 Cantwell v. People, 138 Ill. 602, 28 N. E. 964. 488 TRIAL AND VERDICT (Ch. 12 tion, his ruling will not be reviewed.?7 In case of abuse of discretion, denial of the motion will be ground for setting a conviction aside.®* In most states it is held that the court has no discretion where the application is based on the prej- udice of the judge, and that the change must be granted as a matter of course.°® In some states the defendant is limited to one application for change of venue, and, after having obtained a change, he cannot apply for another change on the ground that there is prejudice in the county to which the case was sent, or of the judge of such county.*” There may be a change of venue as to one only of several defendants.** As we have seen, if there was an arraignment in the first court, the defendant need not be again arraigned. And if there has been no arraignment he may be arraigned for the first time in the court to which the case is taken.*? 57 Jamison v. People, 145 Ill. 357, 34 N. H. 486; Gitchell v. People, 146 Ill. 175, 33 N. E. 757, 37 Am. St. Rep. 147; Hickam v. People, 137 Ill. 75, 27 N. E. 88; State v. Foster, 91 Iowa, 164, 59 N. W. 8; How- ard v. Com. (Ky.) 26 S. W. 1; State v. Belvel, 89 Iowa, 405, 56 N. W. 545, 27 L. R. A. 846; State v. Conable, 81 Iowa, 60, 46 N. W. 759; King v. State, 91 Tenn. 617, 20 S. W. 169; State v. Russell, 13 Mont. 164, 32 Pac. 854; People v. Vincent, 95 Cal. 425, 30 Pac. 581; Horn v. State, 98 Ala. 23, 138 South. 329; Adams vy. State, 28 Fla. 511, 10 South. 106; Martin v. State, 21 Tex. App. 1, 17 8S. W. 430; Power v. People, 17 Colo. 178, 28 Pac. 1121; Perrin v. State, 81 Wis. 135, 50 N. W. 516; Muscoe v. Com., 87 Va. 460, 12 S. E. 790; Edwards v. State, 2 Wash. 291, 26 Pac. 258; Quinn v. State, 123 Ind. 59, 23 N. B. 977; State v. Heacock, 106 Iowa, 191, 76 N. W. 654; State v. Win- chester, 18 N. D. 534, 122 N, W. 1111, 21 Ann. Cas. 1196; Com. v. March, 248 Pa. 434, 94 Atl. 142. 58 Garcia v. State, 34 Fla. 311, 16 South. 223; State v. Crafton, 89 Iowa, 109, 56 N. W. 257; Higgins v. Com., 94 Ky. 54, 21 8. W. 281; Bowman v. Com., 96 Ky. 8, 27 8. W. 870. 59 Manly v. State, 52 Ind. 215; Cantwell v. People, 138 I. 602, 28 N. B. 964; State v. Henning, 3 S. D. 492, 54 N. W. 536. But see City of Emporia v. Volmer, 12 Kan. 622, 60 See Perrin v. State, 81 Wis. 135, 50 N. W. 516; Baker v. State, 88 Wis. 140, 59 N. W. 570; State ex rel. Vickery v. Wofford, 119 Mo. 375, 24 S. W. 764. But see Yater v. State ex rel. Board of Com’rs of Ripley County, 58 Ind. 299; State v. Minski, 7 Iowa, 336. 61 State v. Martin, 24 N. C. 101. 62 Ante, p. 423. § 145) RIGHT TO PUBLIC TRIAL 489 The jurisdiction of the court in which the prosecution is pending is not affected by its erroneous denial of a motion for a change of venue.®* RIGHT TO PUBLIC TRIAL 145. Under the Constitution of the United States, and of most, if not all, the states, the accused has a right to a public trial; but this does not prevent the court from excluding, in a proper case, for the protec- tion of the public morals, young persons or persons attending merely from idle curiosity. “Tt is required that the trial be public. By this is not meant that every person who sees fit shall in all cases be permitted to attend criminal trials; because there are many cases where, from the character of the charge, and the na- ture of the evidence by which it is to be supported, the mo- tives to attend the trial on the part of portions of the com- munity would be of the worst character, and where a re- gard to public morals and public decency would require that at least the young be excluded from hearing and wit- nessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a pub- lic trial is for,the benefit of the accused; that the public may see he is fairly dealt with, and not unjustly condemned, ana that the presence of interested spectators may keep his tri- © ers keenly alive to a sense of their responsibility, and to the importance of their functions; and the requirement is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstand- ing that those persons whose presence could be of no serv- ice to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.” ** 68 Turner v. Conkey, 132 Ind. 248, 31 N. E. 777, 17 L. R. A. 509, 82 Am. St. Rep. 251. 64 Cooley, Const. Lim. (5th Ed.) 312; People v. Hartman, 103 Cal. 242, 37 Pac. 153, 42 Am. St. Rep. 108; Grimmett v. State, 22 Tex. App. 36, 2 S. W. 631, 58 Am. Rep. 630; State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330; People v. Kerrigan, 73 Cal. 222, 14 Pac. 849. 490 TRIAL AND VERDICT (Ch. 12 The court, however, cannot make an order excluding all persons from the courtroom. It has been held, for instance,. that even on a trial which involves an inquiry into a ques- tion of sexual immorality, an order excluding all persons from the courtroom, except the defendant and the officers of the court, violates the defendant’s right to a public trial.*® Where the trial judge stationed an officer at the door of the courtroom, with orders to “see that the room was not crowded, but that all respectable citizens be admitted when they apply,” and the officer refused admittance to a number of persons, though the room was not crowded, it was held that the defendant was entitled to a new trial.** On the other hand, where, on account of scandalous evi- dence, all persons were excluded except jurors, officers of the court, litigants and their attorneys, witnesses and other persons whom the parties to the prosecution desired should remain, it was held that the defendant’s right was not vio- lated.67 ‘The same was held where, on a trial for rape, the courtroom was cleared of all spectators except persons con- nected with the court, members of the bar, and all persons connected with the case as witnesses, etc.,°® and where, on a trial for obtaining money by threats to accuse of sodomy, the court excluded all persons who had no business before the court, or any connection with the case except persons whom the defendant especially requested should be admit- ted.%° 65 People v. Hartman, 103 Cal. 242, 37 Pac. 158, 42 Am. St. Rep. 108. Accord: State v. Hensley, 75 Ohio St. 255, 79 N. E. 462,9 L. R. A. (N. 8.) 277, 116 Am. St. Rep. 734, 9 Ann. Cas. 108, where on a trial for rape the court admitted no one but the jury, counsel, mem- bers of the bar, newspaper men, and one other person, a witness for the defense. 66 People v. Murray, 89 Mich. 276, 50 N. W. 995, 14 L. R. A. 809, 28 Am. St. Rep. 294. 67 State v. Nyhus, 19 N. D. 326, 124 N. W. 71, 27 L. R. A. (N. 8S.) 487. 68 Reagan v. U. S., 202 Fed. 488, 120 C. C. A. 627, 44 L. R. A. (N. .) 583. “is People v. Hall, 51 App. Div. 57, 64 N. Y. Supp. 433. In State y. Callahan, 100 Minn. 63, 110 N. W. 342, it was held that in a proper case the court might temporarily clear the courtroom of all persons except court officers, counsel, witnesses, and the defendant, and that, =_ §§ 146-147) cUSTODY AND RESTRAINT OF DEFENDANT 491 This right to a public trial is for the prisoner’s benefit, and therefore may be waived by him.’° CUSTODY AND RESTRAINT OF DEFENDANT 146. In prosecutions for felony, and in some jurisdictions in prosecutions for misdemeanors involving corporal punishment, the defendant should be taken into custody during the trial so as to insure his pres- ence. In misdemeanors involving punishment by a mere fine, and, in most jurisdictions, in all other cases of misdemeanor, he may remain at large on bail. 147. The defendant must not be subjected to unnecessary restraint during the trial. Necessary restraint is not illegal. Unless the defendant has been admitted to bail, he is al- ways in custody during the trial. And in cases of felony, ‘and in some jurisdictions in cases of misdemeanor where corporal punishment may be inflicted, he must be taken in- to custody, even though he has been admitted to bail,” for, as we shall see, in most jurisdictions he must be present at the trial, whether he wishes it or not; and a trial in his ab- sence, even with his consent, would be illegal. In cases of misdemeanor, where the punishment is a mere fine, and, by the weight of authority, even where the penalty may be cor- poral punishment, he may remain at large.” The defendant should not be kept tied or in shackles dur- ing the trial, unless he is unruly, or there is danger of an although the record did not show a withdrawal of the order, it would be inferred that it was made for a temporary purpose only, and that it was not enforced after the reason calling for its exist- ence ceased to exist. 70 People v. Tarbox, 115 Cal. 57, 46 Pac. 896. 71 Reg. v. Simpson, 10 Mod. 248; People v. Beauchamp, 49 Cal. 41; post, p. 492. 72 Rex v. Carlile, 6 Car. & P. 636; Whart. Cr. Pl. & Prac. § 540a; post, p. 497. 492 : TRIAL AND VERDICT (Ch. 12 escape. If he is unnecessarily bound, or otherwise subject- ed to unnecessary restraint, the trial will be illegal, for it is not considered that he is as well able to make his defense when bound.’* Necessary restraint will not render a con- viction bad. Thus it has been held that it is perfectly prop- er to permit a dangerous and desperate man, charged with murder, to be attended by an armed guard."* PRESENCE OF THE DEFENDANT 148. In all criminal prosecutions, the defendant must be per- sonally present during the entire proceeding from arraignment to sentence. He cannot, according to the weight of authority, waive the privilege in cases of felony, nor, according to some, but not all, of the authorities, in cases of misdemeanor involving cor- poral punishment. By the weight of authority, however, he may waive the privilege in all cases of misdemeanor. The record must show that he was present when his presence was necessary. It is well settled that even at common law the personal presence of the defendant is essential to a valid trial and conviction on a charge of felony. He must be personally present, not only when he is arraigned and pleads to the charge, but at every subsequent stage of the prosecution, up to and including the time when sentence is pronounced. If he is absent, or if the record does not show his presence, when the jury is called and sworn, or when evidence is in- troduced, or the jury is charged, or arguments of counsel are made, or the verdict is rendered, or sentence is pro- nounced, a conviction will be set aside.7*> The legislature 73 State v. Kring, 1 Mo. App. 438; Id., 64 Mo. 591; Faire v. State, 58 Ala. 74; Lee v. State, 51 Miss. 566. 74 State v. Duncan, 116 Mo. 288, 22 8. W. 699. 75 Dunn v. Com., 6 Pa. 385; Hamilton v. Com., 16 Pa. 129, 55 Am. Dec. 485; Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262; Harris v. People, 130 Ill. 457, 22 N. EB. 826; Brooks v. People, 88 Ill. 327; Sperry v. Com., 9 Leigh (Va.) 628, 83 Am. Dec. 261; Nolan v. State, 55 Ga. 521, 21 Am. Rep. 281; Coleman vy. Com., 90 Va. 635, 19 § 148) PRESENCE OF THE DEFENDANT 493 cannot change this rule of the common law, where his ab- sence is not voluntary, for to try him in his absence would be to try him without due process of law, and would there- fore be unconstitutional; or if testimony were received in the defendant’s absence, it would violate his constitutional S. E. 161; State v. Cross, 27 Mo. 332; Palmquist v. State, 30 Fla. 78, 11 South. 521; French v. State, 85 Wis. 400, 55 N. W. 566, 21 L. R. A. 402, 39 Am. St. Rep. 855; Shelton v. Com., 89 Va. 450, 16 S. E. 355; Scaggs v. State, 8 Smedes & M. (Miss.) 722; Stubbs v. State, 49 Miss. 716; Rolls v. State, 52 Miss. 391; Warfield v. State, 96 Miss. 170, 50 South. 561; Humphrey vy. State, 3 Okl. Cr. 504, 106 Pac. 978, 189 Am. St. Rep. 972. See, for cases in which convictions have been set aside because the defendant was not present, or the record did not show his presence, at the arraignment, State v. Jones, 61 Mo. 232; Hall v. State, 40 Ala. 698; Jacobs y. Com., 5 Serg. & R. (Pa.) 315; at the calling and swearing of the jury, Dougherty vy. Com., 69 Pa. 286; State v. Crocket (State v. Smith), 90 Mo. 37, 1 S. W. 753, 59 Am. Rep. 4; Rolls v. State, 52 Miss. 391; Warfield v. State, 96 Miss. 170, 50 South. 561; at discharge of jury, for sick- ness of juror, State v. Smith, 44 Kan. 75, 24 Pac. 84,8 L. R. A. 774, 21 Am. St. Rep. 266; at the reception of evidence, Dougherty v. Com., supra; People v. Perkins, 1 Wend. (N. Y.) 91; State v. Hughes, 2 Ala. 102, 86 Am. Dec. 411; Jackson v. Com., 19 Grat. (Va.) 656; State v. Moran, 46 Kan. 318, 26 Pac. 754; Andrews v. State, 2 Sneed (Tenn.) 550; State v. Cross, 27 Mo. 332; while codefendant was tes- tifying, Richards v. State, 91 Tenn. 723, 20 S. W. 533, 30 Am. St. Rep. 907; Garman y. State, 66 Miss. 196, 5 South. 385; when the case was continued, Com. v. Coleman, 90 Va. 635, 19 S. H. 161; Shel- ton v. Com., 89 Va. 450, 16 S. E. 355; contra, State v. Duncan, 7 Wash. 336, 35 Pac. 117, 88 Am. St. Rep. 888; at a view by the jury, People vy. Jones (Cal.) 11 Pac. 501; State v. Sanders, 68 Mo. 202, 30 Am. Rep. 782; Foster v. State, 70 Miss. 755, 12 South. 822; Benton v. State, 80 Ark. 328; State v. Graham, 74 N. C. 646, 21 Am. Rep. 493; contra, State v. Reed, 3 Idaho, 754, 35 Pac. 706; State v. Lee Doon, 7 Wash. 308, 34 Pac. 1103; while the court was charging or recharging the jury, or finally submitting the case to them, Allen v. Com., 86 Ky. 642, 6 S. W. 645; Brewer v. Com. (Ky.) 8 S. W. 339; Richie v. Com. (Ky.) 8 8. W. 913; Jackson v. Com., 19 Grat. (Va.) 656; Witt v. State, 5 Cold. (Tenn.) 11; Wilson v. State, 87 Ga. 583, 13 S. B. 566; State v. Myrick, 88 Kan. 238, 16 Pac. 330; Wade v. State, 12 Ga. 25; Maurer v. People, 43 N. Y. 1; Linbeck v. State, 1 Wash. 336, 25 Pac. 452; contra, People v. Robinson, 86 Mich. 415, 49 N. W. 260; Roberts v. State, 111.Ind. 340, 12 N. B. 500; when the verdict was received from the jury, Prine v. Com., 18 Pa. 103; 494 TRIAL AND VERDICT (Ch, 12 right to be confronted by the witnesses against him.’¢ Some of the courts hold that the defendant, on trial for any felony, cannot waive this privilege even by consenting to a trial, or part of the trial, in his absence;77 but other courts hold that the privilege, being for his benefit, may be waived Dougherty v. Com., 69 Pa. 286; Com. v. Tobin, 125 Mass. 203, 28 Am. Rep. 220; State v. Epps, 76 'N. C. 55; Andrews v. State, 2 Sneed (Tenn.) 550; Stubbs v. State, 49 Miss. 716; Finch v. State, 53 Miss. 863; Jackson v. Com., 19 Grat. (Va.) 656; Harris v. State, 153 Ala. 19, 49 South. 458 (if he is not present, the irregularity is not cured by calling the jury together after their dispersal, and reading the verdict to them in defendant’s presence, and having them assent to the verdict, Harris v. State; supra); at the time of sentence, Dough- erty v. Com., 69 Pa. 286; State v. Hurlbut, 1 Root (Conn.) 90; Pe- ters v. State, 39 Ala. 681; Stubbs v. State, 49 Miss. 716; Rolls yv. State, 52 Miss. 391. But it seems that absence at the time of sen- tence merely entitles him to be remanded for a new sentence, and does not entitle him to a new trial. See Cole v. State, 10 Ark. 318; Kelly v. State, 3 Smedes & M. (Miss.) 518. That it is sufficient if the record shows defendant’s presence by necessary or reasonable im- plication, see Brown v. State, 29 Fla. 548, 10 South. 736; State v. Nickleson, 45 La. Ann. 1172, 14 South. 1384; Snodgrass vy. Com., 89 Va. 679, 17 S. E. 238. That continuance of presence may be pre- sumed, see State v. Miller, 100 Mo. 606, 18 S. W. 832; Burney v. State, 32 Fla. 253, 18 South. 406. But see, contra, the cases above cited, and Day v. Territory, 2 Okl. 409, 37 Pac. 806; Shelton v. Com., 89 Va. 450, 16 S. E. 355. Absence of defendant’s counsel, defendant himself being present, when the verdict was received and sentence given, is not ground for reversal, at least in the absence of preju- dice. Whitehurst v. State, 3 Ala. App. 88, 57 South. 1026. 76 Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262; Har- ris v. People, 130 Ill. 457, 22 N. E. 826. The accused is not deprived of his right to confront the witnesses against him by the admission of depositions taken before a magistrate at the house of a witness who was ill, when accused and his counsel were present and exam- ined the witness. People v. Droste, 160 Mich. 66, 125 N. W. 87. See, also, Wilson v. State, 175 Ind. 458, 93 N. EB. 609. Where the Consti- tution provides that accused may appear in person or by counsel, an appearance by one who is not authorized by accused to represent him is void. Ex parte Super, 76 Tex. Cr. R. 415, 175 S. W. 697. 77 Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L, Ed. 262; State v. Smith, 90 Mo. 37, 1 8S. W. 753, 59 Am. Rep. 4; People v. Beau- champ, 49 Cal. 41; Humphrey v. Staite, 3 Okl. Cr. 504, 106 Pac. 978, 189 Am. St. Rep. 972. § 148) PRESENCE OF THE DEFENDANT 495 by him in felonies not capital.”® It is generally agreed that he cannot waive it in capital cases.”® In cases where the defendant may waive his right to be present, if his conduct is such that it is necessary to re- move him temporarily from the courtroom, such temporary absence will not affect the validity of the trial.*° Some courts have gone further, and held that short inadvertent absences, even in capital cases, would not render the trial void, if no prejudice has been suffered.*1 It has also been held that temporary absences from the courtroom are no ground for setting aside a conviction, if there was no re- quest to suspend the trial, and no prejudice is shown.®? By the weight of authority, presence of the defendant is not necessary when certain motions are made and heard, such as motions in arrest of judgment, or for a new trial,** 78 Hill v. State, 17 Wis. 675, 86 Am. Dec. 736; State v. Cherry, 154 N. C. 624, 70 S. E. 294; Sahlinger v. People, 102 Ill. 241; Com. v. McCarthy, 163 Mass. 458, 40 N. E. 766; Price v. State, 36 Miss. 531, 72 Am, Dec. 195; Lynch v. Com., 88 Pa. 189, 32 Am. Rep. 445; Diaz v. U. S., 223 U. S. 442, 32 Sup. Ct. 250, 56 L. Eid. 500, Ann. Cas. 1913C, 1188; State v. Peacock, 50 N. J. Law, 34, 11 Atl. 270 (fel- onies not capital). Even if the defendant may waive his right to be present, a waiver because of well-founded fear of mob violence will not render a conviction in his absence valid. Massey v. State, 31 ’ Tex. Cr. R. 371, 20 S. W. 758. See, for voluntary use of opiate dur- ing trial as affecting presence, State v. Trull, 169 N. C. 363, 85 S. E. 133. 79 Sherrod v. State, 98 Miss. 774, 47 South. 554, 20 L. R. A. (N. S.) 509, and see cases cited in preceding notes. Contra, at reception of verdict, Cawthon v. State, 119 Ga. 395, 46 S. E. &97; Frank v. State, 142 Ga. 741, 83 S. E. 645, L. R. A. 1915D, 817. In the case last cited defendant’s presence was waived by counsel, but, the court held, later ratified by defendant. 80 U. S. v. Davis, 6 Blatchf. 464, Fed. Cas. No. 14,923. 81 Lee v. State, 56 Ark. 4,19 8S. W. 16; State v. Grate, 68 Mo, 22. 82 Hite v. Com. (Ky.) 20 8. W. 217; Howard v. Com., 118 Ky. 1, 80 S. W. 211, 25 Ky. Law Rep. 2213. On appeal to the Supreme Court of the United States it was held that the ruling of the Kentucky court was not a denial of due process of law. Howard v. Kentucky, 200 U. 8. 164, 26 Sup. Ct. 189, 50 L. Ed. 421. 83 Com. v. Costello, 121 Mass. 371, 23 Am. Rep. 277; State v. West, 45 La. Ann. 928, 18 South. 173. But see Hooker v. Com., 13 Grat. (Va.) 763. The court may insist upon the personal presence of de 496 TRIAL AND VERDICT (Ch. 12 to quash the indictment,** to require election,** for a change of venue,®® for a continuance,®” etc., or when anything else is done that forms no part of the trial.8° And his ptesence is not necessary in an appellate court to which he has taken the case by appeal or writ of error, for he is not there on trial.8° ‘ It has been said that the right of the defendant thus to be personally present during the trial extends also to misde- meanors where the punishment may be corporal, and that, in these cases, as in cases of felony, he cannot waive the right; ®° but, in so far as the waiver of the privilege is con- fendant on the argument of such motion. Fleming v. State, 62 Fla. 48, 56 South. 298. 84 Bpps v. State, 102 Ind. 539, 1 N. E. 491. Contra, State v. Clif- ton, 57 Kan. 448, 46 Pac. 715. 85 State v. Kendall, 56 Kan. 238, 42 Pac. 711. 86 State v. Elkins, 63 Mo. 159. Contra, Ex parte Bryan, 44 Ala. 402. 87 State v. Duncan, 7 Wash. 336, 35 Pac. 117, 38 Am. St. Rep. 888. 88 State v. Dominique, 39 La. Ann. 323, 1 South. 665; State v. Woolsey, 19 Utah, 491, 57 Pac. 426. Absence of the defendant when the court asks the jury if they desire further instructions is not error, where no instructions are given in his absence. State v. Coley, 114 N. C. 879, 19 S. HE. 705. And see State v. Jones, 29 S. C. 201, 7 S. HB. 296. Nor is it error for the clerk, in the defendant’s absence, to set the case for trial, Smith v. State, 98 Ala. 55, 13 South. 508; or for the court to appoint an attorney to assist in the prosecution, Hall v. State, 132 Ind. 317, 31 N. E. 536; or to amend the information before trial, State v. Beatty, 45 Kan. 492, 25 Pac. 899. Some of the courts hold that a view by jury or a continu- ance is no part of the trial, but this is doubtful. See note 75, p. 492, supra, where the cases on these points are cited. But it is not error for the court to insist on defendant’s presence at the argument on such motions, even though deferidant is represented by counsel, if such presence is practical. Fleming v. State, 62 Fla. 48, 56 South. 298. 89 Schwab v. Berggren, 143 U. S. 442, 12 Sup. Ct. 525, 36 L. Ed. 218; Donnelly v. State, 26 N. J. Law, 464; People v. Clark, 1 Parker, Cr. R. (N. Y.) 360; Tooke v. State, 23 Tex. App. 10, 3 S. W. 782; State v. Buhs, 18 Mo. 319; Vowell v. State, 182 Tenn. 349, 178 S. W. 768; Com. v. Cody, 165 Mass, 133, 42 N. BH. 575. 90 Lawn v. People, 11 Colo. 343, 18 Pac. 281; Ex parte Tracy, 25 Vt. 93; Nomaque vy. People, Breese (Ill) 145, 12 Am’. Dec. 157; People v. Ebner, 23 Cal. 158; Com. v. Crump, 1 Va. Cas. 172; Warren y. State, 19 Ark. 214, 68 Am. Dec. 214. § 149) INSANITY OF DEFENDANT 497 cerned, the weight of authority is clearly to the contrary.®* In cases of misdemeanor, where the punishment i is a mere fine, and, by the weight of authority, i in all cases of misde- meanor, the defendant may waive this privilege, and he may do so impliedly by voluntarily absenting himself.°? If there is no express or implied waiver of the right to be present in cases of misdemeanor, absence will generally be fatal to a conviction, though there is not the same strictness in these cases as in cases of felony.®* INSANITY OF DEFENDANT 149. The defendant cannot be arraigned or tried or sen- tenced while he is insane, though he may have been sane when the offense was committed. Insanity of the defendant at the time for the trial must be distinguished from insanity at the time the offense was committed. In the latter case he cannot be punished at all, however sane he may be at the time for trial, for he is not guilty.** His insanity in such case does not prevent his be- 1 Shiflett v. Com., 90 Va. 386, 18 8. I. 838; State v. Epps, 76 N, C. 55; U.S. v. Santos, 5 Blatchf. 104, Fed. Cas. No. 16,222; Douglass v. State, 3 Wis. 820; State v. Reckards, 21 Minn. 47; Stephens v. Peo- ple, 19 N. Y. 549; Cook v. State, 26 Ga. 593; State v. White, 19 Kan. 445, 27 Am. Rep. 137; State v. Lucker, 40 S. C. 549, 18 S. E. 797; People v. Corbett, 28 Cal. 330; Dixon vy. State, 18 Fla. 631, 636; Hill v. State, 17 Wis. 675, 86 Am. Dec. 756; State v. Guinness, 16 R. I. 401, 16 Atl. 910; State vy. Vaughan, 29 Iowa, 286; Holmes v. Com, 25 Pa. 221. 92 State v. Guinness, 16 R. I. 401, 16 Atl. 910; Shiflett v. Com., 90 Va. 386, 18 8S. E. 838; Ex parte Tracy, 25 Vt. 93; People v. Ebner, 23 Cal. 158; State v. Hale, 91 Iowa, 367, 59 N. W. 281; City of Bloomington v. Heiland, 67 Ill. 278. Unavoidable absence, because of sickness, necessitating removal from the court room, is not a waiver. Rex v. Streek, 2 Car. & P. 413. 93 Duke’s Case, 1 Salk. 400; People v. Winchell, 7 Cow. (N. Y) 525; Stubbs v. State, 49 Miss. 716; Tabler v. State, 34 Ohio St. 127; State v. Cross, 27 Mo. 332; Clark vy. State, 4 Humph. (Tenn.) 254; State v. Ford, 30 La. Ann. 311. But see Stephens v. People, 19 N. Y. 549; Holmes v. Cont., 25 Pa. 221; Grimm v. People, 14 Mich. 300. 94 Clark, Cr. Law, 64. It has been held allowable to submit to CLARK Cr.PROC.(2D ED.) —32 498 TRIAL AND VERDICT (Ch, 12 ing tried if he has since become sane, but is a matter of de- fense to be brought out at the trial under his plea of not guilty. If he is insane when brought into court to be ar- raigned, though there is no question as to his sanity when the offense was committed, he cannot be arraigned; and if he becomes insane at any time before judgment and sen- tence the prosecution must end.°® The reason is that an insane person cannot properly make his defense. This rule does not exempt him from liability to punishment, but mere- ly suspends the right to try him during his insanity. When at the time of the arraignment, therefore, or at any stage of the trial, there appears to be doubt as to the defendant’s san- ity, a jury must be sworn to ascertain the state of his mind, and if they find him insane he must be committed as an in- sane person. If the defendant does not seem able to dis- tinguish between a plea of guilty and a plea of not guilty, or if he has not sufficient intellect to comprehend the nature or course of proceedings, so as to make a proper defense, and challenge jurors, and the like, this is enough to war- rant a finding that he is of unsound mind.** This question must not be confounded with the question. of insanity at the time the offense was committed, FURNISHING COPY OF INDICTMENT AND LIST OF JURORS AND WITNESSES 150. In some states by statute a copy of the indictment and a list of the jurors and witnesses must be furnished the defendant a certain time before trial. But these are privileges which he may waive, and he does so by not objecting before trial to a failure to furnish them. Formerly the defendant had no right, in cases of felony, to have a copy of the indictment furnished him, but such the trial jury the double issue of defendant’s insanity at the time of trial and his guilt. State v. Sandlin, 156 N. C. 624, 72 S. E. 203. 954 Bl. Comm. 24; State v. Peacock, 50 N. J. Law, 34, 11 Atl. 270; State v. Pritchett, 106 N. C. 667, 11 8. E. 357. 96 Rex vy. Pritchard, 7 Car. & P. 308; Reg. v. Berry, 1 Q. B. Div. 447. § 151) BILL OF PARTICULARS 499 right is now given him by statute in England and in many of our states.°’ It is also provided by statute in some states that he shall be furnished a list of the witnesses, or that the names of the witnesses shall be indorsed on the indict- ment,°* and in some states that he shall be furnished in ad- vance of the day set for the trial a copy of the venire, or list of the jurors summoned.®® The defendant waives his rights under these statutes by going to trial without objec- tion.! The prosecuting officer is not precluded from calling witnesses, particularly in case of surprise, whose names are not on the list furnished or indorsed on the indictment.? BILL OF PARTICULARS 151. Where the charge is general, the court may require the prosecuting officer to furnish the defendant with a bill of particulars showing the particular acts re- lied upon. Generally an indictment must be sufficiently certain to give the defendant notice of the particular charge against him, so that ordinarily a bill of particulars will be unneces- sary. But there are some cases, as we have seen, in which, from the nature of the crime, the charge may be general. Thus a person may be charged generally with being a com- 97 See Robertson v. State, 43 Ala. 325; Hubbard v. State, 72 Ala. 164; Logan vy. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; Fouts v. State, 8 Ohio St. 98; State v. Fuller, 39 Vt. 74. 98 See Hill v. People, 26 Mich. 496; Scott v. People, 63 Ill. 508. 99 Kellum v. State, 33 Tex. Cr. R. 82, 24 8. W. 897; State v. Pollet, 45 La. Ann. 1168, 14 South. 179; Coates v. State, 1 Ala. App. 35, 56 South. 6. 1 Reg. v. Frost, 9 Car. & P. 162; State v. Norton, 45 Vt. 258; State v. Howard, 118 Mo. 127, 24 S. W. 41; Fouts v. State, 8'Ohio St. 98; State v. Beeder, 44 La. Ann. 1007, 11 South. 816; Lord v. State, 18 N. H. 173; People v. Harris, 95 Mich. 87, 54 N. W. 648. 2 Hill vy. People, 26 Mich. 496; Bulliner v. People, 95 Ill. 394; State v. Townsend, 7 Wash. 462, 35 Pac. 367; State v. Loehr, 93 Mo. ° 103, 5 S. W. 696; Simons v. People, 150 Til. 66, 36 N. E. 1019; Gifford yv. People, 148 Ill. 173, 35 N. E. 754; People v. Machen, 101 Mich. 400, 59 N. W. 664; State v. Boughner, 5 S. D. 461, 59 N. W. 736. 500 TRIAL AND VERDICT (Ch, 12 mon barretor, or common scold, or common seller of intoxi- cating liquors, or the keeper of a common bawdy or gaming house, or a common night walker or prostitute, without set- ting out the particular acts relied upon.’ In these cases it is held that the defendant may ask the court to require the prosecuting officer to furnish him with a bill of particulars showing the acts relied upon, so that he may know what evidence he will be called upon to meet, and may properly prepare his defense.* And the court may compel the prose- cuting officer to furnish a bill of particulars in other cases where the charge is too general to show what particular acts are to be shown in support of it, as on indictment for adul- tery or embezzlement.® The granting of a bill of particulars, being entirely dis- cretionary with the court,® such bill cannot supply defects in the indictment, which without such bill would render the indictment invalid; but by giving to defendant an absolute right to a bill of particulars, a defendant may be put on trial on an indictment otherwise defective for lack of particular- ity, for the constitutional provision that the accused shall have a right to be informed of the nature and cause of the accusation against him does not specify that such informa- tion must be contained in the indictment proper, and he is informed of it, unless he waives the information—if he has aright to a bill of particulars containing the information.’ 8 Ante, p. 190. : 42 Hawk. P. C. c. 25, § 59; Rex v. Mason, 2 Term R. 586; Com. v. Pray, 13 Pick. (Mass.) 359; Com. v. Davis, 11 Pick. (Mass.) 434; State v. Chitty, 1 Bailey (S. C.) 879; State v. Russell, 14 R. I. 506; Goersen v. Com., 99 Pa. 388; Williams v. Com., 91 Pa. 493. 5 People v. Davis, 52 Mich. 569, 18 N. W. 362. And see U. S. ¥. Brooks (D. C.) 44 Fed. 749 (embezzlement). But see, contra, State v. Quinn, 40 Mo. App. 627. 6 Rosen y. U. S., 161 U. S. 29, 16 Sup. Ct. 434, 480, 40 L. Ed. 606. In State v. Baltimore & O. R. Co., 68 W. Va. 193, 69 S. E. 703, it is held that the granting of a bill of particulars was not in the arbitrary discretion of the trial court; that its refusal was a basis of error. See, also, State v. Lewis, 69 W. Va. 472, 72 S. BE. 475, Ann. Cas. 19134, 1203. 7 See Com. v. Kelley, 184 Mass. 320, 68 N. E. 346; Com, v. Snell, 189 Mass. 12, 75 N. E. 75, 3 L. R. A. (N. 8.) 1019; Com, y. Sinclair, 195 Mass. 100, 80 N. 4. 799, 11 Ann. Cas. 217. § 152) LOSS OF INDICTMENT OR INFORMATION 501 LOSS OF INDICTMENT OR INFORMATION 152. If the indictment or information is lost or destroyed before or during or after the trial, a copy may be substituted if conclusively proved to be exact. When an information has been lost from the files or de- stroyed, its place may, on motion of the state’s attorney, be supplied by a copy.* And by the great weight of authority the rule also applies in case of a lost or destroyed indict- ment.® It is immaterial at what time the indictment is lost, whether before, during, or after trial.1° In either case the. substituted copy must be exact, and must be conclusively proved.t: The fact that an indictment or information is mutilated does not destroy it, or prevent its use.'? 8 Long v. People, 135 Ill. 435, 25 N. BH. 851, 10 L. R. A. 48. ® Long v. People, supra; 1 Bish. New Cr. Proc. § 1400; State v. Gardner, 13 Lea (Tenn.) 134, 49 Am. Rep. 660; State v. Harrison, 10 Yerg. (Tenn.) 542; Mount v. State, 14 Ohio, 295, 45 Am. Dec. 542; Buckner v. State, 56 Ind. 208; State v. Simpson, 67 Mo. 647; State v. Circuit Court in and for Beadle County, 20 S. D, 122, 104 N. W. 1048; McGuire v. State, 76 Miss. 504, 25 South. 495; State v. Strayer, 58 W. Va. 676, 52 S. E. 862; State v. Shank, 79 Iowa, 47, 44 N. W. 241; State v. McCarver, 194 Mo. 717, 92 S. W. 684. Contra, Bradshaw y. Com., 16 Grat. (Va.) 507, 86 Am. Dec. 722. 10 See cases cited in preceding note, and State v. Ireland, 109 Me. 158, 83 Atl. 453, 41 L. R. A. (N. 8.) 1079, Ann. Cas. 1913, 604. In the case last cited the indictment was lost after defendant had been arraigned and pleaded, but before the case was submitted to the jury. Defendant was convicted and sentenced. No copy was ever substitut- ed. The judgment was affirmed. The court said: ‘The issue had already been made up. The jury knew the nature of the offense charged and the parties involved. The presence or absence of the indictment itself could not aid or hinder them in reaching their ver- dict. It did not in this case. Such meritless technicalities should not be permitted to thwart the administration of criminal justice. * * * A copy duly certified by the county attorney as such can by order of court at the next term be placed on file in lieu of the original, and the rights of the respondents [not to be tried again for the same offense] be thereby safely guarded.” ; 11 Authorities above cited. 12 Com. v. Roland, 97 Mass. 598. 502 IRIAL AND VERDICT (Ch. 12 PRESENCE OF JUDGE 153. The judge must be present during the whole trial. If he absents himself, and the trial proceeds in his ab- sence, a conviction will be set aside. The presence of the judge at every stage of the trial is es- sential to the validity of the proceedings. If he absents himself, and any part of the trial is conducted in his absence, even with the consent of the defendant, a conviction cannot be sustained, and it is immaterial whether his absence is during the reception of evidence or merely during the argu- ment of counsel. He must be present at every stage of the trial. Any substantial proceeding carried on in his absence is coram non judice.?® Some of the cases hold that any absence of the judge, however short, entitles the defendant to a new trial, on the ground that, the judge being a component part of the court, there is no court during his absence.** In other cases it is held that a temporary absence under such circumstances that the defendant could not have been prejudiced does not render the trial nugatory.?® 18 Meredeth v. People, 84 Ill. 479; Thompson vy. People, 144 I. 378, 32 N. EH. 968; O’Brien v. People, 17 Colo. 561, 31 Pac. 230; Palin v. State, 38 Neb. 862, 57 N. W. 743; Martin v. State, 10 Ga. App. 455, 73 S, E. 686. In the case last cited the judge left the county of the trial while the jury were deliberating, and went to an ad- joining county to grant a charter. It was held that a verdict there- after returned was void, though it was not shown that defendant was prejudiced. 14 People v. Tupper, 122 Cal. 424, 55 Pac. 125, 68 Am, St. Rep. 44; People v. Blackman, 127 Cal. 248, 59 Pac. 573. In the case last cited the judge went into the retiring room for 10 minutes during the ar- gument of the prosecuting attorney. 15 Rowe vy. People, 26 Colo, 542, 59 Pac. 57; Schintz v. People, 178 Ill. 320, 52 N. E. 903; Turbeville v. State, 56 Miss. 793; Pritchett v. State, 92 Ga. 65, 18 S. E. 536, criticized in Martin v. State, 10 Ga. App. 455, 73 S. E. 686. In State v. Keehn, 85 Kan. 765, 118 Pac. 851, it was held that defendant might waive the presence of the judge at the reception of the verdict. § 154) SEPARATE TRIAL OF JOINT DEFENDANTS 503 SEPARATE TRIAL OF JOINT DEFENDANTS 154. It is within the discretion of the court whether persons jointly indicted shall be tried separately or to- gether. Where several persons are jointly indicted, as for murder, they are not entitled, as a matter of right, to separate trials; but it is a matter resting in the discretion of the court, to be determined under all the circumstances of the case, and un- less the court abuses its discretion in refusing an applica- tion for severance such refusal is not ground for reversal.** It is held that the state may claim a severance as a matter of right.1” If it appears that the defendants, or either of them, may be prejudiced by a joint trial, as where the defenses are an- tagonistic, or one of them has made a confession, a sever- ance should be granted ;1° but, if no prejudice can result to either by a joint trial, they should be tried together.1° The defendants must ask for a severance before the trial is be- gun.?° 16 Doyle v. People, 147 Ill. 394, 35 N. B. 372; State v. Lee, 46 La. Ann. 623, 15 South. 159; Com’ v. Bingham, 158 Mass. 169, 33 N. EH. 841; Com. v. Robinson, 1 Gray (Mass.) 555; Com. v. Jenks, 188 Mass. 484; U.S. v. White, 4 Mason, 158, Fed. Cas. No. 16,682; Mitchell v. State, 92 Tenn. 668, 23 S. W. 68; Com. v. Gillespie, 7 Serg. & R. 469, 10 Am. Dec. 475; Curran’s Case, 7 Grat. (Va.) 619; Redman v. State, 1 Blackf. (Ind.) 431; Com. v. Lewis, 25 Grat. (Va.) 938; Com. v. Place, 158 Pa. 314, 26 Atl. 620; Ballard v. State, 31 Fla. 266, 12 South. 865; State v. Oxendine, 107.N. C. 783, 12 S. E. 573; People v. Covitz, 262 Ill. 514, 104 N. E. 887; Com. v. Borasky, 214 Mass. 313, 101 N. E. 377; Emery v. State, 101 Wis. 627, 78 N. W. 145; State v. Brauneis, 84 Conn. 222, 79 Atl. 70; State v. Nixon, 86 N. J. Law, 871, 90 Atl. 1102. : 17 State v. Prater, 52 W. Va. 182, 43 S. B. 230. 18 Com. v. James, 99 Mass. 438; Com. v. Bingham, 158 Mass, 169, 33 N. E. 841; U.S. v. Kelly, 4 Wash. C. C. 528, Fed. Cas. No. 15,516; State v. Soper, 16 Me. 293, 33 Am. Dec. 665; State v. Taylor, 45 La. Ann. 605, 12 South. 927; Maton v. People, 15 Ill. 536. 19 Note 16, p.503, supra; State v. Conley, 39 Me. 78; State v. O’Brien, 7 R. I. 336. 20 McJunkins v. State, 10 Ind. 140. 504 TRIAL AND VERDICT (Ch. 12 When a severance is granted it is within the discretion of the prosecuting officer which defendant he will try first.?+ Though the practice may work inconvenience, and even difficulty, the court may, in its discretion, grant separate trials in cases of riot and conspiracy, as well as in other cases.?? CONSOLIDATION OF INDICTMENTS 155. In most states, if separate indictments are pending against the same defendant for offenses which could be joined in separate counts in the same in- dictment, and tried together, the defendant may be tried on both at the same time. It would seem clear that if the offenses in two or more separate indictments pending against the same defendant are such that the defendant could not object to being tried for all at the same time, if they were joined in different counts of the same indictment, he should not be allowed to object to the indictments being consolidated and tried at the same time; and there are numerous cases allowing such a practice.?* If the offenses are such that they could not be joined in different counts of the same indictment, and tried together, the indictments must be tried separately.?* 21 Patterson v. People, 46 Barb. (N. Y.) 625; People v. McIntyre, 1 Parker, Cr. R. (N. Y¥.) 371. Contra, by statute, Davis v. State, 33 Tex. Cr. R. 344, 26 S. W. 410. 22 Casper v. State, 47 Wis. 535, 2 N. W. 1117. 28 Withers v. Com., 5 Serg. & R. (Pa.) 59; Cummins v. People, 4 Colo. App. 71, 34 Pac. 734; State v. Lee, 114 N. C. S44, 19 S. E. 375. 24 State v. Devlin, 25 Mo. 175; Cummins v. People, supra. §§ 156-157) COUNSEL 505 COUNSEL 156. The state is represented at the trial by the regular prosecuting attorney, but he may call in other counsel to assist him, or, if he permits, private counsel may be employed by the prosecutor or oth- er private persons to assist. 157. The defendant may either employ counsel, or, if he is unable to do so, the court will appoint counsel, to defend him. In the latter case the defendant can- not insist on the appointment of counsel selected by him, and, if he refuses to accept the services of counsel, he may be tried without. In ordinary cases the regular prosecuting attorney or his assistant will act alone in conducting the prosecution, but, with leave of the court, he may have assistance from other counsel, and frequently does so in difficult cases, or cases which involve a great amount of labor.?® Private persons may also employ and pay counsel to assist in the prosecu- tion, with leave of the court,?® if the regular prosecuting at- torney chooses to accept such assistance.*’ If the regular 25 State v. Mack, 45 La. Ann. 1155, 14 South. 141; State v. Orrick, 106 Mo. 111,17 S. W. 176; Richards v. State, 82 Wis. 172, 51 N. W. 652; State v. Johnson, 24 S. D. 580, 124 N. W. 847; Blair v. State, 72 Neb. 501, 101 N. W. 17. 26 Granting such leave is in the discretion of the court; it should “never be abused by permitting counsel for the defendant to be over- whelmed, on account of their inexperience, by the number and ability of counsel assisting the state’s attorney.” People v. Blevins, 251 Ill. 381, 96 N. W. 214, Ann. Cas. 1912C, 451. In State v. Johnson, 24 S. D. 590, 124 N. W. 847, it was held that the power of the court was wholly discretionary and its exercise was not reviewable. 27 State v. Bartlett, 55 Me. 200; Benningfield v. Com. (Ky.) 17 S. W. 271; State v. Tighe, 27 Mont. 327, 71 Pac. 3; Hayner v. People, 213 Ill. 142, 72 N. E. 792; State v. Crafton, 89 Iowa, 109, 56 N. W. 257; People v. Powell, 87 Cal. 348, 25 Pac. 481, 11 L. R. A. 75; Keyes v. State, 122 Ind. 527, 23 N. E. 1097. The employment of private counsel is regulated by statute in some states. See McKay v. State, 90 Neb. 63, 182 N. W. 741, 39 L. R. A. (N. 8.) 714, Ann. Cas. 1913B, 1034. In the case last cited it was held that the statute called for 506 TRIAL AND VERDICT (Ch. 12 prosecuting attorney is sick, or otherwise unable to appear, the court may appoint an attorney to conduct the prosecu- tion.?8 If the defendant is able to do so, he employs his own coun- sel.?° If he cannot do so, the court must appoint counsel for him.*° In some states provision is made for compensat- ing the counsel so appointed, but in others they are expect- ed to act without compensation, and must do so unless the court will excuse them. The defendant cannot compel the judge to appoint an attorney whom he has selected, instead of one whom the judge has appointed.*! If the defendant refuses to accept the services of: counsel, he may be tried without counsel. Where the court has offered and insisted on assigning counsel to the defendant; and he has refused to allow it to be done, or to accept the counsel’s services, the court cannot force counsel upon him, but must proceed to try him without.®? affirmative action by the court and by the prosecuting officer; that it was not sufficient, to legalize the appearance of private counsel as assistant to the prosecuting attorney, to show that such counsel was “permitted” by the court and prosecuting attorney to take part in the case. In some states counsel employed and paid by outside par- ties is not allowed. Biemel v. State, 71 Wis. 444, 37 N. W. 244; Bird v. State, 77 Wis. 276, 45 N. W. 1126. And see McKay v. State, 90 Neb. 68, 182 N. W. 741, 37 L. R. A. (N. 8.) 714, Ann. Cas, 1913B, 1034. 28 Keithler v. State, 10 Smedes & M. (Miss.) 192; State vy. John- son, 12 Tex. 231; Dukes vy. State, 11 Ind. 557, 71 Am. Dec. 370; White v. Polk County, 17 Iowa, 413. 29 Cross v. State, 132 Ind. 65, 31 N. E. 473. 80 Hendryx v. State, 130 Ind. 265, 29 N. E. 1131. Formerly, though the defendant had at common law the right to the advice and as- sistance of counsel, he could not be represented by counsel at his trial, 1 Chit. Cr. Law, 407; Y. B. 30 & 31 Edw. I. 529; 2 Hawk, P. C. ce. 39, §§ 1, 4. In Com. v. Polichinus, 229 Pa. 311, 78 Atl. 382, the trial court instructed the jury that they were not to consider the evi- dence in the light of the arguments of counsel. A conviction was reversed, the court holding that the instruction was a denial of the constitutional right of defendant to be heard by counsel. If the rec- ord merely shows that defendant did not have counsel, it is not cause for a new trial, unless it further appears that the right to have coun- sel was denied him. Gatlin v. State, 17 Ga. App. 406, 87 S. E. 151. 31 Baker v. State, 86 Wis. 474, 56 N. W. 1088. 82 State v. Moore, 121 Mo. 514, 26 S. W. 345, 42 Am. St. Rep. 542. § 158) THE PETIT JURY 507 THE PETIT JURY—RIGHT TO JURY TRIAL, AND WAIVER 158. In all criminal prosecutions the defendant is entitled to a trial by jury. In some states he cannot waive this right in any case where the trial was by jury at common law. In other states he may waive the right in prosecutions for a misdemeanor, and in others he may also waive it in cases of felony. Right to Trial by Jury The right of every person charged with crime to a trial by jury has from a very early period existed at common law.34 ‘With us it is guaranteed by our federal and state Constitu- tions.2# The language of the different provisions varies to some extent, but in general their object and effect is the same, namely, to secure to every person charged with a crime the same right to a jury trial, and only the same right, as had al- ways existed at common law. No new right is conferred, but the common-law right is guaranteed so that the Legislature cannot take it away nor impair it. The Legislature may regu- late the mode of trial by jury, provided it does not deprive the accused of his substantial common-law rights, but it cannot take away one of these rights.*® 83 1 Chit. Cr. Law, 500. 34 The Constitution of the United States declares that in all crim- inal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury. The same provision appears in some of the state Constitutions. In others it is merely declared that the right of trial by jury shall remain inviolate; in still others, that the right shall be “as heretofore enjoyed.” 35 1 Bish. Cr. Proc. §§ 890-894; Black, Const. Law, 493-497; Swart v. Kimball, 43 Mich. 443, 5 N. W. 6385; Ross v. Irving, 14 Ill. 171; Work v. State, 2 Ohio St. 296, 5 Am. Dec. 671, and cases hereafter referred to. In State v. Strasburg, 60 Wash. 106, 110 Pac. 1020, 32 L. RB. A. (N. 8.) 1216, Ann. Cas. 1912B, 917, it was held that a statute providing that insanity is no defense to a charge of crime was in contravention to the constitutional provision that the right of trial by jury’shall remain inviolate, since it took away from the jury the question of criminal intent. 508 TRIAL AND VERDICT (Ch, 12 At common law a person accused of petit offenses, such as vagrancy, disorderly conduct, violation of a municipal ordinance, and trivial breaches of the peace, of which jus- tices of the peace and police magistrates had jurisdiction, had no right to demand a trial by jury, and by the weight of authority he has no such right under the constitutional guaranty, for, as we have seen, it was only intended to guar- antee the same right as had always existed at common law.*$ The constitutional guaranty of a jury trial only applies to criminal prosecutions. It does not apply, for instance, to a proceeding to punish for contempt of court.%7 By the weight of authority a statute authorizing. a trial without a jury is valid if the defendant is at the same time given an unqualified and unfettered right of appeal and a trial by jury in the appellate court.*® 36 People v. Justices of Court of Special Sessions, 74 N. Y. 406; People ex rel. St. Clair v. Davis, 143 App. Div. 579, 127 N. Y. Supp. 1072; Wong v. City of Astoria, 13 Or. 588, 11 Pac. 295; Byers v. Com., 42 Pa. 89, 94; State v. Glenn, 54 Md. 573; Com. v. Horton, 1 Va. Cas. 335; Inwood v. State, 42 Ohio St. 186; State v. Conlin, 27 Vt. 318; McGear v. Woodruff, 33 N. J. Law, 218; Frost v. Com., 9 B. Mon. (Ky.) 862; Williams v. City Council of Augusta, 4 Ga. 509; State v. McCory, 2 Blackf. (Ind.) 5; State v. Ledford, 3 Mo. 102. See, also, Schick v. U. S., 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99, 1 Ann, Cas. 585; State ex rel. Wilcox v. Ryder, 126 Minn. 95, 147 N. W. 953. A jury trial is sometimes allowed by statute in these inferi- or courts. 87 Black, Const. Law, 496; Ex parte Grace, 12 Iowa, 208, 79 Am. Dec. 529; Ex parte Terry, 128 U. S. 289, 9 Sup. Ct. 77, 32 L. Ed. 405. Nor to proceedings to commit a child to the industrial school. Ex parte Ah Peen, 51 Cal. 280. Nor to proceedings by a court-martial. Rawson vy. Brown, 18 Me, 216. 38 Jones v. Robbins, 8 Gray (Mass.) 329; Emerick v. Harris, 1 Bin. (Pa.) 416; Murphy v. People, 2 Cow. (N. Y.) 815; Beers v. Beers, 4 Conn. 535, 10 Am. Dec. 186; Black, Const. Law, 497; City of Emporia v. Volmer, 12 Kan. 622; Wong v. Astoria, 13 Or. 538, 11 Pac, 295. Contra, Callan v. Wilson, 127 U. S. 540, 8 Sup. Ct. 1301, 32 L, Ed. 228. A statute requiring a recognizance on appeal to be conditioned for the payment of such fine and costs as shall be imposed is an unrea- sonable restriction on the right of appeal. In re Jahn, 55 Kan. 694, 41 Pac. 956. § 158) THE PETIT JURY 509 Waiver of Jury Trial Whether or not the right to a jury trial is a right which the defendant can waive is a question upon which the au- thorities are conflicting. Some of the courts have held that a jury may be waived in all cases, provided there is a stat- ute authorizing the court to try the case without a jury; *® that the constitutional right to a trial by jury is not in- fringed when the accused may have it or not at his elec- tion.*° Many of the cases so holding were cases of felony, but most of them were cases of misdemeanor, and it is prob- able that the court in some of the latter cases did not in- tend to lay down any such rule for cases of felony.*1 Many of the cases hold that trial by jury cannot be waived in pros- ecutions for felony.*? It is difficult to understand how there can be any distinction in this respect between a prosecution for a felony, and a prosecution for such a misdemeanor as at common law entitled the defendant to a jury trial. It would seem in reason that if a jury cannot be waived in one it cannot be waived in the other, and that if it can be waived in one it can be waived in the other. The grade of the crime should be immaterial, provided it is such a crime as entitled the defendant to a jury trial at common law, for, as we have seen, the constitutions guarantee the same right as 89 Dillingham y. State, 5 Ohio St. 283. 40 In re Staff, 63 Wis. 285, 23 N. W. 587, 53 Am. Rep. 285; State v. Worden, 46 Conn. 349, 33 Am. Rep. 27; Dailey v. State, 4 Ohio St. 58; Dillingham vy. State, 5 Obio St. 283; People v. Goodwin, 5 Wend. (N. Y.) 251; Ward vy. People, 80 Mich. 116; Darst v. People, 51 Il. 286, 2 Am. Rep. 301; State v. Moody, 24 Mo. 560; Murphy vy. State, 97 Ind. 579. 41 See Dailey v. State, supra; Dillingham v. State, supra; and then compare Williams v. State, 12 Ohio St. 622. 42 Williams v. State, 12 Ohio St. 622; Hill v. People, 16 Mich. 351; Ward v. People, 30 Mich. 116; Allen v. State, 54 Ind. 461; State v. Maine, 27 Conn. 281; State v. Mansfield, 41 Mo. 470; State v. Davis, 66 Mo. 684, 27 Am. Rep. 387; Neales v. State, 10 Mo. 498; State v. Lockwood, 48 Wis. 403; Arnold v. State, 38 Neb. 752, 57 N. W. 878; Harris v. People, 128 Ill. 585, 21 N. HE. 563, 15 Am, St. Rep. 153; (contra, misdemeanor, Brewster v. People, 183 Ill. 148, 55 N. E. 640); Com. v. Shaw, 1 Pittsb. R. (Pa.) 492 (collecting the authorities). See, also, Dickinson v. U. S., 159 Fed. 801, 86 C. C. A. 625; Schick vy. U. S., 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99, 1 Ann. Cas. 585. 510 TRIAL AND VERDICT (Ch. 12 existed at common law. If, therefore, a jury trial cannot be waived in one case in which it was necessary at common law, it cannot, in reason, be waived in another.** Where the Constitution or a statute expressly requires a jury trial, and does not merely give the accused the right to such a trial, a jury can in no case be waived, for it is intended to protect the state as well as the defendant.*4 Where the right to a jury trial is given by statute in cas- es which could be tried without a jury at common law, as in prosecutions for ‘petit misdemeanors before inferior tri- bunals, the right may, of course, be waived.*® In all'cases the right to a jury may ‘be waived by plead- ing guilty, for in such a case no trial at all is necessary.*® Where a jury trial may be waived, it is not necessary that there shall be an express waiver; it is sufficient if a jury is not demanded, or if the case is tried and submitted to the court.*7 It has also been held that it is not necessary that the court shall inform the accused of his right to demand a trial by jury.*® In all cases the waiver must be by the defendant personal- ly, and not by his attorney for him, unless in his presence, and with his acquiescence.*® 48 “A plea of not guilty to an information or indictment for crime, whether felony or misdemeanor, puts the accused upon the country, and can be tried by a jury only. The rule is universal as to felonies; not quite so as to misdemeanors. But the current of authority ap- pears to apply it to both classes of crime; and this court holds that to be safer and better alike in principle and practice. The right of trial by jury, upon indictment or information for crime, is secured by the Constitution upon a principle of public policy, and cannot be waived.” State v. Lockwood, 48 Wis. 405. And see Com. v. Shaw, 1 Pittsb. R. (Pa.) 492. But see In re Staff, 63 Wis. 285, 23 N. W. 587, 53 Am. Rep. 285. 44 Arnold v. State, 38 Neb. 752, 57 N. W. 378; In re McQuown, 19 Okl. 347, 91 Pac. 689, 11 L. R. A. (N. S.) 1136. 45 People v. Weeks, 99 Mich. 86, 57 N. W. 1091; Schick v. U. 8. 195 U. S. 65, 24 Sup. Ct. 826, 49 L. Ed. 99, 1 Ann. Cas. 585. 46 State v. Almy, 67 N. H. 274, 28 Atl. 372, 22 L. R. A. 744. 47 Dailey v. State, 4 Ohio St. 58; People v. Goodwin, 5 Wend. (N. Y.) 251. 48 People v. Goodwin, supra; State v. Larger, 45 Mo. 510. But see Brown y. State, 16 Ind. 496. 42 Brown v. State, supra. § 159) THE PETIT JURY 511 SAME—NUMBER OF JURORS 159. In most, but not all, states, the jury must consist of not less nor more than twelve men, as at common law. But, where the defendant may waive his right to a jury, he may consent to be tried by a jury of less or more than twelve. The constitutional guaranty of a trial by jury implies there shall be, as at common law, a jury of not more nor less than twelve men.*° A statute providing for a greater or less number would be unconstitutional,®! unless, as in some states, the Constitution authorizes the Legislature to provide for trial by a jury of less than twelve.°? In some jurisdictions it has been held that in trials for a misdemean- ‘or, if the defendant consents to being tried by a jury of less than twelve, he cannot complain of the irregularity ;°* but it would seem, at least in those jurisdictions where it is held that-a jury trial cannot be waived, that the right to a full jury of twelve men is a right which cannot be waived, and so it has been held.** 502 Hale, P. C. 161; 1 Chit. Cr. Law, 505; Black, Const. Law, 494; Work v. State, 2 Ohio St. 296, 59 Am. Dec. 671; People v. Kennedy, 2 Parker, Cr. R. (N. Y.) 312; Cancemi v. People, 18 N. Y. 128; Brown vy. State, 8 Blackf. (Ind.) 561; People v. O’Neil, 48 Cal. 257; Bowles v. State, 5 Sneed (Tenn.) 360; Doebler v. Cont., 3 Serg. & R. (Pa.) 237; People v. Luby, 56 Mich. 551, 23 N. W. 218. 51 See the cases above cited. This does not apply to summary pro- ceedings before a justice of the peace or other inferior tribunal for petit offenses, in which a jury trial cannot be demanded as of right. Ante, p. 508; Work v. State, supra. 52 Baurose v. State, 1 Iowa, 378. And see People vy. Toledo, 150 App. Div. 403, 185 N. Y¥. Supp. 49. 53 Com. v. Dailey, 12 Cush. (Mass.) 80; Murphy v. Com., 1 Metc. (Ky.) 365; Tyra v. Com., 2 Mete. (Ky.) 1; Schulman vy. State, 76 Tex. Cr. R. 229, 173 S. W. 1195. 54 Cancenmti vy. People, 18 N. Y. 128; Dickinson v. U. S., 159 Fed. 801, 86 C. C. A. 625; Territory v. Ortiz, 8 N. M. 154, 42 Pac. 87. 512 TRIAL AND VERDICT (Ch. 12 SAME—SELECTING AND SUMMONING JURORS 160. The jurors must be selected and summoned as required by law. The mode of selecting and summoning jurors is regulated by statute in the different states. These statutes vary in many respects, and it would be impracticable to undertake to refer to them specifically. The student must be left to consult the statutes and decisions of his state. SAME—QUALIFICATION AND EXEMPTION OF JURORS—CHALLENGES 161. The jurors must not only be properly selected and summoned, but they must be individually qualified to serve. If they are disqualified they may be chal- lenged by either side, and must be excluded. Chal- lenges are ei‘her, (a) To the array, that is, to the jury as a whole; or (b) To the polls, that is, to individual jurors. 162. A challenge to the array is an objection to all the jurors ~ collectively because of some defect of the panel as a whole, and is either, (a) Principal challenge—where the defect renders the jury prima facie incompetent, as where the officer selecting or summoning them was related to the prosecutor or defendant, or they were not selected or summoned in the manner required by law, etc. (b) Challenge for favor—where the defect does not amount to ground for principal challenge, but there is a probability of partiality. 163. Challenges to the polls are challenges to individual jurors, and are (a) Principal challenges— (1) Propter defectum—where the juror is incompe- tent to serve on any jury, as where he. is an §§ 161-166) THE PETIT JURY 513 alien, infant, nonresident of the county, etc., or has not particular qualifications prescribed by statute. (2) Propter affectum—where there is some circum- stance rendering him prima facie partial or biased in the particular case, as where he is related to one of the parties, or has formed an opinion, etc. (3) Propter delictum—where the particular juror, by some act, has ceased, in the eye of the law, to be probus et legalis homo, as where he has been convicted of an infamous crime. (b) Challenge to the favor—where the circumstances show a probability of bias and impartiality, but are not sufficient to render the juror prima facie dis- qualified, so as to be ground for principal challenge propter affectum. 164. Peremptory challenges are such as the court is bound to allow without any cause being assigned or shown. A certain number of these challenges are allowed to the defendant, and, in most states, to the prosecution. 165. Ordinarily objections to jurors must be made before the jury is sworn, or the swearing is begun; but x0 this rule does not apply where the disqualification is not discovered until afterwards, and due dili- gence has been used to discover it. 166. The fact that a juror is exempt from jury service does not disqualify him, if he consents to serve. Challenges The right to a jury trial implies that the jury shall be impartial, and that it shall consist of men who are legally competent to act as jurors, and that they shall be legally selected, summoned, and impaneled. The Constitutions guarantee the right to such a jury as the accused was en- titled to demand at common law. In determining the quali- fications of jurors, we must therefore look to the common law. The Legislatures may and often do require qualifica- tions which were not required by the common law, and pro- CLARK Cr.PR0c.(2D ED.)—33 514 TRIAL AND VERDICT (Ch, 12 vide other modes of selecting, summoning, and impaneling jurors, and they sometimes do away with requirements of the common law; but they cannot constitutionally declare any common-law requirement unnecessary, if by doing so they deprive the accused of any substantial right which he had at common law.*® To secure the right to an impartial jury, the accused must have the right to challenge or object to any juror who is disqualified for any cause. The Legis- lature may prescribe the time and manner of objecting to jurors, and the manner of determining objections, but it can- not take away the right to object.®* Challenges are either to the array or to the polls, and are either principal challenges or challenges to the favor. Challenges to the Array A challenge to the array is an objection, not to individual jurors, but to all the jurors, collectively, and is based, not upon any supposed disqualification of individual jurors, but upon some defect of the panel as a whole.*” It is ground for principal challenge to the array, that the officer who sum- moned the jurors is related within the ninth degree, either by affinity or by consanguinity, to the prosecutor or to the defendant; °* that one or more of the jurors was selected and summoned at the instance of one of the parties; °° that there are relations existing between the officer and one of the parties prima facie implying favor or ill will on the part- of the officer; ®° that the jurors were not selected or sum- moned in the manner required by law.** 55 Ex parte Vermilyea, 6 Cow. (N. Y¥.) 562. 56 Black, Const. Law, 494; Palmore v. State, 29 Ark. 248, Laws limiting the number of peremptory challenges to be allowed to the defendant, or granting peremptory challenges to the state, are not unconstitutional. Black, Const. Law, 494; post, p. 524. Nor isa law unconstitutional which allows the court to admit a juror as com- petent, although he has formed and expressed an opinion as to the guilt of the accused, if the court is satisfied that he will render an impartial verdict. Id.; post, p. 518. 57 Co. Litt. 156, 158; 3 Bl. Comm. 359; Gardner y. Turner, 9 Johns. (N. Y.) 261. 58 Vanauken v. Beemer, 4 N. J. Law, 364. 59 Co. Litt. 156. 60 Baylis v. Lucas, Cowp. 112. 61 Gardner v. Turner, 9 Johns. (N. Y.) 260; State v. Clark, 42 Vt. §§ 161-166) THE PETIT JURY 515 The array may be challenged for favor whenever there are circumstances which, while not sufficient ground for prin- cipal challenge, are such as show a probability that the offi- cer who selected or summoned the jury was biased.°? It has been said that a challenge may be made to the array on account of any bias on the part of the officer who summon- ed them which would be ground for challenge to a ju- ror.** If the challenge is allowed and sustained, the panel is discharged and a new jury summoned.*4 Challenges to the Polls Challenges to the polls are objections to individual ju- rors. Like challenges to the array, they are either principal challenges, or challenges to the favor. Principal Challenges to the Polls Principal challenges to the polls have been classified as challenges propter honoris respectum, propter defectum, propter affectum, and propter delictum.*® The first is not recognized in this country, because it depends upon a title of nobility. The other three are recognized. Same—Propter Defectum A challenge propter defectum is on the ground that the juror is not qualified at all to serve on any jury. It‘will lie where the juror is an alien; ®* or not a resident of the coun- 629; Gladden v. State, 13 Fla. 623; Lamb y. State, 36 Wis. 424; Morgan v. State, 31 Ind. 193; State v. McAfee, 64 N. C. 339; Reid v. State, 50 Ga. 556; Clarke v. State, 3 Ala. App. 5, 57 South. 1024. Where the law is directory, merely, a literal compliance with its terms is not essential. Com v. Nye, 240 Pa. 359, 87 Atl. 585. 62 Co. Litt. 156. : 63 People v. Coyodo, 40 Cal. 586. 64 See Humphries v. State, 100 Ga. 260, 28 S. E. 25. 65 Co. Litt. 156; Archb. Cr. Pl. & Prac. 165, note. 66 Borst v. Beecker, 6 Johns, (N. Y.) 382; Rex v. Sutton, 8 Barn. & GC. 417; Richards v. Moore, 60 Vt. 449, 15 Atl. 119; Hollingsworth v. Duane, 4 Dall. 353, Fed. Cas. No. 6,618; Seal v. State, 18 Smedes & M. (Miss.) 286; Schumaker v. State, 5 Wis. 8324; State v. Quarrel, 2 Bay (S. C.) 150, 1 Am. Dec. 637; People v. Chung Lit, 17 Cal. 320. By statute in many states, a person who has declared his intention to become a citizen, for the purpose of naturalization, is a competent juror. Babcock y. People, 18 Colo. 515, 22 Pac. 817. There is an exception to this rule where the defendant is an alien. By an early 516 TRIAL AND VERDICT (Ch. 12 ty; °7 or, in some states by statute, and possibly at common law, not a freeholder;*®* or, by statute in many jurisdic- tions, because he has not paid his taxes; °®® or because he is an infant;7° or is over the age limited by statute;7? or is an idiot or lunatic or drunken;72 or a woman;7* or does * English statute (28 Edw. III. c. 13, § 2), it was provided, in sub- stance, that where the defendant in a criminal case (or either party in a civil case) was an alien, part of the jurors should be aliens. This statute has been recognized as a part of the common law in some of our states, but rejected in others, and in some states similar statutes have been enacted. Such a panel of jurors is called a “panel de medietate linguae.” See 1 Bish. Cr. Proc. §§ 927-930; Respublica v. Mesca, 1 Dall. (Pa.) 73, 1 L. Ed. 42; Richards v. Com., 11 Leigh (Va.) 690; Brown vy. Com., 11 Leigh (Va.) 711; People v. McLean, 2 Johns. (N. Y.) 381; State v. Antonio, 11 N. C. 200. 67 Co. Litt. 156b. The jurors must be summoned from the vicin- age. This has always been essential at common law, and is still so. Swart v. Kimball, 43 Mich. 443, 5 N. W. 635. Under our constitu- tional provisions, as we have seen, or under most of them, this is a requirement which the Legislature cannot dispense with. Swart v. Kimball, supra. Jurors were at one time in England required to be summoned from the very ville or other place in the county where the offense was committed, but by statute they are now summoned from the body of the county, and not from any particular place in it. Such is also the rule with us. A juror may be a resident of the county without being an elector or voter. State v. Fairlamb, 121 Mo. 137, 25 S. W. 895. 68 Co. Litt. 156; Byrd v. State, 1 How. (Miss.) 163; Bradford v. State, 15 Ind. 347; Shoemaker y. State, 12 Ohio, 43; Nelson v. State, 10 Humph. (Tenn.) 518; Dowdy v. Com., 9 Grat. (Va.) 727, 60 Am. Dec. 314; Aaron y. State, 37 Ala. 106. There is some doubt as to whether this qualification is necessary at common law with us. The matter is generally set at rest by statutes, some of which de- clare it necessary, while others declare it unnecessary. 69 Stata v. Davis, 109 N. C. 780, 14 S. E. 55; State v. Reed, 53 Kan. 767, 87 Pac. 174, 42 Am. St. Rep. 322; Collins v. State, 31 Fla. 574, 12 South. 906. 70 Co. Litt. 157. 71 Co. Litt. 157; State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330. If the statute merely exempts persons over a certain age, the exemp- tion is a personal privilege, which they may waive. It does not dis- qualify them. Post, p. 523. : 72 State v. Scott, 8 N. C. 24; Thomas v. State, 27 Ga. 287. 733 Bl. Comm. 362. See Harland y. Territory, 3 Wash. T. 181, 13 Pac. 453. §§ 161-166) THE PETIT JURY 517 not understand the English language;"* or, by statute in some states, is unable to read or write; 7® or, by statute, has within a certain time served on a prior jury;7° or is deaf, or otherwise in such a bad condition physically as to be un- able to act as a juror.7” Same—Propter Affectum A principal challenge propter affectum is based on some circumstance that raises the presumption of bias or par- tiality in the particular case. Any partiality or bias, wheth- er it be in favor of the defendant or against him, will dis- qualify a juror. Such a challenge will always lie where a juror is related to the prosecutor or to the defendant within the ninth de- gree,’® either by affinity, that is, by marriage,”® or by con- sanguinity.®° 74 State v. Push, 23 La. Ann. 14; People v. Davis, 4 Cal. Unrep. | 524, 36 Pac. 96; Long v. State, 86 Ala. 36, 5 South. 448. But see In re Allison, 13 Colo. 525, 22 Pac. 820, 10 L. R. A. 790, 16 Am. St. Rep. 224. As to sufficiency of knowledge of language, see State v. Dent, 41 La. Ann. 1082, 7 South. 694; State v. Ford, 42 La. Ann. 255, 7 South. 696. 75 Mabry v. State, 71 Miss. 716, 14 South. 267; Johnson v. State, 21 Tex. App. 368, 17 S. W. 252; San Antonio & A. P. Ry. Co. v. Gray (Tex. Civ. App.) 66 S. W. 229. 76 Virst Nat. Bank of Plattsburg v. Post, 66 Vt. 237, 28 Atl. 989. 77 Jesse v. State, 20 Ga. 156; Hogshead v. State, 6 Humph. (Tenn.) 59; Rhodes v. State, 128 Ind. 189, 27 N. E. 866, 25 Am. St. Rep. 429. 78 In some jurisdictions the relationship must be within the fourth degree, Kabn v. Reedy, 8 Ohio Cir. Ct. R. 345; in others, the third degree, Page v. State, 22 Tex. App. 551, 3 S. W. 745. 791 Chit. Cr. Law, 541; 3 Bl. Comm. 363; Co. Litt. 157a; State vy. Potts, 100 N. C. 457, 6 S. E. 657; Powers v. State, 27 Tex. App. 700, 11 S. W. 646. But see Moses v. State, 11 Humph. (Tenn.) 232. Affinity ceases on the dissolution, by death or divorce, of the mar- riage by which it was created. State v. Shaw, 25 N. C. 532. Mar- riage will relate each party by affinity, to the other’s blood rela- tions, but it will not relate the blood relations of one of them to the blood relations of the other. A juror, therefore, is not incompetent because his stepdaughter married the brother of one of the parties. Central Railroad & Banking Co. of Georgia v. Roberts, 91 Ga. 518, 18 S. E. 315. See, also, Burns v. State, 89 Ga. 527, 15 S. B. 748; Mc- Duffie v. State, 90 Ga. 786, 17 S. E. 105; Kirby v. State, 89 Ala. 63, 8 South. 110. 801 Chit. Cr. Law, 541; 3 Bl. Comm. 363; Co. Litt. 157a; People 518 TRIAL AND VERDICT (Ch. 12 Such a challenge will also lie where a juror is under the power of either party,** or in his employment,®? or if he is to receive part of the fine,®* or if since he was summoned he has eaten or drank at the expense of either party,** or if there are actions pending between a juror and either party which imply hostility,* or if one of the parties has given a juror money to influence his verdict.*® A principal challenge propter affectum will also lie where a juror has expressed his wishes as to the result of the trial; *’ or if he has formed and expressed, or merely form- ed, a decided, and not a conditional or hypothetical, opinion as to the guilt or innocence of the defendant.** There are v. Clark, 62 Hun, 84,16 N. Y. Supp. 473, 695; Mahaney v. St. Louis & H. R. Co., 108 Mo. 191, 18 S. W. 895; State v. Merriman, 34 S. C. 16, 12 S. E. 619; State v. Williams, 9 Houst. (Del.) 508, 18 ‘Atl. 949; Page v. State, 22 Tex. App. 551, 3 8. W. 745. Relationship to prose- cuting attorney does not disqualify. People v. Waller, 70 Mich. 237, 88 N. W. 261. 811 Chit. Cr. Law, 541. 821 Chit. Cr. Law, 542; Louisville, N. O. & T. R. Co. v. Mask, 64 Miss. 738, 2 South. 360; Block v. State, 100 Ind. 357. See State v. Coella, 8 Wash. St. 99, 28 Pac. 28; Crawford v. U. S., 212 U. S. 183, 29 Sup. Ct. 260, 53 L. Ed. 465, 15 Ann, Cas. 392. In the case last cited it was held that an employé of the United States was not a competent juror where defendant was on trial for conspiracy to de- fraud the United States. So of a partner of defendant. Stumm v. Hummel, 39 Iowa, 478. 831 Chit. Cr. Law, 542. That an inhabitant of a town to which a fine will go is disqualified, see State v. Williams, 30 Me. 484. Con- tra, Treasurer of Middletown v. Ames, 7 Vt. 166. A person having a bet on the result of the trial is incompetent. Cluverius v. Com., 81 Va. 787. 841 Chit. Cr. Law, 542; Co. Litt. 157; Com. v. Mosier, 185 Pa. 221,19 Atl. 948. That.one of the parties has been entertained at the juror’s house is only a ground of challenge to the favor. Anon., 3 Salk. 81; post, p. 523. A person who is bail for defendant’s appear- ance is not a competent juror. Brazleton v. State, 66 Ala. 96. 85 1 Chit. Cr. Law, 542; Co. Litt. 157. 86 Co. Litt. 157. 871 Chit. Cr. Law, 542. A member of an association having for its object the suppression of the crime for which the defendant is indicted is not thereby rendered incompetent as a juror. Com. v. Burroughs, 145 Mass. 242, 138 N. EB. 884. Compare Com. v. Moore, 148 Mass. 136, 9 N. EE. 25, 58 Am. Rep. 128. 881 Chit. Cr. Law, 542; 2 Hawk. P. ©. c. 43, § 28; People v, Rath- §§ 161-166) THE PETIT JURY 519 some cases to the effect that a juror who has served in one case, and returned a verdict of guilty, is not disqualified to bun, 21 Wend. (N. Y.) 509; Freeman v. People, 4 Denio (N. Y.) 9, 47 Am. Dec. 216; Willis v. State, 12 Ga. 444; Sprouce v. Com., 2 Va. Cas. 375; Osiander v. Com., 3 Leigh (Va.) 780, 24 Am. Dec. 693; Armistead v. Com., 11 Leigh (Va.) 657, 87 Am. Dec. 633; Ned v. State, 7 Port. (Ala.) 187; Noble v. People, Breese (Ill.) 54. There is much conflict and confusion in the cases on this point, and some very fine distinctions have been drawn. We cannot go into the question at any length, but must content ourselves with referring to some of the cases, and leave the student to follow up the subject by reading them. It has been held that if the opinion expressed is merely conditional or hypothetical, and not unqualified, it does not disqualify. People v. Mather, 4 Wend. (N. Y.) 243, 21 Am. Dec. 122; Durell v. Mosher, 8 Johns. (N. Y.) 445; State v. Potter, 18 Conn. 166; Smith v. Com., 7 Grat. (Va.) 593; State v. Foster, 91 Iowa, 164, 59 N. W. 8 The courts are virtually agreed that an opinion formed on being an eyewitness of the transaction, or on hearing or reading the statements or testimony of eyewitnesses either out of court or in a prior judicial proceeding, will disqualify. Ex parte Vermilyea, 6 Cow. (N. Y.) 555; Mabry v. State, 71 Miss. 716, 14 South. 267. By the weight of authority, the opinion need not have been formed from any favor or ill will. Ex parte Vermilyea, 6 Cow. (N. Y.) 555; and cases hereafter cited. But see Rex v. Edmonds, 4 Barn. & Ald. 471; State v. Spencer, 21 N. J. Law, 196. It has been said, and is so provided by statute in some states, that, if the opinion formed by a juror is not strong enough to influence him in his trial of the case, it does not disqualify him. Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; People v. Honeyman, 3 Denio (N. Y.) 121; People v. Fuller, 2 Parker, Cr. R. (N. Y.) 16; State v. Ellington, 26 N. C. 61; Shannon y. State (Tex. Cr. App.) 26 S. W. 410; Lewis v. State, 187 Ind. 344, 86 N. E. 1110; State v. Le Duff, 46 La. Ann. 546, 15 South. 897; King v. State, 5 How. (Miss.) 730; Hendrick v. Com., 5 Leigh (Va.) 707; Pollard v. Com., 5 Rand. (Va.) 659. It bas even been held under such a statute that an opinion does not disqualify, though some evidence may be necessary to remove it. State v. Field, 89 Iowa, 34, 56 N. W. 276; Shannon v. State (Tex. Cr. App.) 26 S. W. 410. Many, probably most, of the courts, have held that an opinion formed or expressed, on common report or rumor, or on newspaper reports, will not disqualify, if the juror believes and states on oath that such opinion will not influence him or prevent him from render- ing a true verdict on the evidence, and the court is satisfied that such is the case, and in many states it is so provided by statute. Com. v. Berger, 3 Brewst. (Pa.) 247; Moses v. State, 10 Humph. (Tenn.) 456; State v. Williams, 3 Stew. (Ala.) 454; Quesenberry v. State, 3 Stew. & P. (Ala.) 308; McGregg v. State, 4 Blackf. (Ind.) 520 TRIAL AND VERDICT (Ch, 12 serve in another case against a joint defendant who has taken a separate trial, involving the same state of facts, but 101; Baldwin v. State, 12 Mo. 223; Moran v. Com., 9 Leigh (Va.) 651; Smith v. Com., 6 Grat. (Va.) 696; Payne v. State, 3 Humph. (Tenn.) 375; State v. Morea, 2 Ala. 275; State v. Ellington, 29 N. C. 61; State v. Dove, 32 N. C. 469; Nelms vy. State, 13 Smedes & M. (Miss.) 500, 53 Am. Dec, 94; Lee v. State, 45 Miss. 114; Baker y. State, 88 Wis. 140, 59 N. W. 570; State v. Duffy, 124 Mo. 1, 27 S. W. 358; State v. De Graff, 113 N. C. 688, 18 S. E. 507; State v. Frier, 45 La. Ann. 1434, 14 South. 296; State v. Gile, 8 Wash. 12, 35 Pac. 417. Other courts, in the absence of such a statute, have held that the ground upon which the opinion has been formed is immaterial; that there is no distinction between an opinion founded on being an eyewitness, or on hearing the testimony of those who were present at the transaction, and an opinion based on rumors, reports, and newspaper publications; that in either case the opinion disqualifies. People vy. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122; Neely v. People, 13 Ill. 687; State v. Webster, 18 N. H. 491; Leach v. People, 53 Ill. 311; Clem v. State, 33 Ind. 418; Lithgow v. Com., 2 Va. Cas. 297; Reynolds v. State, 1 Ga. 222; and see Boon v. State, 1 Ga. 6381; Wilson y. State, 87 Neb. 638, 128 N. W. 38; and that a juror who has formed an opinion on the merits does not become qualified because he declares that, if the circum- stances on which his opinion is based are not supported by the proof, his opinion of the defendant’s guilt will be removed. “Too much stress ought not to be laid on the juror’s declaration that, if the circumstances on which his opinion was founded should not be supported by the evidence, his opinion of the defendant’s guilt would be removed. The disqualifying bias which the law re- garus is one which in a measure operates unconsciously on the jury- man, and leads him to indulge his own feelings when he thinks he is influenced entirely by the weight of evidence.” People v. Mather, 4 Wend. (N. Y.) 244, 21 Am. Dec. 122. And see Coleman v. Hager- man, cited 4 Wend. (N. Y.) 243, 21 Am. Dec. 122; Baxter v. People, 8 Gilman (IIL) 368; Cancemi v. People, 16 N. Y. 501; Payne v. State, 8 Humph. (Tenn.) 875; People v. Keefer, 97 Mich. 15, 56 N. W. 105; U. S. v. Hanway, 2 Wall. Jr., 150, Fed. Cas. No. 15,299; Trimble v. State, 2 G. Greene (Iowa) 404; Sam v. State, 13 Smedes & M. (Miss.) 189. In some states it is provided by statute that an opinion or impression as to the guilt of the accused shall not be ground for challenge for cause if the juror states on oath that he can render an impartial verdict notwithstanding such opinion, and if the court is satisfied that the opinion will not influence his verdict. Such a statute has been held constitutional, as it does not take away the right to trial by an impartial jury. Stokes v. People, 53 N. Y. 164, 18 Am. Rep. 492; Palmer v. State, 42 Ohio St. 596. There is author- ity for saying that an opinion must not only be formed, but must §§ 161-166) THE PETIT JURY 521 the better opinion is to the contrary.*® And generally a person who has served in a prior case against another, or against the same defendant, involving the same questions of fact, is disqualified.°° So if a person has served on the grand jury which indicted the defendant, he is incompetent to serve on the petit jury.*? By the overwhelming weight of authority, conscientious scruples against the infliction of capital punishment will disqualify a juror in a case where the punishment may be’ death.®? This has been said to be ground for challenge to be expressed, before it will disqualify. Noble v. People, Breese (I1l.) 54; Boardman v. Wood, 3 Vt. 570. But in reason, and by the weight of authority, formation of opinion is alone enough. McGowan v. State, 9 Yerg. (Tenn.) 184; People v. Rathbun, 21 Wend. (N. Y.) 509; People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122. And see eases cited above. 892 Hawk. P. C. c. 43, § 29; State v. Sheeley, 15 Iowa, 404; Peo- ple vy. Troy, 96 Mich. 530, 56 N. W. 102; Stephens v. State, 53 N. J. Law, 245, 21 Atl. 1038. 90 People v. Troy, supra; Edmondson v. Wallace, 20 Ga. 660; State v. James, 34 S. C. 49, 12 S. E. 657; Garthwaite v. Tatum, 21 Ark. 336, 76 Am. Dec. 402. For limitations of the rule, see Com. v. Hill, 4 Allen (Mass.) 591. See State v. Maloney, 118 Mo. 112, 23 S. W. 1084. 91 Rex v. Percival, Sid. 248; State v. Cooler, 30 S. C. 105, 8 S. E. 692, 3 L. R. A. 181; Rice v. State, 16 Ind. 298; Stewart v. State, 15 Ohio St. 155. He must have actually served on the grand jury. Rafe v. State, 20 Ga. 60; Rouse v. State, 4 Ga. 186. That one who served as coroner at an inquest is competent to serve as a juror on an indictment for the murder, see O’Connor y. State, 9 Fla. 215. 92 Logan y. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; People v. Damon, 13 Wend. (N. Y.) 351; People v. Carolin, 115 N. Y. 658, 21 N. E. 1059; Gates v. People, 14 Ill. 438; State v. McIntosh, 389 S. C. 97, 17'S. EH. 446; Com. v. Lesher, 17 Serg. & R. (Pa.) 155; State v. Stewart, 45 La. Ann. 1164, 14 South. 143; Davidson v. State, 185 Ind. 254, 34 N. E. 972; Martin v. State, 16 Ohio, 364; State v. Town, Wright (Ohio) 75; Jones v. State, 2 Blackf. (Ind.) 475; Clore’s Case, 8 Grat. (Va.) 606; Stalls v. State, 28 Ala. 25; Lewis v. State, 9 Smedes & M. (Miss.) 115; Burrell v. State, 18 Tex. 713; People v. Tanner, 2 Cal. 257; Williams v. State, 3 Ga. 453; Gonzales v. State, 31 Tex. Cr. R. 508, 21 S. W. 253; Pierce v. State, 13 N. H. 536; State v. Jewell, 33 Me. 583; State v. Ward, 39 Vt. 225; Bell v. State, 91 Ga. 15, 16 S. E, 207; Untreiner v. State, 146 Ala. 26, 41 South. 285; State v. Vick, 182 N. C. 995, 48 S. EH. 626; People v. Cebulla, 137 Cal. 314, 70 Pac. 181; State v. Wooley, 215 Mo. 620, 115 \ 522 TRIAL AND VERDICT (Ch. 12 favor only.® Scruples against convicting on circumstantial evidence is ground for challenge.®** But the fact that a juror is in favor of the law alleged to have been violated, and voted for it, does not disqualify him.®® Nor is he disquali- fied because of his prejudice against the crime, if not preju- diced against the defendant.®* If, however, a juror is so prejudiced against the law which is alleged to have been violated, because he believes it unconstitutional, or because he thinks it should not be enforced, that he would be biased against its enforcement, he may be challenged by the state.*” A bad opinion of the defendant’s character does not dis- -qualify.®® A prejudice against the defense of insanity does not dis- qualify a juror, if it appears that the prejudice is only against feigned defenses of this character, and that he can and will render a verdict in accordance with the law and the evidence.®® S. W. 417. It has been held in some states that mere opposition to capital punishment does not disqualify a juror who states that he can nevertheless render a verdict according to the evidence. Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; People v. Stewart, 7 Cal. 140; Atkins v. State, 16 Ark. 568. 93 State v. Mercer, 67 N. CO. 266. 94 Griffin v. State, 90 Ala. 596, 8 South. 670; Calhoun v. State, 143 Ala. 11, 39 South. 378; Gates v. People, 14 Ill. 483; Com. v. Heist, 14 Pa. Co. Ct. R. 239; State v. Barker, 46 La. Ann. 798, 15 South. 98; State v. Young, 119 Mo. 495, 24 S. W. 1038; State v. Frier, 45 La. Ann. 1434, 14 South. 296; People v: Fanshawe, 65 Hun, 77,19 N. Y. Supp. 865; Id., 187 N. Y. 68, 32 N. E. 1102; Johnson v. State, 34 Neb. 257, 51 N. W. 835; State v. Leabo, 89 Mo. 247, 1S. W. 288; State v. Miller, 156 Mo. 76, 56 S. W. 907; State v. Bauerle, 145 Mo. 1, 46 8S. W. 609; People vy. Amaya, 1384 Cal. 531, 66 Puc. 794. So where there is a prejudice against an informer’s testimony. Fee ple v. Mahoney, 73 Hun, 601, 26 N. Y. Supp. 257. 95 People v. Keefer, 97 Mich. 15, 56 N. W. 105. 96 Williams y. State, 3 Ga. 453; People v. McGonegal, 136 N. Y. 62, 32 N. E. 616; People v. Reynolds, 16 Cal. 128; Com. v. Poisson, 157 Mass. 510, 32 N. E. 906. But see People v. Wheeler, 96 Mich. 1, 55 N. W. 871. 97 Com. v. Austin, 7 Gray (Mass.) 51; Com. v. Buzzell, 16 Pick. (Mass.) 153. 98 Helm v. State, 67 Miss. 562, 7 South. 487. 99 People v. Sowell, 145 Cal. 292, 78 Pac. 717; Butler v. State, 97 §§ 161-166) THE PETIT JURY 523 Same—Propter Delictum A challetige propter delictum is based on the ground that the juror objected to has for some act ceased to be, in the eye of the law, probus et legalis homo, as because he has been convicted of an infamous crime.* Challenges to the Polls for Favor The challenge to the polls for favor is of the same nature with the principal challenge propter affectum, but of an inferior degree. The general rule of law is that the juror shall be indifferent; and, if it appear probable that he is not so, this may be made the subject of challenge, either prin- cipal or to the favor, according to the degree of probability of his being biased. The cause of principal challenge to the polls, as we have seen, is such matter as carries with it, prima facie, evident marks of suspicion, either of malice or of favor. But when from any circumstance whatever it ap- pears probable that a juror may be biased in favor of or against either party, and such circumstances do not amount to matter for a principal challenge, it may be made the ground of challenge to the favor.2 The effect of the two species of challenge is the same.2 A juror may be chal- lenged to the favor after a challenge for principal cause has been overruled.* Exemption from Jury Service If the statute merely exempts a person from jury service, as because he is over the statutory age, or is an officer of the United States, or a doctor, dentist, lawyer, fireman, po- Ind. 378; People v. Carpenter, 102 N. Y. 2388, 6 N. BH. 584; State v. Croney, 31 Wash. 122, 71 Pac. 783. ‘ 1Co. Litt. 158; Arch. Cr. Pl. & Prac. 165, note; 2 Hawk. P. C. c. 48, § 25. 2A challenge to the favor has been sustained, for instance, be- cause the juror was attending court in the expectation of being called as a witness for the opposite party, though he expected to testify as to the defendant’s character. State v. Barber, 113 N. C. 711, 18 S. EB. 515. Such a challenge was overruled where it was based on the ground that the juror had said the defendant was a tough citizen, the examination on his voir dire showing that there was no prejudice. State v. Anderson, 14 Mont. 541, 37 Pac. 1. 3 Arch. Cr! Pl. & Prac. 165, note. 4 Carnal v. People, 1 Parker, Cr. R. (N. Y.) 272. 524 TRIAL AND VERDICT (Ch. 12 liceman, etc., or has already served on a jury within a cer- tain time, etc., and does not declare him incompetent to serve, it does not disqualify him. He can claim his exemp- tion, but if he consents to serve, and is otherwise qualified, he cannot be challenged.® Peremptory Challenges A peremptory challenge is a challenge which may be in- terposed or not at the pleasure of the party challenging, and without assigning or showing any cause. It is the right to have a juror excluded without cause, and the court is bound to allow it. At common law the defendant had the right to thirty-five peremptory challenges in cases of felony,” while the king had in all cases the right to challenge any number, without any limit whatever.* The common law has been changed in England by statutes taking away the right of the king to such challenges, and reducing the num- ber to be allowed the defendant, and some of these statutes became a part of our common law. It is not necessary to do more than refer to these statutes, for the matter is now regulated by statute in all of our states. The number of peremptory challenges allowed will be found to vary in the different states, and in the same state it will vary, accord- ing as the offense is a capital or a less felony, or merely a misdemeanor. In some states no peremptory challenges are allowed in cases of misdemeanor. And in some states the state is not allowed the right at all. Statutes reducing the number of peremptory challenges 52 Hawk. P. C. c. 48, § 26; State v. Forshner, 43 N. H. 89, 80 Am, Dec. 182; Davis v. People, 19 Ill. 74; State v. Quimby, 51 Me. 895; State v. Day, 79 Me. 120, 8 Atl. 544; State v. Toland, 36 S. C. 515, 15 S. HE. 599; Thomas v. State, 27 Ga. 287; People v. Lange, 90 Mich. 454, 51 N. W. 534; People v. Rawn, 90 Mich. 377, 51 N. W. 522; State v. Jackson, 42 La. Ann. 1170, 8 South. 297. Therefore, the fact that the court erroneously refused a juror’s claim of ex- emption is no ground of complaint by the defendant. State v. Jack- son, supra. 61 Bish. Cr. Proc. § 935; 1 Chit. Cr. Law, 534. 71 Chit. Cr. Law, 534; 1 Bish. Cr. Proc. §§ 941, 942. 82 Hawk. P. C. c. 43, § 2. 9 The history of the law on this subject will be found in 1 Bish. Cr. Proc. §§ 935-945. §§ 161-166) THE PETIT JURY 525 to be allowed the defendant, or taking them away alto- gether, or allowing peremptory challenges to the state, are not unconstitutional.?® Passing Jurors at Request of the State The common-law right of the king to challenge peremp- torily was taken away by an early English statute,** in sub- stance requiring the king to show cause for his challenges. Under this statute it was held that the king need not show any cause for his challenge, until the whole panel was gone through, and it appeared that there would not be a full jury without a person challenged by him. And the defendant was required to show all his causes of challenge as the ju- rors were called, and before the king could be required to show any.’? The English practice, after this statute, is thus stated by Mr. Bishop: “The course of things is for the court, on the application of the counsel for the prosecution, when the list of jurors returned is being called over, and the prisoner is being required to accept or challenge each juror as he appears at the call of his name, to direct such jurors to stand aside as are objected to on behalf of the prosecution. The panel is thus gone through with; and, if a full jury is obtained, without calling upon those who are required to stand aside, the proceeding is tantamount to a peremptory challenge on the part of the government. But, if a full jury is not thus obtained, and some of the jurors who were called did not, as it sometimes happens, answer to their names, then the panel is called over a second time, omitting those whose cases have been finally disposed of, yet including both those who did not answer, and those who were set aside at the instance of the prosecution; and on this second call the government can challenge only for cause. And, if the state challenges for cause in the first in- stance, the panel may still be gone through with before the 10 Dowling v. State, 5 Smedes & M. (Miss.) 664; Walter v. People, 82 N. Y. 147; Hartzell v. Com., 40 Pa. 462; Jones v. State, 1 Ga. 610; Walston v. Com., 16 B. Mon. (Ky.) 15; Cregier vy. Bunton, 2 Strob. (S. C.) 487. 11 33 Edw. I, St. 4. 122 Hawk. P. C. ¢. 43, § 3. 526 TRIAL AND VERDICT (Ch, 12 question is tried; so that, if the jury becomes full before the panel is exhausted, all necessity of inquiry into the causes of challenge is avoided.” ¥ In some of our states, either under the English statute and decisions as a part of the common law, or by their own statutes, the same practice obtains.1* In other states it is not recognized, or has been abolished.1® Time and Mode of Challenge—Practice With regard to the time for interposing a challenge, the mode of challenging, the mode of trying and determining the objection, etc., there is considerable difference in the practice of the different states, and there is some conflict of opinion on various questions. In some states the whole matter is regulated by statute. As we have already stated, where the Constitution of a state guarantees the right to a trial by jury, it guarantees the right to an impartial jury. The Legislature may, with- in proper limits, regulate the mode of objecting to jurors, but it cannot take away or impair the right. Any statute which undertakes to do so is void. The accused has a right to insist that no prejudiced or otherwise incompetent person shall serve as a juror, but this is a right which he may waive, and he may waive his objection impliedly by failing to object at the proper time. A challenge to the array must be made, if at all, not only before the jury is sworn,’® but before a challenge to the polls.” If the defendant knows or could know that a juror is disqualified for cause, and fails to object to him while 131 Bish. Cr. Proc. §.938. 14 See State v. Bone, 52 N. C. 121; Warren v. Com., 37 Pa. 45; Com. v. Addis, 1 Browne (Pa.) 285; Jewell v. Com., 22 Pa. 94; U. 8. v. Douglass, 2 Blatchf. 207, Fed. Cas. No. 14,989; State v. Craton, 28 N. C. 164; State v. Arthur, 13 N. C. 217; State v. Barrontine, 2 Nott & McC. (S. C.) 553; State v. Stalmaker, 2 Brey. (S. C.) 1. 15 See Sealy v. State, 1 Ga. 213, 44 Am. Dec. 641; Reynolds v. State, 1 Ga. 222; People v. Henries, 1 Parker, Cr. R. (N. Y.) 579. 161 Chit. Cr. Law, 544; People v. Oliveria, 127 Cal. 376, 59 Pac. 772; Dunn v. State, 143 Ala. 67, 39 South. 147; State v. Banner, 149 N. C. 519, 63 S. E. 84. 171 Chit. Cr. Law, 545; Co. Litt. 158a; People v. McKay, 18 Johns, (N. Y.) 212. §§ 161-166) THE PETIT JURY 527 the jury is being impaneled, and before they are sworn, or the swearing is begun,*® he waives his objection, and cannot afterwards raise it. Even where the incompetency of a juror is not in fact known before he is sworn, the accused will waive his right to object if he does not use due dili- gence to discover it; and he does thus waive his objection if he fails to interrogate him, when by doing so he might bring out his incompetency.?° If the juror is interrogated, and testifies falsely, due diligence is shown, and the objec- tion may be raised when the facts are discovered, even after verdict.24_ There are some cases in conflict with the rule stated, but the great weight of authority is in its.favor. It would seem that any other rule, whether laid down by the court or by a statute, must be unconstitutional, as depriving the defendant, without any fault on his part, of an impartial and competent jury. 18 Reg. v. Frost, 9 Car. & P. 129, and cases cited in the following note. The swearing is not begun where the juror takes the book without authority. Reg. v. Frost, supra. 19 Co. Litt. 158a; 2 Hawk. P. C. ec. 43, § 1; 1 Chit. Cr. Law, 545; Reg. v. Frost, 9 Car. & P. 129; Com. v. Knapp, 10 Pick. (Mass.) 477, 480, 20 Am. Dec. 534; State v. O’Driscoll, 2 Bay (S. C.) 153; Croy v. State, 32 Ind. 384; King v. State, 5 How. (Miss.) 730; Van Blaricum v. People, 16 Til. 364, 63 Am. Dec. 316; Schnell v. State, 92 Ga. 459, 17 §. E. 966; Ward v. State, 1 Humph. (Tenn.) 253; McClure v. State, 1 Yerg. (Tenn.) 206; Gillespie v. State, 8 Yerg. (Tenn.) 507, 29 Am. Dec. 137; Lisle v. State, 6 Mo. 426; Com. v. Jones, 1 Leigh (Va.) 598; Dilworth v. Com., 12 Grat. (Va.) 689, 65 Am. Dec. 264; Beck v. State, 20 Ohio St. 228; McFadden v. Com., 23 Pa. 12, 62 Am. Dec. 308; State v. Morea, 2 Ala. 275; People v. Thayer, 61 Misc. Rep. 573, 115 N. Y. Supp. 855; People v. Toledo, 150 App. Div. 403, 135 N. Y. Supp. 49. * 20 Brown y. People, 20 Colo. 161, 36 Pac. 1040; State v. Nash, 45 La. Ann. 1137, 13 South. 732, 734; Beck v. State, 20 Ohio St. 228. But see Jones v. State, 97 Miss. 269, 52 South. 791. 21 Brown v. People, supra; State v. Nash, supra. Contra, Mc- Clure v. State, 1 Yerg. (Tenn.) 206. If, however, the incompetency of the juror becomes known after his examination, but before ver- dict, and defendant has an opportunity to have him excused and the trial begun anew, but defendant refrains from making any objection at that time, it is a waiver, and he cannot complain after the verdict is rendered. Queenan v. Oklahoma, 190 U. S. 548, 23 Sup. Ct. 762, 47 L. Bd. 1175. 528 TRIAL AND VERDICT (Ch. 12 In some cases it has been held that the court may, in the exercise of a sound discretion, discharge a juror for incom- petency, after he has been sworn, and before any evidence has been introduced, though the cause existed before the juror was sworn, and could have been discovered ; 22 but there is authority to the contrary.?8 In some states it is held that the right to challenge per- emptorily must be exercised, if at all, before the jurors are interrogated as to their bias, or challenged for cause.?* In others it is held that the right to challenge a juror peremp- torily remains open until he is sworn, and this seems to be the better doctrine, for a challenge for cause may create a prejudice in the juror’s mind.*® Challenges to the array must be in writing, but chal- lenges to the polls are made orally.2® In all cases of chal- lenge for cause, either principal or to the favor, the cause must be specified, or the court may disregard the chal- lenge.?? The practice is to examine the juror himself on oath, such an examination being called an examination on his voir dire; but it is also competent to introduce other witnesses 22In New York, in a capital case, a juror was so discharged be- cause he had scruples against capital punishment. People v. Damon, 13 Wend. (N. Y.) 351; Ochs v. People, 25 Ill. App. 379. And see Tooel v. Com., 11 Leigh (Va.) 714; McGuire v. State, 37 Miss. 369. 23 Ward v. State, 1 Humph. (Tenn.) 253; ante, p. 443. 24 Com. v. Webster, 5 Cush. (Mass.) 297, 52 Am. Dec. 711; Com. Y. Rogers, 7,Metc. (Mass.) 500, 41 Am. Dec. 458. 251 Chit. Cr. Law, 545; Beauchamp v. State, 6 Blackf. (Ind.) 307; Munly v. State, 7 Blackf. (Ind.) 593; Morris v. State, 7 Blackf. (Ind.) 607; Hooker v. State, 4 Ohio, 348; Hendrick v. Com., 5 Leigh (Va.) 707. In some cases it is held that the court in its discretion may al- low a peremptory challenge even after the juror has been sworn, but before the panel is complete. People v. Durrant, 116 Cal. 179, 48 Pac, 75. Where a juror well known to defendant’s counsel, and whom he had peremptorily challenged, by mistake sat on the jury, but was not noticed until the verdict was rendered, it was held that it was too late for defendant to take advantage of the error as ground for a new trial; the juror having qualified himself on his voir dire. Cooper v. State, 65 Tex. Cr. R. 423, 144 S. W. 937. 261 Chit. Cr. Law, 546. 27 Freeman vy. People, 4 Denio (N. Y.) 9, 47 Am. Dec. 216; Mann v. Glover, 14 N. J. Law, 195. But see Carnal vy. People, 1 Parker, Cr. R. (N. Y.) 272. §§ 161-166) THE PETIT JURY 529 to prove disqualification. In examining a juror on his voir dire, he occupies the position of a witness, and he cannot be compelled to answer questions tending to criminate him or disgrace him or render him infamous.2* The court as well as the parties may examine a juror on his voir dire.?® In misdemeanor cases, it has been held that there is no right to examine a juror upon his voir dire without first challeng- ing him.®° The mode of trying a challenge varies in the different states. Probably in all of them a principal challenge propter defectum or affectum is submitted to the court. In many states this is also the practice in case of challenges to the favor, all challenges being determined by the court. In other states the practice in the latter cases, and in others, is to submit the challenge to triers appointed by the court for the purpose. In most states the matter is now generally regulated by statute.** In challenges to the favor, where triers pass on the ques- tion of the competency of a juror, their decision is not re- viewable; *? but in those jurisdictions where the judge de- termines challenges to the favor there is a difference of opin- ion on this question. In some states it is held, and this seems to be the better rule, that it is not; ** in others the contrary is held.2* Where such determination is review- able, nothing short of palpable error is ground for reversal.** % 28 Hudson v. State, 1 Blackf. (Ind.) 317. For this reason it has been held that a juror cannot be asked whether he has expressed an opinion adverse to the accused; but by the overwhelming weight of authority, and generally by statute, such questions are proper, at least in this country. 1 Bish. Cr. Proc. § 934. 29 Montague v. Com., 10 Grat. (Va.) 767. 80 Schnell v. State, 92 Ga. 459, 17 S. BE. 966. 81 Jf the accused consents that the challenge shall be determined by the court, he cannot afterwards complain that it was not submit- ted to triers. People v. Mather, supra. Nor can such consent be revoked and a demand be made for submission of the question to triers. People v. Rathbun, 21 Wend. (N. Y.) 509. 32 People v. Allen, 43 N. Y. 28. 33 State v. Haines, 36 S. C. 504, 15 S. H. 555; People v. McQuade, 110 N. Y. 284, 18 N. BE. 156, 1 L. R. A. 278. 34 Coughlin v. People, 144 Ill. 140, 33 N. E. 1,19 L. R. A. 57. -85 Com. v. March, 248 Pa. 434, 94 Atl. 142. Cuark Cr.PRoc.(2D Ep.)—34° 530 TRIAL AND VERDICT (Ch. 12 Discharging and Excusing Jurors It is not always necessary that a juror shall be challenged in order that the court may discharge him as incompetent. The court may of its own motion interrogate jurors, and if it finds them disqualified for any reason, whether for princi- pal cause or for favor, discharge them, though no challenge has been interposed.*® The court has the discretionary power, even where a ju- ror is not disqualified, to excuse him because of sickness, or for any other reasonable cause, at any time before the panel is completed.’7 And it has been held, and seems to be well established, that the court may, in the exercise of a sound discretion, excuse a juror at his own request, as a favor to him, before he is accepted as one of the panel.** Effect of Error in Overruling Challenge By the weight of authority, the defendant cannot com- plain of the erroneous overruling of his challenge for cause, if he afterwards challenged the juror peremptorily without exhausting his peremptory challenges, so that the juror did not serve; %* or, according to some of the cases, if he could have so peremptorily challenged him.*® But if, by such a challenge, he exhausted his peremptory challenges before 36 Marsh vy. State, 30 Miss. 627; Lewis v. State, 9 Smedes & M. (Miss.) 115; State v. Marshall, 8 Ala. 302; People v. Barker, 60 Mich. 277, 27 N. W. 589, 1 Am. St. Rep. 501. : ' 37 Patterson v. State, 48 N. J. Law, 381, 4 Atl. 449; State v. Hob- good, 46 La. Ann. 855, 15 South. 406; Aaronson v. State, 56 N. J. Law, 9, 27 Atl. 937. So by statute in some states. Pierson v. State, 99 Ala. 148, 18 South. 550; Webb v. State, 100 Ala. 47, 14 South. 865. 38 State v. Barber, 118 N. C. 711, 18 S. B. 515. 39 Freeman v. People, 4 Denio (N. Y.) 9, 47 Am. Dec. 216; People y. Larubia, 140 N. ¥. 87, 35 N. B. 412; State v. Moody, 7 Wash. 395, 35 Pac. 182; People v. Schafer, 161 Cal. 573, 119 Pac. 920. But see Dowdy v. Com., 9 Grat. (Va.) 727, 60 Am. Dec. 314; Carroll v. State, 3 Humph. (Tenn.) 315. 40 Preswood v. State, 8 Heisk. (Tenn.) 468; State v. Le Duff, 46 La. Ann. 546, 15 South. 8397; Prewitt v. Lambert, 19 Colo. 7, 34 Pac. 684; Jenkins v. Mitchell, 40 Neb. 664, 59 N. W. 90; Blenkiron v. State, 40 Neb. 11, 58 N. W. 587; Richards v. U. S., 175 Fed. 911, 99 C. GC. A. 401; People v. Durrant, 116 Cal. 179, 48 Pac. 75, But see, contra, People v. Larubia, supra; Freeman v. People, supra; People vy. Bodine, 1 Denio (N. Y.) 281. § 167) THE PETIT JURY 531 the jury was completed, he is prejudiced, for his peremptory challenges have been thereby diminished, and the error will be ground for a new trial.** SAME—SWEARING THE JURY 167. In all cases the jury must be sworn, and the fact that they were sworn must appear on the record. In no criminal prosecution can there be a valid trial un- less every one of the jurors is sworn, and the fact of swear- ing must appear on the record.4? The usual form of oath is: “You shall well and truly try, and true deliverance make, between the state of — and the prisoner at the bar, whom you shall have in charge, and a true verdict give, according to the evidence, so help you God.” *® Ordinarily 41 See cases above cited; and see People v. Casey, 96 N. Y. 115; People v. Weil, 40 Cal. 268. But see Moore v. Com., 7 Bush (Ky.) 191. Neither the state nor the defendant can object to the erroneous al- lowance by the court of a challenge. “We can hardly see how the court could commit substantial error in discharging any person from the jury when 12 other good, lawful, and competent men could easi- ly be had to serve on the jury.” State v. Sorter, 52 Kan. 531, 34 Pac. 1036. 42 Rex v. Morris, 2 Strange, 901; Com. v. Knapp, 9 Pick. (Mass.) 496, 20 Am. Dec. 491; Carnett v. State (Ark.) 6 S. W. 518; Johnson v. State, 47 Ala. 62; Baldwin v. Kansas, 129 U. S. 52, 9 Sup. Ct. 193, 82 L. Ed. 640; Smith v. State, 25 Fla. 517, 6 South. 482; Judah v. Mc- Namee, 8 Blackf. (Ind.) 272; Pruitt v. State (Ark.) 11 S. W. 822; Stephens v. State, 33 Tex. Cr. R. 101, 25 S. W. 286; Lancaster v. State, 91 Tenn. 267, 18 S. W. 777; Brown v. Com., 86 Va. 466, 10 S. E. 745. Where the record merely stated, that “The jury being by the clerk sworn, and after selection the following * * * are chosen as jurors to try this cause,’ the verdict and judgment was set aside. State v. Duff, 253 Mo. 415, 161 S. W. 683. But the form of oath need not, and should not, appear on the record. Lawrence v. Com., 30 Grat. (Va.) 845; Garner v. State, 28 Fla. 113, 9 South. 835, 29 Am. St. Rep. 232; State v. Ice, 34 W. Va. 244, 12 S. E. 695. In some states, by statute, the jury must be sworn in a body, and a failure to so swear them will be fatal to a conviction. Stephens v. State, supra. 43 It is sufficient if the jury are sworn “well and truly to try the issues joined,” the omission of the words “and true deliverance make” being immaterial. Lancaster v. State, 91 Tenn, 267, 18 S. W. 777. 532 TRIAL AND VERDICT (Ch. 12 the oath is taken on the Bible, and the book is kissed, but this is not necessary where the juror has conscientious scruples against kissing the book.** In some jurisdictions the practice of kissing the book has been abolished. And it is generally provided that jurors who are conscientiously opposed to taking an oath may be affirmed. OPENING OF THE CASE BY COUNSEL 168. After the jury have been sworn, the prosecuting attor- ney opens the case for the state, by stating the cir- cumstances of the offense, and then introduces his evidence. The defendant’s counsel then opens the defense in like manner, and introduces his evidence. It is not only the right but the duty of the prosecuting attorney to open the case by a statement to the jury.*® The object is to show the jury the issue before them, and pre- pare them for the evidence. The attorney should state shortly what facts are necessary, and are relied upon as con- stituting the offense, and what proof he expects to offer. He has a right, it seems, to go fully both into the law and the facts. “The evidence and the law,’ says Mr. Bishop, “should be set side by side in such a way as to enable the jury to appreciate each piece of testimony as it is presented to them. They should, in other words, be made acquainted in advance with what it is necessary to prove, and how the necessary matter is to be established in the particular case. Then, when a witness gives in his evidence, every word, if the evidence is well directed, tells; and it will not be in the power of opposing counsel to remove the impression by argument. But if the jury approach the case with minds clouded—if they do not know what needs to be proved, or what proof it is proposed to present before them—they can- ‘not distinguish, when a witness is testifying, between the 44 See Walker’s Case, 1 Leach, Crown Cas. 498. 45 Rex v. Gascoine, 7 Car. & P. 772. Even an admission of the facts by the defendant cannot deprive the state of the right to open the case. French v. State, 93 Wis. 325, 67 N. W. 706. § 169) VIEW BY JURY 533 unimportant and the important, or know what weight to give to anything. And the mass of half-remembered evi- dence may, when they come to consider their verdict, pro- duce its proper effect, or it may not.” *° It seems that at one time the defendant himself made his opening address or statement to the jury, but under the modern practice the statement is made by his counsel.** ‘ VIEW BY JURY 169. When it is necessary in order that the jury may more clearly understand the evidence, the court may, in its discretion, allow the jury to view the scene of the crime. This is common practice, not only in prosecutions for homicide, but in any other case in which a view of the prem- ises by the jury may aid them in reaching a proper ver- dict.4® The matter rests, however, in the sound discretion of the court.*® There is a conflict of authority as to whether a view is part of the trial demanding the presence of the accused.°®° But, even where it is held to be a part of the trial, it is generally held that defendant may waive his privi- lege.*t The jury must be under the charge of a sworn offi- cer of the court, and must not be allowed to separate, or hold 1 461 Bish. Cr. Proc. § 971. 47 Reg. v. Rider, 8 Car. & P. 539. 48 Reg. v. Martin, 12 Cox, Cr. Cas. 204; Reg. v. Whalley, 2 Cox, Cr. Cas. 231; Chute v. State, 19 Minn, 271 (Gil. 230); Sasse v. State, 68 Wis. 530, 32 N. W. 849. 49 Com. v. Miller, 189 Pa. 77, 21 Atl. 138, 23 Am. St. Rep. 170; State v. Coella, 8 Wash. 512, 36 Pac. 474. 50 See People v. Thorn, 156 N. Y. 286, 50 N. E. 947, 42 L. R. A. 368. Where the jury, while taking a walk in the custody of an officer, viewed, in the absence of defendant and his counsel, a place mention- ed by defendant in his testimony; it was held not ground for a new trial; no prejudice being shown to have resulted. Com. v. Filer, 249 Pa. 171, 94 Atl. 822. 51 People v. Thorn, supra; State v. Buzzell, 58 N. H. 257, 42 Am. Rep. 586; Shular v. State, 105 Ind. 289, 4 N. BH. 870, 55 Am. Rep. 211. 534 TRIAL AND VERDICT (Ch. 12 any communication with outsiders.5? An unauthorized view by the jury or a part of the jury, on their own mo- tion, and unaccompanied by an officer, will generally be ground for setting a conviction aside.* The judge, in some states, must accompany the jury.°* Where the premises have been fully described in the testimony, and there is no material controversy as to the situation, it is no abuse of discretion for the court to refuse to allow a view by the jury.°5 MISCONDUCT OF PROSECUTING ATTORNEY 170. Misconduct of the prosecuting attorney prejudicial to the defendant will be ground for setting a convic- tion aside. It is impossible to lay down any hard and fast rule as to what words or actions of counsel amount to such miscon- duct as to demand a new trial. Obviously it must depend on the circumstances of the individual case. Conduct that may prejudice the jury in one case may be innocuous in another.®® A conviction for fraudulently obtaining money has been reversed because the district attorney made the statement in closing his argument that if the train had not been late he would have had another witness, who would also have testified that he had been defrauded.*” A new trial has been granted where the district attorney 52 Reg. v. McNamara, 14 Cox, Cr. Cas. 229; Fleming v. State, 11 Ind. 234; People v. Green, 53 Cal. 60. And see People v. Bush, 68 Cal. 623, 10 Pac. 169. 53 Ruloff v. People, 18 N. Y. 179; Eastwood v. People, 3 Parker, Cr. R. (N. Y¥.) 25. But see Com. v. Brown, 90 Va. 671, 19 5. E, 447. 54 People v. White, 5 Cal. App. 329, 90 Pac. 471. 55 State v. Coella, 8 Wash. 512, 36° Pac. 474, 56 “Whether unwarranted remarks by the county attorney are prej- udicial, when viewed in the light of the circumstances attending their use, must be left to some extent to the judicial discernment of the trial judge.” State v. Brand, 124 Minn. 408, 145 N. W. 39. 57 Latham y. U. S., 226 Fed. 420, 141 C. C. A. 250, L. R. A. 1916D, 1118, § 170) MISCONDUCT OF PROSECUTING ATTORNEY 535 deliberately, by questions put to defendant containing no element of misconduct by defendant, and by parading wit- nesses as a challenge to defendant, created the false impres- sion that the latter has been guilty of misdeeds, when the evidence really does not sustain such conclusion."® A conviction of seduction has been set aside because the State’s attorney, merely to prejudice the defendant before the jury, caused the prosecuting witness to take her baby with her on the stand.*® On a prosecution for murder, where the defense depended almost entirely on the defend- ant’s testimony, the prosecuting attorney, while cross-ex- amining the defendant as to his previous residence and man- ner of life, asked him whether he had not committed a crime, and been confined in the penitentiary ; and held in his hand, in view of the jury, what appeared to be a letter, which’he referred to while asking the questions. The defendant’s at- torney called this an artful effort to make the jury believe that the questions were based on facts, whereupon the pros- ecuting attorney stated that he had not referred to the paper for mere “buncombe,” but that he had reliable information on which he asked the questions. The conviction was set aside because of this misconduct, though it was reprimand- ed by the court, and the jury were instructed that only the evidence in the case and the law as given them by the court were to be considered in arriving at a verdict.°° So miscon- duct in asking a witness improper questions for the evident purpose of prejudicing the defendant may be ground for a new trial.6t In a murder case in Wisconsin it appeared 58 People v. Freeman, 203 N. Y. 267, 96 N. EH. 418. See, also, Peo- ple v. Pettanza, 207 N. Y. 560, 101 N. E. 428. 59 State v. Carter, 8 Wash. 272, 36 Pac. 29. 60 Holder v. State, 58 Ark. 473, 25 S. W. 279. See, also, Flint v. Com. (Ky.) 23 S. W. 346. As to improper argument, see post, p. 538. It has been held to be improper conduct for the prosecuting attor- ney, when defendant objected to certain testimony, to remark: “Oh, yes; I knew you would object, for it cooks your goose.” Oldham vy. Com. (Ky.) 58 S. W. 418. 61 People v. Wells, 100 Cal. 459, 34 Pac. 1078; People v. Mullings, 83 Cal. 188, 23 Pac, 229, 17 Am. St. Rep. 223; Cargill v. Com. (Ky.) 18 S. W. 916. “Where an improper question is asked of a witness by a district attorney, the test whether it is misconduct is found in an- 536 TRIAL AND VERDICT (Ch, 12 that, soon after the defendant had been placed in jail, the district attorney sent a person to her to represent himself as sent by her attorney, to obtain the facts of her defense, to convey to an attorney to be employed for her in another city. The district attorney also, through the telephone, as- sured her he was her attorney, and counseled her to make disclosures to the person sent by him, which she did. It was very properly held that this misconduct disqualified the district attorney for prosecuting the case, and the defendant was given a new trial.*? Such gross misconduct as this ought to disqualify an attorney for practicing at all. Ordinarily misconduct on the part of the prosecuting at- torney may be cured by the court’s rebuking him in the presence of the jury, and cautioning the jury not to let it influence them; *? but it must appear that the deféndant could not well have been prejudiced under all the circum- stances.** MISCONDUCT OF JUDGE 171. Improper conduct or remarks by the court during the trial, if prejudicial to the defendant, will be ground for setting a conviction aside. Thus a conviction has been set aside because the court, on a prosecution for murder, in which the defense was that swer to the question: What was the purpose of counsel in asking the question? If it was to take unfair advantage of the defendant by intimating to the jury something that was either not true or not cap- able of being proven in the manner attempted, it is error. And if the district attorney knows, when he asks the question, that an ob- jection to the question should or will be sustained, the error is not corrected because the objection is sustained.” People v. Grider, 18 Cal, App. 703, 110 Pac. 586. 62 State v. Russell, 83 Wis. 330, 53 N. W. 441. 63 State v. Howard, 118 Mo. 127, 24 S. W. 41; Wheeless v. State, 92 Ga. 19, 18 S. E. 303; State v. Ean, 90 Iowa, 534, 58 N. W. 898; People v. Pyckett, 99 Mich. 613, 58 N. W. 621; State v. Reid, 39 Minn. 277, 39 N. W. 796; People v. Smith, 180 N. Y. 125, 72 N. E. 931; People v. Mathews, 139 Cal. 527, 73 Pac. 416; Sawyer v. U. S., 202 U. S. 150, 26 Sup. Ct. 575, 50 L. Ed. 972, 6 Ann. Cas. 269. 64 Holder v. State, supra; Latham y. U. S., 226 Fed. 420, 141 C. C. A, 250, L. R. A. 1916D, 1118. § 171) MISCONDUCT OF JUDGE 537 the defendant’s wife committed the crime, said to the jury that he sometimes thought that the disposition of our first male ancestor to charge the fault upon the woman given to him did not die out with Adam, but was inherited by his descendants.*® So where, when a witness for the state, who was absent when wanted, was brought in by an officer, the court, in the presence of the jury, held a colloquy with the witness, which tended to discredit the defendant and his counsel, and lead the jury to believe that, if they were not guilty of procuring the absence of the witness, they were, in the opinion of the court, capable of committing it, a con- viction was set aside.®* The judge should be careful not to do or say anything during the trial to reflect on a witness, or to express or in- timate in any way any opinion on his credibility. A con- viction has been reversed because the judge, after asking a witness if she knew how long three minutes were, took out his watch, asked her to tell three minutes, and then an- nounced that what she called three minutes was only forty- five seconds.** So if the judge, either during the examination of the wit- nesses or at any time during the trial, makes improper com- ments on the evidence, it may cause a reversal.®* 65 State v. Hawley, 63 Conn. 47, 27 Atl. 417. And see People v. Moyer, 77 Mich. 571, 43 N. W. 928. §6 People v. Abbott, 4 Cal. Unrep. 276, 34 Pac. 500. See, also, Allen v. U. S., 115 Fed. 3, 52 OC. C. A. 597; Peeples v. State, 103 Ga. 629, 29 S. E. 691. 67 Burke v. People, 148 Ill. 70, 35 N. H. 376. And see Jefferson v. State, 80 Ga. 16, 5 S. E. 293. "68 Kelly v. State, 83 Tex. Or. R. 31, 24 8S. W. 295; People v. Kindle- berger, 100 Cal. 367, 84 Pac. 852; State v. Clements, 15 Or. 237, 14 Pac. 410; Sharp v. State, 51 Ark. 147, 10S. W. 228, 14 Am. St. Rep. 27. As where the judge, in admitting evidence, states that he is in- clined to think that in doing so he is overruling the Supreme Court. State v. Hawley, 63 Conn. 47, 27 Atl. 417. The appellate court is re- luctant to interfere with the exercise of the discretion of the trial judge in participating in the examination of witnesses, but it will do so when the judge’s examination has been conducted in a manner so hostile to the defendant and his witnesses as to probably produce in the minds of the jury the impression that the judge has a fixed opinion that the defendant is guilty and should be convicted. Adler 538 TRIAL AND VERDICT (Ch. 12 If the particular conduct or remark of the court is called for by the remarks or conduct of the defendant or his coun- sel, or is warranted by the circumstances, the fact that the defendant must have ‘been prejudiced thereby gives him no right to complain. It is not error, for instance, for the court, in the exercise of its discretion, to commit to jail, in the presence of the jury, one of the defendant’s witnesses, because of the character of his testimony,*® or to rebuke de- fendant’s counsel when the rebuke is warranted,”° or to fine him for contempt where he is guilty of a contempt." SUMMING UP AND ARGUMENT OF COUNSEL 172. In arguing the case to the jury, counsel must not go beyond the evidence, nor make improper remarks, Generally improper remarks by the prosecuting at- torney prejudicial to the defendant will be ground for setting aside a conviction, if properly objected to by the defendant, and not cured by the action of the court; but, as a rule, if the defendant raises no objection, or if, on objection being made, the court rebukes the attorney, and instructs the jury not to regard the remark, a conviction will not be set aside. 173. The time for argument is within the sound discretion of the court. But for an abuse of discretion a con- viction may be set aside. After all the evidence has been introduced, and each side has rested his case, the respective counsel address the jury, v. U. S., 182 Fed. 464, 104 ©. C. A. 608. See, also, Drake v. State, 65 Tex. Cr. R. 282, 143 S. W. 1157; Davis v. State, 65 Tex. Cr. R. 271, 143 S. W. 1161; People v. Bernstein, 250 Ill. 63, 95 N. E. 50. 69 People v. Hayes, 70 Hun, 111, 24 N. Y. Supp. 194; Id., 140 N. Y. 484, 385 N. E. 951, 23 L. R. A. 830, 37 Am. St. Rep. 572. 70 Pease v. State, 91 Ga. 18, 16 S. EB. 118. 71 Goldstein v. State (Tex. Cr. App.) 23 S. W. 686; Miller v. State, 32 Tex. Cr. R. 266, 22 S. W. 880. But, even though the conduct of the judge is improper, the judgment should not be reversed, if it was §§ 172-173) SUMMING UP AND ARGUMENT OF COUNSEL 539 summing up the evidence, and arguing the question of its effect and sufficiency. The summing up and argument is first made by the prosecuting attorney, and then by the counsel for the defense, and in many states the prosecuting attorney is entitled to reply.7? In the latter case the reply closes the argument; the counsel for the defense has no right to reply. Where there are more than one counsel for the state, one of them may make the first argument, and the other the reply. Several counsel for the defendant may be allowed to argue the case. The time at which the argument of counsel must be made rests within the discretion of the court. Ordinarily it is made as soon as the case is closed, and each counsel makes his argument as soon as the other has finished, but the court may allow an adjournment before the argument of either or of one of them.”? It is also within the discretion of the court to limit the time to be allowed for argument,’* but a prejudicial abuse of discretion will be ground for setting as‘le a conviction.”* In their argument to the jury, counsel must keep within the facts of the case, and must be careful not to misstate the evidence, or make improper remarks. If they do so, the court may rebuke them, and require them to proceed prop- erly. Persistence in an illegitimate line of argument in vio- lation of the court’s caution would be a contempt of court. Improper remarks by the prosecuting attorney is often the ground for setting a conviction aside and granting a new trial.7° A conviction has been set aside, for instance, not prejudicial to the defendant. It is not prejudicial if the evidence clearly shows defendant’s guilt. Lepper v. U. S., 233 Fed. 227, 147 Cc. C. A. 233. 72. Doss v. Com., 1 Grat. (Va.) 557; State v. Millican, 15 La. Ann. 507. But see State v. Brisbane, 2 Bay (S. C.) 451; Loeffner v. State, 10 Ohio St. 598. 73 State v. Lewis, 118 Mo. 79, 23 S. W. 1082. 74 Mansfield v. State (Tex. Cr. App.) 24 8. W. 901; Yeldell v. State, 100 Ala. 26, 14 South. 570, 46 Am. St. Rep. 20; Vaughan v. State, 58 Ark, 358, 24 S. W. 885. 75 People v. Green, 99 Cal. 564, 34 Pac. 231; McLean v. State, 32 Tex. Cr. R. 521, 24 S. W. 898. 76 Davis v. State, 188 Ind. 11, 37 N. E. 397; Hall v. U. S., 150 U. 540 TRIAL AND VERDICT (Ch. 12 where, in a prosecution for rape, the prosecuting attorney said to the jury that, as the friends of the prosecutrix had not hanged or burnt the defendant, his life should pay the penalty,*” and where he asked the jury to act “as detectives” in regard to the facts of the case.7* It is always improper for the prosecuting attorney to throw the weight of his personal influence into a case by announcing his individual opinion as to the guilt of the defendant.7® So, if the prose- cuting attorney makes improper comments on the testimony of the defendant,®® or, in some states, by statute, if he com- ments at all on the defendant’s failure to testify in his own behalf, or explains to the jury that the state has no right S. 76, 14 Sup. Ct. 22, 37 L. Ed. 1003; Butler v. State (Tex. Cr. App.) 27 S. W. 128; Jones v. State, 14 Ga. App. 568, 81 S. E. 801. The fact that the improper remarks of the prosecuting attorney were called forth by improper remarks of defendant’s counsel is imma- terial. Jones v. State, supra. But see Dollar v. State, 99 Ala. 236, 13 South. 575, where it was held that on a prosecution for selling intoxi- cating liquors, where the defendant’s counsel refers to the amount of the prosecuting attorney’s fees in such cases, error cannot be predicated on the latter’s statement to the jury that he would give up all his fees if he could put down the accursed traffic. 77 Thompson v. State, 33 Tex. Cr. R. 472, 26 S. W. 987. 78 People v. O’Brien, 96 Mich. 630, 56 N. W. 72. 79 State v. Mack, 45 La. Ann. 1155, 14 South. 141; People v. Mc- Guire, 89 Mich. 64, 50 N. W. 786. But see State v. Beasley, 84 Iowa, 83, 50 N. W. 570. 80 State v. Fairlamb, 121 Mo. 137, 25 S. W. 895; Lewis v. State, 187 Ind. 344, 36 N. E. 1110. 81 Brazell v. State, 33 Tex. Cr. R. 333, 26 S. W. 723; Dawson v. State (Tex. Cr. App.) 24 8. W. 414; Frazier v. State, 185 Ind. 38, 34. N. E. 817; Gurley v. State, 101 Miss. 190, 57 South. 565; People v. Annis, 261 Ill. 157, 103 N. E. 568. A statement by the prosecuting attorney that, though accused had offered no testimony, the attorney did not intend to refer to his failure to testify, is such a reference. Wilcock v. State, 64 Tex. Cr. R. 1, 141 8S. W. 88. It is not error for the court to instruct the jury that the fact that defendant had not testified should raise no presumption against him. State v. Carlisle, 28 5s. D. 169, 182 N. W. 686, Ann. Cas. 1914B, 395. If the reference is ambiguous, it will not be reversible error if the prosecuting attor- ney disclaims any intent to comment on defendant’s failure to tes- tify. State v. Nieburg, 86 Vt. 392, 85 Atl. 769. The impropriety of such reference is not cured by an instruction by the court that de- fendant’s failure to testify was not to be construed against bim, and by a statement by the prosecuting attorney that the instruction was §§ 172-173) SUMMING UP AND ARGUMENT OF COUNSEL 541 to appeal from an erroneous acquittal, while the defendant may appeal from an erroneous conviction,®? or comments on matters not in evidence, it may avoid a conviction.** It would seem that in those jurisdictions where the jury are the judges of the law as well as the facts counsel should have the right to argue the law to them, and so it has been held; §* but there is authority to the contrary.*® It has even been held, rather inconsistently, that counsel have this right where the jury must take the law from the court; but in reason and by the weight of authority in the latter case there is no such right.*® In those jurisdictions where the jury are the judges both of the law and the facts, it is prop- er, in arguing a criminal case, to read from reported deci- sions both the statement of facts and the decisions there- on.§* But the court may and should refuse to allow this to be done in those jurisdictions where the jury are bound to receive and apply the law as it is given to them by the court.§§ ~ Ordinarily, in order that the defendant may, after a con- -viction, complain of improper remarks by the prosecuting attorney, he must object to them at the time they are made, the law. State v. Marceaux, 50 La. Ann. 1137, 24 South. 611. But when, on such improper reference, the court offered to discharge the jury, but defendant objected, a new trial will not be granted. State vy. Varnado, 126 La. 732, 52 South. 1006. Nor should counsel com- ment on the failure to examine a witness who was accessible to both parties. Barnett v. State, 165 Ala. 59, 51, South. 299. 82 Brazell v. State, supra; Crow v. State, 33 Tex. Cr. R. 264, 26 S. W. 209; Boone v. People, 148 Ill. 440, 36 N. E. 99; Vaughan v. State; 58 Ark. 3538, 24 S. W. 885. 83 Dollar v. State, 99 Ala. 236, 18 South. 575; Pollard v. State, 33 Tex. Cr. R. 197, 26 S. W. 70; State v. Woolard, 111 Mo. 248, 20 S. W. 27; Johnson v. State, 125 Tenn. 420, 143 S. W. 1134, Ann. Cas. 1913C, 261. So if the prosecuting counsel state his own knowledge of the facts, unless he has testified as a witness. Com. v. Shoemaker, 240 Pa. 255, 87 Atl. 684. 84 Lynch v. State, 9 Ind. 541; Com. v. Porter, 10 Mee (Mass.) 263. 85 Franklin v. State, 12 Md. 236. 86 Com. v. Porter, 10 Metc. (Mass.) 263; Com. v. Austin, 7 Gray (Mass.) 51. 87 Wohlford v. State, 148 Tl. 296, 36 N. EH. 107. 88 State v. Boughner, 5 S. D. 461, 59 N. W. 736. 542 TRIAL AND VERDICT (Ch, 12 so as to give the court an opportunity to rebuke the attor- ney, and caution the jury against being influenced by them. He cannot allow the remarks to be made without objection, and, after taking his chances on an acquittal, object to them for the first time on motion for a new trial or on writ of error or appeal.®® Generally, if the court rebukes counsel for making im- proper remarks, and instructs the jury to disregard them, a conviction will not be set aside,®® but there may be cases in which the remarks cannot be thus cured. If they were such that the defendant must have been prejudiced by them not- withstanding the effort of the court to counteract their effect, they will be ground for setting the conviction aside.** INSTRUCTIONS OR CHARGE OF THE COURT TO THE JURY 174. The court should fully and correctly instruct the jury as to the law by which they are to be governed in arriving at a verdict, and an erroneous and prejudi- cial instruction will be ground for setting aside a conviction, if it was properly excepted to. But ordinarily an omission to charge on any particular point is no ground for objection after verdict, un- less an instruction on the point was requested, or the court’s attention was called to the omission. 8® Boone v. People, 148 Ill. 440, 36 N. E. 99; Garner v. State (Tex. Cr. App.) 24 S. W. 420; State v. Mack, 45 La. Ann, 1155, 14 South. 141; People v. Lane, 101 Cal. 513, 36 Pac. 16; State v. Howard, 115 Mo. 127, 24 8S. W. 41; Cartwright v. State, 71 Miss. 82, 14 South. 526; State v. Sortor, 52 Kan. 531, 34 Pac. 1036; Wheeless v. State, 92 Ga. 19, 18 S. E. 303. 90 State v. Butler, 85 Me. 225, 27 Atl. 142; Vaughan v. State, 58 Ark. 353, 24 S. W. 885; State v. Hill, 114 N. C. 780, 18 S. E. 971; Handly v. Com. (Ky.) 24 S. W. 609; State v. Hack, [18 Mo. 92, 23 S. W. 1089; State v. Brandenburg, 118 Mo. 181, 23 S. W. 1080, 40 Am. St. Rep. 362; State v. Varnado, 126 La. 732, 52 South. 1006. 91 Cartwright v. State, supra. And see note 81, p. 540. §§ 174-176) INSTRUCTIONS OR CHARGE TO THE JURY 543 175. In a few states the jury are the judges of the law as well as the facts; but in most states the court is the exclusive judge of the law, and the jury must follow his instructions, though there is no remedy if they fail to do so and acquit the defendant. 176. In all states the jury are the exclusive judges of the facts, and in most states the court cannot charge thereon, or express any opinion on the credibility of the witnesses, or the weight and effect of the evidence, After the evidence is all in, and the counsel have finished their argument it becomes the duty of the court to charge or instruct the jury as to the law by which they are to be gov- erned in determining the case. In some states instructions are given before argument, but the court may give addition- al instructions, or modify those already given, during or after the argument.°? Province of Court and Jury—Jurors as Judges of the Law Some of the cases hold that it has always been the rule at common law that in criminal cases, though not in civil, the jury are the judges both of the law and the facts.°? This rule is recognized as a part of the common law in some of our states, while in others it is expressly declared in the Constitution, or by statute.°* It would be absurd to sup- 92 Wood v. State, 64 Miss. 761, 2 South. 247. The court, in trying the case, has a right to reserve its decision in regard to what in- structions it will give till the evidence is all in, and cannot be com- pelled to charge the jury at stages in the evidence upon propositions’ which may or may not be applicable to the case. People v. McCal- lam, 103 N. Y. 587, 9 N. E. 502. 23 Co. Litt. 228; 4 Bl. Comm. 361; dissenting opinion in Sparf v. U. S., 156 U. S. 51, 15 Sup. Ct. 296, 39 L. Hd. 343; Rex v. Woodfall, 5 Burrows, 2661; State v. Croteau, 23 Vt. 14, 54 Am. Dec. 90 (since overruled, State v. Burpee, 65 Vt. 1, 25 Atl. 964, 19 L. R. A. 145, 36 Am, St. Rep. 775). 94 State v. Croteau, supra; State v. McDonnell, 32 Vt. 491; State v. Meyer, 58 Vt. 457, 3 Atl. 195; Doss v. Com., 1 Grat. (Va.) 557; State v. Snow, 18 Me. 346; State v. Allen, 1 McCord (S. C.) 525, 10 Am. Dec. 687; Armstrong v. State, 4 Blackf. (Ind.) 247; U.S. v. Tay- for (C. C.) 11 Fed. 470; Franklin v. State, 12 Md. 236; Swann v. 544 TRIAL AND VERDICT (Ch, 12 pose from this that, even in these jurisdictions, the jury are to ascertain and determine the law for themselves, and that the judge must not instruct them as to the law.®® Nothing like this is meant. All that is meant is that, contrary to the rule in civil cases, the jury in a criminal case may, if it sees fit, disregard the law as laid down by the court, and acquit the defendant, though, if they regarded the instructions they would, under the facts, be bound to convict. It gives the jury the right to judge of the law over the head of the court in all criminal cases, but it does not prevent the court from telling them what the law is, and of the importance of re- garding it; nor does it make it proper for the jury to dis- regard it; it merely allows them to do so. The responsibil- ity is cast upon the jury. For this reason it has been held not error for the court to say to the jury that this rule is not intended for ordinary criminal cases; that it is a matter of favor to the defendant, and should not be acted upon by the jury, except after the most thorough conviction of its neces- sity and propriety; that any departure by the jury from the law laid down by the court must be taken solely on their own responsibility ; and that the safer and better and fairer way, in ordinary criminal cases, is to take the law from the court, and that they are always justified in doing so.°* State, 64 Md. 423, 1 Atl. 872 (under the constitution); Holder v. State, 5 Ga. 441 (by statute); Spies v. People, 122 Ill. 1, 12 N. HE. 865, 17 N. E. 898, 3 Am. St. Rep. 320 (by statute); Patterson v. State, 7 Ark. 59, 44 Am. Dec. 530 (by statute). 95 Murphy v. State, 6 Ind. 490; Grady v. State, 11 Ga. 253. 96 See State v. McDonnell, 32 Vt. 582; U.S. v. Taylor (C. C.) 11 Fed. 470; Hunt v. State, 81 Ga. 140, 7 S. B. 142; Spies v. People, 122 Ill. 1, 12 N. BE. 865, and 17 N. E. 898, 3 Am. St. Rep. 320; U.S. v. Keller (C. C.) 19 Fed. 633; Franklin v. State, 12 Md. 236; Schnier v. People, 23 Ill. 17; Fisher v. People, 23 Ill. 283; Lynch v. State, 9 Ind. 541; Williams v. State, 10 Ind. 503. Im Schuster v. State, 178 Ind. 320, 99 N. E. 422, the court instructed the jury that they were the judges of the law as well as of the facts, and, if they could each say on their oaths that they knew the law better than the court, then they had the right to do so, but before assuming such responsibility they should be assured that they were not acting from caprice or prejudice, and were controlled by a deep conviction that the court was wrong, and that, before saying that it was their duty to reflect whether they were better qualified to judge the law than the court, §§ 174-176) INSTRUCTIONS OR CHARGE TO THE JURY 545 On the other hand, in most jurisdictions, the doctrine that the jury are the judges of the law as well as the facts is not recognized ‘at all; but it is held that the court is the sole judge of the law, and that the jury must follow the instruc- tions in this respect.®’ Since a verdict of acquittal cannot be set aside, there is no remedy if the jury sees fit to decide contrary to the law of the case as laid down by the court; but in those states where it is held that the court is the sole judge of the law, the court may charge the jury that they are bound to be governed by the instructions. The court could not set aside a verdict of acquittal because of a disre- gard of its instruction, but either the trial court or an appel- late court could and should set aside a conviction on this ground if the conviction is contrary to law.®° The judge in all the states may and always should in- struct the jury fully as to the law; though, as we shall see, he cannot charge on the facts. The admissibility or com- petency of evidence is a question of law, and the court may and if under those circumstances they were prepared to say that the court was wrong, the Constitution gave them that right. It was held that the instruction was reversible error, as imposing a restriction upon the jurors not imposed by the Constitution. 97 Sparf v. U. §., 156 U. 8. 51, 15 Sup. Ct. 278, 39 L. Ed. 348 (Mr. Justice Gray and Mr. Justice Shiras dissenting); U. S. v. Battiste, 2 Sumn. 240, Fed. Cas. No. 14,545; State v. Burpee, 65 Vt. 1, 25 Atl. 964, 19 L. R. A. 145, 36 Am. St. Rep. 775; dissenting opinion of Ben- nett, J., in State v. Crotedu, 23 Vt. 14, 54 Am. Dec. 90; Duffy v, Peo- ple, 26 N. Y. 588; Com. v. Porter, 10 Metc. (Mass.) 263; Com. v. Anthes, 5 Gray (Mass.) 185; Williams v. State, 32 Miss. 389, 66 Am. Dec. 615; Hamilton v. People, 29 Mich. 173; Hardy v. State, 7 Mo. 607; State v. Schoenwald, 31 Mo. 147; Montgomery v. State, 11 Ohio, 427; Parrish v. State, 14 Neb. 60, 15 N. W. 357; Jackson v. State, 91 Ga. 271, 18 S. E. 298, 44 Am. St. Rep. 22; Pierce v. State, 138 N. H. 536; State v. Smith, 6 R. I. 33; State v. Rheams, 34 Minn. 18, 24 N. W. 302; State v. McLain, 104 N. C. 894, 10 S. E. 518; Pierson v. State, 12 Ala. 153; Montee v. Com., 3 J. J. Marsh. (Ky.) 149; People v. Anderson, 44 Cal. 65; McGowan v. State, 9 Yerg. (Tenn.) 184; Dale vy. State, 10 Yerg. (Tenn.) 551; Com. v. McManus, 143 Pa. 64, 21 Atl. 1018, and 22 Atl. 761, 14 L. R. A. 89; Brown v. Com., 87 Va. 215, 12 S. E. 472; State v. Wilson, 157 Iowa, 698, 141 N. W. 337. In Sparf v. U. S., and Com. v. McManus, supra, the question is considered at great length, and numerous cases are reviewed. 98 Dailey v. State, 10 Ind. 536; State v. Sims, Dud. (Ga.) 213. CLARK Cz.PR0C.(2D Ep.)—35 ’ 546 TRIAL AND VERDICT (Ch. 12 > charge as to what evidence the jury may and what they may not consider.®® And it may charge them on the law by which they should determine the credibility of the witnesses,! or the sufficiency of the evidence,? but it must be careful in most jurisdictions not to comment or express an opinion on the credibility of a witness or the effect and weight of the evidence.* So, if the indictment does not charge an of- fense,* or, in most states, if the evidence, assuming it to be true, is insufficient, as a matter of law, to support the charge,” the court may so charge, and direct an acquittal, for this is a matter of law. In like manner it is not error to instruct the jury that the defendant cannot properly be con- victed of a crime less than that charged, or to refuse to in- struct them in respect to the minor offenses that might, un- der some circumstances, be included in the offense charged, where there is no evidence whatever upon which any ver- dict could be properly returned except one of guilty, or one of not guilty, of the particular offense charged.® Same—Jury as Judges of the Fact On the other hand, the jury are the exclusive judges of all questions of fact. They are the sole judges of the weight and sufficiency of the evidence, including the credibility of the witnesses, and in most states, if the court in its charge expresses an opinion or comments on the weight and effect 99 State v. McDonnell, 32 Vt. 491. 1 Adam y. State (Tex. Cr. App.) 20 S. W. 548; Faulkner v. Terri- tory, 6 N. M. 464, 30 Pac. 905; People v. Rohl, 1388 N. Y. 616, 33 N. E. 933. 2 People v. Rohl, supra; Welsh v. State, 96 Ala. 92, 11 South. 450. 3 Horn v. State, 98 Ala. 23, 138 South. 329; Gibbs v. State (Tex. Cr. App.) 20 S. W. 919; Gilyard v. State, 98 Ala. 59, 13 South. 391; post, p. 547. 4 People v. Cook, 10 Mich. 164. 5 Post, p. 547; Com. v. Packard, 5 Gray (Mass.) 101. 6 Sparf v. U. S., 156 U. S. 51, 15 Sup. Ct. 273, 39 L. Ed. 348; Stiener v. State, 33 Tex. Cr. R. 291, 26 S. W. 214; State v. Jordan, 87 Iowa, 86, 54 N. W. 63; People v. Barry, 90 Cal. 41, 27 Pac. 62; People v. McNutt, 98 Cal. 658, 29 Pac. 243; McCoy v. State, 27 Tex. App. 415, 11 S. W. 454; State v. McKinney, 111 N. C. 683, 16 S. E. 235; Jones v. State, 52 Ark. 346, 12 S. W. 704; O’Brien v. Com., 89 Ky. 354, 12 8S. W. 471; Robinson v. State, 84 Ga. 674, 11 S. E. 544. §§ 174-176) INSTRUCTIONS OR CHARGE TO THE JURY 547 of the evidence,’ or the credibility of any witness,* the error, if against the defendant, will be ground for setting aside a conviction. This rule does not prevent the court from sum- ming up the evidence. that has been introduced, and bring- ing out its relation.to the issues involved,® but care must be used not to comment on its weight. It is therefore error for the court in its charge to as- sume the existence of facts in issue,?° but not if the fact is conceded, or the evidence of it is uncontradicted. Same—Directing Verdict When the evidence is so defective or so weak that a ver- dict of guilty could not be sustained, the jury, in most states, should be instructed to return a verdict of not guilty, 7 Woodin v. People, 1 Parker, Cr. R. (N. Y.) 464; Lefler v. State, 122 Ind. 206, 23 N. E. 154; Bill v. People, 14 Ill. 482; Muely v. State, 31 Tex. Cr. App. 155, 18 S. W. 411, and 19 S. W. 915; Burtles v. State, 4 Md. 273; Newcomb v. State, 37 Miss. 383; Jim v. State, 4 Humph. (Tenn.) 289; McGuffie v. State, 17 Ga. 497; Noland v. State, 19 Ohio, 181; State v. Papa, 32 R. I. 458, 80 Atl. 12. In some of the states the court may express an opinion on the weight and effect of the evidence, if the jury are told that they are not bound by the opinion. White v. Territory, 1 Wash. St. 279, 24 Pac. 447; State v. Smith, 12 Rich. (S. C.) 480; McClain v. Com., 110 Pa.’ 263, 1 Atl. 45; People v. Rathbun, 21 Wend. (N. Y.) 509; Simmons y. U. S., 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968; State v. Duffy, 57 Conn. 525, 18 Atl. 791; U.S. v. Foster (D. C.) 188 Fed. 626. But in most states the rule is as stated in the text; and in some states it is ex- pressly so declared by statute. 8 State v. Presley, 35 N. C. 494; Territory v. O’Hare, 1 N. D. 30, 44 N. W. 1003; Com. v. Bosworth, 6 Gray (Mass.) 479; Hronek v. People, 134 Ill. 189, 24 N. H. 861, 8 L. R. A. 837, 28 Am. St. Rep. 652; Lowe vy. State, 88 Ala. 8, 7 South. 97; People v. O’Brien, 96 Cal. 171, 31 Pac. 45. But an instruction that the jury may consider the interest of a witness, etc., is proper where no opinion as to his credibility is expressed. Johnson v. State, 34 Neb. 257, 51 N. W, 835; State v. Turner, 110 Mo. 196, 19 S. W. 645; ante, p. 546. 9 State v. Dawkins, 32.8. C. 17, 10 S. E. 772. 10 Com. v. McMahon, 145 Pa. 413, 22 Atl. 971; Newton v. State (Miss.) 12 South. 560; Fowler v. State, 100 Ala. 96, 14 South. 860; Milligan v. State (Tex. Cr. App.) 22 S. W. 414; State v. Walters, 7 Wash. 246, 34 Pac. 988, 1098; Scott v. People, 141 Ill. 195, 30 N. B. 329. 11 Hawkins v. State, 136 Ind. 630, 36 N. H. 419; People v. Phillips, 70 Cal. 61, 11 Pac. 493. "548 TRIAL AND VERDICT (Ch. 12 but where there is no variance between the allegations and -the proof, and the evidence, though weak or defective, will support a verdict of guilty, such an instruction is properly refused.1?, The court can never direct a verdict of guilty when the facts are disputed, but some courts hold that, if all the facts showing guilt are admitted, there is nothing for the jury to pass upon, and the direction of a verdict of guilty is proper.*3 : ; Character of the Charge—Whether Erroneous We have shown when an instruction is erroneous as in- vading the province of the jury; but there are other ques- tions as to the character of the charge which must be briefly considered. Of course, an instruction which incorrectly states the law is erroneous, and, unless it is clear that no prejudice could have resulted, will cause a conviction to be set aside. An instruction, though correct in so, far as its separate statements of law are concerned, may be erroneous for other reasons. It is erroneous, for instance, if it is con- fused and misleading; 1* or if it consists of abstract proposi- tions of law, though the fact that an instruction is abstract will not necessarily cause a reversal on conviction,?® or if it is not supported by the pleadings and by the evidence,'® or 12 State v. Cady, 82 Me. 426, 19 Atl. 908; State v. Jones, 18 Or. 256, 22 Pac. 840; Pellum v. State, 89 Ala. 28, 8 South. 83. Contra, where the jury are the judges of the law as well as the facts. Gold- man v. State, 75 Md. 621, 23 Atl. 1097. 13 People v. Richmond, 59 Mich. 570, 26 N. W. 770; People v. Ack- erman, 80 Mich. 588, 45 N. W. 367; People v. Neumann, 85 Mich. 98, 48 N. W. 290. Contra, State v. Winchester, 113 N. ©. 641, 18 S. E. 657; State v. Jackson, 42 Kan. 384, 22 Pac. 427. 14Dryman vy. State, 102 Ala. 130, 15 South. 433; Fountain v. State, 98 Ala. 40, 13 South. 492; State v. Pettit, 119 Mo. 410, 24 S. W. 1014; State v. Hawley, 63 Conn. 47, 27 Atl. 417; State v. Gile, 8 Wash. 12, 35 Pac. 417; Conrad v. State, 182 Ind. 254, 31 N. E. 805; People v. Harper, 83 Mich. 273, 47 N. W. 221. 15 State v. Hall, 8% Me, 107; State v. Clair, 84 Me. 248, 24 Atl. 843; Long v. State, 12 Ga. 295; Bonner vy. State, 97 Ala. 47, 12 South. 408; Brister v. State, 26 Ala. 107; State v. Houser, 28 Mo. 233; State v. King, 111 Mo. 576, 20 S. W. 299; Browning v. State, 30 Miss. 656. It is error to read abstract propositions of law from text-books or reports. State v. McDonnell, 32 Vt. 491. 16 Coughlin v. People, 18 Ill. 266, 68 Am. Dec. 541; Doyle v. Peo- . $3 174-176) INSTRUCTIONS OR CHARGE TO THE JURY 549 is argumentative,” or ignores some of the evidence, or sin- gles out and gives undue prominence to particular parts of the evidence,*® or refers to the details of other cases given in the books.?® Instructions which would ordinarily be improper may be justified by improper argument of counsel. Thus where, on indictment for murder, the defendant’s counsel alluded in argument to a higher law which he claimed the Bible sus- tained, it was held not error for the court in his charge to justify the laws of the state on the subject of murder and manslaughter.?° Inadvertent mistakes which do not render an instruction misleading, or otherwise prejudice the defendant, will be disregarded.” It is well settled that the charge of the court is to be con- sidered and construed as a whole in determining whether a particular part of it, or a particular instruction, was errone- ous.?? An erroneous instruction may be cured by giving a ple, 147 Ill. 394, 35 N. E. 372; People v. Hawes, 98 Cal. 648, 33 Pac. 791; Ratigan v. State, 33 Tex. Cr. R. 301, 26 8. W. 407; State v. Rob- inson, 89 Me. 150; State v. Collins, 80 N. C. 407; McCoy v. State, 15 Ga. £05; Jackson v. State, 91 Ga. 271, 18 S. E. 298, 44 Am. St. Rep. 22; Corbett v. State, 31 Ala. 329; Daniels v. State, 24 Tex. 389; State v. Ross, 29 Mo. 382. 17 Horn v. State, 102 Ala. 144, 15 South. 278; Miles v. State, 93 Ga. 117, 19 S. E. 805, 44 Am. St. Rep. 140; State v. O’Grady, 65 Vt. 66, 25 Atl. 905; Bolling v. State, 54 Ark. 588, 16 S. W. 658; Brassell y. State, 91 Ala. 45, 8 South. 679; State v. Almos, 122 Minn. 479, 142 N. W. 801. 18 Cox v. State, 99 Ala. 162, 13 South. 556; Com. v. Hourigan, 89 Ky. 305, 12 S. W. 550; Scott v. People, 141 Ill. 195, 30 N. EB. 329; State v. Cantlin, 118 Mo. 100, 22 S. W. 1091; People v. Hawes, 98° Cal. 648, 33 Pac. 791; -State v. Almos, 122 Minn. 479, 142 'N. W. 801. 19 Pointer v. U. S., 151 U. 8. 896, 14 Sup. Ct. 410, 38 L. Ed. 208. 20 State v. Workman, 39 S. C. 151, 17 S. EB. 694. 21 Daley v. State (Tex. Cr. App.) 24 S. W. 648; State v. Wilson, 9 Wash. 16, 36 Pac. 967; People v. Derringer, 142 N. Y. 629, 37 N. BH. 565; People v. Hunt, 26 Cal. App. 514, 147 Pac. 476. 22 Com. v. Zappe, 153 Pa. 498, 26 Atl. 16; People v. Jassino, 100 Mich. 536, 59 N. W. 230; State v. Reed, 117 Mo. 604, 23 S. W. 886; People v. Hawes, 98 Cal. 648, 33 Pac. 791; Champ v. State, 32 Tex. Cr. R. 87, 22 S. W. 678; State v. Miller, 111 Mo. 542, 20 S. W. 243; People v. Hunt, 26 Cal. App. 514, 147 Pac. 476. . 550 TRIAL AND VERDICT (Ch, 12 correct one, if it is clear that the jury could not have been mis- led; ?° but generally, if the erroneous instruction is not withdrawn, and both remain for the consideration of the jury, the error will not be cured.” On What Paints Necessary—Necessity of a Request It is the duty of the court to charge the jury fully on the law of the case; but ordinarily, if he omits to instruct them on a particular point, counsel must call his attention to the omission, and request an instruction covering the point. If he remains silent, and fails to make the request, the defend- ant cannot afterwards complain of the omission.?® Granting or Refusing Requests Any instruction requested by counsel should be given if it is proper, but it should be refused if it is bad within any of the rules above stated; as, for instance, where it is ab- stract, or argumentative, or confused and misleading, ar not supported by the evidence.?® It is improper to refuse any _ 23 State v. Reed, supra; Thompson v. Com. (Ky.) 26 S. W. 1100; People v. Derringer, 142 N. Y. 629, 37 N. E. 565; Padfield v. People, 146 Ill. 660, 35 N. E. 469; Spies v. People, 122 Ill. 1, 12 N. E. 865, and 17 N. EB. 898, 3 Am. St. Rep. 320; People v. Dole, 122 Cal. 486, 55 Pac. 581, 68 Am. St. Rep. 50. 24 Plummer v. State, 185 Ind. 308, 34 N. HE. 968; State v. Brumley, 53 Mo. App. 126; Mills v. U. S., 164 U. S. 644, 17 Sup. Ct. 210, 41 L. Ed. 584. 25 People v. Raher, 92 Mich. 165, 52 N. W. 625, 31 Am. St. Rep. 575; Winn v. State, 82 Wis. 571,52 N. W. 775; Dave v. State, 22 Ala. 23; Mead v. State, 53 N. J. Law, 601, 23 Atl. 264; State v. Marqueze, 45 La. Ann. 41, 12 South. 128; State v. O’Neal, 29 N. C. 251; State v. Jackson, 112 N. C. 851, 17 S. EB. 149; People v. Fice, 97 Cal. 459, 82 Pac. 581; Burns v. Com., 3 Mete. (Ky.) 18; McMeen v. Com., 114 Pa. 300, 9 Atl. 878; People v. Marks, 72 Cal. 46, 13 Pac. 149; State v. Anderson, 26 S. C. 599, 2 S. E. 699; State v. Brooks, 92 Mo. 542, 5 S. W. 257, 330; State v. Hessenius, 165 Iowa, 415, 146 N. W. 58, L. R. A. 1915A, 1078. Where the court is required by statute to give certain instructions—e. g., that no inference of guilt should be drawn from the failure of defendant to testify—it has been held error to fail to give the instruction even though it was not requested. State v. Myers, 8 Wash. 177, 35 Pac. 580, 756. Contra, State v. Stevens, 67 Iowa, 557, 25 N. W. 777; People v. Flynn, 73 Cal. 511, 15 Pac. 102. 26 Hill v. Com., 88 Va. 633; 14 S. HB, 330, 29 Am. St. Rep. 744; Bos- tic v. State, 94 Ala. 45, 10 South. 602; Com. vy. Cosseboom, 155 Mass. §§ 174-176) INSTRUCTIONS OR CHARGE TO THE JuRY 6551 instruction which correctly states the law, and is applicable to the issues, and supported by the evidence.?’ If, for in- stance, an accomplice of the defendant has testified, the court should, on request of defendant, charge as to the ef- fect of an accomplice’s testimony, and the necessity for cor- roboration.?® So, in a proper case, it is error to refuse an instruction as to the effect of circumstantial evidence ;?° though, if there is any direct evidence, such as the testimo- ny of an eyewitness, or a confession of the accused, such an instruction is properly refused.*° . If the requested instruction is proper it ought to be given as asked, without modification or change in the language,** but in the absence of statute the defendant cannot demand as a matter of right that the language of the request be fol- lowed, and a change in the language which does not preju- dice him will not cause a reversal.?? If the instruction is 298, 29 N. EB. 463; McCoy v. State, 15 Ga. 205; Floyd v. State, 82 Ala. 16, 2-South. 683. 27 Jones v. State, 30 Tex. App. 345, 17 S. W. 544; State v. Wilson, 2 Scam. (Ill) 225; Davis v. State, 10 Ga. 101; Sparks v. State, 23 Tex. App. 447, 5 S. W. 185; People v. Dole, 122 Cal. 486, 55 Pac. 581, 68 Am. St. Rep. 50. 28 Brown y. State (Tex. Cr. App.) 20 S. W. 924. 29 Hyden v. State, 31 Tex. Cr. R. 401, 20 S. W. 764. 30 Wilson v. State (Tex. Cr. App.) 21 8S. W. 361; Jones v. State, 81 Tex. Cr. R. 177, 20 S. W. 354; Vaughan y. State, 57 Ark. 1, 20 S. W. 588. 31 State v. Evans, 33 W. Va. 417, 10 S. E. 792; Cotton v. State, 31 Miss. 504; Stanton v. State, 18 Ark. 317. In Horn v. U. S., 182 Fed. 721, 105 C. C. A. 163, it was held that defendant was not entitled to rely for reversal on a plain mistake in the statement of facts in an instruction which arose from a misstatement of facts in the de- fendant’s request to charge. / 32 Com. v. Mullen, 150 Mass. 394, 23 N. EB. 51; Long v. State, 12 Ga. 293; Gardner v. State, 55 N. J. Law, 17, 26 Atl. 30; People v. Lemperle, 94 Cal. 45, 29 Pac. 709; Shultz v. State, 13 Tex. 401; Com. v. McManus, 143 Pa. 64, 21 Atl. 1018, and 22 Atl. 761, 14 L. R. A. 89; Boles v. State, 9 Smedes & M. (Miss.) 284; State v. Durr, 39 La. Ann. 751, 2 South. 546. It is provided by statute in some states that charges must be given in writing, and must be given or refused in the terms in which they are requested. Code Ala. 1907, § 5364. Un- der such statute it has been held that, while the court may explain to the jury the written charge, it cannot qualify or modify it, Calla- way & Truit +. Gay, 148 Ala. 524, 39 South. 277; and that even 552 TRIAL AND VERDICT (Ch. 12 misleading or otherwise erroneous the court may correct it, and then give it as modified. Most courts hold that, if the instruction requested is partly erroneous and partly good, the court need not cor- rect it, or give that part which is good, but may refuse the whole.’ Some courts, however, hold that the good part, or a similar instruction, should be given.*® If the instruction has already been substantially given, either in the general charge or in other special instructions, it may be refused, for the court is not bound to repeat.®® Ordinarily requests for instructions come too late if not made before the jury have retired to consider their verdict, and they may on this ground be refused ; *’ though the court has the discretion to recall the jury for further instruc- tions.8 Objections and Exceptions When an erroneous instruction is given an objection should be made, and an exception saved, in order to have the error reviewed, for in some cases, in the absence of an when the charge asked asserts a proposition which is legally incor- rect, and which therefore the court should have refused to give, any qualification of it is error, Hiland v. State, 52 Ala. 322. So, where the court gave the charge as requested, but added, “This is a fool charge, but I will give it to you, gentlemen of the jury, as the Su- preme Court has said it was good law, but in my opinion it is mis- leading,” it was held that the modification or criticism of the charge was reversible error. Barker v. State, 2 Ala. App. 92, 57 South. 88. 33 Keithler v. State, 10 Smedes & M. (Miss.) 192; Baxter v. Peo- ple, 3 Gilm. (Ill) 368; Lambeth v. State, 23 Miss, 322; State v. Wil- son, 2 Scam. (Ill.) 225; State v. Wilson, 8 Iowa, 407. : 34 People v. Hunt, 26 Cal. App. 514, 147 Pac. 476. 85 Stanton v. State, 13 Ark. 317; Swallow v. State, 22 Ala. 20. 36 Painter v. People, 147 Ill. 444, 35 N. E. 64; People v. Harris, ' 186 N, Y. 423, 33 N. EB. 65; Hatcher v. State, 18 Ga. 460; Alexander . y. Com. (Ky.) 20 S. W. 254; State v. Knight, 43 Me. 11; Trogdon v. State, 183 Ind. 1, 32 N. E. 725; Taylor v. Com., 90 Va. 109, 17 8. E. 812; State v. Howell, 26 Mont. 3, 66 Pac. 291; People v. Dole, 122 Cal. 486, 55 Pac. 581, 68 Am. St. Rep. 50. 37 State v. Catlin, 3 Vt. 530, 23 Am. Dec, 230; Engeman vy. State, 54 N. J. Law, 247, 23 Atl. 676. 88 Post, Dp. 556, 566. § 177) DEMURRER TO EVIDENCE 553 exception, the error will not be reviewed on appeal.®® And ordinarily the specific objection should be pointed out. In many cases a general exception will be insufficient.*® DEMURRER TO EVIDENCE 177. In some states the defendant may demur to the evi- dence if, assuming it to be true, and admitting ev- ery legitimate inference that can be drawn from it, it is insufficient to authorize a conviction. A demurrer to the evidence not only admits the truth of the evidence—that is, the existence of every fact of which there is any evidence at,all—but it admits the existence of every fact which it legitimately tends to prove, and leaves it to the court to say whether, as a matter of law, a convic- tion is authorized. Such a course may be taken in some states if the prosecuting officer chooses to join in the demur- rer,*? but it is seldom taken. In most states the court may direct an acquittal if the evidence is clearly insufficient, and the better and safer course is to move for such a direction, *? for if the demurrer to the evidence is overruled the case goes to the jury on the evidence of the state alone.*? The court may, in the exercise of its discretion, refuse to enter- tain a demurrer to the evidence.** , 39 Fitzgerald v. State (Tex. Cr. App.) 23 S. W. 1107; Wheeless v. State, 92 Ga. 19, 18 S. E. 303; State v. Richards, 85 Me. 252, 27 Atl. 122; Noblin v. State, 100 Ala. 13, 14 South. 767; State v. Kennade, 121 Mo. 405, 26 S. W. 347; Wood v. State, 31 Fla. 221, 12 South. 539. 40 Gardner v. State, 55 N. J. Law, 17, 26 Atl. 30; Thompson v. State, 32: Tex. Cr. R. 265, 22 S. W. 979; People v. Hart, 10 Utah, 204, 37 Pac. 330. 41 Duncan v. State, 29 Fla. 489, 10 South. 815; Hutchison v. Com., 82 Pa. 472; Doss v. Com., 1 Grat. (Va.) 557; Com. v. Parr, 5 Watts _ & 8. (Pa.) 345; Brister v. State, 26 Ala. 108; Bryan v. State, 26 Ala. 65; Young v. State (Tex. Cr. App.) 24 S. W. 287. 42 Ante, p. 547. 43 Hutchison v. Com., supra. ; 44 Duncan v. State, supra. In some states it is held that a de- murrer to evidence is not a proper proceeding. State v. Alderton, 50 W. Va. 101, 40 S. E. 350. 554 TRIAL AND VERDICT (Ch. 12 CUSTODY, CONDUCT, AND DELIBERATIONS OF JURY 178. In all criminal cases care must be taken to keep the jury free from improper influences. In cases of felony, particularly where the punishment may be death, the fact that there was an opportunity for improper influence will generally render a convic- tion bad, unless the absence of such influence af- firmatively and clearly appears; therefore in these cases the jury must be kept together, and in charge of a sworn officer, until they have rendered their verdict, and must not be allowed to hold any com- munication with outsiders, unless the nature of the communication is known to the court or the officer. 179. Any misconduct on the part of the jury which may have been prejudicial to the defendant will be ground for setting a conviction aside. 180. The jury should be left free in their deliberations. Any coercion of the jury as a whole, or of an in- dividual juror, will be ground for setting a convic- tion aside. It is almost a universal rule that, in cases where the pun- ishment may be death, the jury must, during an adjourn- ment, and at other times when not in the actual presence of the court, and until they have rendered, or at least found, a verdict, be kept in the charge of a sworn officer of the court, and not be allowed to separate, except in cases of necessity, and then only when the separating juror is accompanied by an officer.*® In many states the rule applies also to prosecu- tions for felonies not capital.4® In cases of misdemeanor the 45 Jumpertz v. People, 21 Ill. 375; Com. v. McCaul, 1 Va. Cas. 271; McLean v. State, 8 Mo. 153; Quinn v. State, 14 Ind. 589; State v. - Godfrey, Brayton (Vt.) 170; post, p. 558. 46 McLean v. State, 8 Mo. 153; Wiley v. State, 1 Swan (Tenn.) 256; Berry v. State, 10 Ga. 511; post, p. 559. Contra, McCreary v. Com., 29 Pa. 323; Davis v. State, 15 Ohio, 72, 45 Am. Dec. 559; Sutton v. People, 145 Il. 279, 34 N. HB. 420. §§ 178-180) cUSTODY AND CONDUCT OF JURY 555 court may always allow the jury to separate before they have retired to consider their verdict, but they should be cautioned not to converse with any one about the case.*” When the jury retire to the jury room to consider their verdict, they should in all cases be placed in charge of a sworn *8 officer, and should be kept together.*® If any of them separate from their fellows from necessity, an officer should accompany them. It has been held that, where the jury are required by law to be kept together, they cannot be allowed to separate, even with the defendant’s consent, for the defendant ought not to be placed in the position of having either to consent, or perhaps to prejudice the jury by withholding his con- sent.°° On this point, however, there are many cases to the contrary.*? 47 Rex v. Kinnear, 2 Barn. & Ald. 462; Davis v. State, 15 Ohio, 72, 45 Am. Dec. 559. 48 The form of the oath differs in the various jurisdictions. It is, in substance, that the officer shall well and truly keep the jury in some convenient and private place (formerly without meat, drink, or fire); that he shall not permit any person to speak to them, nor speak to them himself, except to ask them if they have agreed on their verdict. An oath by the officer has been held essential. Brucker y. State, 16 Wis. 355; Philips v. Com., 19 Grat. (Va.) 485. But a de- parture from the sfatutory form of oath will not render the verdict bad. Hittner v. State, 19 Ind. 48. In some states it is held that, if the officer is a regularly sworn officer of the court, a special oath is not essential. See Davis v. State, 15 Ohio, 72, 45 Am. Dec. 559; Peo- ple v. Hughes, 29 Cal. 257; State v. Frier, 118 Mo. 648, 24 S. W. 220; State v. Crafton, 89 Iowa, 109, 56 N. W. 257; Atterberry v. State, 56 Ark. 515, 20 S. W. 411. But if he is not such an officer, but an un- sworn person, the oath must be administered. McCann vy. State, 9 Smedes & M. (Miss.) 465. 49 State v. Populus, 12 La. Ann. 710; State v. Leunig, 42 Ind. 541; post, p. 559. 50 Berry v. State, 10 Ga. 511; Wesley v. State, 11 Humph. (Tenn.) 502; Wiley v. State, 1 Swan (Tenn.) 256; Peiffer v. Com., 15 Pa. 468, 51 Stephens vy. People, 19 N. Y. 549 (two judges dissenting); Quinn vy. State, 14 Ind. 589; State v. Mix, 15 Mo. 153; Smith v. Com., 14 Serg. & R. (Pa.) 70; State v. Frier, 118 Mo. 648, 24 §. W. 220; Hen- ning v. State, 106 Ind. 386, 6 N. BE. 803, 7 N. B. 4, 55 Am. Rep. 756. In some states separation with consent of counsel for the state and for defendant is provided for by statute. See State v. Parker, 25 Wash. 405, 65 Pac. 776. : 556 TRIAL AND VERDICT (Ch. 12 The jury, after they have retired, or even before then, in cases of felony, should not be allowed to hold any commu- nication with outsiders; ** nor should the officer hold any communication with them, further than to ask them wheth- er they have agreed to a verdict, or to attend to their ne- cessities.*? After the jury have retired, the judge cannot go to their room and communicate with them, for, except in open court, he occupies the same relation as any other outsider.°* He may recall them and communicate with them in open court,®® and if they wish to communicate with him, to ask further instructions for instance, they may send him word by the officer, and they may then be recalled.°® Such com- munications are a part of the proceedings, and the defend- ant should be personally present, though, if no further in- structions are given, his absence will not be prejudicial, or render the proceeding invalid.” The jury are generally kept in their room until they agree on a verdict, but in case of necessity they, or a part of them, may be taken out by an officer, and it has even been held that there is no impropriety in the officer’s taking them out 53 Am. Dec. 594; State v. Parker, 25 Wash. 405, 65 Pac. 776; Woods v. State, 43 Miss. 364. It has been held that the defendant may con- sent to the jury’s separating after they shall have agreed upon a ver- dict, and sealed it up. Reins v. People, 30 Ill. 256; Sanders v. State, 2 Iowa, 230; State v. Engle, 13 Ohio, 490; Friar v. State, 3 How. (Miss.) 422. This requirement should “receive a reasonable con- struction. There must be necessarily some separation, for the jurors do not all sleep in one bed, and in the dining room, where there are small tables, they cannot sit at the same table; but it is sufficient if they are segregated from mingling with the crowd.” In the above case it was held that the verdict should not be disturbed because, on account of the heat, the jurors occupied five adjoining rooms at a hotel, and communicated with the bell boy in ordering water. 52 Hoberg v. State, 3 Minn. 262 (Gil. 181); People v. Symonds, 22 Cal. 348; State v. Thorne, 39 Utah, 208, 117 Pac. 58; post, p. 560. 53 Post, p. 560. 54 Hoberg v. State, 8 Minn. 262 (Gil. 181); People v. Linzey, 79 Hun, 23, 29 N. Y. Supp. 560. 55 Hall v. State, 8 Ind. 439. ; 56 Com. v. Ricketson, 5 Metc. (Mass.) 412; Com. v. Bolger, 229 Pa. 597, 79 Atl. 113. 57 Ante, p. 495; Wade v. State, 12 Ga. 25. 88 178-180) cUSTODY AND CONDUCT OF JURY 557 for recreation.®® It seems that formerly, while deliberating on their verdict, they were kept without meat or drink,®® but this is no longer required, and they may be given or may procure proper refreshments, providing they are ob- tained from a proper source.*° It has been held that they may be given or may procure intoxicating liquor, if not in excess,*? but, by the great weight of authority, this is im- proper, not only while they are deliberating on their ver- dict, but, at least in capital cases and other cases of felony, at any time during the trial.*? Whether it will vitiate the verdict depends, as we shall see, upon the circumstances. The jury must be given perfect freedom in their delibera- tions. Anything said to them by the court, or by the officer in charge, tending to force them to an agreement, will gen- erally render the verdict invalid.*? The jury must reach an agreement properly. A gambling verdict—that is, a verdict arrived at by casting lots °*—or a 58 State v. Perry, 44 N. C. 330. And see King v. State, 91 Tenn. 617, 20 S. W. 169; State v. Clary, 136 La. 589, 67 South. 376, where it was held not error for the court to allow the jurors to be taken to a moving picture show, The fact that the jury are taken by the officer beyond the confines of the state will not vitiate the verdict on the ground that they were thus in legal effect dispersed, and no long- er under the control of the officer, where there was in fact no dis- persal, and the authority of the officer was not questioned. King v. State, supra. 59 See U. S. v. Haskell, 4 Wash. 402, Fed. Cas. No. 15,321. 60 People v. Douglass, 4 Cow. (N. Y.) 35, 15 Am. Dec. 332. 61 State v. Madigan, 57 Minn. 425, 59 N. W. 490. 62 Jones v. State, 13 Tex. 168, 62 Am. Dec. 550; State v. Baldy, 17 Iowa, 39; People v. Douglass, 4 Cow. (N. Y.) 26, 15 Am. Dec. 332; State v. Bullard, 16 N. H. 139; post, p. 561. 63 State v. Hill, 91 Mo. 423, 4 S. W. 121; Com. v. Poisson, 157 Mass. 510, 32 N. E. 906. Thus, it is error for the judge to tell the jury that, if they agree by a certain hour, they will be discharged; otherwise they will be held until they do agree. State v. Hill, supra. But see Pope v. State, 36 Miss. 121. Merely to urge agreement is not coer- cion. Dow v. State, 31 Tex. Cr. R. 278, 20 S. W. 583; State v. Pal- mer, 40 Kan. 474, 20 Pac. 270; Com. v. Kelley, 165 Mass. 175, 42 N. E. 573. 64 A verdict reached by casting lots, or by each juror writing down the term of imprisonment he favors and then dividing the total num- ber of years thus reached by 12, the number of jurors, is void, if 558 TRIAL AND VERDICT (Ch. 12 verdict found on facts personally known by one of the ju- rors, and communicated to the others,®® or a verdict to which one of the jurors has been coerced by the others to agree, etc., is illegal.°¢ Effect of Misconduct and Irregularities Misconduct on the part of jurors in separating and de- parting from the officer’s custody, or in drinking intoxicat- ing liquors, or holding communications with outsiders when cautioned not to do so, or on the part of the officer in charge of the jury, or on the part of outsiders with respect to the jury, is not only a contempt of court which the court may summarily punish, but is also a misdemeanor, rendering the offender liable to a criminal prosecution. Misconduct and irregularities, however, in respect to the matters which we have been discussing, do not necessarily vitiate the verdict, and entitle the defendant, as of right, to a new trial. Great- er strictness is observed in capital cases than in cases not capital, and in felonies than in misdemeanors, and where the misconduct or irregularity occurred after the jury retired to deliberate on their verdict, than where it occurred during the trial before retirement. There is such an irreconcilable conflict in the cases that nothing more can be done here than to refer to the cases. The student and practitioner must then follow up the matter by consulting the decisions of his own state. Because of the importance of the subject and the conflict of authority, it has been deemed advisable to collect a number of the cases from the various states. Some of the courts have held that a verdict should be set aside in a capital case, if, at any time after the trial com- there is a precedent agreement to abide by the result. Hunter v. State, 8 Tex. app. 75. Most courts hold that, even if there is no such agreement, the verdict will be set aside, as a verdict should always be the result of deliberation, and not in any way influenced by chance.- Crabtree v.. State, 3 Sneed (Tenn.) 302; Wood v. State, 13 Tex. App. 185, 44 Am. Rep. 701; Williams y. State, 15 Lea (Tenn.) 129, 54 Am. Rep. 404. But see Dooley v. State, 28 Ind. 239. And compare State v. Keehn, 85 Kan. 765, 118 Pac. 851. 65 Richards v. State, 36 Neb. 17, 53 N. W. 1027; McWilliams vy. State, 32 Tex. Cr. R. 269, 22 S. W. 970. 66 See Fletcher v. State, 6 Humph. (Tenn.) 249. §§ 178-180) cusToDY AND CONDUCT OF JURY 559 menced, though before the jury retired, any of them sepa- rated from their fellows, and were out of the officer’s cus- tody, so that they became accessible to improper outside influence, and that it will not do to say that the defendant was not in fact prejudiced.*7 And some courts have gone as far as this in cases of felony not capital.** On the other hand, many of the courts—indeed, most of them—hold that a verdict will not be set aside on this ground, if the defend, ant has not been prejudiced by the separation,*® and the evi- dence does not warrant a reasonable inference of preju- dice.7° Prejudice will be presumed unless the contrary 87 Com. v. McCaul, 1 Va. Cas. 271. “Although,” it was said in this case, “there might be and probably was no tampering with any jury- man in this case, yet in a free country, in deciding a particular cause, the decision is to be according to general principles as applied to that case; and more good will arise from preserving the sacred principle involved in this case than evil from granting a new trial, although in this individual instance a verdict has probably been given by twelve men in fact unbiased by the separation.” 1 Va. Cas. 306. And see State v. Foster, 45.La. Ann. 1176, 14 South. 180; McLain v. State, 10 Yerg. (Tenn.) 241, 831 Am. Dec. 573; Maher v. State, 3 Minn. 444 (Gil. 329); McLean v. State, 8 Mo. 153. But see Rex v. Crippen, 103 L. T. Rep. 705. 68 Com. v. McCaul, 1'Va. Cas. 271; State v. Strodemier, 41 Wash. 159, 88 Pac, 22,111 Am. St. Rep. 1012. 69 People v. Douglass, 4 Cow. (N. Y.) 26, 15 Am. Dec. 332; State v. O’Brien, 7 R. I. 336; State v. Harrison, 36 W. Va. 729, 15 S. EH. 982, 18 L. R. A. 224; State v. Belknap, 39 W. Va. 427, 19 S. B. 507; Corn- wall v. State, 91 Ga. 277, 18 S. HB. 154; State v. Dugan, 52 Kan. 23, 34 Pac. 409; State v. Miller, 18 N. C. 500; State v. Hester, 47 N. C. 83; State v. Tilghman, 33 N. C. 518; Jumpertz v. People, 21 Ill. 375; State v. Prescott, 7 N. H. 287; Roper v. Territory, 7 N. M. 255, 33 Pac. 1014; Keenan v. State, 8 Wis. 132; People v. Symonds, 22 Cal. 348; Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528; Stout v. State, 76 Md. 317, 25 Atl. 299; Wyatt v. State, 1 Blackf. (Ind.) 257; Creek v. State, 24 Ind. 151; Cornelius v. State, 12 Ark. 782; Coker v. State, 20 Ark. 53; State v. Barton, 19 Mo. 227; State v. Harlow, 21 Mo. 446; State v. Igo, 21 Mo. 459; Com. v. Manfredi, 162 Pa. 144, 29 Atl. 404; Gamble v. State, 44 Fla. 429, 33 South. 471, 60 L. R. A. 547, 103 Am. St. Rep. 150, 1 Ann. Cas. 285; State v. Schmidt, 137 Mo. 266, 38 S. W. 938. ~ 70 People v. Douglass, 4 Cow. (N. Y.) 26, 15 Am. Dec. 332; Rain y. State, 15 Ariz. 125, 187 Pac. 550; State v. Burns, 19 Wash. 52, 52 Pac. 316; Rex v. Crippen, 103 L. T. (Eng.) 705. 560 TRIAL AND VERDICT (Ch. 12 clearly appears, or, in other words, the state has the burden of showing that there was no prejudice."? There is also much conflict as to whether a new trial should be granted because the jurors held communications with outsiders,”* or with the officer in charge of them."® And we meet with the same conflict of opinion as to when 71 See the cases cited in the preceding note; and see Cartwright v. State, 71 Miss. 82, 14 South. 526; U. S. v. Swan, 7 N. M. 306, 34 Pac. 533; State v. Place, 5 Wash. 773, 32 Pac. 736; Davis v. State, 35 Ind. 496, 9 Am. Rep. 760; People v. Thorne, 39 Utah, 208, 117 Pac. 58; State v. Tilden, 27 Idaho, 262, 147 Pac. 1056. 72 That a new trial should be granted without regard to whether there was prejudice to the defendant, where the communication was after the jury had retired to consider their verdict, see Hoberg v. State, 3 Minn. 262 (Gil. 181). That a new trial will not be granted, even in such a case, where there was no prejudice, see King v. State, 91 Tenn. 617, 20 S. W. 169; State v. Fairlamb, 121 Mo. 187, 25S. W. 895; Com. v. Roby, 12 Pick. (Mass.) 496; State v. Howell, 117 Mo. 307, 23 S. W. 263; State v. Tilghman, 33 N. C. 513; Cornwall v. State, 91 Ga. 277, 18 S. EB. 154; People v. Symonds, 22 Cal. 348; State v. Allen, 89 Iowa, 49, 56 N. W. 261; Rowe vy. State, 11 Humph. (Tenn.) 491; State v. Harrison, 36 W. Va. 729, 15 S. E. 982, 18 L. «. A. 224; Pickens v. State, 31 Tex. Cr. R. 554, 21 8. W. 362; State v. Way, 38 S. C. 333, 17 8S. E. 39; State v. Crane, 110 N. C. 530, 15 S. BE. 231; Sedlock vy. State, 141 Wis. 589, 124 N. W. 510. That prejudice will be presumed in such case, and a new trial granted, unless the state proves defendant was not prejudiced, see State v. Thorne, 39 Utah, 208, 117 Pac. 58; State v. McCormick, 20 Wash. 94, 54 Pac. 764; Boles v. State, 13 Smedes & M. (Miss.) 398. As to remarks and applause by bystanders not being ground for a new trial, see State v. Jackson, 112 N. C. 851, 17 S. E. 149; State v. Dusenberry, 112 Mo. 277, 20 S. W. 461; Burns v. State, 89 Ga. 527, 15 8S. E. 748. But it has been held that the fact that, after the case was submitted to the jury, some of the jurors were allowed to stand on the courthouse porch, where they could hear citizens discussing the merits of the case, and insisting on the defendant’s guilt, is ground for a new trial. Vaughan v. State, 57 Ark. 1, 20 S. W. 588. 73 That improper communications between the officer and the Jury after the jury have retired will not vitiate the verdict if the defend- ant was not prejudiced, see State v. Thompson, 87 Iowa, 670, 54 N. W. 1077; Reins v. People, 30 Ill. 256; State v. Tilghman, 33 N. C. 518; Pope v. State, 36 Miss. 121. It is otherwise if the defendant was prejudiced. State v. Langford, 45 La. Ann. 1177, 14 South. 181, 40 Am. St. Rep. 277; Brown v. State, 69 Miss. 398, 10 South. 579. §§ 178-180) cusToDY AND CONDUCT OF JURY 561 the drinking of intoxicating liquors is ground for a new trial.7* Any misconduct on the part of the jury which was preju- dicial to the defendant will entitle him to a new trial.7> As to this there can be no conflict of opinion. 74 That the use of intoxicating liquors after the jury have retired to consider their verdict will vitiate the verdict, without regard to whether the defendant was prejudiced, see Jones v. State, 13 Tex. 168, 62 Am. Dec. 550; People v. Douglass, 4 Cow. (N. Y.) 35, 15 Am. Dec. 332; State v. Baldy, 17 Iowa, 39; State v. Bruce, 48 Iowa, 530, 30 Am. Rep. 403; State v. Bullard, 16 N. H. 139; Davis v. State, 35 Ind. 496, 9 Am. Rep. 760. But that the use of intoxicating liquors before the jury have retired will not vitiate the verdict if there was Do prejudice, see State v. Bruce, 48 Iowa, 530, 30 Am. Rep. 403: State v. Madigan, 57 Minn. 425, 59 N. W. 490; State v. Reed, 3 Idaho, 754, 35 Pac. 706; Davis v. People, 19 Ill. 74; State v. Upton, 20 Mo. 397; Stone v. State, 4 Humph. (Tenn.) 27; Thompson v. Com., 8 Grat. (Va.) 6837; Rowe v. State, 11 Humph. (Tenn.) 491; Pope v. State, 36 Miss. 121; Brown v. State, 187 Ind. 240, 86 N. B. 1108, 45 Am. St. Rep. 180; People v. Bemmerly, 98 Cal. 299, 83 Pac. 263; Com. v. Cleary, 148 Pa. St. 26, 23 Atl. 1110. But see, contra, People vy. Douglass, 4 Cow. (N. Y.) 26, 15 Am. Dec. 332. And that the use of intoxicating liquors even after the jury have retired will not vitiate the verdict, if there was no prejudice, see King v. State, 91 Tenn. 617, 20 S. W. 169; Rowe v. State, 11 Humph. (Tenn.) 491; State v. Spar- row, 7 N. C. 487; State v. Tilghman, 33 N. C. 513; People v. Sansome, 98 Cal. 235, 33 Pac. 202. If there was prejudice, a new trial should be granted in all cases. Brown v. State, 187 Ind. 240, 36 N. E. 1108, 45 Am. St. Rep. 180. 75 People v. Mitchell, 100 Cal. 328, 34 Pac. 698. As to reading of newspapers, or possession of them, by the jury, see People v. Stokes, 103 Cal. 193, 87 Pac. 207, 42 Am. St. Rep. 102; State v. Dugan, 52 Kan, 23, 34 Pac. 409; Williams v. State, 33 Tex. Cr. R. 128, 25 8S. W. 629, 28 S. W. 958, 47 Am. St. Rep. 21; Cartwright v. State, 71 Muss. 82, 14 South. 526; State v. Wilson, 121 Mo. 434, 26 S. W. 357; State v. McCormick, 20 Wash. 94, 54 Pac. 764; State v. Williams, 96 Minn. 351, 105 N. W. 265; Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917; Ysaguirre v. State, 42 Tex. Cr. R. 253, 58 S. W. 1005. Statement by juror to his fellows of facts within his personal knowl- edge. Richards v. State, 36 Neb. 17, 53 N. W. 1027; McWilliams v. State, 32 Tex. Cr. R. 269, 22 S. W. 970; Mann v. State, 47 Tex. Cr. R. 250, 83 S. W. 195. And see ante, pp. 554, 560. Conduct of prose- cutor in accompanying a juror home and taking dinner with him is ground for a new trial. Mann v. State, 47 Tex. Cr. R. 250, 83 S. W. 195. In Woolley v. State, 50 Tex. Cr. R. 214, 96 S. W. 27, it was held that comments by jurors during their deliberations on the failure of CLARK Cr.PRoc.(2D Ep.)—36 562 TRIAL AND VERDICT (Ch. 12 THE VERDICT 181. The verdict is the formal decision by the jury that the defendant is guilty or not guilty. (a) It must be unanimous. (b) It must be formally delivered by the jury and accept- ed by the judge in open court. (c) It may be received on Sunday. (d) It need not be in writing unless it is so required by statute. (e) It must be certain, and find everything that is neces- sary to support the judgment to be rendered. If it can be understood, informality or surplusage will Not vitiate it. 182. Before the verdict is accepted by the court the jury may retract or change it, and if it is irregular they may be sent back to correct it. After it has been finally accepted, it cannot be retracted or changed in matter of substance, but it may, with the jury’s consent, be amended in matters of form. 183. The court cannot, without the jury’s consent, amend. the verdict in matter of substance, nor can it do so with their consent after the verdict has been finally accepted. It may amend purely formal defects with, and in some states without, their consent. 184. A verdict is either, (a) General; that is, a finding of guilty or not guilty on the whole charge, and both on the law and the facts. (b) Special; that is, where the jury find the facts only, and leave the law to be applied by the court. (c) Partial; that is, where the jury find the defendant guilty of part of the charge only. 185. A verdict, after its final acceptance, cannot be impeach- ed by the testimony or affidavits of a juror. the defendant to testify are ground for a new trial. See, also, Thorpe v. State, 40 Tex. Cr. R. 346, 50 S. W. 383. §§ 181-185) THE VERDICT 563 The manner ot arriving at the verdict having been con- sidered, we come now to consider its rendition, and its suffi- ciency. The verdict is the unanimous and formal decision by the jury that the defendant is guilty or not guilty. It must be unanimous. When the jury have come to a unani- mous determination with respect to their verdict, they re- turn into court to deliver it, and the following formalities are generally observed: The clerk calls over their names, and asks them whether they have agreed on their verdict, to which, if they have, they reply in the affirmative. He then demands who shall say for them, to which they an- swer, their foreman. The clerk then tells the defendant to stand up, and says to the jury, “Look upon the prisoner, you that are sworn; how say you, is he guilty of the felony (or other crime) whereof he stands indicted, or not guilty?” The foreman answers “Guilty” or “Not Guilty.” The clerk then records the verdict, and then says to the jury, “Hearken to your verdict as the court hath recorded it; you say that A. is guilty (or not guilty) of the felony (or other crime) whereof he stands indicted, and so say you all’; and the jury assent.7* This is substantially the form of pro- ceeding in all courts, though it will vary in unimportant details in the practice of the various states.77 Failure to observe these formalities in unimportant details will not vitiate the verdict,7® but departures in a material matter may do so. By the weight of authority, it is essential that the verdict shall be delivered in open court. If it is deliver- 761 Chit. Cr. Law, 635; 1 Bish. Cr. Proc. § 1001; Com. v. Roby, 12 Pick. (Mass.) 496. In Com. v. Gibson, 2 Va. Cas. 70, a verdict was brought in by the jury, but before the discharge of the jurors it was amended as to form, and then, one of the jurors having retired, un- noticed, the other eleven assented to the amended verdict. It was held that the amended verdict was void, since only eleven jurors as- sented to it. 77 See Com. v. Tobin, 125 Mass. 203, 28 Am. Rep. 220; Rogers v. Com. (Va.) 19 S. H. 162; Norton v. State, 106 Ind. 163, 6 N. E. 126; Com. v. Gibson, 2 Va. Cas. 70; Mitchell v. State, 22 Ga. 211, 68 Am. Dec. 493; State v. Pankey, 104 N. C. 840, 10 S. HE. 315. 78 See 1 Bish. Cr. Proc. § 1001, and note; Com. v. Gibson, 2 Va. Cas. 70; Mitchell v. State, 22 Ga. 211, 68 Am. Dec. 493; Hall v. State, 8 Ga. 18; State v. Burge, 7 Iowa, 255. e 564 TRIAL AND VERDICT (Ch. 12 -ed to the judge out of court, or in the court room when the court is not in session, it is void.7? It must, of course, be delivered before expiration of the term of court.2° As we have seen, the defendant must be present, unless he can and does waive his right to be present.®+ The delivery and acceptance of a verdict are regarded as ministerial, and not judicial, acts, and a verdict, therefore, is not invalid because it was received on Sunday.®? In some states, by statute, the verdict is required to be delivered in writing,®* but in the absence of a statute it is delivered orally,** and it has even been held that unless writing is required by statute it is irregular.®® In some but not all states the jury are allowed, in cases not capital, to seal up their verdict and separate, where they agree upon a verdict after the court has adjourned, and bring the sealed verdict into court when it reassembles.** 79 State v. Mills, 19 Ark. 476; Waller v. State, 40 Ala. 325; Jack- son vy. State, 102 Ala. 76, 15 South. 351; Nomaque vy. People, Breese (IIL) 145, 12 Am. Dec. 157. That it may be received during an ad- journment in some states, see Barrett v. State, 1 Wis. 175; In re Green, 16 Ill. 234; McIntyre v. People, 38 Ill. 514; Davis v. State, 14 Ind. 358; Longfellow v. State, 10 Neb. 105, 4 N. W. 420. 80 Morgan v. State, 12 Ind. 448. 81 Ante, p. 492, 82 Hoghtaling v. Osborn, 15 Johns. (N. Y.) 119; Reid v. State, 53 Ala. 402, 25 Am. Rep. 627; True v. Plumley, 36 Me. 466; State v. Ricketts, 74 N. C. 187; State v. Wilson, 121 Mo. 434, 26 8. W. 357; McCorkle v. State, 14 Ind. 39; Meece v. Com., 78 Ky. 586; Powers v. State, 23 Tex. app. 42, 5 S. W. 153; Bales v. Com. (Ky.) 11 S. W. 470; State v. Canty, 41 La. Ann. 587, 6 South. 338. And see Blaney y. State, 74 Md. 153, 21 Atl. 547. Or on a legal holiday. State v. Atkinson, 104 La. 570, 29 South. 279. But judgment cannot be ren- dered thereon on Sunday. Hoghtaling v. Osborn, supra; Shearman v. State, 1 Tex. App. 215, 28 Am. Rep. 402; Baxter v. People, 3 Gil- man (Ill.) 384, 83 It has been held that if a verdict required by statute to be in writing is, by mistake, and without objection, delivered orally, and duly recorded and assented to by the jury, it is valid. Hardy v. State, 19 Ohio St. 579. 84 Lord v. State, 16 N. H. 325, 41 Am. Dec. 729. 85 Lord v. State, supra. But the written verdict may be disregard- ed, and an oral verdict delivered. Id. 86 See Stewart v. People, 23 Mich. 63, 9 Am. Rep. 78; Com. v. Dur- fee, 100 Mass. 146; Com. v. Dorus, 108 Mass. 488; State v. Weber, 22 §§ 181-185) THE VERDICT 565 “ In such a case they must affirm the verdict orally, and it is the verdict thus orally given that is the only true ver- dict.8” If the jury state that they cannot agree the court cannot do anything to coerce them into an agreement, but it may send them back to the jury room for further deliberations.** Or, if the court is satisfied that they will not be able to agree, it may discharge them, and in most states, as we have seen, their discharge will not prevent the state from again trying the defendant before another jury.®® Correction or Retraction by Jury The control of the jury over their verdict does not cease as soon as it is delivered to the clerk, but only after it has been finally assented to by them, and accepted and recorded by the court.°° At any time before then, they may correct it, or they may change their minds and withdraw their con- sent.°. And they may, in the discretion of the court, be allowed to hear further evidence on points as to which they are in doubt.®? After the verdict has been not only record- ed, but finally accepted by the court, however, the jury have’ Mo. 321; State v. Fénlason, 78 Me. 495, 7 Atl. 385; Com. v. Slattery, 147 Mass. 423, 18 N. EH. 399. 87 Com. v. Tobin, 125 Mass. 203, 28 Am. Rep. 220. 88 Ante, p. 552. 89 Ante, p. 444. 90 Burk v. Com., 5 J. J. Marsh. (Ky.) 675; Com. v. George, 12 Pa. Super. Ct. 1. 911 Bish. Or. Proc. § 1003; Sledd v. Com., 19 Grat. (Va.) 818; Burk v. Com., 5 J. J. Marsh. (Ky.) 675; State v. Austin, 6 Wis. 205; Roth- bauer v. State, 22 Wis. 468; Ford v. State, 12 Md. 514; State v. Har- den, 1 Bailey (S. C.) 3; Burton v. Com., 109 Va. 800, 63 S. E. 464. Thus, where they say “Not guilty,” meaning to say “Guilty,” they may correct the verdict, though the prisoner has been discharged, and has started to leave. Reg. v. Vodden, 6 Cox, Cr. Cas. 226. It is the safer practice to send the jury to their room, when their verdict is to be amended in substance, that they may there, in private, amend the verdict as they think proper. Burton v. Com., supra. But, if the defendant is not prejudiced, it may be amended in open court un- der the direction of the judge; but in such case the jury must assent to the verdict as amended. Com. v. Gibson, 2 Va. Cas. 70; Burton v. Com., 109 Va. 800, 63 S. BE. 464. 92 Burk v. Com., supra. 566 TRIAL AND VERDICT (Ch. 12 no longer any control over it, in so far as its substance is concerned; °* and they cannot retract it, or say that they did not in fact consent.®* . The court is not bound to receive a verdict which is er- roneous as a matter of law in its finding, or is defective in matter of form, unless the jury insist upon it.2® When the verdict is delivered, and is found to be defective in form, the court may require the jury to correct or amend it; °° and where it is erroneous as a matter of law, as where it fixes a greater or less term of punishment than the law allows, he may instruct the jury, and send them back to re- consider it.°* As we have seen, however, he cannot coerce them into finding a verdict.®* Some courts hold that, though the verdict has been ac- cepted and recorded, and even though the jury have been discharged, yet, if they have not left the court room and separated, they may be recalled, for the purpose of correct- ing or amending the verdict in matters of form only.®® 93 State v. Weeks, 23 Or. 3, 34 Pac. 1095; People v. Lee Yune Chong, 94 Cal. 379, 29 Pac. 776; State v. Dawkins, 32 S. C. 17, 10 S. E. 772. In the case last cited the jury returned a verdict of guilty and were discharged. They were reimpaneled the next day, and instructed that they might put in their verdict a recommendation to mercy. This they did and returned the verdict. It was held that the amended verdict was a nullity. 942 Hale, P. C. 299; Rex v. Wooller, 2 Starkie, 111; Mercer v. State, 17 Ga. 146. As to impeachment of verdict by jurors, see post, op. 574. 85 In which case, of course, he may set it aside. But he cannot refuse to receive a verdict in which defendant is found guilty of a crime covered by the indictment, on the ground that his charge to the jury did not include that crime. Register v. State, 10 Ga. App. 623, 74 S. H. 429. 96 Appeal of Nicely, 180 Pa. 261, 18 Atl. 737; Robinson v. State, 23 Tex. App. 315, 4 S. W. 904; Cook v. State, 26 Ga. 593. 97 Mangham y. State, 87 Ga. 549, 13 S. B. 558; State v. Harris, 39 La. Ann. 1105, 8 South. 344; Nemo v. Com., 2 Grat. (Va.) 558; Peo- ple v. Marquis, 15 Cal. 88; People v. Bonney, 19 Cal. 426; McGregg y. State, 4 Blackf. (Ind.) 101. 98 Ante, p. 557. 99 Reg. v. Vodden, 6 Cox, Cr. Cas. 226; Brister v. State, 26 Ala. 107; Com. v. Breyessee, 160 Pa. 451, 28 Atl. 824, 40 Am. St. Rep. 729. But see Ellis v. State, 27 Tex. App. 190, 11 S. W. 111; People v. Lee Yune Chong, supra. §§ 181-185) THE VERDICT 567 They cannot be so recalled, however, after they have sepa- rated.? Polling the Jury In order to make sure, before it is too late, that all of the jurors are in fact agreed on the verdict, either party is al- lowed, in most states as of right, to have the jury polled before the verdict is recorded; that is, to have each indi- vidual juror called by name, and asked whether the verdict as delivered by the foreman is his verdict.? If, on being asked the question, a juror dissents, then there is no ver- dict.2 In a few states this is not allowed as of right.* A request to poll the jury comes too late after a verdict has been announced, recorded and affirmatively responded to by the entire jury.® Amendment by Court The court cannot at any time amend or change the ver- dict in any matter of substance without the jury’s consent and direction ;* and, as we have seen, it cannot do so with their consent after the verdict has been finally accepted and recorded.” It has been held, however, that it may at any time amend as to matters of form only.® Ifa verdict is oth- 1 People v. Lee Yune Chong, 94 Cal. 379, 29 Pac. 776; Sargent v. State, 11 Ohio, 472; Ellis v. State, 27 Tex. “App. 190,11 S. W. 111; Mills vy. Com., 7 Leigh (Va.) 751; Stuart v. Com., 28 Grat. (Va.) 950. 22 Hale, P. C. 299; Biscoe v. State, 68 Md. 294, 12 Atl. 25; Brister v. State, 26 Ala. 107; Nomaque v. People, Breese (Ill.) 145, 12 Am.- Dec. 157; State v. John, 30 N. C. 330, 49 Am. Dec. 396; State v. Austin, 6 Wis. 205; Com. v. Schmous, 162 Pa. 326, 29 Atl. 644; Mitchell v. State, 22 Ga. 211, 68 Am. Dec. 493; Tilton v. State, 52 Ga. 478; McCullough vy. State, 10 Ga. App. 403, 73 S. E. 546. 3 State v. Austin, 6 Wis. 205; Burk v. Com., 5 J. J. Marsh. (Ky.) 675; State v. Davis, 31 W. Va. 390, 7 S. E. 24; State v. Harden, 1 Bailey (S. C.) 3. But the fact that one of them says he agreed re- luctantly does not vitiate. Parker v. State, 81 Ga. 332, 6 S. E. 600. That on one juror expressing disagreement, the jury may be sent back to reconsider, see State v. Davis, 31 W. ‘a. 390, 7 S. E. 24. 4 State v. Wise, 7 Rich. (S. C.) 412; Com. v. Roby, 12 Pick. (Mass.) 496; State v. Hoyt, 47 Conn. 518, 36 Am. Rep. 89. 5 Com. v. Schmous, 162 Pa. 326, 29 Atl. 644. 6 Guenther v. People, 24 N. Y. 100; State v. McBride, 19 Mo. 239. 7 Ante, p. 565. 82 Hawk. P. C. c. 47, § 9; Bledsoe v. Com. (Ky.) 11 S. W. 84; Martin v. State, 25 Ga. 494; Com. v. Lang, 10 Gray (Mass.) 11. 568 TRIAL AND VERDICT (Ch. 12 erwise good, an improper amendment by the court may be rejected as surplusage.® Sufficiency of Verdict—In General The verdict must be sufficiently certain to clearly show what the jury intend, or it will be fatally defective, unless, as we have seen it may be, it is corrected by the jury.?° It must also be responsive to the charge, and consistent, and find everything that is necessary to enable the court to ren- der judgment.*? If the jury acquit, nothing more is neces- sary than the words “Not guilty.” If they convict of the whole charge the words, “Guilty as charged in the indict- ment,” “Guilty as charged,” or even “Guilty,” in some cases, will be sufficient.?? ® Guenther v. People, 24 N. Y. 100; post, p. 569. 10 State v. Coon, 18 Minn. 518 (Gil. 464); People v. Piper, 50 Mich. 890, 15 N. W. 523; Guest v. State, 24 Tex. App. 530, 7 S. W. 242. A verdict, in a case where two defendants are jointly prosecuted, that reads, ‘““We, the jury, find the defendant guilty as charged,” is void for uncertainty. State v. Weeks, 23 Or. 3, 34 Pac. 1095. So is a verdict which reads, “We * * * do say that is. guilty of manslaughier.” Williams v. State, 6 Neb. 834. So a ver- dict, “Guilty as accessory,” since it is uncertain whether an acces- sory before or after the fact is meant. State v. Green, 119 N. C. 899, 26 S. E. 112. So a verdict which does not show on which of several counts the defendant is found guilty. Day v. People, 76 IIl. 380. Or to which of several defendants the verdict applied. People y. Sepulveda, 59 Cal. 342. So of a verdict of guilty of murder, with an addition that the jury “beg the mercy of the court.” Avant v. State, 88 Miss. 226, 40 South. 488, 117 Am. St. Rep. 787. See, also, Smith v. State, 75 Miss. 542, 23 South. 260. 11 State v. Benjamin (La. Ann.) 14 South. 71; Reg. v. Gray, 17 Cox, Cr. Cas, 299; Westbrook v. State, 52 Miss. 777; Long v. State, 34 Tex. 566; State v. Harmon, 106 Mo. 635, 18 S. W. 128; Munson v. State, 21 Tex. App. 329,17 S. W. 251. A verdict finding two of sey- eral defendants guilty of a riot is void, for two cannot make a riot. Rex y. Heaps, 2 Salk. 593. But a verdict finding the defendant “suilty of manslaughter, not a felony,” was held valid, though in- consistent, since manslaughter is a felony, since the words “not a felony” could be rejected as surplusage. People v. Holmes, 118 Cal. 444, 50 Pac. 675. 12 State v. Lee, 80 Iowa, 75, 45 N. W. 545, 20 Am. St. Rep. 401; Brown y. State, 111 Ind. 441, 12 N. B. 514; Hughes v. State, 65 Ind. 39; State v. Berning, 91 Mo. 82, 3 8S. W. 588; Bond v. People, 39 Ill. 26; Hronek v. People, 134 Ill. 189, 24 N. E. 861, 8 L. R. A. 837, 23 §§ 181-185) THE VERDICT 569 A verdict is not bad for informality or clerical errors in the language of it, if it is such that it can be clearly seen what is intended. “It is to have a reasonable intendment, and is to receive a reasonable construction, and must not be avoided except from necessity. ere And a verdict which is otherwise good will not be viti- ated by the insertion of matter that may be rejected as sur- plusage.t¢ Thus a verdict will not be vitiated because it was improperly added to or amended by the court, since the amendment may be rejected.15 Am. St. Rep. 652; People v. Perdue, 49 Cal. 425; People v. Whitely, 64 Cal. 211, 27 Pac. 1104; People v. West, 73 Cal. 345, 14 Pac. 848; State v. Jones, 69 N. C. 364; Jones v. Com., 31 Grat. (Va.) 880; Blount v. State, 49 Ala. 381; Curry v. State, 7 Tex. App. 91. 18 Polson v. State, 1387 Ind. 519, 35 N. E. 907; Cockerell v. State, 82 Tex. Cr. R. 585, 25 S. W. 421; Lewallen v. State (Tex. Cr. App.) 24 S. W. 907; Freel v. State, 21 Ark. 212; Nabors v. State, 6 Ala. 200; Guenther v. People, 24 N. Y. 100; Page v. Com., 9 Leigh (Va.) 688; Gipson v. State, 38 Miss. 295; Kellum v. State, 64 Miss. 226, 1 South. 174; Partain v. State, 22 Tex. App. 100, 2 S. W. 854; State y. Wilson, 40 La. Ann. 751, 5 South. 52,1 L. R. A. 795; Shelton v. State, 27 Tex. App. 448, 11 S. W. 457, 11 Am. St. Rep. 200. Ona trial of assault with intent to murder the jury returned a verdict finding the accused “guilty with assault by sutinge with intent to murder,” and it was held sufficient to reasonably convey the idea that they intended to find him guilty of assault by “shooting” with intent to murder. State v. Wilson, supra. See, also, Petty v. State, 59 Tex. Cr. R. 586, 129 S. W. 615. In Williams v. Com., 140 Ky. 34, 180 S. W. 807, the verdict—a written one—read: ‘We, the jury, do agree and find the defendant $150.00 and six months in jail and work.” The verdict was upheld, though there was no express finding of guilty. 14 Gipson vy. State, 38 Miss. 295; State v. Douglass, 1 G. Greene (Iowa) 550; People v. Boggs, 20 Cal. 483; Harvey v. Com., 23 Grat. (Va.) 941; State v. Hutchinson, 7 Nev. 53; Stephens vy. State, 51 Ga. 236; McEntee v. State, 24 Wis. 43; Cheek v. Com., 87 Ky. 42, 7 S. W. 403; post, pp. 571, 573. In Burden v. State (Miss.) 45 South. 705, the verdict found the defendant guilty of assault and battery with intent to commit manslaughter. It was held that the words, “with intent to commit manslaughter,” should be rejected as sur- plusage, and defendant sentenced for assault and battery. Where two were jointly indicted, but one was separately tried, a verdict finding both guilty is void as to the one not tried, but good as to the one tried. Ogee v. State, 190 Ala. 19, 67 South. 411. 15 Guenther y. People, 24 N. Y. 100; ante, p. 567. 570 TRIAL AND VERDICT (Ch. 12 Same—Finding Degree of Crime In some states it is provided by statute that, whenever a crime is distinguished into degrees, the jury, if they convict, must find the degree of which the defendant is guilty. Un- der such a statute a verdict failing to specify the degree of the crime of which the jury convict is void.2¢ Same—As to Punishment Where it is for the court to fix the punishment, the ver- dict should not do so, but, if it does, this part of the verdict may be rejected as surplusage.7 Where the jury are re- quired to fix the punishment, they must do so in their ver- dict, and must do so with certainty, or the verdict will be bad.7® If they fix a greater punishment than the law allows, the verdict, if not corrected, is void, and the defect cannot be cured by remitting the excess.1® Some courts hold that 16 Johnson v. State, 30 Tex. App. 419, 17 S. W. 1070, 28 Am. St. Rep. 930; People v. Bannister, 4 Cal. Unrep. Cas. 333, 34 Pac. 710; In re Black, 52 Kan. 64, 34 Pac. 414, 39 Am. St. Rep. 331; Allen v. State, 85 Wis. 22, 54 N. W. 999. 17 Harvey v. Com., 23 Grat. (Va.) 941; Henderson v. People, 165 Ill. 607, 46 N. E. 711. And see State v. Hutchinson, 7 Nev. 53. 18 Com. v. Scott, 5 Grat. (Va.) 697; Weatherford vy. State, 43 Ala. 319; Hammett v. State, 52 Ga. 122; Wynn vy. State, 1 Blackf. (Ind.) 28; Mills v. Com., 7 Leigh (Va.) 751; State v. Rohfrischt, 12 La. Ann. 382; People v. Littlefield, 5 Cal. 355; Padfield v. People, 146 Tll. 660, 35 N. E. 469; Roberts v. State, 33 Tex. Cr. R. 83, 24 S. W. 895; Eldridge v. Com., 87 Ky. 365, 8 S. W. 892. 19 Allen v. Com., 2 Leigh (Va.) 727; Jones v. Com., 20 Grat. (Va.) 848; Robinson v. State, 283 Tex. App. 315, 4 8S. W. 904; Nemo v. Com., 2 Grat. (Va.) 558. The verdict may be corrected in this as in other respects. Nemo y. Com., supra; ante, p. 565. As to rejecting excess as surplusage, see Veatch v. State, 60 Ind. 291; Cheek v. Com., 87 Ky. 42, 7 S. W. 403. In Washington v. State, 117 Ala. 30, 23 South. 697, the jury fixed the term of imprisonment and also, without right, prescribed the place of imprisonment. It was held that the unauthorized portion of the verdict might be rejected as surplusage. See, also, Henson v. State, 120 Ala. 316, 25 South. 23; Ex parte Robinson, 183 Ala. 30, 63 South. 177. In some states it is provided by statute that, if the jury assess a punishment, whether of imprisonment or fine, in excess of the limit prescribed by law for the offense of which they convict the defendant, the court shall dis- regard the excess and render judgment for the highest limit pre- scribed by law for the particular offense. See State v. Miles, 199 Mo. 530, 98 S. W. 25. §§ 181-185) THE VERDICT 571 a verdict fixing a less punishment than is authorized is void.2® A recommendation to mercy is allowed in some states.24_ In others it is improper, but it will not vitiate, for it may be rejected as surplusage.?? General Verdict A general verdict is simply a finding of not guilty or guilty on the whole charge, and both upon the law and the facts; as distinguished from a special verdict, which, as we shall see, is a finding on the facts only, leaving the court to apply the law to the facts found. The jury is always at liberty to find such a verdict.?® A general verdict of guilty is a conviction of the highest offense which is properly charged in the indictment.”* Where the indictment contains several counts, a general verdict of guilty or not guilty is a conviction or acquittal on every count that is good. And if one or more counts is bad a general verdict of guilty will be sustained as to those counts that are good.?® This principle has also been applied where there was a general verdict of guilty on an indict- ment containing several counts, one of which was not sus- tained by any evidence.**® Special Verdict A special verdict is where the facts of the case alone are found by the jury, and the legal inference to be derived 20 Jones v. Com., supra; contra, Hoskins v. State, 27 Ind. 470. 21 See Valentine v. State, 77 Ga. 470; Hannum vy. State, 90 Tenn. 647, 18 S. W. 269. 22 Stephens v. State, 51 Ga. 236. 234 Bl. Comm. 361; Co. Litt. 228; Reg. v. Allday, 8 Car. & P. 186; People vy. Antonio, 27 Cal. 404. 24 State v. Eno, 8 Minn. 220 (Gil. 190); Adams v. State, 52 Ga. ' 565; State v. McClung, 35 W. Va. 280, 13 S. HB. 654. If the highest offense charged is not’sustained by the proof, a general verdict of guilty must be set aside, though there was sufficient proof of an of- fense included in the charge. State v. Eno, 8 Minn. 220 (Gil. 190). 25 Yarber v. State (Tex. Cr. App.) 24 S. W. 645; Baron v. People, 1 Parker, Cr. R. (N. Y.) 246; Guenther v. People, 24 N. Y. 100; Peo- ple v. Curling, 1 Johns. (N. Y.) 320; State v. Lee, 114 N. C. 844, 19 S. E. 375; Brown v. State, 10 Ark. 607; Com. v. Howe, 13 Gray (Mass.) 26; State v. Jennings, 18 Mo. 435; State v. Montgomery, 28 Mo. 594; Parker v. Com., 8 B. Mon. (Ky.) 30; ante, p. 346. 26 State v. Bugbee, 22 Vt. 32. And see State v. Long, 52 N. C. 24. 572 TRIAL AND VERDICT (Ch. 12 from them is referred to the court. Though with us special verdicts are rare, the jury no doubt always have the right to find such a verdict unless prevented by statute, and the court must give the proper judgment on it.2” A special verdict must state positively the facts themselves, and not merely the evidence adduced to prove them, and it must find all the facts necessary to constitute the crime charged and to enable the court to give judgment. The court cannot supply by intendment or implication any defects in this re- spect.*8 A special verdict cannot find facts which are not in issue, but such findings are mere surplusage.?® The ex- act technical language of the indictment need not be fol- lowed.®° Partial Verdict A partial verdict is a finding as to a part of the charge, as where the jury convict the defendant on one or more counts of the indictment, and acquit him of the residue, or convict him on one part of a divisible count, and acquit him of the residue. We have already, in discussing the question of variance, seen when such a verdict as this may be found.** Ii the verdict expressly states that the defendant is guilty on a certain count, giving its number, or of the crime charg- ed therein, specifying it, and not guilty on the other count or counts, or of the crime or crimes therein charged, there is no difficulty in understanding the verdict, and rendering 27 Dowman’s Case, 9 Coke, 7b; Com. v. Chathams, 50 Pa. 181, 88 Am. Dec. 539; Com. v. Eichelberger, 119 Pa. 254, 13 Atl. 422, 4 Am. St. Rep. 642; McGuffie v. State, 17 Ga. 497; State v. Nash, 97 N. C. 514, 2 S. E. 645; State v. Duncan, 2 McCord (S. C.) 129; State v. Ewing, 108 N. C. 755, 138 S. E. 10; State v. Spray, 113 N. C. 686, 18 S. E. 700; State v. Divine, 98 N. C. 778, 4 S. B. 477. 28 Rex v. Francis, 2 Strange, 1015; 2 Hawk. P. C. ¢. 47, § 9; Rex v. Royce, 4 Burrows, 2073; Rex v. Plummer, J. Kel. 111; Com. v. Call, 21 Pick. (Mass.) 509, 82 Am. Dec. 284; People v. Wells, 8 Mich. 104; State v. Finlayson, 113 N. C. 628, 18 S. B. 200; State v. Lowry, 74 N. C. 121. It must find the county in which the acts were commit- ted, as this is an essential fact. Com. v. Call, supra. It must find the necessary intent and all other necessary elements. State v. French, 50 La. Ann. 461, 23 South. 606. 29 Stephens v. State, 51 Ga. 236; McEntee v. State, 24 Wis. 43. ‘30 Rex v. Dawson, 1 Strange, 19; Dowdale’s Case, 6 Coke, 47a. 31 Ante, p. 403. §§ 181-185) THE VERDICT 573 judgment on it; *? but if it fails to show with certainty upon which count or counts, or of which of several offenses in- cluded in the charge, it is intended to convict, no judgment can be given.** The verdict must in all cases be sufficiently certain to enable the court to see of what offense the jury intend to convict, or it will be void.24 If the verdict is suffi- ciently certain to meet this requirement it is sufficient to support a judgment, though it is inartificially drawn, or is couched in language that does not strictly follow the words of the charge.2> The verdict will not be rendered insuff- cient by the insertion of matter which is immaterial and may be rejected as surplusage.** | Sometimes a verdict finds the defendant guilty on one or more counts, and is silent as to the other counts, or finds him guilty of an offense included in the charge, and says nothing about the higher offense charged. In such cases the verdict is sufficiently certain to support a conviction on the count or counts, or of the offense, specified or referred to. It amounts to an acquittal on the counts, or of the 32 See Gipson y. State, 38 Miss. 295; Carter v. State, 20 Wis. 647; Guenther vy. People, 24 N. Y. 100; Harris v. People, 64 N. Y. 148; Day yv. People, 76 Ill. 380; Wright v. People, 33 Mich. 300; Page v. Com., 9 Leigh (Va.) 683. 33 Campbell v. Reg., 1 Cox, Cr. Cas. 269; State v. Izard, 14 Rich. (S. C.) 209; Day v. People, 76 Ill. 380. 34 Com. v. Lowery, 149 Mass. 67, 20 N. EB. 697; State v. West, 39 Minn, 321, 40 N. W. 249; Sullivan v. State, 44 Wis. 595; Foster v. State, 88 Ala. 182, 7 South. 185; Bowen v. State, 28 Tex. App. 498, 18 S. W. 787. ' 85“We find the defendant not guilty in manner and form as charged in the indictment, but we find her guilty of murder in the second degree,” was sustained as a conviction of murder in the sec- ond degree. Freel vy. State, 21 Ark. 212. And, where the indictment contained several counts, a verdict of guilty ‘on the first charge” was sustained as a conviction on the first count. Nabors y. State, 6 Ala. 200. So, where an indictment contained counts for larceny and for embezzlement, a verdict of “guilty of embezzlement” was sustained as a conviction on the count charging embezzlement. Guenther y. People, 24 N. Y. 100. So where the verdict misnum- bered the counts, but there was no doubt of the meaning and no prejudice. Newman v. People, 23 Colo. 300, 47 Pac. 278. And see Gipson v. State, 88 Miss. 295; Page v. Com., 9 Leigh (Va.) 683. 36 Gipson v. State, 38 Miss. 295; ante, p. 569, 574 TRIAL AND VERDICT (Ch. 12 offense, as to which it is silent.27. And therefore, as we have seen, the defendant cannot be again tried on the latter charges.5® An irregularity in a verdict may be waived by the defend- ant. There is such waiver where defendant fails to enter an objection to the verdict.®° Impeachment of Verdict by Jurors A juror cannot be allowed by his testimony, affidavit, or otherwise, to impeach the verdict after it has been recorded and finally accepted by the court.*° He cannot, for instance, say that he did not intend to agree,*t or that he intended to agree to a different verdict.*2 Jurors may testify as to any fact showing the existence of an extraneous influence, but they cannot give evidence as to the effect which such influ- ence had on their minds, or as to the motives and influences generally which affected their deliberations.“ By statute in the various states it may be shown in certain cases by the testimony of jurors that the verdict was illegally arrived at, as by lot. 37 Guenther v. People, 24 N. Y. 100; Morris v. State, 8 Smedes & M. 762; Edgerton v. Com., 5 Allen (Mass.) 514; Weinzorpflin v. State, 7 Blackf. (Ind.) 186; Kirk v. Com., 9 Leigh (Va.) 627; State v. McNaught, 36 Kan. 624, 14 Pac. 277; Stoltz v. People, 4 Scam. (Ill) 168; State v. Kattlemann, 35 Mo. 105; State v. McCue, 39 Mo. 112; Hechter v. State, 94 Md. 429, 50 Atl. 1041, 56 L. R. A. 457; ante, pp. 331, 403. Where the counts charge separate and distinct crimes, some courts limit the rule and require a finding on each count. Com. v. Carey, 103 Mass. 214; Wilson v. State, 20 Ohio, 26. 38 Ante, p. 439. 39 May v. State, 140 Ind. 88, 39 N. BE. 701. 40 Rex v. Wooller, 2 Starkie, 111; Smith v. State, 59 Ark. 132, 26 S. W. 712, 43 Am. St. Rep. 20; Cornwall v. State, 91 Ga. 277, 18 8S. EB. 154; State v. Dusenberry, 112 Mo. 277, 20 S. W. 461; State v. Best, 111 N. C. 638, 15 S. E. 930; Taylor v. Com., 90 Va. 109, 17 S. E. 812; State v. Rush, 95 Mo. 199, 8 S. W. 221; Com. yv. White, 147 Mass. 76, 16 N. E. 707; Palmer v. People, 138 Ill. 356, 28 N. E. 130, 32 Am. St. Rep. 146; People v. Sidwell, 29 Cal. App. 12, 154 Pac. 290. But see McBean v. State, 83 Wis. 206, 53 N. W. 497. 41 Rex v. Wooller, supra; Mercer vy. State, 17 Ga. 146; Stanton v. State, 18 Ark. 317; State v. Bennett, 40 S. C. 308, 18 S. E. 886. 42 State v. McNamara, 100 Mo. ‘100, 18 S. W. 938. 43 Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917. At ‘§ 186) PROCEEDINGS AFTER VERDICT 575 CHAPTER XIII PROCEEDINGS AFTER VERDICT 186. Motion in Arrest of Judgnrent. 187. Judgment and Sentence. 188. Cruel and Unusual Punishment. 189. New Trial. 190. Writ of Error. MOTION IN ARREST OF JUDGMENT 186. Formerly almost any objection which would have been fatal on demurrer could be made the ground of a motion in arrest of judgment, but this rule has been to a great extent changed by statute. Such a mo- tion will lie, however, whenever the indictment is insufficient to sustain a judgment, or the verdict is insufficient; but it will not lie for any defect which is cured by verdict at common law, or which may be and is cured by statute. It only lies for matter appearing on the record. Before trial, as we have seen, if the indictment is fatally defective, or there appears anywhere else in the record such defect or irregularity as will render the proceedings void or a conviction erroneous, the defendant may successfully de- mur or move to quash. After conviction, the proper pro- ceeding in like case is a motion in arrest of judgment. It was at one time held that a motion in arrest of judgment would lie for any defect which could have been attacked by a demurrer,? but in many states, as we have seen, statutes have been enacted curing certain formal defects if objection is not made before verdict, or at a previous stage of the trial. We have already discussed these statutes and their consti- 1 See ante, p. 436. 24 Bl. Comm. 324; State v. City of Bangor, 38 Me. 592; State v. Doyle, 11 R. I. 574. 576 PROCEEDINGS AFTER VERDICT (Ch. 13 tutionality.? In some states the grounds of motion in arrest are specified in the statutes, and the motion will not lie on any other ground.* Irrespective of statute, it is generally held that defects which are aided or cured by verdict cannot be made the ground of a motion in arrest.® In all cases the defect must appear on the face of the in- dictment, or some other part of the record, for the motion will not reach objections depending upon facts dehors the record, such as irregularities in the custody and conduct of the jury.® If the indictment is clearly insufficient to sustain a judg- ment, as where it fails to charge an offense, or fails to charge the offense with sufficient certainty to meet the re- quirement of the constitution, the motion will lie.” And it will lie because of the insufficiency of the verdict to sustain a judgment,® or for any other defect or error in the proceed- ings, apparent on the record, rendering the trial illegal or a judgment unauthorized. As we have seen, misnomer of 3 Ante, pp. 165, 364, 369, 372. See U. S. v. Gale, 109 U. S. 65, 3 Sup. Ct. 1, 27 L. Ed. 857; Coleman vy. State, 111 Ind. 568, 18 N. EB. 100; People v. Kelly, 94 N. Y. 526; Jones v. State, 32 Tex. Cr. R. 110, 22 S. W. 149. é ‘ 4 State v. Smith, 12 Mont. 378, 30 Pac. 679. Thus in some states the motion in arrest raises only two questions: (1) That the offense was not within the jurisdiction of the court; (2) that the facts charged do not constitute a crime. Pittsburgh, C., C. & St. L. Ry. v. State, 178 Ind. 498, 99 N. E. 801. 5 Ante, p. 367; Lutz v. Com', 29 Pa. 441; State v. Hodgson, 66 Vt. 134, 28 Atl. 1089. 6 Bellasis v. Hester, 1 Ld. Raym. 281; Forbes v. Com., 90 Va. 550, 19 S. EH. 164; Horsey v. State, 3 Har. & J. (Md.) 2; Com. v. Donahue, 126 Mass. 51; State v. Martin, 388 W. Va. 568, 18 S. E. 748; Hall v. Com., 80 Va. 562; State v. Conway, 23 Minn. 291; State v. Carver, 49 Me. 588, 77 Am. Dec. 275; Munshower vy. State, 56 Md. 514; Herron v. State, 93 Ga. 554, 19 S. E. 248; State v. Casey, 44 La. Ann. 969, 11 South. 583. 7 Ante, p. 181; Com. v. Morse, 2 Mass. 128; Com. v. Hinds, 101 Mass. 209; State v. Gove, 34 N. H. 510; Denley v. State (Miss.) 12 South. 698. 8 Ante, p. 568; State v. McCormick, 84 Me. 566, 24 Atl. 938; Com y. Call, 21 Pick. (Mass.) 509, 32 Am. Dec, 284. ® State v. Meyers, 68 Mo. 266; Com. v. Kimball, 21 Pick. (Mass.) 873. Repeal of statute creating offense, Rex v. McKenzie, Russ. & R. 429; Brennan v. People, 110 Ill. 535. And see ante, pp. 492, 511. § 186) MOTION IN ARREST OF JUDGMENT 577 the defendant is no gound for arresting judgment.*® Nor can the insufficiency of the evidence to support the verdict be made the ground of such a motion. We have already in various places shown what defects are and what are not ground for motion in arrest of judgment.*? At common law a motion in arrest may be made at any time after verdict and before sentence, but it cannot be made after judgment.’? In some states, by statute or rules of court, it is required to be made within a certain time after verdict, but this will not prevent the court from entertain- ing it after the expiration of the time so limited if it’sees fit to do so.** The court may arrest the judgment on its own motion. A motion in arrest by the defendant is not necessary to en- able the court to act, though it is necessary to entitle the de- fendant to complain of its failure to act.1* If the motion is granted and the judgment is arrested, the proceedings are set aside and judgment of acquittal entered.?® As we have seen, however, in discussing former jeopardy, a verdict on which judgment is arrested does not neces- sarily prevent another trial for the same offense.?® 10 Ante, p. 176. 11 As to duplicity, see ante, p. 330. Misjoinder of counts, ante, Dp, 342. As to other defects in pleading, see the specific subject under that head, pp. 157-415. 12 1 Chit. Cr. Law, 662; Rex v. Robinson, 2 Burrows, 801; State v. O'Neil, 66 Vt. 356, 29 Atl. 376. 13 See State v. Bryan, 89 N. C. 531. 14 Rex v. Waddington, 1 East, 146; U.S. v. Plumer, 3 Cliff. 62, Fed. Cas. No. 16,056; Rex v. Burridge, 3 P. Wms. 499. 151 Chit. Cr. Law, 664. “16 Ante, p. 451. CuaRrK Cr.PRoc.(2D ED.)—3T 578 PROCEEDINGS AFTER VERDICT (Ch. 18 JUDGMENT AND SENTENCE 187. It is the duty of the court to render judgment and pro- nounce sentence on the verdict. In cases of felony the defendant must first be asked whether he has anything to say why the court should not pass sen- tence upon him. The judgment must be within the limit fixed by law. After the verdict has been accepted and recorded, and a motion in arrest or for a new trial that may have been made has been overruled, it becomes the duty of the court to ren- der judgment and pronounce sentence. In capital cases, and, in some jurisdictions, in other cases of felony, the de- fendant must first be asked whether he has anything to say why sentence should not be passed upon him, and, in most jurisdictions, if this formality is omitted, the judgment will be set aside.*” This does not mean, however, that a new 17 Schwab v. Berggren, 143 U. 8S. 442, 12 Sup. Ct. 525, 36 L. Ed. 218; Ball v. U. S., 140 U. S. 118, 11 Sup. Ct. 761, 35 L. Ed. 8377; Rex v. Geary, 2 Salk. 630; Rex v. Speke, 3 Salk. 358; Safford v. People, 1 Parker, Cr. R. (N. Y.) 474; Messner v. People, 45 N. Y. 1; Hamil- ton v. Com., 16 Pa. 129, 55 Am. Dec. 485; James v. State, 45 Miss. 572; Perry v. State, 43 Ala. 21; Crim v. State, 43 Ala. 53; State v. Jennings, 24 Kan. 642; Grady v. State, 11 Ga. 253; Keech v. State, 15 Fla. 591. Contra, where the defendant is represented by counsel. Warner v. State, 56 N. J. Law, 686, 29 Atl. 505, 44 Am. St. Rep. 415. In Dutton v. State, 123 Md. 378, 91 Atl. 417, Ann. Cas, 1916C, 89, it was held that the omission to ask this question, even in a capital case, was not reversible error. “A judgment is a decision or sentence of the law, pronounced by the court and entered upon its docket, minutes, or record. A mere oral decision is not a judgment * * * until it has been put in writing and entered as such.” Easterling v. State, 11 Ga. App. 184, 74 S. E. 899. Whether such oral decision or statement is made be- fore or after the signing of the judgment. Mathews v. Swatts, 16 Ga. App. 208, 84 S. E. 980. So, where defendant was duly sen- tenced to fine and imprisonment, and it was orally agreed between the judge, the district attorney, and the defendant that defendant should leave the county, and no return was made on the commitment, it was held that the court could enforce the sentence of fine and imprisonment, though defendant had complied with his part of the § 187) JUDGMENT AND SENTENCE 579 trial must be had. By the weight of authority the omission affects the sentence only, not the verdict, and a new sen- tence may be imposed after an opportunity has been afford- ed the defendant to plead in bar to it.1® When any corporal punishment is to be inflicted, it is nec- essary that the defendant shall be personally before the court when sentence is pronounced, but this is not necessary where a mere fine is to be imposed.?® It is generally agreed that a court has inherent power to suspend temporarily the pronouncement of sentence, and to continue to do so from time to time, for the purpose of hearing motions and other proceedings necessary to pre- serve to the defendant some legal right.?° agreement. Ex parte Oliver, 11 Okl. Cr. 536, 149 Pac. 117; Ex parte Hinson, 156 N. C. 250, 72 S. EB. 310, 36 L. R. A. (N. S.) 352; Ex parte Lujan, 18 N. M. 310, 137 Pac. 587. The judgment must correspond with, or be responsive to, the verdict. Kidd v. Terr., 9 Okl. 450, 60 Pac. 114. If it is not, the cause must ‘be remanded to the trial court for proper judgment. Id. Under statute in some states it may be corrected in the appellate court. Sayers v. State, 10 OKI. Cr. 195, 185 Pac. 944. But where the verdict finds defendant guilty of a higher offense than was warranted by the evidence, the trial court has power to pronounce judgment thereon for such lower offense, included in the one charged, as the evidence warrants. U. S. v. Linnier (C. C.) 125 Fed. 83._ 18 McCue v. Com., 78 Pa. 185, 21 Am. Rep. 7; People v. Nesce, 201 N. Y. 111, 94 N. E. 655; Dutton v. State, 123 Md. 373, 91 Atl. 417, Ann. Cas. 1916C, 89. 191 Chit. Cr. Law, 695; 2 Hawk. P. C. c 48, § 17; Rex v. Harris, 1 Ld. Raym. 267; Shiflett v. Com, 90 Va. 386, 18 S. BE. 838; Davis v. Com., 138 Pa. Co. Ct. R. 545. Contra, in some cases by statute. Shiflett v. Com., supra. The death of accused after judgment and sentence abates all proceedings in the case. People v. St. Maurice, 166 Cal. 201, 185 Pac. 952; U.S. v. Dunne, 173 Fed. 254, 97 C. C. A. 420, 19 Ann. Cas. 1145. If the defendant becomes insane after sen- tence and judgment, the judgment cannot be executed while the in- , sanity continues, but must be suspended. State v. Vann, 84 N. C. 722. If his insanity is suggested to the court, the method of deter- mining whether he is sane is within the discretion of the court, and, in the absence of statute, the accused has no absolute right to have the question determined by a jury. The court may submit the ques- tion to experts. State v. Nordstrom, 21 Wash. 408, 58 Pac. 248, 53 L. R. A. 584. 20U. S. v. Wilson (C. C.) 46 Fed. 748; People v. Barrett, 202 Ill. 580 PROCEEDINGS AFTER VERDICT (Ch. 18 Some courts go further, and hold that this power is not thus limited, but that the court may in its discretion sus- pend the pronouncement of sentence whenever it thinks fit and justice demands it.?? Where more than one defendant is convicted on a joint indictment the judgment must be several against each,?? but sentence may be pronounced against them jointly.?* The judgment must be certain and definite at common law. A judgment that defendant be confined in jail until he pay “what shall be due,” no definite sum being stated as due, is void,?* as is a sentence to pay a fine “unless such a thing be done in futuro.” 2° So at common law there could be no alternative judgment, and therefore a sentence that defendant “pay a fine, and, in default thereof be imprisoned thirty days,” is void.2* By statute in some states such al- ternative judgments are now allowed.?” Statutes in some states now provide for an indeterminate 287, 67 N. E. 23, 63 L. R. A. 82, 95 Am. St. Rep. 230; State v. Abbott, 87 8S. C. 466, 70 S. BE. 6, 33 L. R. A. (N. S.) 112, Ann. Cas. 1912B, 1189. 21 People ex rel. Forsyth v. Court of Sessions of Monroe County, 141 N. Y. 288, 36 N. HE. 386, 23 L. R. A. 856; 2 Hale, P. C. 412; 2 Hawk. P. C. ec 51, § 8; Com. v. Dowdican, 115 Mass. 133; State v. Addy, 48 N. J. Law, 118, 39 Am. Rep. 547; Weaver y. People, 33 Mich. 296; People v. Reilly, 53 Mich. 260, 18 N. W. 849; Sylvester v. State, 65 N. H. 193, 20 Atl. 954; People v. Goodrich (Sup.) 149 N. Y. Supp. 406; Ex parte Hinson, 156 N. C. 250, 72 S. B. 310, 36 L, R. A. (N. 8.) 352; Gehrmann vy. Osborne, 79 N. J. Eq. 430, 82 Atl. 424. Some courts deny that this power exists at common law, except in cases where the delay in sentencing is necessary to prevent the loss by defendant of some legal right. U.S. v. Wilson (C. ©.) 46 Fed. 748; People v. Barrett, 202 Ill. 287, 67 N. E. 23, 63 L. R. A. 82, 95 Am. St. Rep. 230; State v. Abbott, 87 S. C. 466, 70 8S. E. 6, 33 L. R. A. (N. S.) 112, Ann. Cas. 1912B, 1189. 22 Caldwell v. Com., 7 Dana (Ky.) 229; Miller v. People, 47 Ill. App. 472. An otherwise valid judgment is not vitiated by erroneous- ly inserting in it judgment against another person who was not tried. Agee v. State, 190 Ala. 19, 67 South. 411. : 231 Chit. Cr. Law, 700; 6 Harg. St. Tr. 833. 24 Rex v. Cotterall, Fitzgibbons, 256. 25 Per Holt, C. J., Rex v. Mayor of Hertford, Holt, 320. 26In re Deaton, 105 N. C. 59, 11 S. E. 244; State v. Sturgis, 110 Me. 96, 85 Atl. 474, 48 L. R. A. (N. 8S.) 443. 27 Wallace y. State, 126 Ga. 749, 55 S. HB. 1042, § 187) JUDGMENT AND SENTENCE 581 sentence. Where such statutes are mandatory, a judgment assessing a definite term of imprisonment is void.?® Generally the minimum and maximum punishment for the particular offenses is fixed by statutes, varying in the different states, and it is within the discretion of the court to impose any punishment within those limits. In some states, and in some cases, the jury are required or author- ized to fix the punishment in their verdict. A judgment for a greater or less punishment than that prescribed by law is error.?® Jurisdiction to render the particular sentence im- 28 Day v. Com., 162 Ky. 767, 173 S. W. 186; Orange v. State, 76 Tex. Cr. R. 194, 173 8S. W. 297. In both of the cases cited above the trial court sentenced defendant for a definite term, when under the statute the sentence should have been for an indefinite term. In the first case the appellate court reversed the judgment and granted a new trial. In the second the appellate court reformed: the sentence. In People v. Coleman, 251 Ill. 497, 96 N. B. 239, on the same facts, the court held that the case should be remanded to the trial court, with directions that that court enter a proper sentence. See further Ex parte Duff, 141 Mich. 6238, 105 N. W. 188. ° 20 Rex v. Bourne, 7 Adol. & HE. 58; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; Ex parte Cox, 3 Idaho (Hasb.) 530, 32 Pac. 197, 95 Am. St. Rep. 29; State v. Williams, 40 8S. C. 373, 19 S. E. 5. Thus, where the statute prescribes the punishment of imprisonment “or” fine, a judgment of imprisonment and fine is bad. Hargrove v. State, 33 Tex. Cr. R. 165, 25 S. W. 967. So, where a statute prescribes im- prisonment and fine, a sentence of imprisonment without any fine is invalid. Woodruff v. U. 8. (C. C.) 58 Fed. 766. Where the judgment is for a longer imprisonment or a greater fine than that prescribed by law, the judgment is not necessarily void in toto. By the weight of authority such judgment is valid to the extent that the court had power to sentence the defendant, and void only as to the excess, and the defendant may be held under such judgment for the period for which the court had authority to sentence him. In re Taylor, 7 §. D. 382, 64 N. W. 253, 45 L. R. A. 136, 58 Am. St. Rep. 843; In re Graham, 138 U. S. 461, 11 Sup. Ct. 363, 34 L. Ed. 1051; In re Paschal, 56 Kan. 123, 42 Pac. 373; Hx parte Burden, 92 Miss. 14, 45 South. 1, 131 Am. St. Rep. 511; U. 8. v. Pridgeon, 153 U. S. 48, 14 Sup. Ct, 746, 38 L. Ed. 631. Contra, Ex parte Page, 49 Mo. 291; Ex parte Cox, 3 Idaho (Hasb.) 530, 32 Pac. 197, 95 Am. St. Rep. 29. Where the judgment pronounced is for a less term of years or a smaller fine than is provided by law for the offense, the judgment is not neces- sarily void. In re Reed, 148 Cal. 634, 77 Pac. 660, 101 Am. St. Rep. 188. In some jurisdictions it is held that such judgment is, how- , 582 PROCEEDINGS AFTER VERDICT (Ch. 18 posed is just as essential as jurisdiction of the person of the defendant and of the subject-matter.*®° When the defendant is in execution on a former judg- ment, sentence of imprisonment, and other penalties, may be given against him to commence from the expiration of the existing sentence.*?. And it is held in England and in some of our states that where a person is charged with sev- eral offenses at the same time, of the same kind, he may be sentenced to several terms of imprisonment, one to com- mence after the conclusion of the other.3? In some states, ever, error of which the defendant may take advantage. Taff v. State, 39 Conn. 82. Other:jurisdictions hold that, since the defend- ant is not prejudiced by the error, he cannot complain of it. In re Reed, 148 Cal. 634, 77 Pac. 660, 101 Am. St. Rep. 188. Where a gener- al verdict of guilty is entered on an indictment containing several counts, and some of the counts are later found bad, if the sentence does not exceed what might properly have been imposed on the good counts, it will be sustained. Haynes v. U. S., 101 Fed. 817, 42 C. c. A. 84; State v. Davidson, 12 Vt. 300. Contra, O’Connell v. Reg., 11 Cl. & Fin. 155. 30 Hx parte Cox, 3 Idaho (Hasb.) 530, 32 Pac. 197, 95 Am. St. Reps 29; Ex parte Burden, 92 Miss. 14, 45 South. 1, 131 Am. St. Rep. 511; Munson v. McClaughry, 198 Fed. 72, 117 C. C. A. 180, 42 L. R. A. (N. S.) 8302. Where the judgment complained of is erroneous in the ex- tent of the punishment, the mode of punishment, or the place of pun- ishment, the views of the courts “are as numerous and varied as the different liquors from the magician’s bottle.” Hx parte Tani, 29 Nev. 385, 91 Pac. 137, 18 L. R. A. (N. S.) 518. See this case for a review of the authorities. 311 Chit. Cr. Law, 718; Rex v. Wilkes, 4 Burrows, 2577; Ex parte Sargood, 86 Vt. 180, 83 Atl. 718. 321 Chit. Cr. Law, 718; Castro v. Reg., 6 App. Cas. 229; Rex v. Williams, 1 Leach, Crown Cas. 536; Brown v. Com., 4 Rawle (Pa.) 259, 26 Am. Dec. 180; In re Walsh, 37 Neb. 454, 55 N. W. 1075; In re White, 50 Kan. 299, 82 Pac. 86; In re Packer, 18 Colo. 525, 33 Pac. 578. Such a sentence should not fix the date on which each succes- sive term of imprisonment shall begin, but should ‘direct each term to commence at the expiration of the former term, since the former sentence may be shortened by good conduct or otherwise. In re Walsh, supra. The court may impose one sentence on a conviction for two or more offenses, provided the sentence is not in excess of the maxi- mum allowed by law for all the offenses of which the defendant has been convicted. Myers v. Morgan, 224 Fed. 413, 139 C. C. A. 641. Contra, U. S. v. Peeke, 153 Fed. 166, 82 C. C. A. 340, 12 L. R. A. (N. S.) 314. In the absence of any statute, if two sentences are imposed, § 187) JUDGMENT AND SENTENCE 583 however, in case of corporal punishment, cumulative sen- tences are not allowed.®? We have seen that there is a conflict as to the power of a court to suspend the pronouncement of sentence. There is the same conflict as to the power of the court to suspend the execution of the sentence, after the sentence has been pronounced. Some of the conflict has apparently arisen from confusing the two questions.** The courts frequently exercise this power by suspending sentence during good behavior. The power is not taken away from the courts by a statute merely making it their. duty to impose the punishment prescribed.*® Excessive Punishment The court, as stated above, cannot impose any greater punishment than is prescribed by law. But it or the jury, according to the practice, can impose any amount of pun- ishment within the limits fixed by law for the particular of- fense, and in most states the sentence will not be interfered and it is not stated that one of them shall take effect at the expiration of the other, the two periods of time will run concurrently and the two sentences be executed simultaneously. In re Breton, 93 Me. 39, 44 Atl. 125, 74 Am. St. Rep. 335; Ex parte Hunt, 28 Tex. App. 361, 13 S. W. 145. Contra, Ex parte Durbin, 102 Mo. 100, 14 S. W. 821. In In re Jennings (C. C.) 118 Fed. 479, the petitioner had been sentenc- ed by a federal court to five years’ imprisonment in a penitentiary in Kansas. ‘The marshal, instead of conveying him there, surrendered him to the marshal of another district, where he was tried for an- other crime, convicted, and sentenced for life. He was imprisoned in Ohio. Five years later he was pardoned for this second offense. Held, that he had served his first sentence by his term of imprison- ment in Ohio. But see Ex parte Brunding, 47 Mo. 255; Sartain v. State, 10 Tex. App. 651, 38 Am. Rep. 649. 33 People v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211. 84 See Neal v. State, 104 Ga. 509, 30 S. EB. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175; Spencer v. State, 125 Tenn. 64, 140 S. W. 597, 38 L. R. A. (N. S.) 680; In re Webb, 89 Wis. 354, 62 N. W. 177, 27 L. R. A. 356, 46 Am. St. Rep. 846; State v. Barker, 79 Neb. 361, 112 N. W. 1143, 113 N. W. 197; Tanner v. Wiggins, 54 Fia. 203, 45 South. 459, 14 Ann. Cas. 718; Fuller v. State, 100 Miss. 811, 57 South. 806, 39 L. R. A. (N. S.) 242, Ann, Cas. 1914A, 98. For partial suspension of exe- cution of sentence, see State v. Clifford, 84 N. J. Law, 595, 87 Atl. .97. 85 People ex rel. Forsyth v. Court of Sessions of Monroe County, supra, \ 584 PROCEEDINGS AFTER VERDICT (Ch. 13 with on the ground that the punishment is excessive.** If the punishment is cruel and unusual, within the constitu- tional prohibition to be presently explained, a different question is presented. CRUEL AND UNUSUAL PUNISHMENT 188. In the federal Constitution, and in most, if not all, of the state Constitutions, there is a prohibition against cruel and unusual punishments. This prohibition “is to be understood as forbidding any cruel or degrading punishment not known to the common law, and probably also any degrading punishments which, in the particular state, had become obsolete when its Con- stitution was adopted, and also all punishments which are so disproportioned to the offense as to shock the moral sense of the community.” ’ Under this provision there 36 People v. Kelly, 99 Mich. 82, 57 N. W. 1090; Ledgerwood v. State, 184 Ind. 81, 33 N. EB. 681; People v. McGonegal, 136 N. Y. 62, 32 N. E. 616. In some states the court, on appeal, reviews the sen- tence in this respect, but it will not interfere unless the punishment imposed is clearly excessive. See Sutton v. People, 145 Ill. 279, 34 N. E. 420; West v. Com. (Ky.) 20 S. W. 219. 37 Black, Const. Law, 510; In re Bayard, 25 Hun (N. Y.) 546; Cooley, Const. Lim, 329; Pervear v. Massachusetts, 5 Wall. 475, 18 L. Ed. 608; Barker vy. People, 3 Cow. (N. Y.) 686, 15 Am. Dec. 322. In Weems v. U. S., 217 U. 8S. 349, 30 Sup. Ct. 544, 54 L. Ed. 793, 19 Ann. Cas. 705, it was held that cruel and unusual punishment was inflicted by a statute under which the falsification of a public record by a public official was punished by fine and imprisonment at hard labor for a period of twelve years to twenty years, the prisoner being subject, as accessories to the main punishment, to carrying, dur- ing his imprisonment, a chain at the ankle, hanging from the wrist, to deprivation during imprisonment of civil rights, and to perpetual disqualification to enjoy political rights, and to surveillance of the authorities during life. In State v. Driver, 78 N. C. 423, a sentence for assault and battery upon a wife of imprisonment for five years, and at the expiration thereof to give security to keep the peace for five years in the sum of five hundred dollars, with sureties, was held to be cruel and unusual punishment. Ordinarily an excessive fine is held not to be unusual and cruel punishment; but in State v. Ross, 55 Or. 450, 104 Pac. 596, 106 Pac. 1022, 42 L. R. A. (N. S.) 601, 618, it § 189) NEW TRIAL 585 can be no such punishment as torture, disemboweling, burning, branding, mutilation, the pillory or the ducking stool, but the ordinary modes of punishment, such as hang- ing, imprisonment, and fines, are not prohibited.** Nor is the provision violated by requiring the death penalty to be inflicted by shooting, or by electrocution, or by requiring the accused to be kept in solitary confinement until execu- tion.*® Punishment by requiring the accused to work out his fine by laboring on the street in chains is not cruel or unusual ; *#° nor, it seems, is it a violation of the Constitution to punish by stripes.*! NEW TRIAL 189. A motion by the defendant for a new trial is proper where there was any error or irregularity during the trial which prevented substantial justice, or where the verdict is contrary to the evidence, or where evidence which would require a different finding has been discovered since the verdict. A new trial may be granted for misconduct of the jury, as where they determined upon their verdict by casting lots,*? was held that a fine of $576,853.74, for larceny, which defendant was unable to pay at the time, or even during a lifetime of effort, though it was authorized by statute, was within the constitutional inhibition. Statutes have been passed in a few states, recently, providing for the operation of vasectomy on persons convicted of certain crimes. Such statute has been held constitutional in Washington (State v. Feilen, 70 Wash. 65, 126 Pac. 75, 41 L. R. A. [N. 8.] 418, Ann. Cas. 1914B, 512), and unconstitutional by the United States District Court (wavis v. Berry, 216 Fed. 413). 38 Black, Const. Law, 510. 89 People v. Kemmler, 119 N. Y. 580, 24 N. B. 9; In re Kemmler, 156 U. S. 436, 10 Sup. Ct. 930, 34 L. Ed. 519; Wilkerson v. Utah, 99 U. 8. 180, 25 L. Ed. 345; McElvaine v. Brush, 142 U. S. 155, 12 Sup. Ct. 156, 35 L. Ed. 971; Storti v. Com., 178 Mass. 549, 60 N. Hi. 210, 52 L. R. A. 520, 40 Bx parte Bedell, 20 Mo. App. 125; Loeb v. Jennings, 133 Ga. 796, 67 S. B. 101, lo Ann. Cas. 376. 41 Com. v. Wyatt, 6 Rand. (Va.) 694; Foote v. State, 59 Md. 264; Garcia v. Territory, 1 N. M. 415. But see Cooley, Const. Lim. 329. 43 Ante, D. 557. 586 PROCEEDINGS AFTER VERDICT - (Ch. 13 or separated when they should not have done so, or held communications with outsiders, or were otherwise guilty of misconduct prejudicial to the defendant.*? But, as we have seen, the testimony of the jurors themselves cannot be re- ceived to impeach their verdict.** In most states a new trial may be granted on the merits, on the ground that the evidence is insufficient to sustain the verdict; *> but the court will not set aside a verdict and grant a new trial on this ground unless the evidence is clear- ly insufficient. Ordinarily, if the evidence was conflicting, or if there is any evidence to sustain the verdict, a new trial will be denied, for the jury are the judges of the credibility of the witnesses and the weight of the evidence.*® Mere want of preparation on the part of the defendant is no ground for a new trial.47 Nor will a new trial be granted merely because one of the witnesses made a mistake in tes- tifying,** or has since been discovered to be incompetent.*® But where material witnesses have been prevented by ill- ness from attending,®° or have gained credit on the trial by circumstances since falsified by affidavit, or are afterwards convicted of perjury, or otherwise shown to have testified falsely,5+ the court may, and generally will, allow a new trial.5? 43 Ante, p. 554. 44 Ante, p. 574. 45 Style, 462; 1 Chit. Cr. Law, 654; Rex v. Mawbey, 6 Term R. 622; Macrow vy. Hull, 1 Burrows, 12; Williams v. State, 85 Ga. 535, 11 S. BE. 859; Ball v. Com., 8 Leigh (Va.) 726; Com. v. Briggs, 5 Pick. (Mass.) 429; State v. Spidle, 44 Kan. 439, 24 Pac. 965. 46 People v. Chun Heong, 86 Cal. 329, 24 Pac. 1021; U. S. v. Du- cournau (C. C.) 54 Fed. 188; Hardison v. State, 94 Ga. 704, 19 S. E. 895; Nealy v. State, 89 Ga. 806, 15 S. E. 744. 47 Ford v. Tilly, 2 Salk. 653; 1 Chit. Cr. Law, 656. 48 Huish v. Sheldon, Sayer, 27. Contra, Richardson vy. Fisher, 1 Bing. 145. ‘ 49 Turner v. Pearte, 1 Term R. 717; Wolfforth v. State, 31 Tex. Cr. R. 387, 20 S. W. 741. 50 Anon., 1 Salk. 645. But see Jackson v. State (Tex. Cr. App.) 25 S. W. 632. 51 Lister v. Mundell, 1 Bos. & P. 427; State v. Moberly, 121 Mo. 604, 26 S. W. 364. But see State v. Anderson, 14 Mont. 541, 37 Pac. 1. 521 Chit. Cr. Law, 656. § 189) NEW TRIAL 587 | « A new trial may also be granted for prejudicial errors in the charge of the court,®* or because of the erroneous ad- mission or exclusion of evidence, though generally not in such a case where there is ample competent evidence to sus- tain the verdict.®* Another ground upon which a motion for a new trial is frequently based is after-discovered evidence.*> To author- ize a new trial on this ground (1) the evidence must have been discovered since the trial; °* (2) it must be such as reasonable diligence on the part of the defendant could not have secured on the former trial; *’ (3) it must be material, and not merely collateral or cumulative or corroborative or 58 Anon., 2 Salk. 649; How v. Strode, 2 Wils. 273; State v. Hutch- ison, 121 Minn. 405, 141 N. W. 483. But the error must be preju- dicial. Skinner v. State, 13 Ga. App. 370, 79 S. E. 181; State v. Mar- _ren, 17 Idaho, 766, 107 Pac. 993. It is not prejudicial error to sus- tain an objection to a question, a responsive answer to which may be either favorable or unfavorable to the party asking it, when it does not appear what was the answer expected. Beiser v. State, 10 Ala. App. 86, 65 South. 312. 54 Rex v. Ball, Russ. & R. 132; People v. Walker, 26 Cal. App. 47, 146 Pac. 65; State v. Williams, 96 Minn. 351, 105 N. W. 265; Drury v. Terr., 9 Okl. 395, 60 Pac.-101; Kelly v. People, 229 Ill. 81, 82 WN. E. 198, 12 L. R. A. (N. S.) 1169, 11 Ann. Cas. 226. 55 Johnson v. State (Tex. Cr. App.) 22 S. W. 595; Cooper vy. State, 91 Ga. 362, 18 S. E. 303; State v. Don Carlos, 38 8S. C. 225, 16 S. E. 832; Bailey v. State, 36 Neb. 808, 55 N. W. 241. 56 White v. State, 17 Ark. 404; State v. Cantlin, 118 Mo: 100, 23 S. W. 1091. In Hill v. State (Tex. Cr. App.) 53 S. W. 845, defendant moved for a new trial on the ground of newly discovered evidence, to prove insanity. There was strong evidence of insanity in the cir- cumstances of the crime, and it was shown that he had been adjudg- ed insane in another state, and had been discharged, as cured, short- ly before the commission of the crime, and had recently run away from home. His relatives had not been informed of the accusation, or of his whereabouts, until after his conviction. His jailer made affidavit that since conviction he had acted as though he were in- sane. Held, that a new trial should be granted, though in strictness the evidence was not newly discovered. 57 Lilly v. People, 148 Ill. 467, 36 N. BE. 95; Bennett v. Com., 8 Leigh (Va.) 745; Thompson v. Com., 8 Grat. (Va.) 637; People v. Mack, 2 Parker, Cr. R. (N. Y.) 673; State v. Dimmitt, 88 Iowa, 551, 55. N. W. 531; Runnels v. State, 28 Ark. 121; Avery v. State, 26 Ga. 233. 588 PROCEEDINGS AFTER VERDICT (Ch. 18 impeaching; °* (4) it must be such as ought to produce a different result on the merits on another trial; °® (5) it must go to the merits, and not rest on merely a technical de- fense.®°° By the great weight of authority a new trial cannot be granted at the instance of the state after a verdict of ac- quittal.** We have already shown, in the preceding pages, what constitute errors and irregularities during the trial, and it will be sufficient here to refer to the specific heads. Objections which can be raised by motion in arrest of judgment are ordinarily no ground for motion for a new trial. A motion for a new trial does not lie because of de- fects in pleading.®? WRIT OF ERROR 190. At common law the proceedings and judgment of a subordinate. court may be taken to an appellate court for review by writ of error, which is a writ issuing from the appellate court commanding the subordinate court to send up the entire record. Such a writ lies only to a court of record. It does not lie until after judgment, and lies only for errors of record. The modes of reviewing the judgment and proceedings in a criminal case are now almost entirely regulated by statute. 58 Lilly v. People, 148 Ill. 467, 36 N. E. 95; Childs v. State, 94 Ga. 703, 19 S. E. 752;° Mitchell v. State, 94 Ga. 704, 19 S. E. 893; State v. De Graff, 113 N. C. 688, 18 8. E. 507; State v. Howell, 117 Mo. 307, 23 S. W. 263; State v. Potter, 108 Mo. 424, 22 S. W. 89; Corley v. N. Y. & H.R. Co., 12 App. Div. 409, 42 N. Y. Supp. 941. But see Bailey v. State, 36 Neb. 808, 55 N. W. 241. 59 Wield v. Com., 89 Va. 690, 16 S. E. 865; Yeldell v. State (Tex. Cr. App.) 25 S. W. 424; Burgess v. State, 33 Tex. Cr. R. 9, 24 S. W. 286; Peterson v. State (Tex. Cr. App.) 24 §. W. 518; Simpson v. State, 93 Ga. 196, 18 S. EB. 526; People v. Urquidas, 96 Cal. 239, 31 Pac. 52; King v. State, 91 Tenn. 617, 20 S. W. 169; State v. Hendrix, 45 La. Ann. 500, 12 South. 621; State v. Nelson, 91 Minn. 143, 97 N. W. 652. 60 Whart. Cr. Pl. & Prac. § 854; Cooper v. State, 91 Ga. 362, 18 S. E. 303. . 61 Ante, D. 453, 62 White v. State, 93 Ga. 47, 19 S. HE. 49. § 190) WRIT OF ERROR 589 At common law the mode of reviewing the proceedings and judgment in a criminal case was by writ of error. This is a writ issuing from an appellate court commanding a sub- ordinate court to send up the entire record in the case. At common law this writ would lie only for matters apparent on the record, and it could only issue to a court of record. This, however, has been changed by statute in many states. In many of the states a writ of error is still used, the practice, however, being regulated almost entirely by stat- ute. In other states the remedy by appeal is substituted, and in others the remedy is by a bill of exceptions. By the weight of authority, a writ of error or appeal does not lie at the instance of the state.*? In England, by the Criminal Appeal Act of 1907, it is pro- vided that on appeal by defendant the court of appeal may quash the original sentence and impose another sentence, warranted in law by the verdict, either increasing or de- - creasing the punishment. In this country, under statutes providing that the court on appeal may modify the judgment, it has been held that on reversal for lack of evidence to prove the crime charged, or for failure of the indictment to charge the crime for which conviction was had, the court of appeal may enter a judgment for a lesser crime included in the crime charged, and properly proved.** But such exercise of power has been held unconstitutional.®® 63 Ante, p. 453. If the defendant becomes a fugitive pending an ap- peal or writ of error, the appeal will be dismissed. State v. Handy, 27 Wash. 469, 67 Pac. 1094; People v. Genet, 59 N. Y. 80, 17 Am. Rep. 815; Com. v. Andrews, 97 Mass. 543. But see State v. Jacobs, 1u7 N. CO. 772, 11 S. BE. 962, 22 Am. St. Rep. 912. 64 Washington v. State, 83 Ark. 268, 103 S. W. 617; People v. O’Callaghan, 2 Idaho (Hasb.) 156, 9 Pac, 414; State y. McCormick, 27 Iowa, 402. 65 In re Friedrich (C. C.) 51 Fed. 747. 590 EVIDENCE (Ch. 14 CHAPTER XIV EVIDENCH 191. Facts in Issue. 192-194. Facts Relevant to Facts in Issue. 195. Facts Necessary to Explain or Introduce Relevant Facts. 196. Motive. 197. Preparation for Act. 198. Subsequent Conduct or Condition of Defendant. 199. Statements Accompanying Acts. 200. Statements in the Presence of Defendant. 201. Conduct and Complaint by Person Injured. 202. Res Geste. 203. Other Crimes. 204-206. Acts and Declarations of Conspirators. 207. Hearsay. 208. Declarations of Persons Other than Defendant, 209-210. Dying Declarations. 211. Admissions and Declarations by Defendant. 212-214. Confessions. 215. Evidence Given in Former Proceeding. 216. Opinion Evidence. 277. Expert Testimony. 218. Character. 219. Evidence Wrongfully Obtained. 220-222. Presumption of Innocence—Burden of Proof, 223. Witnesses—Competency—Examination. FACTS IN ISSUE 191. Evidence of any fact in issue is admissible.1 As we have seen, the general issue in a criminal case is formed by the accusation and the plea of not guilty.? The plea of not guilty puts in issue not only every fact alleged in 1 By the term “fact” we mean to include the fact that any par- ticular mental condition existed or exists, as the fact that the de- fendant, when he committed the crime charged, was insane, or was actuated by malice, or that he acted with a certain intention, or that he acted with knowledge of certain facts. 2 Ante, p. 473, § 191) FACTS IN ISSUE 591 the accusation which it is necessary to prove in order to se- cure a conviction, but it puts in issue every fact which will constitute a defense and prevent a conviction.2? Every such fact may therefore be shown. The facts in issue are deter- mined in each case by the charge in the indictment and by reference to the substantive criminal law. On indictment for murder and a plea of not guilty, the following facts, among others, are or may be in issue: The fact that the deceased is dead; that defendant killed the de- ceased; the fact that he did so with malice aforethought; the fact that he was at the time so mentally insane, was act- ing under such an insane delusion, or, in some states, under such an insane irresistible impulse, or was of such tender years, as to be legally irresponsible; the fact that he did the killing by excusable accident, or in excusable self-defense, or under circumstances justifying him; and the facts that he had received, and that he acted under, such provocation from the deceased as reduced the homicide to manslaughter. A plea of not guilty to an indictment for rape puts or may put in issue the fact that the defendant had carnal knowl- edge of the woman; the fact that she was his wife; the fact that she consented, etc. A plea of not guilty to an indictment for larceny puts in issue the fact that the defendant took the property described in the indictment; that the property was the subject of lar- ceny; that it belonged generally or specially to the person named as owner; that the defendant took it under such cir- cumstances that he committed a trespass; that he carried it away; that he intended to steal it, etc. 8 Ante, p. 473. 592 EVIDENCE (Ch, 14 FACTS RELEVANT TO FACTS IN ISSUE 192. Evidence of any fact which, though not itself in issue, is relevant to any fact in issue, is admissible. EXCEPTIONS—(a) Unless it is declared inadmissible by some arbitrary rule of law. (b) Unless the fact appears to be too remote to be material under all the circumstances of the case. 193. Evidence of a fact which is not relevant to any fact in issue is inadmissible. 194. A fact is relevant to a fact in issue if, according to the common course of events, either taken by itself or | in connection with other facts, it logically tends in any degree to render probable the existence or non- existence of that fact. From these rules it will be noticed that evidence, though relevant, may be inadmissible or incompetent because it is immaterial, and evidence, though both relevant and material, may be incompetent because some rule of law to be hereafter stated declares it so. “Relevancy,” “materiality,” and “com- petency” are not synonymous terms, though often used as synonymous both in the text-books and by the judges. Any fact is relevant to a fact in issue if it logically tends in any degree to show the existence or nonexistence of that fact. It is necessary, however, that the fact shall tend ma- terially, in view of all the circumstances, to show the exist- ence or nonexistence of the fact in issue. In other words, evidence to be admissible, must be both relevant and ma- terial. Unless the admissibility of evidence is settled by some arbitrary rule, or by controlling precedent, it is to be determined by reason in each particular case. The test is this: Does the fact offered in evidence, under all the circum- stances of the particular case, according to the common course of events, logically and materially tend, when taken either by itself or in connection with other facts, to show §§ 192-194) FACTS RELEVANT TO FACTS IN ISSUE 593 the existence or nonexistence of a fact inissue?* If it does, then it is relevant and material. Having ascertained the relevancy and materiality of the evidence, we must next see whether there is any rule of law rendering it incompetent. The defendant’s bad character may tend to render probable the fact that he committed the crime under investigation, and so may the fact that he com- mitted a similar crime a year before, and so may the fact that, a week after the crime was committed, a third person was heard to say that he saw the defendant commit it; but rules of law declare this evidence inadmissible. It is rele- vant, but incompetent. These rules will be presently stated and explained. In a prosecution for homicide, a witness may testify that he saw the defendant kill the deceased. This is admissible, 4Com. v. Jeffries, 7 Allen (Mass.) 563, 83 Am. Dec. 712; Com. v. Abbott, 130 Mass. 473; State v. Alford, 31 Conn. 40. “The word ‘relevant’ means that any two facts to which it is applied are so related to each other that, according to the common course of events, one, either taken by itself or in connection with other facts, proves or renders probable the past, present, or future, existence or nonex- istence of the other.” Steph. Dig. Ev. (Chase’s Ed.) 4. “It is only by appealing to hypothesis that questions of relevancy can be deter- mined. ‘My hypothesis,’ so argues the prosecution, ‘is that the act charged is part of a system of guilty acts.’ To support such an hy- pothesis, proof of such a system is relevant. Or the defense argues, ‘No man of good character would commit a crime such as here charged,’ and, to sustain this hypothesis, evidence of good character is relevant.” Whart. Cr. Ev. § 21. “Relevancy is that which con- duces to the proof of a pertinent hypothesis; a pertinent hypothesis being that which logically affects the issue. * * * Relevancy is to be determined by free logic, unless otherwise settled by statute or controlling precedent. All facts that go either to sustain or im- peach a hypothesis logically pertinent are admissible. But no fact is relevant which does not make more or less probable such a hy- pothesis. Relevancy, therefore, involves two distinct inquiries to be determined by free logic, unless otherwise arbitrarily prescribed by jurisprudence: (1) Ought the hypothesis proposed, if true, to affect the issue? (2) Does the fact offered in evidence go to sustain this hypothesis?’ Whart. Cr. Ev. §§ 23, 24. This statement makes no distinction between relevancy and materiality. It defines evidence which is both relevant and material, and therefore competent unless excluded by some arbitrary rule of law. CrLark Cr.PR0C.(2D HD.) —38 594 EVIDENCE (Ch. 14 because it is direct evidence of a fact in issue. Evidence that the defendant was near the scene of the crime shortly before or shortly after it was committed would be admis- sible, not as evidence of a fact in issue, because the defend- ant’s presence there before or after the crime is not in is- sue, but as evidence of a fact relevant to the fact that the defendant killed the deceased, which is a fact in issue. It tends to render that fact probable. For the same reason, it might be shown that before the homicide the defendant had threatened to kill the deceased; that after the homicide he had blood on his clothes, or had in his possession property which the deceased had on his person just before he was killed; that there were tracks near the place corresponding to the shape of defendant’s shoes; that a piece of gun wad- ding was found near the place (the deceased having been killed with a gun), and was like the wadding afterwards found in one barrel of the defendant’s gun, the other barrel having been discharged;* or that the defendant and his alleged accomplice practiced shooting at a mark before the homicide.® The defendant being charged with murder, the fact that he killed the deceased with malice aforethought is in issue, and any fact materially tending to show malice afore- thought is admissible. Thus, it may be shown that at the time of the killing he was resisting a lawful attempt of the deceased to arrest him; that he was trying to rob the de- ceased, or to commit some other felony,—for under such circumstances the law implies malice aforethought, though there was no intention to kill. And in like manner it may be shown that he had previously threatened to kill the de- ceased; that he had quarreled with him; or that he was criminally intimate with the deceased’s wife. On the part of the defendant, it may be shown that he was at another place at the time of the killing, that he was on friendly terms with the deceased, that he is a man of good character, etc.; or, the killing being admitted, he may show that the deceased was assaulting him, or was in the act of # = Hodge v. State, 97 Ala. 37} 12 South. 164, 38 Am. St. Rep. 145. 6 People v. McGuire, 135 N. Y. 689, 32 N. E. 146. §§ 192-194) YacTS RELEVANT TO FACTS IN ISSUE 595 adultery with his (defendant’s) wife, for under such cir- cumstances the killing would be manslaughter only. On the prosecution of a woman for assault on a woman living in an adjoining tenement, where the defendant claim- ed that the injury was inflicted by accident, the state was allowed, for the purpose of showing that it was intentional, to prove that the defendant did not, after the injury, in any way interest herself in the injured woman.” So, on’a prosecution for homicide, where the defendant sets up self-defense, it may be shown that the defendant had previously threatened the deceased, or that the deceased had threatened the defendant, as tending to show which of them began the encounter. And on the question whether the defendant had reasonable grounds to believe that his life was in danger at the hands of the deceased, it may be shown that the deceased, to the defendant’s knowledge, was in the habit of carrying weapons, and was a violent and dangerous man.® , On the other hand, where, on indictment for murder, the defendant contends that he was an officer, and killed the de- ceased in overcoming his resistance to the execution of a lawful warrant of arrest, the state cannot show that the de- ceased was not guilty of the offense for which it was sought to arrest him, for the fact of his innocence is irrelevant.1% So, on indictment for a murder said to have resulted from the hostile relations of certain clans, it was held not compe- tent to show other murders committed by such clans, nor the fact that armed men were employed to protect the coun- ty seat against invasion from them.’? And, on an indict- ment for murder, a witness was not allowed to testify that ‘he heard a gun fired about a mile from where the deceased was killed.” 7 State v. Alford, 31 Conn. 40. 8 Campbell v. People, 16 Ill. 18, 61 Am. Dec. 49; Keener v. State, 18 Ga. 194, 63 Am. Dec. 269; Stokes v. People, 53 N, ¥. 174, 13 Am. Rep. 492. 9 Horbach yv. State, 483 Tex. 242; post, p. 631. 10 Roten v. State, 31 Fla. 514, 12 South. 910. i1 Spurlock v. Com. (Ky.) 20 S. W. 1095. 12 Spurlock v. Com., supra. 596 EVIDENCE (Ch. 14 FACTS NECESSARY TO EXPLAIN OR INTRO- DUCE RELEVANT FACTS 195. Facts are admissible: (a) If necessary to be known to explain or introduce a fact in issue, or relevant to the issue. (b) If they support or rebut an inference suggested by any such fact. (c) If they tend to establish or disprove the identity of any thing or person whose identity is in issue, or is relevant to the issue. (d) If they fix the time or place at which any such fact happened. (e) If they show the relation of the parties by whom any such fact was transacted. (f) If they afforded an opportunity for its occurrence or transaction. (g) If they are necessary to be known in order to show the relevancy of other facts. Thus, on the question whether a writing published by one person of another is libelous or not, the position and relation of the parties at the time when the libel was pub- lished may be shown, as introductory to the facts in issue. On the question whether A. wrote B. an anonymous let- ter, threatening him, and requiring him to meet the writer at a certain time and place to satisfy his demand, the fact that A. met B: at that time and place may be shown. The fact that A. had a reason, unconnected with the letter, for being at that time at that place, may be shown to rebut the inference suggested by his presence.*® On a prosecution for riot, where the defendant is shown to have marched at the head of a mob, the cries of the mob are admissible as explanatory of the nature of the transac- tion.** 13 Barnard’s Case, 19 How. State Tr. 815; Com. v. Brady, 7 Gray (Mass.) 320. 14 Gordon’s Case, 21 How. State Tr. 520. ae § 196) MOTIVE 597 On the question whether A. poisoned B., the habits of B., known to A., which would afford A. an opportunity to ad- minister the poison, are relevant.?® On the question whether an employé has been embez- zling from his employer, it may be shown that the defend- ant lived beyond his means.1®° The defendant could show the sources from which he procured money, to rebut the in- ference arising from this fact. MOTIVE 196. Any fact that shows a motive to commit the crime charged is admissible. Any fact that supplies a motive for commission of the act charged by the defendant tends to render probable the fact that he did commit it, and is therefore relevant.*’ Thus, on an indictment for murder, the fact that the de- ceased, 25 years before the murder, murdered a man at the instigation of the defendant, and that the defendant at or before that time used expressions showing malice against the man so murdered, are admissible as showing a motive on the defendant’s part to commit the crime charged.1® For the same reason it may be shown that the defendant had been living in adultery with the wife of the deceased,?® or that the deceased had instituted a criminal prosecution against the defendant, in consequence of which the defend- 15 Rex v. Donellan, Steph. Dig. Ev. (Chase’s Ed.) 21. 16 Hackett v. King, 8 Allen (Mass.) 144, 85 Am. Dec. 695. 17 Rex vy. Clewes, 4 Car. & P. 221; Com. v. Ferrigan, 44 Pa. 386; Com. v. Holmes, 157 Mass. 233, 82 N. BE. 6, 34 Am. St. Rep. 270; People v. Harris, 186 N. Y¥. 423, 33 N. E. 65; Sayres v. Com., 88 Pa. 291; Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; Perrin vy. State, 81 Wis. 135, 50 N. W. 516; State v. Dickson, 78 Mo. 438; State v. Cohn, 9 Nev. 179; Burton & Conquest vy. Com., 108 Va. 892, 62 S. E. 376. 18 Rex v. Clewes, 4 Car. & P. 221. And see Moore v. U. S., 150 U. S. 57, 14 Sup. Ct. 26, 87 L. Ed. 996. 19 Com. vy. Ferrigan, 44 Pa. 386; Pate v. State, 94 Ala. 14, 10 South. 665; Pierson v. People, 79 N. Y. 424, 85 Am. Rep. 524; Rein- hart v. People, 82 N. Y. 607. 598 EVIDENCE (Ch. 14 ant had made threats against the deceased, or otherwise shown ill will towards him.?®° And on indictment for wife murder, it may be shown that the defendant had previously assaulted, or ill treated, or quarreled with, or separated from, the deceased.*?_ So, on indictment for wife murder by poisoning, it may be shown thatthe defendant stated that he had been secretly married to another woman, since it tends to show that the marriage was bigamous, and bears on the question of motive;?? and, for the same reason, un- lawful relations between the defendant and another woman may be shown.?® And, on indictment for fratricide, it may be shown that the defendant was disinherited by his father’s will, while the deceased was amply provided for; and that on a contest of the will, shortly before the homicide, the taking of the deceased’s deposition was objected to by the defendant, and the hearing continued.?* So, on an indictment of a bookkeeper of a bank for lar- ceny of money, testimony that the money stolen was not the bank’s, but belonged to a third person, who had placed it there for sake-keeping, and that the defendant was, and had been for some months prior to the larceny, a defaulter to the bank, and had falsified the books to conceal the fact, is admissible for the purpose of showing a possible motive for the larceny in the desire to pay back to the bank the amount of the defalcations.?® And on indictment for arson it may be shown that the de- fendant had taken out heavy insurance on the building burned.?® 20 Hodge v. State, 97 Ala. 37, 12 South. 164, 38 Am. St. Rep. 145; Butler v. State, 91 Ga. 161, 16 S. EB. 984; Martin v. Com., 93 Ky. 189, 19 S. W. 580; Franklin v. Com., 92 Ky. 612, 18 S. W. 532. 21 Com. v. Holmes, 157 Mass. 233, 32 N. E. 6, 84 Am. St. Rep. 270; Hall v. State, 31 Tex. Cr. R. 565, 21 S. W. 368; Painter v. People, 147 Ill 444, 35 N. BH. 64. 22 People v. Harris, 186 N. Y. 423, 33 N. E. 65. 23 Johnson v. State, 94 Ala. 35, 10 South. 667; Wilkerson y. State, 31 Tex. Cr. R. 86, 19 S. W. 903; State v. MacFarland, 83 N. J. Law, 474, 83 Atl. 993, Ann. Cas. 1914B, 782. 24 State v. Ingram, 23 Or. 434, 31 Pac. 1049. .25 Perrin vy. State, 81 Wis. 185, 50 N. W. 516. 26 State v. Cohn, 9 Nev. 179. Or that bad feelings existed between § 198) SUBSEQUENT CONDUCT OR CONDITION 599 PREPARATION FOR ACT 197. Any fact which shows preparation by the defendant for the act charged is admissible. Evidence tending to show that the defendant made prep- arations to commit the act charged is relevant, for it tends to render probable the fact that he did commit it. Thus, the fact that the defendant before the commission of the crime procured or possessed the instruments, or instruments like those, with which the crime was committed, may be shown.?? On indictment for murder by shooting, it may be shown that before the killing the defendant and his alleged accom- plice practiced shooting at a mark; ?° or that, about 30 min- utes before the shooting, the defendant, with his hat pulled down over his face, approached and touched his alleged ac- complice, and that thereupon both walked off towards the place where the murder was committed.”® So, on a prosecution for homicide, previous threats of the defendant to kill the deceased may be shown.*° SUBSEQUENT CONDUCT OR CONDITION OF DEFENDANT 198. Any conduct or condition of the defendant subsequent to the act charged, apparently influenced or caused by the doing of the act, and any act done in conse- quence of it, by or by the authority of the defend- ant, may be shown. But self-serving acts cannot be shown by the defendant. the accused and the occupant of the building. State v. Barrett, 151 N. C. 665, 65 S. B. 894. 27R, v. Palmer, Steph. Dig. Ev. (Chase’s Ed.) 15; Com. v. Blair, 126 Mass. 40; Colt v. People, 1 Parker, Cr. R. (N. Y.) 611; Com. v. Roach, 108 Mass. 289. 28 People v. McGuire, 135 N. Y. 689, 32 N. BH. 146. 29 Rodriquez v. State, 832 Tex. Cr. R. 259, 22 S. W. 978. 30 Com. v. Goodwin, 14 Gray (Mass.) 55; State v. Hoyt, 46 Conn. 330; Redd v. State, 68 Ala. 492, 600 EVIDENCH (Ch, 14 The fact that the defendant, after the alleged crime, caus- ed circumstances to exist tending to give to the facts of the case an appearance favorable to himself; ** that he destroy- ed or concealed things or papers which might criminate him, or prevented the presence, or procured the absence, of per- sons who might have been witnesses,?? or suborned persons to give false testimony ; ** or that he fled or concealed him- self or otherwise attempted to escape, or resisted arrest,?4 or made false statements as to his movements at or about the time of the crime, or as to other material facts,** or, after the crime, had possession of the fruits of the crime, as of the property stolen after a burglary, larceny, or robbery,** or his attempt to dispose or disposition of it®’—may be shown against him. The defendant cannot. show self-serving acts before or subsequent to the crime, for this would permit him to make evidence for himself. Thus, on indictment for murder, the 81 R. v. Patch, Steph. Dig. Ev. (Chase’s Ed.) 15; Gardiner v. Peo- ple, 6 Parker, Cr. R. (N. Y.) 157; State v. Williams, 27 Vt. 726; Com. v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711. 32 Adams v. People, 9 Hun (N. Y.) 89. 38 State v. Williams, supra; Donohue v. People, 56 N. Y. 208. 84 Jamison v. People, 145 Ill. 357, 34 N. E. 486; Cummins v. Peo- ple, 42 Mich. 142, 3 N. W. 305; Com. v. Tolliver, 119 Mass. 312; Fox v. People, '95 Ill. 71; Ryan v. People, 79 N. Y. 593; Horn vy. State, 102 Ala. 144, 15 South. 278; State v. Mallon, 75 Mo. 355; State v. Taylor (Mo.) 22 S. W. 806. Or to escape from jail after arrest. Ryan v. State, 83 Wis. 486, 53 N. W. 836; Elmore v. State, 98 Ala. 12, 13 South. 427; State v. Howell, 117 Mo. 307, 23 S. W. 263; State v. Hobgood, 46 La. Ann. 855, 15 South. 406. Aiding escape of ac- complice. People vy. Rathbun, 21 Wend. (N. Y.) 509. Living under assumed name in another state. State v. Whitson, 111 N. C. 695, 16 S. E. 332. Possession of instruments to effect escape from jail. State v. Duncan, 116 Mo. 288, 22 S. W. 699. As to explanation of his conduct by the defendant, see Taylor v. Com., 90 Va. 109, 17 S. H. 812; Lewallen v. State, 33 Tex. Cr. R. 412, 26 S. W. 832. 35 State v. Bradley, 64 Vt. 466, 24 Atl. 1053; Com. v. Johnson, 162 Pa. 638, 29 Atl. 280; Com. v. Goodwin, 14 Gray (Mass.) 55. 86 Stover v. People, 56 N. Y. 315; State v. Brewster, 7 Vt. 122; State v. Hodge, 50 N. H. 510; Com. v. Parmenter, 101 Mass. 211. Provided the fact of such possession is not so long after the crime, or accompanied by such circumstances, as to render it immaterial. Sloan v. People, 47 Ill. 76; Jones v. State, 26 Miss. 247. 87 Foster v. People, 63 N. Y. 619. b § 200) STATEMENTS IN PRESENCE OF DEFENDANT 601 defendant cannot show that he went to the house of deceas- ed and offered to wait on him,** or that he offered to surren- der himself.®® Silence of the defendant when charged with a crime is elsewhere considered.*°, STATEMENTS ACCOMPANYING ACTS 199, Whenever any act may be proved, statements accom- panying and explaining that act, made by or to the person doing it, may be proved, if they are neces- sary to understand it. Thus, where the question was whether a person was in- sane, and the fact that he acted upon a letter received by him was part of the facts in issue, the contents of the letter were held admissible as statements accompanying and ex- plaining his conduct.*+ STATEMENTS IN THE PRESENCE OF DEFENDANT 200. When the defendant’s conduct is in issue, or is relevant to the issue, statements made in his presence and hearing, by which his conduct is likely to be affect- ed, are admissible. If a statement made in the hearing of a person is such that, if false, he would naturally deny it, his silence and ac- quiescence tend to show that the facts stated are true.*? So, if a person is accused of a crime, and does not deny it, or if he allows a statement imputing a crime to him to go unan- swered, the statement and his conduct, including his silence 38 State v. Whitson, 111 N. C. 695, 16 S. BE. 332. 39 State v. Smith, 114 Mo. 406, 21 S. W. 827. See State v. Wilkins, 66 Vt. 1, 28 Atl. 323. 40 Post, p. 601. 41 Steph. Dig. Hv. (Chase’s Ed.) 19. 42 State v. Wilkins, 66 Vt. 1, 28 Atl. 323, 602 EVIDENCE (Ch. 14 if he does not answer, or his reply if he does, may be shown on his prosecution for the crime.*? The statement must have been made in his hearing, and must have been under- stood by him;** and it must have been such a statement, and made under such circumstances, that he could and should have replied 5—or his silence cannot be regarded as raising any inférence against him. Some courts hold that a person when under arrest is not called upon to deny charges, and that his silence when accused under such cir- cumstances cannot be used against him.*® Of course, it is always open for him to explain his silence and rebut the in- ference arising from it.*7 CONDUCT AND COMPLAINT BY PERSON INJURED 201. In prosecutions for rape, the conduct of the woman, and particularly the fact that she made complaint after (according to some of the cases soon after) the crime was committed, may be shown; but the particulars of the complaint are not admissible. This rule probably does not apply in any other cases than those of rape, unless the acts or complaint are done or made 43 Rex v. Edmunds, 6 Car. & P. 164; Com. v. Brailey, 184 Mass. 527; Kelley v. People, 55 N. Y. 565, 14 Am. Rep. 342; Com. v. Brown, 121 Mass. 69; State v. Bradley, 64 Vt. 466, 24 Atl. 1053; Com. v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 2385; Brown v. State, 32 Tex. Cr. R. 119, 22 S. W. 596; State v. Belknap, 39 W. Va. 427, 19 S. E. 507; Com. v. Ballon, 229 Pa. 323, 78 Atl. 831. The fact that the defendant was under arrest at the time does not make such evidence inadmissible. People v. Amaya, 134 Cal. 531, 66 Pac. 794. 44 Lanergan y. People, 39 N. Y. 39; Com. v. Sliney, 126 Mass. 49. 45 Bell v. State, 93 Ga. 557, 19 S. E. 244; Broyles v. State ex rel. De Long, 47 Ind. 251; People v. Willett, 92 N. Y. 29; Com. v. Walk- er, 18 Allen (Mass.) 570; Kelley v. People, 55 N. Y. 571, 14 Am. Rep. 342; Slattery v. People, 76 Ill. 217; Bob v. State, 32 Ala. 560. 46 Com. v. McDermott, 123 Mass. 440, 25 Am. Rep. 120; Com. v. Kenney, 12 Mete. (Mass.) 235, 46 Am. Dec. 672. Contra, Kelley v. People, 55 ‘N. Y. 565, 14 Am. Rep. 342; Murphy v. State, 36 Ohio St. 628; People v. Amaya, 1384 Cal. 531, 66 Pac. 794. 47 Slattery v. People, supra, § 201) CONDUCT AND COMPLAINT BY PERSON INJURED 603 so soon after the crime that they may be considered a part of the res geste; ** but it is well settled that the rule applies in cases of rape.*® The evidence is admitted only in cor- roboration of the testimony of the woman, and it seems that unless she testifies it is not admissible.°° The evidence is in most, but not all, states, confined to the fact of cotmplaint, and the state cannot prove the terms or particulars—that is, what she said—unless it can do so as part of the res geste.** Some of the cases require that the complaint shall have been made soon after the crime, and this would seem to be a good rule.®? Other courts do not place this restriction on the competency of the evidence, but leave the delay to be considered by the jury in weighing the evidence.®* 48 Haynes v. Com., 28 Grat. (Va.) 942. 49 State v. Bedard, 65 Vt. 278, 26 Atl. 719; State v. Langford, 45 La. Ann. 1177, 14 South. 181, 40 Am. St. Rep. 277; Baccio v. People, 41 N. Y. 265; State v. Knapp, 45 N. H. 148; State v. Warner, 74 Mo. 83; Johnson y. State, 17 Ohio, 593; Polson v. State, 137 Ind. 519, 35 N. H. 907; State v. Yocum, 117 Mo. 622, 23 8. W. 765; Proper v. State, 85 Wis. 615, 55 N. W. 1035; Johnson v. State, 21 Tex. App. 368, 17 S. W. 252; Territory v. Godfrey, 6 Dak. 46, 50 N. W. 481; Territory v. Kirby, 3 Ariz. 288, 28 Pac. 1134; People v. Bianchino, 5 Cal. App. 633, 91 Pac. 112. 50 See Hornbeck v. State, 35 Ohio St. 277, 35 Am. Rep. 608. In California it is held that this rule does not apply where the prosecu- trix is too young to testify. People v. Bianchino, 5 Cal. App. 633, 91 Pac, 112. 51 See the cases above cited, and see Higgins v. People, 58 N. Y. 877; State v. Langford, supra; State v. Ivins, 36 N. J. Law, 233; State v. Fitzsimon, 18 R. I. 236, 27 Atl. 446, 49 Am. St. Rep. 766; Thompson v. State, 38 Ind. 39; Castillo v. State, 31 Tex. Cr. R. 145, 19 S. W. 892, 37 Am. St. Rep. 794; People v. Stewart, 97 Cal. 238, 82 Pac. 8. Contra, State v. Kinney, 44 Conn. 153, 26 Am. Rep. 436; Burt v. State, 23 Ohio St. 394. 52 Richards v. State, 86 Neb. 17, 53 N. W. 1027; People v. Loftus, 58 Hun, 606, 11 N. Y. Supp. 905. Where the prosecutrix was only five years old, it was held that complaints made a week after the offense was committed were not too remote. People v. Bianchino, 5 Cal. App. 633, 91 Pac. 112. 53 State v. Mulkern, 85 Me. 106, 26 Atl. 1017; State v. Niles, 47 Vt. 82; State v. Byrne, 47 Conn. 465. 604 EVIDENCE (Ch, 14 RES GESTZ& 202. Every fact which is part of the same transaction as the facts in issue is to be deemed relevant to the facts “in issue, although it may not be actually in issue, and although, if it were not part of the same trans- action, it might be excluded as evidence of another crime, or as hearsay. Facts which are thus a part of the same transaction are said to be admissible as part of the res geste. Facts which are not themselves in issue, but which are part of the same transaction as the facts in issue, or, as it is generally expressed, part of the res geste, are admitted because they explain or qualify the facts in issue, though, if they were not part of the same transaction, they might be excluded as hearsay, or might, though relevant, be excluded by some other arbitrary rule of law.** Thus, on trial for murder of a police officer while repelling an attack from associates of a man in his custody, whom he had arrested half an hour before, as one of a number of men. engaged in firing guns in a public place, evidence that the accused had been among the men so engaged is admissible as part of the res gestz.®> So, where, on a trial for murder, the evidence shows that the defendant fired the fatal shot while making an assault, with two companions, on a dwelling occupied by the deceas- ed, the state may prove that during the affray one of the defendant’s companions, using the defendant’s pistol, shot at and wounded another person.*° 54 Com. v. Costley, 118 Mass. 1; Lander v. People, 104 Ill. 248; Com. v. Densmore, 12 Allen (Mass.) 535; People v. Davis, 56 N. Y. 102; Eighmy v. People, 79 N. Y. 546; Little v. Com., 25 Grat. (Va.) 921; Banks v. State, 157 Ind. 190, 60 N. E. 1087; Watson v.- State (Tex. Cr. App.) 50 S. W. 340; People v. Yund, 163 Mich. 504, 128 N. W. 742. 55 State v. Donelon, 45 La. Ann. 744, 12 South. 922, 56 People v. Parker, 187 N. Y. 535, 32 N. BH, 1018. § 202) RES GESTH 605 Other Crimes When a man is being tried for one crime, the state can- not prove the commission by him of another crime, in no way connected with the crime charged.*’ But if the other crime was committed as part of the same transaction, and tends to explain or qualify the fact in issue, it may be shown.®* Thus, on indictment for murder, evidence that the defendant, immediately after shooting the deceased, pro- ceeded to shoot at and threaten the mother of the deceased, who was present and witnessed the killing, is admissible as part of the res gestz to show the animus of the defend- ant.5° So, on a prosecution for obtaining money by false pre- tenses, where it appears that about the time of the offense the defendant induced the prosecuting witness to invest an- other sum of money in bonds which she was afterwards in- formed by letters were worthless, and that she showed the letters to the defendant, who refused an explanation, such letters are admissible, as part of the res gestz, to show the defendant’s intent to defraud.*° The other crime, however, must be a part of the same transaction.*+ Hearsay Ordinarily, declarations are inadmissible as hearsay,®” but declarations which form part of the res geste are admis- sible.°* 57 Post, Dp. 607. 58 Hargrove v. State, 33 Tex. Cr. R. 431, 26 8S. W. 993; Davis v. State, 32 Tex. Cr. R. 377, 23 8. W. 794. 59 Killins v. State, 28 Fla. 313, 9 South. 711. And see State v. Gainor, 84 Iowa, 209, 50 N. W. 947; Wilkerson v. State, 31 Tex. Cr. B. 86, 19 S. W. 903; Johnson v. State, 88 Ga. 203, 14 S. E. 208; Com. v. Scott, 123 Mass. 222, 25 Am. Rep. 81; People v. Mead, 50 Mich. 228, 15 N. W. 95; Hargrove v. State, 33 Tex. Cr. R. 431, 26 S. W. 993. 60 People v. Lewis, 62 Hun, 622, 16 N. Y.. Supp. 881. 61 People v. Lane, 100 Cal. 379, 34 Pac. 856; post, p. 608. 62 Post, p. 615. 63 Post, p. 616; People v. Stanley, 101 Mich. 93, 59 N. W. 498; State vy. Badnelley, 32 R. I. 378, 79 Atl. 834. 606 EVIDENCE (Ch. 14 Thus, on indictment for burglary, the complaining wit- ness may testify that she gave the alarm, and told a police officer the direction she thought the burglar had taken in leaving the house.** And, on indictment for robbery, de- scriptions of the offender given by eyewitnesses immediate- ly after the robbery have been admitted as part of the res gestz.*® And, on prosecution for murder while resisting arrest, a remark of a bystander to an officer that “there is the man that did it” (that is, committed the offense for which the arrest was being made) is admissible.** On a prosecution for murder, it may be shown that a person in the room with the deceased when he was shot saw a man with a gun pass a window, and thereupon exclaimed, “There’s Butcher!” (a name by which the defendant was known).°7 On indictment for manslaughter by carelessly driving over the deceased, a statement made by fhe deceas- ed, as to the cause of his accident, as soon as he was picked up, was allowed to be proved, though it was not a dying declaration.*® And, on a prosecution for murder, a state- ment made by the defendant a few minutes after the homi- cide, and near the place, and in the presence and hearing of 64 State v. Moore, 117 Mo. 395, 22 S. W. 1086. 65 Jordan v. Com., 25 Grat. (Va.) 943. 66 State v. Duncan, 116 Mo. 288, 22 8S. W. 699. 67 R. v. Fowkes, Steph. Dig. Ev. (Chase’s Ed.) 9; Bedingfield’s Case, 14 Am. Law Rey. 817, 15 Am. Law Rev. 1, 71. So of an ex- clamation by a boy four years old that “the bums killed pa with a broomstick,” which was made from ten to thirty seconds after the fatal assault. State v. Lasecki, 90 Ohio St. 10, 106 N. E. 660, L. R. A. 1915E, 202, Ann. Cas. 1916C, 1182. 68 Rex y. Foster, 6 Car. & P. 325. On an indictment against A. for murder by stabbing, a declaration by the deceased, made imme- diately after the mortal wound was inflicted, that “A. has stabbed me,” is admissible as part of the res gest#. Com. v. Hackett, 2 Allen (Mass.) 186. And see Com. v. M’Pike, 3 Cush. (Mass.) 184, 50 Am. Dec. 727; Pilcher v. State, 82 Tex. Cr. R. 557, 25 S. W. 24; People v. Simpson, 48 Mich. 474, 12 N. W. 662. But see Reg. v. Bed- ingfield, 14 Cox, Cr. Cas. 341, in which it was held, on indictment of A. for cutting B.’s throat, where the question was whether A. or B. himself did the cutting, a statement by B. when running out of the room immediately after the act was done was not allowed to be proved. 4 § 203) OTHER CRIMES 607 eyewitnesses of the homicide, who were not introduced as witnesses by the state, should be admitted, at the instance of the defendant, as part of the res gestz.*° The declaration must be part of the same transaction. Thus on the prosecution of a physician for killing a woman in attempting to procure an abortion, a statement, made by the woman after returning home from the defendant’s office, as to what the defendant had said and done there, was ex- cluded.7° OTHER CRIMES 203. Evidence of another crime than that charged is only admissible in the following cases: (a) Where it falls within one of the rules heretofore stat- ed, it is admissible. (b) Where it shows the existence at the time of the crime charged of any intention, knowledge, good or bad faith, malice, or other state of mind, the exist- ence of which is in issue or is relevant to the issue. But other crimes cannot be proved merely in order to show that the defendant was likely to commit the crime charged. (c) When there is a question whether the act charged was accidental or intentional, the fact that such act formed part of a series of similar occurrences, in each of which the defendant was concerned, is admissible. This is called the proof of facts show- ing system. It is well settled that on a prosecution for one crime it cannot be shown that the defendant on another occasion committed another crime, even though it may be a crime of 69 Little v. Com., 25 Grat. (Va.) 921. 70 People v. Davis, 56 N. Y. 95. And see People v. Newton, 6 Mich. 586, 56 N. W. 69; Shoecraft v. State, 137 Ind. 483, 36 N. E. 1118. “The doctrine of res geste as applied to exclamations should have its limits determined, not by the strict meaning of the word ‘contemporaneous,’ but rather by the causal, logical, or psychological relation of such exclamation with the primary facts in controversy.” 608: EVIDENCE (Ch. 14 the same sort," unless the case falls within one of the ex- ceptions hereafter stated. Rules Heretofore Stated If evidence of another crime is admissible under any of the rules heretofore stated, it is not rendered inadmissible merely because it shows the commission of another. Where evidence offered tends to prove commission of the crime charged, it is not inadmissible because it also tends to prove the commission by the defendant of another crime.7? Evidence of another and distinct crime is admissible if it was committed as part of the same transaction, and forms part of the res geste. On indictment for murder, for in- stance, it may be shown that the defendant, immediately before or at the time of the murder, robbed the deceased, or that he killed or attempted to kill a bystander.”® State v. Lasecki, 90 Ohio St. 10, 106 N. E. 660, L. R. A. 1915E, 202, Ann. Cas. 1916C, 1182. 71 R. v. Cole, Steph. Dig. Ev. (Chase’s Ed.) 24; Holder v. State, 58 Ark, 473, 25 S. W. 279; Chaffin v. State (Tex. Or. App.) 24 S. W. 411; People v. Gibbs, 93 N. Y. 470; State v. Young, 119 Mo. 495, 24 S. W. 1038; Com. v. Campbell, 7 Allen (Mass.) 541, 83 Am. Dec. 705; Shaff- ner v. Com., 72 Pa. 60, 13 Am. Rep. 649; People v. Lane, 100 Cal. 379, 34 Pac. 856; State v. Bates, 46 La. Ann. 849, 15 South. 204; State v. Kelley, 65 Vt. 531, 27 Atl. 203, 36 Am. St. Rep. 884; People v. Fitzgerald, 156 N. Y. 253, 50 N. E. 846; Campbell v. State, 55 Tex. Cr. R. 277, 116 S. W. 581. This rule extends to proof of an ac- cusation of another crime, as well as to. evidence of its commission. People v. Argentos, 156 Cal. 720, 106 Pac. 65. The general rule has been relaxed in prosecutions for illicit intercourse, incest, adultery, and seduction. In these cases many courts hold that previous acts of improper familiarity between the parties are admissible. State vy. Hilberg, 22 Utah, 27, 61 Pac. 215; People v. Gibson, 255 Ill. 302, 99 N. E. 599, 48 L. R. A. (N.,8.) 236. But not so similar acts be tween defendant and other parties. People v. Gibson, supra. 72 State v. Madigan, 57 Minn. 425, 59 N. W. 490; Moore v. U. S., 150 U. 8. 57, 14 Sup. Ct. 26, 37 L. Ea. 996; Horn v. State, 102 Ala. 144, 15 South. 278; State v. Phelps, 5 8. D. 480, 59 N. W. 471; Fra- zier v. State, 185 Ind. 38, 34 N. E. 817; People v. Argentos, 156 Cal. 720, 106 Pac. 65. 78 Hargrove v. State, 83 Tex. Cr. R. 431, 26 S. W. 993; Com v. Scott, 123 Mass. 222, 25 Am. Rep. 81; People v. Mead, 50 Mich. 228, 15 N. W. 95; ante, p. 605, and cases there cited. § 203) OTHER CRIMES 609 Again, if the commission of the other crime supplies a motive for the crime charged it may be proved."* And it may be proved if it shows preparation for the crime charged,’® or if it constitutes conduct subsequent to the crime charged, and was apparently influenced thereby.”® Acts Showing Intention, Knowledge, Good Faith, etc. Whenever the existence of any particular intention, knowledge, good or bad faith, malice or other state of mind is in issue, and the commission of another crime tends to prove its existence, the other crime may be shown."? The evidence is admitted for this purpose only, and not to show that the defendant was likely to commit the crime in ques- tion. For the latter purpose it is never admissible. On in- dictment for receiving stolen goods from a certain person, it has been held that it cannot be shown that the defendant at other times received stolen goods from other persons,”® but it may be shown that at other times he received other stolen goods from the same person, for the purpose of show- ing his knowledge that the goods in question had been stolen.7® So where the defendant is charged with uttering 74 Ante, p. 597; Painter v. People, 147 Ill. 444, 35 N. E. 64; Peo- ple vy. Dailey, 148 N. Y. 638, 37 N, E. 823; Pierson v. People, 79 N. Y. 424, 35 Am. Rep. 524; Com. vy. Choate, 105 Mass. 458; Com. v. Ferrigan, 44 Pa. 386; People v. Argentos, 156 Cal. 720, 106 Pac. 65. But it must tend to establish the specific motive underlying the crime charged, or a motive common to both crimes, or it is not ad- missible. People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193. 75 Ante, p. 509; State v. Fitzsimon, 18 R. I. 236, 27 Atl. 446, 49 Am. St. Rep. 766; Com. v. Choate, 105 Mass. 458; Hope vy. People, 83 N. Y. 418, 38 Am. Rep. 460; People v. Wood, 3 Parker, Cr. R. (N. Y.) 681. 76 Ante, p. 599. % 77 Dunn’s Case, 1 Moody, Crown Cas. 146; People v. Shulman, 80 N. Y. 378, note; Copperman v. People, 56 N. Y. 591; Com. v. Brad- ford, 126 Mass, 42; Com. vy. Jackson, 132 Mass. 16; Kramer v. Com., 87 Pa. 299; People v. Weinseimer, 117 App. Div. 603, 102 N. Y. Supp. 579; Clark v. People, 224 Ill. 554, 79 N. E. 941. 78 Coleman v. People, 55 N. Y. 81. See, also, State v. Bowen, 43 Utah, 111, 134 Pac. 623. Contra, where the different goods had been stolen from the same person. Sapir v. U. S., 174 Fed. 219, 98 C. GC. A. 227. 79 Dunn’s Case, supra; Copperman v. People, 56 N. Y. 591 CLARK Cr.PRoc.(2D Ep.) —39 610 EVIDENCE (Ch. 14 a forged instrument or counterfeit coin, knowing it to be counterfeit, it may be proved, for the purpose of showing the guilty knowledge, that before and after the act charged he uttered counterfeit coin or forged instruments.*° And on an action or indictment for libel, other defamatory state- ments published by the defendant concerning the same per- son are admissible to show malice. On indictment for murder it is always competent to show previous assaults or attempts by the defendant to kill the deceased for the pur- pose of rebutting the defense of accident, or self-defense, and to show the necessary malice aforethought.*? And gen- erally, for the purpose of showing a criminal intent or malice, previous attempts by the defendant to commit the same crime may be shown. Thus on indictment under a statute for maliciously burning a building, or at common law for arson, it may be shown that the defendant had set fire to the same building three days before.** Facts Showing System When there is a quéstion whether the act charged was accidental or intentional, the fact that the act formed part of a series of similar acts, in each of which the defendant was concerned, is relevant, and the similar acts may be shown though they constitute separate crimes. The fact of system thus shown tends to prove that the act in question was not accidental but intentional.** Thus on indictment 80 Reg. v. Francis, L. R. 2 Crown Cas, 128; Reg. v. Cooper, 1 Q. B. Div. 19; Com. v. Coe, 115 Mass. 481; Langford v. State, 33 Fla. 238, 14 South. 815; Mayer v. People, 80 N. Y. 364; Anson v. People, 148 Ill. 494, 35 N. E. 145. 81 Barrett v. Long, 8 H. L. Cas. 414; State v. Riggs, 39 Conn. 498. 82 Painter v. People, 147 Ill. 444, 385 N. E. 64. 83 Com. v. Bradford, 126 Mass. 42; Com. v. McCarthy, 119 Mass. 354; Kramer v. Com., 87 Pa. 299; State v. Hallock, 70 Vt. 159, 40 Atl. 51. See and compare Raymond v. Com., 123 Ky. 368, 96 S. W. 515. ; 84 Reg. vy. Gray, 4 Fost. & F. 1102; People v. Wood, 3 Parker, Cr. R. (N. ¥.) 681; People v. Tomlinson, 102 Cal. 19, 36 Pac. 506; State y. Lapage, 57 N. H. 245, 294, 24 Am. Rep. 69; State v. Walton, 114 N. C. 783, 18 S. E. 945; Barnard vy. U. S., 162 Fed. 618, 89 C. C. A. 376; State v. Dobbins, 152 Iowa, 632, 182 N. W. 805, 42 L. R. A. (N. 8.1 735. § 203) . OTHER CRIMES 611 for setting fire to a house in order to obtain the insurance, it may be shown that the defendant had previously lived in two other houses successively, each of which he instred, in each of which a fire occurred, and that after each of these fires the defendant received payment from a different insur- ance office, since this tends to show that the fires were not accidental.®® On indictment for forgery and embezzlement it appeared that the defendant had been employed by the prosecutor to pay the wages of the latter’s laborers, and that it was his duty to make entries in a book showing the amounts paid by him, and he made an entry showing that on a particular occasion he paid more than he really did pay. On the ques- tion whether the false entry was accidental or intentional it was held competent to show that for a period of two years the defendant made other similar false entries in the same book, the false entry in each case being in his favor.*® On indictment of a woman for poisoning her husband in September, 1848, where the question was whether the poi- son was accidentally or intentionally administered, it was held competent to show that the deceased’s three sons had the same poison administered to them in December, 1848, March, 1849, and April, 1849, and that the meals of all four were prepared by the defendant, though the defendant was separately indicted for murdering the sons.®” 85 Reg. v. Gray, supra. 86 Reg. v. Richardson, 2 Fost. & F. 343. So, on an indictment against a police officer for accepting bribes, evidence of acceptance of previous bribes from the same person is admissible. People v. Grutz, 212 N. Y. 72, 105 N. E. 843, L. R. A. 1915D, 229, Ann. Cas. 1915D, 167. 87 Reg. v. Geering, 18 Law J. M. Cas. 215. But where there is no possibility that the killing was done accidentally, evidence of a similar poisoning is inadmissible to show absence of accident or, mis- take. People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193. 612 EVIDENCE (Ch, 14 ACTS AND DECLARATIONS OF CONSPIRATORS 204. When two or more persons conspire to commit any offense, everything said, done, or written by one of them in the execution or furtherance of their com- mon purpose is admissible as against each of them. 205. But statements by one conspirator as to measures tak- en, or acts done, in the execution or furtherance of such common purpose, are not admissible as such as against any of the others unless made in their presence. So a confession made by one conspirator after the conspiracy was ended is not admissible against another, when not made in his presence. 206. Evidence of acts or statements admissible under these rules cannot be given unless, apart from them, the existence of the conspiracy is prima facie proved. When two or more persons conspire together to commit any offense, each makes the other his agent for the execu- tion of their common purpose, and every act, or oral or writ- ten declaration, done or made by one of them in the execu- tion or furtherance of this purpose is deemed to be done or made by all of them, and is therefore admissible against each.8® But declarations by one of the conspirators, not in execution or furtherance of the common purpose, hut mere- ly as a narrative of past acts or measures done or taken in the execution or furtherance of such purpose cannot be 88 Reg. v. Blake, 6 Q. B. 187; Rex v. Hardy, 24 How. State Tr. 451; American Fur Co. v. U. S., 2 Pet. 358, 7 L. Ed. 450; Williams yv. State, 47 Ind. 568; Com. v. Scott, 123 Mass. 222, 25 Am. Rep. 81; Com. v. Brown, 130 Mass. 279; Com. v. O’Brien, 140 Pa. 555, 21 Atl. 385; People v. Collins, 64 Cal. 293, 30 Pac. 847; Seville v. State, 49 Ohio St. 117, 30 N. E. 621, 15 L. R. A. 516; State v. Duffy, 124 Mo. 1, 27 S. W. 358; Musser v. State, 157 Ind. 423, 61 N. E. 1. And as against conspirator joining after the acts were done or declarations made. Baker v. State, 80 Wis. 416, 50 N. W. 518; State v. Crab, 121 Mo. 554, 26 S. W. 548. Threats by one conspirator on prosecution for murder. State v. Phillips, 117 Mo. 389, 22 S. W. 1079. Acts and declarations of employés of conspirator. State v. Grant, 86 Iowa, 216, 53 N. W. 120. §§ 204-206) AcTS AND DECLARATIONS OF CONSPIRATORS 613 deemed the acts or declarations of all, and are not admis- sible except against those who did or made them, or in whose presence they were done or made.®® Thus where the question was whether two persons con- spired together to cause certain imported goods to be pass- ed through the customhouse on payment of too small an amount of duty, the fact that one of them had made in a book a false entry, necessary to be made in order to carry out the fraud, was held admissible against the other; but the fact that he had made an entry on his check book show- ing that he had shared the proceeds of the fraud with the other was held not to be admissible against the latter.®° So where the question was whether the defendant com- mitted high treason, the overt act charged being that he presided over an organized political agitation calculated to produce a rebellion, and directed by a central committee through local committees, the facts that meetings were held, speeches delivered, and papers circulated in different parts of the country, in a manner likely to produce rebellion by, and by the direction of, persons shown to have acted in con- cert with the defendant, were held admissible against the defendant, though he was not present at those transactions, and took no part in them personally; but an account given by one of the conspirators in a letter to a friend, of his own proceedings in the matter, not intended to further the com- mon object, and not brought to the defendant’s notice, was held inadmissible.** Confessions or declarations made by one of the conspira- tors after the object of the conspiracy is abandoned or ac- complished, not being declarations in the execution or fur- therance of such object, are not admissible against the oth- ers when not made in their presence.®? And, of course, dec- 89 Reg. v. Blake, supra; Rex yv. Hardy, supra; Logan v. U. S., 144 U. 8. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; People v. Davis, 56 N. Y. 95; Heine v. Com, 91 Pa. 145. 90 Reg. v. Blake, supra. 91 Rex v. Hardy, supra. . 92 Brown v. U. S., 150 U. S. 93, 14 Sup. Ct. 37, 37 L. Ed. 1010; State v. Grant, 86 Iowa, 216, 53 N. W. 120; People v. Arnold, 46 Mich. 268, 9 N. W. 406; Com. v. Ingraham, 7 Gray (Mass.) 46; State 614 EVIDENCE (Ch. 14 larations made or acts done by one conspirator before any conspiracy at all, and not ratified by the other, are not ad- missible against the latter. To render acts or declarations of one person admissible against another under this rule, the court must be first satis- fied that, apart from them, there are prima facie grounds for believing in the existence of the conspiracy.** The con- spiracy need not be shown by direct evidence as to the un- lawful agreement. It is sufficient to make out a prima facie showing by circumstantial evidence.®® The court will gen- erally require such a showing before admitting evidence of the acts or declarations, but they may, in the discretion of the court, be admitted on the promise of the prosecuting attorney to afterwards show the conspiracy, and afterwards excluded on his failure to do so.*® v. Ross, 29 Mo. 32; State v. Donelon, 45 La. Ann. 744, 12 South. 922; Cable v. Com. (Ky.) 20 S. W. 220; State v. Minton, 116 Mo. 605, 22 S. W. 808; State v. Green, 40 S. C. 328, 18 S. E. 933, 42 Am. St. Rep. 872; People v. Stevens, 47 Mich. 411, 11 N. W. 220; Gore v. State, 58 Ala. 391; Novkovic v. State, 149 Wis. 665, 185 N. W. 465; Erber v. U. S., 234 Fed. 221, 148 C. C. A. 123; Hicks v. State, 11 Ga. App. 265, 75 S. E. 12. Flight of one conspirator is not admissible as evidence against the others. People v. Stanley, 47 Cal. 113, 17 Am. Rep. 401. 93 State v. Grant, supra; McGraw v. Com. (Ky.) 20 S. W. 279; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; State v. Melrose, 98 Mo. 594, 12 S. W. 250; State v. Hilderbrand, 105 Mo. 318, 16 S. W. 948. . 94 Crosby v. People, 137 Ill. 325, 27 N. E. 49; Ormsby v. People, 53 N. Y¥. 472; McGraw v. Com. (Ky.) 20 8. W. 279; Amos v. State, 96 Ala. 120, 11 South. 424; Baker v. State, 80 Wis. 416, 50 N. W. 518; Belcher v. State, 125 Ind. 419, 25 N. E. 545; Poff v. Com. (Ky.) 25 S. W. 883; Jones v. State, 58 Ark. 390, 24 S. W. 1073; Stager v. U. S., 233 Fed. 510, 147 C. C. A. 396. 95 Smith v. State (Tex. Cr. App.) 20 S. W. 576; People v. Arnold, 46 Mich. 268, 9 N. W. 406; Kelley v. People, 55 N. Y. 565, 14 Am. Rep. 342, 96 Hall v. State, 31 Fla. 176, 12 South. 449; Hamilton vy. People, 29 Mich. 195; State v. Grant, 86 Iowa, 216, 58 N. W. 120; State v. Flanders, 118 Mo, 227, 23 S. W. 1086. § 208) PERSONS OTHER THAN DEFENDANT 615 , HEARSAY 207. Hearsay evidence is the testimony given by a witness who relates, not what he knows personally but what others have told him, or what he has heard said by others, and is admissible only in exception- al cases, DECLARATIONS OF PERSONS OTHER THAN DEFENDANT 208. Declarations by persons other than the defendant can- not be proved, (a) Unless they are part of the res geste, or (b) Unless they are admissible as dying declarations,*’ or (c) Unless they are admissible as declarations by author- ity of the defendant,**® or (d) Unless they are admissible as evidence given in a for- mer proceeding.®® It is only in very exceptional cases that the declarations of a third person can be shown. To prove the facts, the per- son himself must be called as a witness to testify as to the facts. Thus it is error in a criminal case to admit the cry of a third person, “There he goes!” referring to the defend- ant, when the officer went out to arrest him, since, if the person making the declaration saw the defendant, he should be placed on the stand to testify to that fact.2_ So on an in- dictment for larceny it is not competent to prove statements - of the owner of the property to the officer who made the °7 Post, p. 617. 98 Post, p. 620. 99 Post, p 627. 1U. S. v. Wilson (D. C.) 60 Fed. 890; Sanders v. State, 31 Tex. Cr. R. 525, 21 8. W. 258; Davis v. State, 32 Tex..Cr. R. 377, 23 S. W. 794; Id., 23 S. W. 796; Bedford v. State, 36 Neb. 702, 55 N. W. 263; People v. Newton, 96 Mich. 586, 56 N. W. 69; Shoecraft v. State, 137 Ind. 433, 36 N. E. 1118; State v. Dukes, 40 S. C. 481, 19 S. EB. 134; State v. Terline, 23 R. I. 530, 51 Atl. 204, 91 Am. St. Rep. 650; People vy. Colbath, 141 Mich. 189, 104 N. W. 633. 2 Evers v. State, 31 Tex. Cr. R. 318, 20 S. W. 744, 18 L. R. A. 421, 387 Am. St. Rep. 811. 7 616 EVIDENCE (Ch. 14 arrest.2 And on indictment for murder, or assault and bat- tery, statements made by the person killed or assaulted, not so soon after the offense that they can be regarded as part of the res geste, and not being dying declarations, cannot be proved. Self-Accusing Declarations of Third Persons Under this rule the defendant cannot prove self-accusing declarations or confessions of third persons to show that they, and not he, committed the crime charged.> And it makes no difference that the person making the declaration has since escaped ° or died.” Res Geste There is an exception to this rule where the declaration forms a part of the res geste. Thus, on a prosecution for murder committed while resisting arrest, a remark of a by- stander to an officer that “there is the man that did it” (i. e. committed the offense for which the arrest was being made), was held admissible on this ground.* And on a prosecution for murder, declarations made by the deceased during the affray in which he was killed, though not dying declara- tions, are admissible as part of the res geste.® And on in- dictment for assault with intent to kill, the wife of the per- son assaulted was allowed to testify as to what her husband told her about the assault immediately after his return home from the scene of it, a distance of a mile and a quarter, and while suffering from the wounds there inflicted.1° This 3 Bolling v. State, 98 Ala. 80, 12 South. 782. 4 People v. Wong Ark, 96 Cal. 125, 30 Pac. 1115; State v. Daugher- ty, 17 Nev. 376, 30 Pac. 1074; State v. Raven, 115 Mo. 419, 22 S. W. 376. 5 State v. West, 45 La. Ann. 928, 13 South. 173; State v. Duncan, 116 Mo. 288, 22 S. W. 699; Welsh v. State, 96 Ala. 92, 11 South. 450; State v. Fletcher, 24 Or. 295, 33 Pac. 575; Horton v. State (Tex. Cr. App.) 24S. W. 28; State v. Hack, 118 Mo. 92, 23 S. W. 1089. 6 State v. West, 45 La. Ann. 14, 12 South. 7. 7 Davis v. Com., 95 Ky. 19, 23 S. W. 585, 44 Am. St. Rep. 20L 8 State v. Duncan, 116 Mo. 288, 22 S. W. 699. ® State v. Henderson, 24 Or. 100, 32 Pac. 1030. 10 Moore vy. State, 31 Tex. Cr. R. 234, 20 S. W. 563. This case probably goes too far. See People v. Wong Ark, 96 Cal. 125, 30 Pac. 1115. 8§ 209-210) - DYING DECLARATIONS 617 question has already been considered, and some of the cases collected, in another place.1+ DYING DECLARATIONS 209. In prosecutions for homicide, a statement made by the deceased as to the cause of his death, or as to any of the circumstances of the transaction which re- sulted in his death, is admissible, if it appears to the satisfaction of the judge that when the statement was made the deceased was in actual danger of death, and had given up all hope of recovery. 210. The deceased must have been competent as a witness, and the facts stated must be such that he could have testified to them. Dying declarations are admissible under the circumstanc- es above stated,?” but not otherwise. In the first place, they are only admissible in a prosecution for causing the death of the declarant. They would not be admissible in a prose- 11 Ante, p. 606: 12 Rex y. Mosley, 1 Moody, Crown Cas. 98; State v. Talbert, 41 S. C. 526, 19 S. E. 852; Jones v. State, 71 Ind. 66; State v. Cronin, 64 Conn. 293, 29 Atl. 536; State v. Dickinson, 41 Wis. 299; Simons v. People, 150 Ill. 66, 836 N. E. 1019; Montgomery v. State, 80 Ind. 338, 41 Am. Rep. 815; People v. Madas, 201 N. Y. 349, 94 N. E. 857, Ann. Cas. 1912B, 229. A dying declaration is not inadmissible because made under oath. State vy. Talbert,supra. Dying declarations being hearsay, the only justification for the admission of them is the pre- sumption that the near approach of death produces a state of mind in which the utterances of the dying person are to be taken as free from all ordinary motives to misstate. Among such motives are malice and the desire for revenge. When, therefore, it appears that the declaration is tainted therewith, it is inadmissible. Reeves vy. _ State, 106 Miss. 885, 64 South. 836, Ann. Cas, 1917A, 1245. A dying declaration may be made by acts, instead of words, as by nodding the head and pointing, when declarant is unable to speak. People v. Madas, 201 N. Y. 349, 94 N. E. 857, Ann. Cas. 1912B, 229. It is not ground for excluding a dying declaration that it does not appear that the declarant believed in God and rewards and punishments after death. State v. Hood, 63 W. Va. 182, 59 8. E. 971,15 L. R. A. (N. S.) 448, 129 Am. St. Rep. 964. 618 EVIDENCE (Ch, 14 cution for any other offense.1? The dying declaration of A. that he murdered B. would not be admissible on a prosecu- tion of C. for murdering B.1* If the deceased would have been incompetent to testify as a witness, his statement is not admissible.1° Nor is the statement admissible if the facts stated are such as could not have been testified to by him, as where they are hearsay, or matter of opinion, or altogether irrelevant.1® But the fact that the deceased was solicited and urged to make the statement, and did so reluctantly, or that it was brought out by leading questions, does not render it inadmissible.” If the statement has been reduced to writing, and read over to and signed by the deceased, the written statement should be introduced; ?* but if for any reason the written statement is not competent, the declarations may be shown by parol evidence.?® A witness, to be competent to testify to dying declara- tions, must be able to accurately state the substance of them 18 Reg. v. Hind, Bell, Crown Cas. 253; Scott v. People, 63 Ill. 508; People v. Davis, 56 N. Y. 95; Johnson v. State, 50 Ala. 456; State v. Dickinson, 41 Wis. 299; People v. Becker, 215 N. Y. 126, 109 N. E. 127, Ann. Cas. 1917A, 600. See State v. Meyer, 65 N. J. Law, 2387, 47 Atl. 486, 86 Am. St. Rep. 634. In New York, by statute, dying dec- Jarations are admissible in prosecutions for abortion. Code Cr. Proce. N. Y. § 398a. 14 Gray’s Case, Ir. Cir. R. 76; Davis v. Com, 95 Ky. 19, 23 S. W. 585, 44 Am. St. Rep. 201. . 15 Greenl. Ey. § 157; Donnelly v. State, 26 N. J. Law, 463, 601; People v. Chin Mook Sow, 51 Cal. 597. 16 State v. Eddon, 8 Wash. 292, 36 Pac. 189; Jones v. State, 71 Ind. 66; State v. Wood, 53 Vt. 560; Sullivam v. State, 102 Ala. 135, 15 South. 264, 48 Am. St. Rep. 22; People v. Shaw, 63 N. Y. 36. Thus a dying declaration that deceased did not believe that defendant intended to kill him is not admissible, since it is a mere statement of opinion. State v. Wright, 112 Iowa, 436, 84 N. W. 541; Jones v. Com. (Ky.) 46 S. W. 217. But the declaration is not inadmissible because some of its statements, standing by themselves, would be inadmissi- ble. State v. Carter, 107 La. 792, 32 South. 183. 17 Jones v. State, supra; Maine v. State, 9 Hun (N. Y.) 1138. 18 1 Greenl. By. § 161; Jones v. State, 71 Ind. 66. But see Com, v. Haney, 127 Mass. 455. 19 Allison vy. Com., 99 Pa. 17; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200. §§ 209-210) DYING DECLARATIONS 619 as they were made, though he need not state them ver- batim.?° To admit dying declarations is not a violation of the constitutional right of the defendant to confront the wit- nesses against him.?+ It is absolutely essential in all cases to show that the declaration was made under a sense of impending death, and without any hope whatever of a recovery. Thus, where a statement of the deceased was taken down thus: “I make the above statement with the fear of death before me, and with no hope of recovery,” and on its being read over to him he changed it to read, “with no hope at present of my recovery,” the statement was held inadmissible.2? The slightest hope of recovery will render the statement inadmis- sible.?3 Ii the deceased had no hope of recovery at the time the declarations were made, the fact that he afterwards lived for some time,?* or that the doctor was not without hope,?® 20 State v. Patterson, supra; State v. Johnson, 118 Mo. 491, 24 S. W. 229, 40 Am. St. Rep. 405; People v. Chase, 79 Hun, 296, 29 N. Y. Supp. 376; Starkey v. People, 17 Ill. 17. 21 Com. v. Carey, 12 Cush. (Mass.) 246, 249; State v. Dickinson, 41 Wis. 299. 22 Reg. v. Jenkins, L. R. 1 Crown Cas. 187; Reeves v. State, 106 Miss. 885, 64 South. 836, Ann. Cas. 1917A, 1245. So, where declarant stated that she believed she was about to die, and that she hoped God would let her recover. People v. Brecht, 120 App. Div. 769, 105 N. Y. Supp. 436. 23 Reg. v. Jenkins, supra; State v. Johnson, 118 Mo. 491, 24 S. W. 229, 40 Am. St. Rep. 405; Com. v. Roberts, 108 Mass. 296; Com. v. Haney, 127 Mass. 455; Justice v. State, 99 Ala. 180, 13 South. 658; Ex parte Meyers, 33 Tex. Cr. R. 204, 26 S. W. 196; People v. Gray, 61 Cal. 164, 44 Am. Rep. 549; Jackson v. Com., 19 Grat. (Va.) 656; Brotherton v. People, 75 N. Y. 159. 24 Com. v. Cooper, 5 Allen (Mass.) 495, 81 Am. Dec. 762; Rex v. Mosley, 1 Moody, Crown Cas. 98; People v. Chase, 79 Hun, 296, 29 N. Y. Supp. 376; Jones v. State, 71 Ind. 66; Boulden v. State, 102 Ala. 78, 15 South. 341; State v. Wilson, 121 Mo, 434, 26 S. W. 357; State v. Reed, 538 Kan. 767, 837 Pac. 174, 42 Am. St. Rep. 322. In State v. Brumo, 153 Iowa, 7, 132 N. W. 817, the declaration was held admissible, though the declarant lived twenty days after it was made. This rule is governed by statute in some states. Thus in Georgia the 265 Rex v. Mosley, supra. A 620 EVIDENCE (Ch. 14 or that the deceased before or after making the declaration expressed some hope,?® will not render them inadmissible. Such facts would, however, be taken into consideration by the court in determining whether the deceased was under a sense of impending death when he made the statement. It is generally only by considering all the circumstances, in- cluding the previous, contemporaneous, and subsequent dec- larations of the deceased, that the question can be deter- mined.?7 ADMISSIONS AND DECLARATIONS BY DEFENDANT 211. Declarations made by the defendant, or by a third per- son by his authority,’® if relevant, are admissible against him, but they are not admissible in his favor. If the defendant has made statements not amounting to a confession, but constituting an admission of facts in issue or relevant to the issue, they are admissible against him.?® statute (Pen. Code 1910, § 1026) provides that the declaration, to be admissible, must be made while the declarant was “in the article of death.” Darby v. State, 9 Ga. App. 700, 72 S. E. 182. 26 State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322; Small v. Com., 91 Pa. 304; Swisher v. Com., 26 Grat. (Va.) 963, 21 Am. Dec. 330. 27 State v. Cronin, 64 Conn. 293, 29 Atl. 536; People v. Simpson, 48 Mich. 474, 12 N. W. 662; McHargue v. Com. (Ky.) 23 S. W. 349. See People v. Warren, 259 Ill. 213, 102 N. E. 201, Ann. Cas. 1914C, 219; Gerald v. State, 128 Ala. 6, 29 South. 614; State v. Thompson, 49 Or. 46, 88 Pac. 583, 124 Am. St. Rep. 1015. A written statement, prepar- ed while the declarant was in possession of all his faculties, and while he believed he would recover, intended to be signed in the event of a subsequent conviction of impending death, and which is so sign- ed, is not admissible as a dying declaration. Harper v. State, 79 Miss. 575, 31 South. 195, 56 L. R. A. 372. But see Wilson v. Com. (Ky.) 60 S. W. 400. 28 See People v. Brady, 4 Cal. Unrep. Cas. 661, 86 Pac. 949; ante, p. 612. 29 Com. v. Sanborn, 116 Mass. 61; People v. Bosworth, 64 Hun, 72, 19 N. Y. Supp. 114; People v. Cassidy, 60 Hun, 579, 14 N. Y. Supp. §§ 212-214) CONFESSIONS 621 Thus a letter written by a person under arrest, containing statements tending to show his guilt, is admissible.*° But statements made by the defendant not tending to connect him with the crime charged, such as admissions that he committed other crimes, etc., are not competent.3+ Self-serving declarations by the defendant are not admis- sible in his favor.®? CONFESSIONS 212. A confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed the crime, and is admissible against him, if voluntary. 213. No confession is deemed voluntary within this rule if it was caused by any inducement, threat, or prom- ise proceeding from a person in authority, and hav- ing reference to the charge against the accused, whether addressed to him directly or brought to his knowledge indirectly, and if such inducement, threat, or promise gave the accused reasonable grounds for supposing that by making a confession he would gain some advantage or avoid some evil in reference to the proceedings against him. 214. A confession is not involuntary merely because it ap- pears to have been caused by the exhortations of a person in authority to make it as a matter of reli- 349; Id., 183 N. Y. 612, 30 N. B. 1003; State v. Behrman, 114 N. C. 797, 19 S. E. 220, 25 L. R. A. 449; Thomas v. State, 100 Ala. 53, 14 South. 621; State v. Keeland, 39 Mont. 506, 104 Pac. 518. In Parker v. State, 46 Tex. Cr. R. 461, 80 S. W. 1008, 108 Am. St. Rep. 1021, 3 Ann, Cas. 893, it was held that such statements are not admissible, if elicited by severe cross-examination by an officer while defendant is under arrest. 30 People v. Cassidy, supra. 31 Territory v. Youree, 3 Ariz. 346, 29 Pac. 894; Com. v. Campbell, 155 Mass. 537, 30 N. E. 72; People v. Brown, 110 App. Div. 490, 96 N. Y. Supp. 957. 22 Baker y. State, 80 Wis. 416, 50 N. W. 518; Threadgill v. State, 82 Tex. Cr. R. 451, 24 S. W. 511; State v. Talbert, 41 S. C. 526, 19 S. E. 852. 622 EVIDENCE (Ch. 14 gious duty, or by an inducement collateral to the proceeding, or by inducement held out by a person not in authority. If the defendant has confessed that he committed the crime charged under the circumstances stated above, his confession is competent evidence against him.** To render a confession admissible it must have been vol- untary. It is not voluntary if it was caused by any induce- ment, threat, or promise proceeding from any person in au- thority, and having reference to the charge against the ac- cused; as where it is made to a policeman or jailer, or pros- ecuting attorney, after a promise by him to do what he can to lighten the punishment, or after a statement that it will be better to confess, or holding out any other inducement with reference to the particular charge, or on his threaten- ing to make it harder on the accused.2* Where a handbill was issued by the secretary of state, promising a reward and pardon to any accomplice in a crime who would confess, and an accomplice, under the influence of a hope of pardon, made a confession, it was held that the confession could not be used against him.2® It is immaterial whether the threat, inducement, or promise is addressed directly to the accused, or whether it is conveyed to him indirectly, as by some third person, or by intimation, or by manner. It is enough that it is conveyed in some way, and influences him in making the confession. The accused must have had reasonable grounds from such threat, inducement, or promise to sup- pose that by making the confession he would gain some ad- 33 See Com. v. Johnson, 162 Pa. 63, 29 Atl. 280; Walker v. State, 1386 Ind. 663, 36 N. B. 356. Confessions so made before the grand jury are admissible. Wisdom v. State, 42 Tex. Cr. R. 579, 61 S. W. 926. , 34 Reg. v. Boswell, Car. & M. 584; Beckham v. State, 100 Ala. 15, 14 South. 859; Com. v. Myers, 160 Mass. 530, 836 N. H. 481; Gallagher vy. State (Tex. Cr. App.) 24 S. W. 288; Collins v. Com. (Ky.) 25 S. W. 743. The confession need not have been made immediately after the inducement, so long as it was made under the influence of it. State vy. Drake, 113 N. C. 624, 18 S. E. 166. 85 Reg. v. Boswell, supra. MY §§ 212-214) CONFESSIONS 623 vantage or avoid some evil in reference to the proceedings against him.®¢ A confession is not involuntary merely because it appears to have been caused by the exhortations of a person in au- thority to make it as a matter of religious duty,®” or by an inducement collateral to the proceeding,®® or by induce- ments held out by some person not in authority.*® The prosecutor, the prosecuting attorney, the magistrate or judge, the jailer, or other officer having the accused in cus- tody, are persons in authority within the rules above stat- edt? The mere fact that a confession was made to a person in authority, even when in custody, does not render it in- voluntary. There must have been some inducement, threat, or promise from him.*? 86 People v. Phillips, 42 N. Y. 200; Flagg v. People, 40 Mich. 706. 87 Rex v. Gilham, 1 Moody, Crown Cas. 186. For an officer to tell accused to tell the truth is advice merely, and not a threat. People v. Randazzio, 194 N. Y. 147, 87 N. E. 112. 38 Rex v. Lloyd, 6 Car. & P. 393; Cox v. People, 80 N. Y. 501; State v. De Graff, 113 N..C. 688, 18 S. E. 507; State v. Tatro, 50 Vt. 483. Thus, where an officer promises to let the accused see his wife if’ he confesses, the confession is voluntary. Rex v. Lloyd, supra. 89 Smith v. Com., 10 Grat. (Va.) 734 (collecting authorities); Shif- flet v. Com., 14 Grat. (Va.) 652; Reg. v. Moore, 2 Denison, Crown Cas. 522; U.S. v. Stone (C. C.) 8 Fed. 232. It is held in some jurisdictions that confessions caused by inducements held out by a person not in authority are not admissible, if the inducements were made in the presence of a person in authority. State v. Sherman, 35 Mont. 512, 90 Pac. 981, 119 Am. St. Rep. 869. That a master is not a person in authority over his servant, see Smith v. Com., supra; Reg. v. Moore, supra. But see, to the effect that it is sufficient to exclude a con- fession if the person stood in such a relation to the accused that his communications must influence the accused. Com, v. Tuckerman, 10 Gray (Mass.) 173. And see People v. Wolcott, 51 Mich. 612, 17 N. W. 78. 40 State v. Staley, 14 Minn. 105 (Gil. 75); Wolf v. Com., 30 Grat. (Va.) 833; Beckham v. State, 100 Ala. 15, 14 South. 859; Rector v. Com., 80 Ky. 468; People v. Phillips, 42 N. Y. 200; Flagg v. People, 40 Mich. 706; Draughn v. State, 76 Miss. 574, 25 South. 153. 41 Cox v. People, 80 N. Y¥. 501; People v. Wentz, 37 N. Y. 303; Goodwin v. State, 102 Ala. 87, 15 South. 571; Com. v. Sego, 125 Mass. 213; Com. v. Cuffee, 108 Mass. 285; Com. v. Johnson, 162 Pa. 63, 29 Atl, 280; Willis v. State, 93 Ga. 208, 19 S. B. 43; Cornwall v. State, 91 Ga. 277, 18 S. B. 154. 624 EVIDENCB (Ch. 14 If a confession is extorted from the accused by such du- ress as he could not be expected to resist, as by the threat- ened or actual violence of a mob, it is not voluntary, and will be excluded.*? : A confession is voluntary and admissible, notwithstand- ing threats, inducements, or promises by persons in author- ity, if it was not made until after the complete removal of the impression made thereby.*? Facts discovered in consequence of confessions improper- ly obtained, and so much of the confession as is corroborat- ed by these facts, are admissible. Thus where a person ac- cused of burglary made a confession to a policeman under circumstances rendering it involuntary, part of it being that the accused had thrown a lantern into a pond, and the lan- tern was found, this part of the confession, and the fact that the lantern was found, were held admissible.*4 Whether the circumstances are such as to render a con- fession admissible is a question to be determined by the court before the confession is allowed to go before the jury.*® There is a conflict of authority on the question of 42 Jordan vy. State, 32 Miss. 382; Young v. State, 68 Ala. 569; Mil- ler v. People, 39 Ill. 457. The fact that the family and friends of the accused were not admitted to the jail until after the confession was made does not render the confession inadmissible. State v. Mur- phy, 87 N. J. Law, 515, 94 Atl. 640. 43 Thompson v. Com., 20 Grat. (Va.) 724; Rex v. Clewes, 4 Car. & P, 221; Com. v. Howe, 132 Mass. 250; Reeves v. State (Tex. Cr. App.) 24 S. W. 518; People v. Mackinder, 80 Hun, 40, 29 N. Y. Supp. 842; Ward vy. People, 3 Hill (N. Y.) 895; Com. v. Myers, 160 Mass. 530, 36 N. E. 481. 44 Reg. v. Gould, 9 Car. & P. 364. And see Davis v. State (Tex. Cr. App.) 28 8. W. 687; Rains v. State, 33 Tex. Cr. R. 294, 26 S. W. 398; Whitney v. Com. (Ky.) 74 S. W. 257. 45 Com, v. Culver, 126 Mass. 464; Goodwin v. State, 102 Ala. 87, 15 South. 571; State v. Patterson, 73 Mo. 695. Whether the inquiry shall be conducted in the presence of the jury has been held to be a matter within the discretion of the court. Lefevre v. State, 50 Ohio St. 584, 35 N. E. 52. If, after proof that the confession was volun- tary, the defendant testifies that it was not voluntary, the issue rais- ed is for the jury. Com. v. Shew, 190 Pac. 23, 42 Atl. 377; Wilson v. U. S., 162 U. S. 613, 16 Sup. Ct. 895, 40 L, Ed. 1090. §§ 212-214) CONFESSIONS 625 the burden of proving the voluntary character of the confes- sion.*® ; Silence when Accused of Crime -As we have seen in another place, the silence of defendant when accused of a crime may be shown as an implied admis- sion of guilt.47 Confession Made’under Promise of Secrecy or Fraudulently Obtained If a confession is admissible under the rules heretofore stated, it does not become inadmissible merely because it was made under a promise of secrecy, or in consequence of a deception practiced upon the accused for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or be- cause he was not warned that he was not bound to confess, and that evidence of it might be given against him.*® Confessions Made upon Oath Evidence amounting to a confession may be used as such against the person who made it, although it was given upon oath, and although the proceeding upon which it was given had reference to the same subject-matter as the proceeding in which it is to be proved, and although the witness might 46 In some jurisdictions a confession is presumed to be involuntary, and the burden is on the state to show the contrary. Reg. v. Thomp- son, 5 Reports, 392 [1893] 2 Q: B. 12; Thompson y. Com., 20 Grat. (Va.) 729; Young v. State, 68 Ala. 569; Nicholson v. State, 38 Md. 140. In other states it is presumed to be voluntary, and the burden is on the defendant to show that it was involuntary. Com. v. Sego, 125 Mass. 218; Rufer v. State, 25 Ohio St. 464. 47 Ante, p. 601. 48 Price v. State, 18-Ohio St. 418; White v. State, 832 Tex. Cr. R. 625, 25 S. W. 784; State v. Staley, 14 Minn. 105 (Gil. 75); State v. Grear, 28 Minn. 426, 10 N. W. 472, 41 Am. Rep. 296; Hskridge v. State, 25 Ala. 30; King v. State, 40 Ala. 314; Jefferds v. People, 5 Parker, Cr. R. (N. Y.) 522; People v. Wentz, 37 N. Y. 303; Com. v. Cressinger, 193 Pa. 326, 44 Atl. 433. As to warning, see People v. Simpson, 48 Mich. 474, 12 N. W. 662; Com. v. Cuffee, 108 Mass. 285. In some states caution is required by statute. Rix v. State, 33 Tex. Cr. R. 353, 26 S. W. 505. CLARK Cr.PR0c.(2p Ep.)—40 626 EVIDENCE (Ch. 14 have refused to answer the questions put to him; **® but if, after refusing to answer the question, he was improperly compelled to answer it, his answer is not a voluntary con- fession.®° Against Whom Admissible A confession is only admissible against the person who made it. A confession by one defendant is not competent evidence against his codefendant.5* But it may be admitted as against the defendant who made it, if the court on re- quest instructs the jury that it is to be considered only as against him. In such cases separate trials should be had.*? Corroboration of Confessions An extrajudicial confession, in order to warrant a-convic- tion, must be corroborated by other evidence tending to prove the corpus delicti.®? 49 Reg. v. Scott, 1 Dears. & B. Cr. Cas. 47; Reg. v. Robinson, L. R. 1 Cr. Cas. 80; Reg. v. Chidley, 8 Cox, Cr. Cas. 365; Com. v. King, 8 Gray (Mass.) 501; Dickerson y. State, 48 Wis. 288, 4 N. W. 321; Teachout v. People, 41 N. Y. 7; People v. Wieger, 100 Cal. 352, 34 Pac. 826; Smith v. Com. (Ky.) 26 S. W. 1100. Thus, answers given by a bankrupt on his examination may be used against him in a prosecution for offenses against the bankruptcy law. See cases first cited above. See, also, ante, p. 94 50 Reg. v. Garbett, 1 Denison, Cr. Cas. 236. 51 Com. v. Ingraham, 7 Gray (Mass.) 46; Brown v. U. 8., 150 U. S. 93, 14 Sup. Ct. 87, 87 L. Ed. 1010; People v. Stevens, 47 Mich. 411, 11 N. W. 220; People v. Arnold, 46 Mich. 268, 9 N. W. 406; Gore v. State, 58 Ala. 391; ante, p. 613, and cases there cited. 52 Ante, p. 503. : 53 People v. Hennessey, 15 Wend. (N. Y.) 147; U. S. v. Mayfield (C. C.) 59 Fed. 118; Ryan v. State, 100 Ala. 94, 14 South. 868; Col- lins v. Com. (Ky.) 26 8S. W. 1; South v. People, 98 Ill. 261; People v- Lane, 49 Mich. 340, 18 N. W. 622; State v. Patterson, 73 Mo. 695; Blacker v. State, 74 Neb. 671, 105 N. W. 302, 121 Am. St. Rep. 751. § 215) EVIDENCE GIVEN IN FORMER PROCEEDING 627 EVIDENCE GIVEN IN FORMER PROCEEDING 215. Evidence given in a former proceeding is admissible for the purpose of proving the matter stated in a subsequent proceeding or in a later stage of the Same proceeding, under the following circum- stances: (a) When the witness is dead. (b) When he is insane. (c) When he is so ill that he will probably never be able to travel. (d) When he is kept out of the way by the adverse party. (e) Provided the person against whom the evidence is to be given had the right and the opportunity to cross- examine the witness in the former proceeding. (f) Provided the questions in issue were substantially the : same in the first as in the second proceeding. (g) Provided the same person is accused upon the same facts. — Some courts, but not all, hold that the fact that a witness who testified in a former proceeding is out of the jurisdic- tion of the court or cannot be found does not render his tes- timony admissible in a subsequent proceeding.** But it is otherwise if he has since died, or become insane,®® or if he is so ill that he cannot attend, and will probably not be able 54 Brogy v. Com., 10 Grat. (Va.) 722; U. S. v. Angell (C. C.) 11 Fed. 84; State v. Lee, 18 Mont. 248, 33 Pac. 690; People v. Newman, 5 Hill (N. Y.) 295; People v. Gordon, 99 Cal. 227, 33 Pac. 901. But see People v. Davis, 4 Cal. Unrep. Cas. 524, 36 Pac. 96; Lowery v. State, 98 Ala. 45, 18 South. 498; State v. Tyler, 46 La. Ann. 1269, 15 South. 624; Vaughan v. State, 58 Ark. 353, 24 8. W. 885. Where the pro- ponent by a voluntary act has placed the witness beyond the juris- diction of the court, the former testimony of such witness is inad- missible. Langham v. State, 12 Ala. App. 46, 68 South. 504. 55 Mayor of Doncaster v. Day, 3 Taunt. 262; Rex v. Inhabitants of Briswell, 3 Term R. 720; Bass. v. State, 136 Ind. 165, 36 N. E. 124; Brown v. Com., 73 Pa. 321, 13 Am. Rep. 740; Stewart v. State (Tex. Or. App.) 26 S. W. 203; State v. Able, 65 Mo. 357; State v. Milam, 65 S. C. 321, 43 S. E. 677. 628 EVIDENCE (Ch. 14 to attend,®® or if he is kept away by the adverse party,°’ provided the other conditions mentioned above also exist. The person against whom the evidence is sought to be prov- ed must have had the right and the opportunity to cross- .examine the witness in the former proceeding.®® If he had the opportunity, the fact that he did not avail himself of it is immaterial.®® It is also necessary that in the second pro- ceeding the same person shall be accused on the same facts.°° OPINION EVIDENCE 216. The fact that a person is of opinion that a fact in issue, or relevant to the issue, does or does not exist, is admissible only in exceptional cases. A witness will not generally be allowed to state that he thinks or is of opinion that such and such a fact is or is not true. He must testify to the fact, and not state his opin- ion.°+ Thus, on a prosecution for murder, a witness cannot be asked whether there was anything in the looks of things in the room where the body was found that would indicate that a scuffle had taken place there. He can only state how the room looked, and let the jury draw the inference.®? 56 Rex v. Hogg, 6 Car. & P. 176; Chase v. Springvale Mills Co., 75 Me. 156. 57 Reynolds v. U. S., 98 U. S. 145, 25 L. Ed. 244; Reg. v. Scaife, 17 Q. B. 238, 248; State v. Houser, 26 Mo. 431. But see Bergen v, Peo- ple, 17 Ill. 426, 65 Am. Dec. 672. 58 Wright v. Tatham, 1 Adol. & BE. 3. 59 Bradley v. Mirick,.91 N. Y. 293. 60 Reg. v. Beeston, Dears. Crown Cas. 405. But see State v. Smith, 102 Iowa, 656, 72 N. W. 279. 61 State v. Coella, 8 Wash. 512, 36 Pac. 474; Martin v. State, 90 Ala. 602, 8 South. 858, 24 Am. St. Rep. 844; Holmes v. State, 100 Ala. 80, 14 South. 864; Jones v. State, 58 Ark. 390, 24 S. W. 1073; Terri- tory v. McKern, 3 Idaho (Hasb.) 15, 26 Pac. 123; Brinkley v. State, 89 Ala. 34, 8 South. 22,18 Am. St. Rep. 87. 62 State v. Coella, supra. So a witness cannot be asked for his opinion, from the appearance and acts of the parties at the time of the difficulty, as to which of the parties was in most danger of being shot. State v. Hamilton, 124 La. 182, 49 South. 1004, 18 Ann. Cas. 981. § 217) EXPERT TESTIMONY 629 ’ On the question of insanity nonexpert witnesses are al- lowed in some, but not all, states, to give their opinion, pro- vided they state the facts known to them upon which their opinion is founded.®* There are some cases in which a witness may state whether from his personal observation a certain fact or con- dition existed, though in a sense he may be stating his opin- ion that it existed. Thus it is competent for a witness to state from his own observation that a person was or was not drunk,®** or looked cross, or was nervous, excited, sick, etc.,°° and a witness may give his opinion, based on person- al observation, as to the identity of a person.*® So, on a prosecution for cursing in the hearing of females, a witness may state whether, from his own observation, the females were near enough to have heard it.®7 ' SAME—EXPERT TESTIMONY 217. Where there is a question as to any point of science or art, the opinions upon that point of persons special- ly skilled in any such matter may be given. The words “science or art” in the above rule include all subjects on which a course of special study or experience 63 Cotrell v. Com. (Ky.) 17 S. W. 149; Rice v. Rice, 50 Mich. 448, 15 N. W. 545; Upstone v. People, 109 Ill. 169; State v. Williamson, 106 Mo. 162, 17 S. W. 172; State v. Hayden, 51 Vt. 296; State v. Bryant, 93 Mo. 278, 6 S. W. 102; Hite v. Com. (Ky.) 20 S, W. 217; People v. Wreden, 59 Cal. 392; Byrd v. State, 76 Ark. 286, 88 S. W. 974. Contra, Com. v. Brayman, 136 Mass. 438; Holcomb v. Holcomb, 95 N. Y. 316. : 64 People v. Eastwood, 14 N. Y. 562; Com. v. Dowdican, 114 Mass. 257. 65 Elliott v. Van Buren, 33 Mich. 49, 20 Am. Rep. 668; State v. Crafton, 89 Iowa, 109, 56 N. W. 257; Dimick v. Downs, 82 Ill. 570. 66 People v. Stanley, 101 Mich. 93, 59 N. W. 498; People v. Young, 102 Cal. 411, 86 Pac. 770; State v. Dickson, 78 Mo, 438; Kent v. State, 94 Ga. 7u3, 19 S. E. 885; Beavers v. State, 103 Ala. 36, 15 South. 616; Mack v. State, 54 Fla, 55, 44 South. 706, 18 L. R. A, (N. S.) 873, 14 Ann. Cas. 78. | 67 McVay v. State, 100 Ala. 110, 14 South. 862. 630 EVIDENCE (Ch. 14 is necessary to the formation of an opinion.*® Thus, on the question whether a person’s death was caused by poison, the Opinions of experts as to the symptoms produced by the poison by which the deceased is supposed to have died are admissible.°® And on the question whether the defendant at the time of doing the act charged was, by reason of un- soundness of mind, incapable of knowing the nature of the act, or that he was doing what was wrong, the opinions of experts on the question whether the symptoms exhibited by the defendant commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of their acts, or of knowing that what they do is wrong, are competent.7° An expert may also testify as to whether certain blood stains have been caused by human blood or the blood of animals.” The opinions of experts as to a matter of common knowl- edge are not admissible, for the jury are as well able to judge of such facts without the aid of their opinions.” Before an alleged expert is allowed to give his opinion, the judge must be satisfied that his skill in the matter on which evidence of his opinion is offered is sufficient to en- title him to be considered as an expert.”® 68 State v. Merriman, 34 S. C. 16, 12 S. BE. 619; Johnson v. Gastle, 63 Vt. 452, 21 Atl. 534; Coyle v. Com., 104 Pa. 117; State v. Ginger, 80 Iowa, 574, 46 N. W. 657. “An expert is one having superior knowledge of a subject, acquired by professional, scientific, or techni- cal training, or by practical experience, which gives him knowledge not had by persons generally, so as to enable him to aid the court or jury in determining the matters under consideration.” Ausmus V. People, 47 Colo. 167, 107 Pac. 204, 19 Ann. Cas. 491. 69 R. v. Palmer, Steph. Dig. Ev. (Chase’s Ed.) 106. And see Steph- ens v. People, 4 Parker, Cr. R. (N. Y.) 396; Zoldoske v. State, 82 Wis. 580, 52 N. W. 778. 70 R. v. Dove, Steph. Dig. Ev. (Chase’s Ed.) 106; State v. Hayden, 51 Vt. 296; Real v. People, 42 N. Y. 270; Livingston v. Com., 14 Grat. (Va.) 592. 71 Greenfield v. People, 85 N. Y. 75, 389 Am. Rep. 636. 72 Cook v. State, 24 N. J. Law, 843; Manke v. People, 17 Hun (N. Y.) 410; People v. Clark, 33 Mich. 112; Knoll v. State, 55 Wis. 249, 12 N. W. 369, 42 Am. Rep. 704; Noonan v. State, 55 Wis. 258, 12 N. W. 379; People v. Royal, 53 Cal. 62; State vy. Klinger, 46 Mo. 224. 73 Whart. Cr. Ev. § 406; Lynch v. Grayson, 5 N. M. 487, 25 Pac. 992; People v. McQuaid, 85 Mich. 123, 48 N. W. 161. A statute of § 218) CHARACTER 631 Hypothetical Questions The fact that the expert witness does not personally know the facts of the case does not render his opinion inadmis- sible. In such a case the facts are stated hypothetically, and he is asked to state his opinion assuming those facts to be true.7* Or if the witness has heard the testimony as to the facts in the case, and it is clear, and not difficult to re- member, he may be asked to state his opinion upon what he has so heard.75 Facts Bearing on Opinions of Experts Facts not otherwise relevant are admissible if they sup- port or are inconsistent with the opinions given by experts. Thus on the question in a homicide case whether the de- ceased was poisoned by a certaih poison, the fact that other persons who were poisoned by that poison exhibited certain symptoms, which experts affirm or deny to be the symptoms of that poison, is admissible."¢ CHARACTER 218. Evidence of the character of a person is admissible in the following cases: (a) The fact that the defendant has a good character may be shown; but the state cannot show that he has a bad character, unless his character is itself a fact in issue, or unless evidence has been given that he has a good character, in which case evidence that he has a bad character is admissible. (b) The character of the deceased as a violent and dan- gerous man may be shown in prosecutions for homicide, on the question whether the defendant acted in self-defense. Michigan providing for the appointment of expert witnesses by the court in homicide cases, such appointment to be made known to the jury, and allowing the state and the defendant to use other experts, was held unconstitutional in People v. Dickerson, 164 Mich, 148, 129 N. W. 199, 33 L. R. A. (N. S.) 917, Ann. Cas. 1912B, 688. 74 Whart. Cr. Ev. § 418. 75 State v. Hayden, 51 Vt. 296; Cornell v. State, 104 Wis. 527, 80 N. W. 745. 76 R. v. Palmer, Steph. Dig. Ev. (Chase’s Ed.) 107. 632 EVIDENCB (Ch, 14 Character of Defendant In a criminal case it is always permissible for the. defend- ant to show that he bears a good character, as tending to show that it was not probable that he would commit the crime charged; and the fact that the evidence of his guilt is direct, instead of circumstantial, does not prevent the evi- dence of good character from being considered.”” If the character of the defendant is not in issue, as it would be on indictment for being a common barretor, a common drunkard, etc., and if the defendant does not intro- duce evidence of his good character, the state cannot show that he has a bad character, though the fact that he had a bad character might tend to show that he was likely to com- mit the crime charged.7*& ‘‘ Character of Third Persons As a general rule, the character of third persons is inad- missible.7® There is an important exception to the rule, however, in prosecution for homicide, where the defendant claims that he acted in self-defense. In such a case, the de- fendant may show that the deceased was a violent and dan- gerous man, both for the purpose of showing a probability that the deceased, and not the defendant, commenced the difficulty, and, where his character was known to the de- fendant, for the purpose of showing that the defendant had reasonable cause to believe and did believe that his life was in danger.®° 77 Stover v. People, 56 N. Y. 319; Remsen v. People, 43 N. Y. 6; People v. Mead, 50 Mich. 228, 15 N. W. 95; Hall v. State, 182 Ind. 317, 31 N. E. 536. 78 People v. White, 14 Wend. (N. Y.) 111; State v. Beckner, 194 Mo. 281, 91 8S. W. 892, 3 L. R. A. (N. S.) 535. 79 State v. Staton, 114 N. C. 813, 19 S. E. 96; Omer v. Com, 95 Ky. 358, 25 S. W. 594; State v. Rose, 47 Minn. 47, 49 N. W. 404. » 80 Horbach v. State, 43 Tex. 242; Garner v. State, 28 Fla. 113, 9 South. 835, 29 Am. St. Rep. 232; Cannon v. People, 141 Ill. 270, 30 N. E. 1027; Abbott v. People, 86 N. Y. 460; Davis v. People, 114 Ill. 86, 29 N. E. 192; State v. Kennade, 121 Mo. 405, 26 8. W. 347; Alex- ander v. Com., 105 Pa. 1; State v. Nash, 45 La, Ann. 1137, 13 South. 732, 734; State v. Rollins, 113 N. C. 722, 18 S. EB. 394; Trabune v. Com. (Ky.) 17 S. W. 186; Roberts v. State, 68 Ala. 156. § 219) EVIDENCE WRONGFULLY OBTAINED 633 How Proved The term “character,” as used in the rules above stated, means “reputation,” as distinguished from “disposition.” Evidence can be given only of general reputation, and not of particular acts by which reputation or disposition is shown.®+ EVIDENCE WRONGFULLY OBTAINED 219. The fact that articles or admissions were wrongfully obtained from the defendant does not render them inadmissible in evidence. As we have already seen, confessions obtained from the defendant, if otherwise competent, are not rendered inad- missible because they were obtained from him by deception, or while he was drunk, or under a promise of secrecy.®? Nor are articles, if otherwise admissible in evidence, render- ed inadmissible because they were wrongfully taken from him, as by an unlawful search or seizure.** 81 Com. v. O’Brien, 119 Mass. 342, 20 Am. Rep. 325; Berneker v. State, 40 Neb. 810, 59 N. W. 872; State v. Coley, 114 N. C. 879, 19 S. BE. 705; Patterson v. State, 41 Neb. 538, 59 N. W. 917. The state om cross-examination may ask as to specific acts. Goodwin v. State, 102 Ala. 87, 15 South. 571; Thompson v. State, 100 Ala. 70, 14 South. 878. But the state cannot rebut evidence of good character by prov- ing specific acts. Patterson v. State, supra. 82 Ante, p. 625. 83 State v. Nordstrom, 7 Wash. 506, 35 Pac. 382; Com. v. Brelsford, 161 Mass. 61, 36 N. BE. 677; State v. Atkinson, 40 S. C. 363, 18 S. B. 1021, 42 Am. St. Rep. 877; Id., 41 S. C. 551, 19 S. E. 691; State v. Flynn, 36 N: H. 64. Contra, where the evidence was obtained in such 2 manner as to amount to compelling the witness to incriminate himself. Underwood yv. State, 13,Ga. App. 206, 78 S. E. 1108. 634 EVIDENCE (Ch. 14 PRESUMPTION OF INNOCENCE—BURDEN OF PROOF 220. The defendant is presumed to be innocent, zn the bur- den is on the state.to prove his guilt Pye a rea- sonable doubt. i 221. If the state proves facts showing guilt, the piedend is on the defendant to introduce some evidence of an affirmative defense. When he has done this, by the better opinion, the burden is on the state to rebut this evidence.beyond a reasonable doubt. 222. The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence. - ‘e In civil cases the plaintiff is only r€guired to prove his case by a preponderance of the eviden&e, but in criminal cases the state must prove the defendant’ guilt, and there- fore every fact necessary to make him guilty, beyond a rea- sonable doubt. Every man is presumed to b& innocent until the contrary is proved, and this presumptio } can only be rebutted by proving guilt by evidence so Str move from the mind of the jury every reasonable doubt.** A reasonable doubt, within the meaning of Ns rule, is not a mere imaginary, captious, or possible doubt, but a fait doubt, based on reason and common sense, and growing out x 84 Carlton v. People, 150 Ill. 181, 837 N. BE. 244, 41 Ant, St. Rep. 346; Parker y. State, 186 Ind. 284, 35 N. E. 1105; Vandeventer Vv. State, 38 Neb. 592, 57 N. W. 397; Rhea v. State, 100 Ala. 119, 14 South. 853. That the crime was committed within the jurisdiction of the court must be proved by the state; but the courts are not agreed on the quantum of proof. Some hold that it must be proved, like every other material allegation, beyond a reasonable doubt. Da- vis v. State, 184 Wis. 632, 115 N. W. 150; Wade v. State, 11 Ga. App. 411, 75 S. E. 494. Other courts hold that the venue is distinct from . the determination of defendant’s guilt, and need be proved only by a preponderance of the evidence. Cox v. State, 28 Tex. App. 92, 12 8. W. 493; Nichols v. State, 102 Ark. 266, 143 8. W. 1071; Norris v. State, 127 Tenn. 437, 155 S. W. 165. §§ 220-222) PRESUMPTION OF INNOCENCE 635 of the testimony in the case. It is such a doubt as will leave one’s mind, after a careful examination of all the evi- dence, in such a condition that he cannot say that he has an abiding conviction to a moral certainty of the defendant’s guilt.85 Shift of Burden of Proof It is frequently said that the burden of proof shifts at dif- ferent stages of the evidence. This is incorrect. The bur- den of proving defendant’s guilt is at all times on the state. If, when all the evidence is in, the jury are nat convinced beyond a reasonable doubt of the defendant’s guilt, they should return a verdict of not guilty.®* As the proceeding goes on, the burden of going forward with evidence may be shifted from that party upon whom it first rested by his proving facts which raise a presumption in his favor. ‘Thus, on a prosecution of a married woman for re- ceiving stolen goods, the burden of proof is on the state. But where she:is shown to have had possession of stolen goods soon after the theft, knowing them to have been stolen, the state has made out a case, and the burden of go- ing forward with evidence is shifted to her to show matter of defense. She meets the burden by showing that she stole them in the presence of her husband. The burden is then shifted back to the state to show that she was not coerced by him.’7 So, on a prosecution for bigamy, if the 85 People v. Finley, 38 Mich. 482; Garrett v. State, 97 Ala. 18, 14 South. 827; Culver v. State, 99 Ala. 193, 18 South. 527. It is not necessary that the evidence exclude every hypothesis other than that of guilt, but it is sufficient if the evidence shows guilt beyond a rea- ~ sonable doubt—not a speculative, imaginary, or possible doubt. Gar- rett v. State, supra. A reasonable doubt has been defined as such a doubt as would make a man of ordinary prudence waver or hesitate in considering a matter of like importance to himself as the case on trial is to the defendant. State v. Roesener, 8 Wash. 42, 35 Pac. 357 It is proper for the court: to refuse to charge that the degree of evi- dence required to convict a man must be such as to remove all doubt from the mind of a reasonable man, since a reasonable man may have _, an unreasonable doubt. Padfield vy. People, 146 Ill. 660, 35 N. H. 469. "86 Thayer, Ev. c. 9. 87 1 Russ. Crimes, 33; 2 Russ. Crimes, 337. Some courts hold that proof of the possession of goods soon after the theft raises the pre- met tr 636 EVIDENCE (Ch. 14 state proves that the defendant was already married when he married the second time, the burden of showing some de- fense is on the defendant. If the defendant shows that he was a minor at the time of the first marriage, the state has the burden of proving that he married with his parents’ con- sent.6® So, where the defendant sets up insanity as a de- fense, the burden is on him to introduce some evidence of insanity.8® But in all these cases when all the evidence is in, the burden of proving that defendant is guilty beyond a reasonable doubt is where it was at the beginning of the trial, on the state; and, if the jury are still in doubt whether the defendant committed the crime they should acquit. This being the principle, it would seem clear that where the defendant has introduced some evidence of an affirma- tive defense, like insanity, the burden should be on the state to rebut that evidence beyond a reasonable doubt, and many of the courts so hold.** But many of the courts hold that in such a case the burden is on the defendant to establish his sumption of guilt, and shifts the burden of proof. Waters v. People, 104 Ill. 544. Contra, Stover v. People, 56 N. Y. 315; Ingalls y. State, 48 Wis. 647, 4 N. W. 785; Com. v. McGorty, 114 Mass. 299. So on indictment for homicide, where the defendant has made out a case of self-defense, the burden of proving that he was at fault in bringing on the difficulty is on the state. Holmes v. State, 100 Ala. 80, 14 South. 864. 88 Rex v. Butler, Russ. & R. 61. 89 See the cases hereafter cited. 90 Thayer, Ev. c. 9; Davis v. U. S., 160 U. S. 469, 16 Sup. Ct. 353, 40 L. Ed. 499. ®1U. S. v. Faulkner (D. C.) 35 Fed. 730; State v. Reidell, 9 Houst. (Del.) 470, 14 Atl. 550; Baccigalupo v. Com., 33 Grat. (Va.) 807, 36 Am. Rep. 795; Langdon v. People, 133 Ill. 382, 24 N. E. 874; Grubb v. State, 117 Ind. 277, 20 N. E. 257, 725; Plake v. State, 121 Ind. 433, 23 N. E. 273, 16 Am, St. Rep. 408; Revoir v. State, 82 Wis, 295, 52 N. W. 84; Com. v. Gerade, 145 Pa. 289, 22 Atl. 464, 27 Am. St. Rep. 689; King v. State, 91 Tenn. 617, 20 S. W. 169; Hodge v. State, 26 Fla. 11, 7 South. 598; Faulkner v. Territory, 6 N. M. 464, 30 Pac. 905; Davis v. U. S., 160 U. S. 469, 16 Sup. Ct. 353, 40 L. Hd. 499; Maas v. Ter., 10 Okl. 714, 63 Pac. 960, 53 L. R. A. 814; People v. Spencer, 179 N. Y. 408, 72 N. H. 461. In the absence of any evidence to raise a reasonable doubt, the prosecution is not obliged to prove sanity. Montag v. People, 141 Ill. 75, 30 N. BH. 337; Armstrong v. State, 30 Fla. 170, 11 South. 618, 17 L. R. A. 484, §§ 220-222) PRESUMPTION OF INNOCENCE 637 insanity by a preponderance of the evidence, and that it is not enough to raise a reasonable doubt as to his sanity.®? This is riding roughshod over the rule that in a criminal case the defendant’s guilt must be proved beyond a reason- able doubt, for a man who commits an act while insane does not commit acrime. He is not merely excused from punish- ment. He is not guilty at all of any crime. Some courts have even gone so far as to hold that the defendant must establish his insanity beyond a reasonable doubt; that is to say, that if the jury have any reasonable doubt on the question, they must convict.®* There is a like conflict of opinion as regards the defense of alibi.®* Fact to be Proved to Render Evidence Admissible The burden of proving any fact necessary to be proved in order to enable a person to give evidence of any other fact is on the person who seeks to give such evidence. Where the state wishes to introduce a dying declaration, the bur- 92 Com. v. Rogers, 7 Metc. (Mass.) 500, 41 Am. Dec. 458; Loeffner v. State, 10 Ohio St. 598; Fisher v. People, 23 Ill. 283 (but see, con- tra, Langdon y. People, 183 Ill. 382, 24 N. BE. 874); People v. Mc Cann, 16 N. Y. 58, 69 Am. Dec. 642; Walker v. People, 88 N. Y. 81; State v. Starling, 51 N. C. 366; State v. Davis, 109 N. C. 780, 14 S. BB. 55; State v. McCoy, 34 Mo. 531, 86 Am. Dec. 121; State v. Schae- fer, 116 Mo. 96, 22 S. W. 447; State v. Trout, 74 Iowa, 545, 38 N. W. 405, 7 Am. St. Rep. 499; People v. Garbutt, 17 Mich. 9, 97 Am. Dee. 162; Leache v. State, 22 Tex. App. 279, 3 8S. W. 539, 58 Am. Rep. 638; Rather y. State, 25 Tex. App. 623, 9 S. W. 69; Parsons v. State, 81 Ala. 577, 2 South. 854, 60 Am. Rep. 193; Gunter v. State, 83 Ala. 96, 3 South. 600; Maxwell v. State, 89 Ala. 150, 7 South. 824; People v. Bemmerly, 98 Cal. 299, 33 Pac. 263; People v. Baw- den, 90 Cal. 195, 27 Pac. 204; Fogarty v. State, 80 Ga. 450, 5 S. EB. 782; Coates v. State, 50 Ark. 330, 7 8S. W. 304; Bolling v. State, 54 Ark. 588, 14,5. W. 658; Moore v. Com., 92 Ky. 630, 18 S. W. 833; State v. Alexander, 30 S. C. 74, 8 S. E. 440, 14 Am. St. Rep. 879; State v. Lewis, 20 Nev. 333, 22 Pac, 241; People v. Dillon, 8 Utah, 92, 30 Pac. 150. 93 Reg. v. Stokes, 8 Car. & K. 188; State v. Brinyea, 5 Ala. 244; State v. Huting, 21 Mo. 476; People v. Myers, 20 Cal. 518; State v. Spencer, 21 N. J. Law, 202; State v. De Rancé; 34 La. Ann. 186, 44 Am. Rep. 426. 94 See Com. v. Choate, 105 Mass. 451; Howard v. State, 50 Ind. 190; Walters v. State, 39 Ohio St. 215. 638 EVIDENCE (Ch. 14 den is on it to show that it was made under such a sense of impending death as to render it competent; and, if the de- fendant seeks to introduce such evidence, the same burden is on him.*® 223. WITNESSES—THEIR COMPETENCY AND THE MODE OF EXAMINING THEM Though there-is very little difference between civil and criminal cases as regards the competency of witnesses, the mode of examining them, etc., so that the matter might well be omitted, it cannot be out of place to state shortly the general rules.*® 4 Who May Testify All persons are competent to testify in all cases except as follows: A witness is incompetent if, in the opinion of the judge, he is prevented by extreme youth,®’ disease affecting the mind,°* or any other cause of the same kind,®® fromi recol- lecting the matter on which he is to testify, from under- standing the questions put to him, from giving rational an- swers to those questions, or from knowing that he ought to speak the truth.* A witness unable to speak or hear is not incompetent, but may give his evidence by writing or by signs, or in any oth- er manner in which he can make it intelligible; but such 95 Ante, p. 617, and cases there cited. 96 The rules are taken almost verbatim from Stephen’s Digest of Evidence. 97 See Com. v. Mullins, 2 Allen (Mass.) 295; Comer v. State (Tex. Cr. App.) 20 S. W. 547; McGuire v. People, 44 Mich. 286, 6 N. W. 669, 38 Am. Rep. 265; State v. Michael, 37 W. Va. 565, 16 S. E. 803, 19 L. R. A. 605; State v. Doyle, 107 Mo. 36, 17 S. W. 751. 98 Walker v. State, 97 Ala. 85, 12 South. 83; Coleman v. Com., 25 Grat. (Va.) 865, 18 Am. Rep. 711; Worthington v. Mencer, 96 Ala. 310, 11 South. 72, 17 L. R. A. 407; Lopez v. State, 30 Tex. App. 487, 17 S. W. 1058, 28 Am. St. Rep. 935. 99 State v. Weldon, 39 S. C. 318, 17 S. B. 688, 24 L. R. A. 126. 1 The question is for the court, and generally its ruling will not be reviewed. Com. v. Mullins, supra, and other cases above cited. § 223) WwITNESSES—COMPETENCY—EX AMINATION 639 writing must be written and such signs made in open court.2 Evidence so given is deemed to be oral evidence. At common law an atheist cannot testify as a witness,® but in most states it is otherwise by statute.‘ At common law a person who has been convicted of an in- famous crime is not a competent witness;* but this rule also has been changed by statute in some jurisdictions.® In criminal cases the accused person and his or her wife or husband, and every person and the wife or husband of every person jointly indicted and tried with him, are in- competent to testify,” except that in any criminal proceed- ing against a husband or wife for any bodily injury or vio- lence inflicted upon his or her wife or husband, such wife or husband is competent and compellable to testify.® In most states by statute the accused is now allowed to testify in his own behalf, but he cannot be compelled to tes- tify. 2 State v. Weldon, 39 S. C. 318, 17 S. E. 688, 24 L. R. A. 126. 8 Butts v. Swartwood, 2 Cow. (N. Y.) 431; Omichund v. Barker, Willes, 549; People v. Matteson, 2 Cow. (N. Y.) 433, note. The test of competency is whether he believes in the existence of a God who will punish him if he swears falsely. Butts v. Swartwood, supra. 4 Hronek v. People, 184 Ill. 189, 24 N. E. 861, 8 L. R. A. 837, 23 Am. St. Rep. 652. 5 Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429; U. S. v. Hall (D. C.) 53 Fed. 352; State v. Randolph, 24 Conn. 363. But not if convicted in another state. Logan v. U. S., supra. Incompe- tency is removed by pardon. Logan v. U. S., supra; Boyd v. U. S., 142 U. S. 450, 12 Sup. Ct. 292, 35 L. Ed. 1077; Martin v. State, 21 Tex. App. 1,17 S. W. 480. : 6 Williams v. Dickenson, 28 Fla. 90, 9 South. 847; People v. Mc- Gloin, 91 N. Y. 241; State v. Peterson, 35 S. C. 279, 14 S. HE. 617. 7 Reg. v. Payne, L. R. 1 Crown Cas. 349; State v. Ulrich, 110 Mo. 350, 19 S. W. 656; People v. Quanstrom, 93 Mich. 254, 53 N. W. 165, 17 L. R. A. 723; People v. Westbrook, 94 Mich. 629, 54 N. W. 486; People v. Langtree, 64 Cal. 256, 30 Pac. 813. Oth- erwise where the defendants are tried separately. Adams v. State, 28 Fla. 511, 10 South. 106; People v. Bosworth, 64 Hun, 72, 19 N. Y. Supp. 114; Linsday v. People, 63 N. ¥. 148. The rule does not apply to man and mistress. Sims v. State, 30 Tex. App. 605, 18 8. W. 410. 8 Reeve v. Wood, 5 Best & S. 364; Johnson v. State, 94 Ala. 53, 10 South. 427; People v. Quanstrom, 93 Mich. 254, 53 N. W. 165, 17 L. R. A. 723; State v. Chambers, 87 Iowa, 1, 53 N. W. 1090, 43 Am. St. Rep. 349; People v. Westbrook, 94 Mich. 629, 54 N. W. 486. 640 EVIDENCE (Ch. 14 In some states the defendant is allowed to make a state- ment to the jury not under oath. Privileged Communications No husband is compellable to disclose any communication made to him by his wife during the marriage, and no wife is compellable to disclose any communication made to her by her husband during the marriage.® It is doubtful whether a judge is compellable to testify as to anything which came to his knowledge in court as such judge.*® It seems that a barrister cannot be compelled to testify as to what he said in court in his character of a barrister.11 No one can.be compelled to give evidence relating to any affairs of state, as to official communications between public officers upon public affairs, except with the permission of the officer at.the head of the department concerned,?? or to give evidence of what took place in either house of congress, or of a state legislature, without the leave of the house, though he may state that a particular person acted as speak- er,38 In cases in which the govetnment is immediately concern- ed no witness can be compelled to answer any question, the answer to which would tend to discover the names of per- sons by or to whom information was given as to the com- mission of offenses. In ordinary criminal prosecutions it is for the judge to decide whether the permission of any such question would or would not, under the circumstances of the particular case, be injurious to the administration of jus- tice.1* ® Campbell v. Chace, 12 R. I. 333; Com. v. Griffin, 110 Mass. 181; State v. Mathers, 64 Vt. 101, 23 Atl. 590, 15 L. R. A. 268, 33 Am. St. Rep. 921; State v. Ulrich, 110 Mo. 350, 19 S. W. 656. 10 Reg. v. Gazard, 8 Car. & P. 595. 11 Curry v. Walter, 1 Esp. 456. 12 Beatson v. Skene, 5 Hurl. & N. 838; Anpeal of Hartranft, 85 Pa. 433, 27 Am. Rep. 667; Totten v. U. S., 92 U. S. 105, 23 L. Ed. 605. 13 Chubb v. Salomons, 3 Car. & K. 77; Plunkett v. Cobbett, 5 Esp. 136. 14 Hardy’s Case, 24 How. State Tr. 811; Reg. v. Richardson, 3 Fost. & F. 693; State v. Soper, 16 Me. 298, 338 Am. Dec. 665; U. S. vy. Moses, 4 Wash. C. C. 726, Fed. Cas. No. 15,825. § 223) | WITNESSES—COMPETENCY—EX AMINATION 641 As we have seen in another place, neither a petit juror nor a grand juror can give evidence as to what passed between the jurymen in the discharge of their duties. Nor, as a rule, can a grand juror give evidence as to what any witness said when examined before the grand jury, though as to this there are some exceptions.?® No legal adviser is permitted, whether during or after the termination of his employment as such, unless with his client’s express consent, to disclose any communication, oral or documentary, made to him as such legal adviser, by or on behalf of his client, during, in the course, and for the purpose of his employment, whether in reference to any “matter as to which a dispute has arisen or otherwise, or to disclose any advice given by him to his client during, in the course, and for the purpose of such employment.?® This rule does not extend to (1) any such communication as aforesaid made in furtherance of any criminal purpose; 1?’ (2) any fact observed by any legal adviser, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his em- ployment, whether his attention was directed to such fact by or on behalf of his client or not;+® (3) any fact with which such legal adviser became acquainted otherwise than in his character as such.1® The expression “legal adviser” includes barristers and solicitors, their clerks, and interpre- ters between them and their clients.?® It does not include officers of a corporation through whom the corporation has elected to make statements.”? 15 Ante, pp. 142, 574. 16 State v. Dawson, 90 Mo, 149, 1 S. W. 827. 17 Follett v. Jefferyes, 1 Sim. (N. S.) 17; Charlton v. Coombes, 32 L. J. Ch. 284; People v. Blakeley, 4 Parker, Cr. R. (N. Y.) 176; Or- man vy. State, 22 Tex. App. 604, 3 S. W. 468, 58 Am. Rep. 662; Id., 24 Tex. App. 495, 6 S. W. 544; Everett v. State, 30 Tex. App. 682, 18 S. W. 674. : 18 Brown v. Foster, 1 Hurl. & N. 736; Rahm v. State, 30 Tex. App. 310, 17 S. W. 416, 28 Am. St. Rep. 911. 19 State v. Mewherter, 46 Iowa, 88; Com. v. Goddard, 14 Gray (Mass.) 402. ca 20 Wilson v. Rastall, 4 Term R. 753; Taylor vy. Foster, 2 Car. & P, 195; Foote v. Hayne, 1 Car. & P. 545. 21 Mayor vy. Quirk, L. R. 5 C. P. 106. CLARK Cr.PrRoc.(2D Ep.)—41 642 EVIDENCE (Ch. 14 The privilege is personal, and cannot be set up by the other party.?? No one can be compelled to disclose to the court any com- munication between himself and his legal adviser, which his legal adviser could not disclose without his permission, al- though it may have been made before any dispute arose as to the matter referred to.?8 Medical men and (probably) clergymen may, at common law, be compelled to disclose communications made to them in professional confidence, but the rule has in some states been changed by statute.?* Witness not to be Compelled to Criminate Himself Both under most of our constitutions, and at common law, it is the rule that no one is bound to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the witness (or the wife or hus- band of the witness) to any criminal charge, or to any pen- _alty or forfeiture which the judge regards as reasonably likely to be preferred or sued for; ?® but no one is excused from answering any question only because the answer may establish or tend to establish that he owes a debt, or is oth- erwise liable to any civil suit, either at the instance of the state or of any other person.?® Ifa defendant offers himself 22 Smith v. Boatman Savings Bank, 1 Tex. Civ. App. 115, 20 S. W. 1119. 23 Minet v. Morgan, L. R. 8 Ch. App. 361; Duttenhofer v. State, 34 Ohio St. 91, 832 Am. Rep. 362. ‘ 24 Duchess of Kingston’s Case, 20 How. State Tr. 572; Gillooley vy. State, 58 Ind. 182; People v. Gates, 18 Wend. (N. Y.) 311; Pier- son v. People, 79 N. Y. 424, 35 Am. Rep. 524; Steagald v. State, 22 Tex. App. 464, 3 S. W. 771. 25 Black, Const. Law, 497, and cases there cited; Reg. v. Boyes, 1 Best & S. 330; Rex v. Inhabitants of Cliviger, 2 Term R. 268; Rex y. Inhabitants of Bothwick, 2 Barn. & Adol. 639; Com. v. Nichols, 114 Mass. 285, 19 Am, Rep. 346; 2 Story, Const. § 1788; Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 746; State ex rel. Lan- ning v. Lonsdale, 48 Wis. 348, 4 N. W. 390; State v. Briggs, 9 R. I. 361, 11 Am. Rep. 270. If, by statute, the testimony could not be used against him, or if he could not be prosecuted for the crime dis- closed, the rule does not apply. See Kendrick v. Com., 78 Va. 490; People v. Kelly, 24 N. Y. 74. 26 Steph. Dig. Ev. (Chase’s Ed:) 209. § 223) wWwITNESSES—COMPETENCY—EXAMINATION 643 as a witness, he cannot refuse to answer questions asked him on cross-examination.2’7 The witness may waive this privilege by answering questions without objection,?® and, if he answers so as to disclose part of the transaction, he waives his right to refuse to answer further.?°® Corroboration, when Required In most, but not all, states, when the only proof against a person charged with a criminal offense is the evidence of an accomplice, uncorroborated in any material particular, it is the duty of the judge to warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do'so.®° In some states, by statute, a conviction cannot be had in a criminal case on the testimony of an accomplice, unless corroborated by other evidence; *? in other states, in prose- cutions for seduction, rape, and similar crimes, there can be no conviction on the uncorroborated testimony of the wo- man;*®? but the rule is otherwise at common law.*? 27 People v. Casey, 72 N. Y. 393; Com. v. Nichols, 114 Mass. 285, 19 Am. Rep. 346; People v. Dupounce, 133 Mich. 1, 94 N. W. 388, 103 Am. St. Rep. 435, 2 Ann. Cas. 246. 28Com. v. Shaw, 4 Cush. (Mass.) 594, 50 Am. Dec. 813. No one but the witness can object. 29 Com. v. Pratt, 126 Mass. 462. But see Reg. v. Garbett, 1 Deni- son, Cr. Cas. 236. 30 Roguemore v. State, 28 Tex. App. 55, 11 S. W. 834; Com. v. Holmes, 127 Mass. 424, 34 Am. Rep. 391; Fort v. State, 52 Ark. 180, 11 S. W. 959, 20 Am. St. Rep. 163; Stape v. People, 85 N. Y. 390; Smith v. Com. (Ky.) 17 S. W. 182; Boyd v. State, 24 Tex. App. 570, 6S. W. 853, 5 Am, St. Rep. 908; Com. v. Hayes, 140 Mass. 366, 5 N. E. 264; People v. Ogle, 104 N. Y. 511, 11 N. EB. 53. But see, contra, Ingalls v. State, 48 Wis. 647, 4 N. W. 785; State v. Harkins, 100 Mo. 666, 13 S. W. 830. The witness must be an accomplice to need corroboration. Com. y. Follansbee, 155 Mass. 274, 29 N. E. 471; Com. v. Graves, 97 Mass. 114; Campbell v. Com., 84 Pa. 187. 81 People v. Bunkers, 2 Cal. App. 197, 84 Pac. 364, 370. 32 People v. Kearney, 110 N. Y. 188, 17 N. E. 786; State v. Me- Glothlen, 56 Iowa, 544, 9 N. W. 893; Armstrong v. People, 70 N. Y. 38. 33 See State v. Nichols, 29 Minn. 357, 138 N. W. 153; State v. Mc- Glothlen, supra. The question whether a person is an accomplice is for the jury. People v. Bunkers, 2 Cal. App. 197, 84 Pac. 364, 370. 644 , EVIDENCE (Ch, 14 As we have already seén, there can be no conviction on an extrajudicial confession unless corroborated by other evidence of the corpus delicti.*+ Number of Witnesses Necessary In trials for treason no one can be convicted unless he pleads guilty, except upon the oath of two lawful witnesses to the same overt act.*5 If upon a trial for perjury the only evidence against the defendant is the oath of one witness contradicting the oath on which perjury is assigned, and if no circumstances are proved which corroborate such witness, the defendant is entitled to be acquitted.3¢ : Excluding Witnesses from Court Room While one witness is testifying the court may, in its dis- cretion, exclude the other witnesses from the court room.*? It cannot exclude the defendant, however, nor can it ex- clude one defendant while his codefendant is testifying.** If a witness who has been excluded disobeys the court’s order, he is guilty of contempt of court, and may be punish- ed, but this does not render him incompetent, or prevent his being examined, if the party offering him as a witness was not privy to the contempt.*® Failure to Call Witnesses The failure of the state or of the defendant to call a wit- ness, particularly an eyewitness of the act charged, may, by the weight of authority, be taken into consideration by the 34 Ante, p. 626. 35 Const. U. S. art. 3, § 3. 36 Steph. Dig. Ev. (Chase’s Ed.) 218; Rex v. Mayhew, 6 Car. & P. 815; Com. v. Parker, 2 Cush. (Mass.) 219; U. S. v. Wood, 14 Pet. 440, 10 L. Ed. 527; State v..Hayward, 1 Nott & McC. (S. C.) 547; State v. Heed, 57 Mo. 252; State v. Blize, 111 Mo. 464, 20 S. W. 210; People v. Hayes, 70 Hun, 111, 24 N. Y. Supp. 1™. 37 Zoldoske. vy. State, 82 Wis. 580, 52 N. W. 778; Vance v. State, 56 Ark. 402, 19 S. W. 1066; Dickson v. State, 39 Ohio St. 73; Com. vy. Follansbee, 155 Mass. 274, 29 N. E. 471. 38 Ante, p. 492. 39 Grant v. State, 89 Ga. 393, 15 S. E. 488; Dickson y. State, su- pra; Taylor v. State, 180 Ind. 66, 29 N. E. 415; Cook v. State, 30 Tex. App. 607, 18 S. W. 412. § 223) wiTNESSEsS—COMPETENCY—EXAMINATION 645 jury,*° but it does not raise any legal presumption of inno- cence or of guilt.*+ Compelling State to Call Witnesses Where the prosecution fails to call all the eyewitnesses to the crime, the court may, in the exercise of its discretion, compel it to do so; and it should compel it to do so where the witnesses are few in number.*? Ordinarily, how- ‘ever, the court will not interfere.*3 Examination in Chief, Cross-Examination, and Re-examination Witnesses examined in open court must be first examined. in chief, they may then be cross-examined, and then re- examined. Whenever any witness has been examined in chief, or has been intentionally sworn, or has made a promise and decla- ration, as hereinbefore mentioned, for the purpose of giving evidence, the opposite party has a right to cross-examine him; but the opposite party is not entitled to cross-examine merely because a witness has been called to produce a docu- ment on a subpcena duces tecum, or inorder to be identified. After the cross-examination is concluded, the party who called the witness has a right to re-examine him. The court may in all cases permit a witness to be recalled, either for further examination in chief or for further cross- examination; and if it does so the parties have the right of further cross-examination and further re-examination, re- spectively.*# It is held in England that if a witness dies, or becomes incapable of being further examined, at any stage of his 40 People v. Hovey, 92 N. Y. 554; Rice v. Com., 102 Pa. 408. 41 Bleecker v. Johnston, 69 N. Y. 309; Hill v. Com., 88 Va. 6338, 14 S. BE. 330, 29 Am. St. Rep. 744. 42 People v. Kenyon, 93 Mich. 19, 52 N. W. 1033; Thompson v. State, 30 Tex. App. 325, 17 S. W. 448. 43 State v. Russell, 18 Mont. 164, 32 Pac. 854; Hill v. Com., 88 Va. 633, 14 S. EB. 330, 29 Am. St. Rep. 744; People v. Wright, 90 Mich. 862, 51 N. W. 517. 44 Com. v. McGorty, 114 Mass. 299. A witness may be recalled to restate his testimony on a given point at the request of the jury, after the jury has retired to consider their verdict. Strickland v. State, 115 Ga. 222, 41 S. E. 713. 646 EVIDENCE (Ch, 14 examination, the evidence given before he became incapable is good; *® but in this country the rule seems to be other- wise, where there was no opportunity to cross-examine.*® If, in the course of a trial, a witness who was supposed to be competent appears to be incompetent, his evidence may be withdrawn from the jury, and the case may be left to their decision independently of it;47 but if a witness is known to be incompetent when he is sworn, and no objec- tion is made, the rule does not apply.*® To What Matters Cross-Examination and Re-examination must be Directed The examination and cross-examination must relate to facts in issue or relevant thereto; and in most states the cross-examination must be confined to the facts to which the witness testified on his examination in chief.** The re-examination must be directed to the explanation of matters referred to in cross-examination; °° and if new matter is, by permission of the court, introduced in re-ex- amination, the adverse party may further cross-examine up- on that matter. As a rule, the state and the defendant must on examina- tion in chief make out its or his whole case,°>? but the court may, in its discretion, allow evidence to be given out of the proper order. The rule is general that the order of intro- ducing evidence is in the discretion of the court. Leading Questions Questions suggesting the answer which the person put- ting the question wishes or expects to receive, or suggest- ing disputed facts as to which the witness is to testify, must not, if objected to by the adverse party, be asked in an ex- 45 Rex v. Doolin, Jebb, Crown Cas. 128. 46 Steph. Dig. Ev. (Chase’s Ed.) 224; People v. Cole, 43 N. Y. 508. 47 Reg. v. Whitehead, L. R. 1 Crown Cas. 83; State v. Damery, 48 Me. 327. 48 Steph. Dig. Ev. (Chase’s Hd.) 222. 49 Steph. Dig. Ev. (Chase’s Ed.) 228; People v. Beach, 87 N. Y. 508; Donnelly v. State, 26 N. J. Law, 463, 601; State v. Smith, 49 Conn. 276; Austin v. State, 14 Ark, 555. 50 Schaser v. State, 836 Wis. 429; People v. Beach, supra. 51 State v. Alford, 31 Conn. 40. § 223) | WITNESSES—COMPETENCY—EX AMINATION 647 amination in chief, or a re-examination,®? unless the witness appears to be hostile to the party introducing him,** or “when the examination relates to items, dates, or numerous details, where the memory ordinarily needs suggestion, or when it is necessary to direct the witness’ attention plainly to the subject-matter of his testimony.” °* With the per- mission of the court, such questions may be asked in cross- examination.®® Questions Lawful in Cross-Examination When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any ques- tions which tend (1) to test his accuracy, veracity, or credi- bility; or (2) to shake his credit, by injuring his character. Witnesses have been compelled to answer such questions, though the matter suggested was irrelevant to the matter in issue, and though the answer was disgraceful to the witness, as where he was asked as to the commission of a crime, or as to immoral conduct; but it is submitted that the court has the right to exercise a discretion in such cases, and to refuse to compel such questions to be answered when the truth of the matter suggested would not, in the opinion of the court, affect the credibility of the witness as to the mat- ter to which he is required to testify.°® Exclusion of Evidence to Contradict Answers to Questions Testing Veracity When a witness under cross-examination has been asked and has answered any question which is relevant to the in- quiry only so far as it tends to shake his credit by injuring his character, no evidence can be given to contradict him, 52 People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122. 53 1d. 64 Steph. Dig. Ev. (Chase’s Hd.) 224; People v. Mather, supra. 55 People v. Mather, supra. 56 Steph. Dig. Ev. (Chase’s Ed.) 225, and cases there cited; State v. Ward, 49 Conn. 429; Lohman v. People, 1 N. Y. 379, 49 Am. Dec. 840; People v. Noelke, 94 N. Y. 187, 46 Am. Rep. 128; Com. v. Ma- son, 105 Mass. 163, 7 Am. Rep. 507; People v. Irving, 95 N. Y. 541. The rule applies to cross-examination of the defendant. MHanoff v. State, 37 Ohio St. 178, 41 Am. Rep. 496; People v. Crapo, 76 N. Y. 288, 832 Am. Rep. 302. 648 EVIDENCE (Ch. 14 except in the following cases: 5? (1) If a witness is asked whether he has been previously convicted of any felony or misdemeanor, and denies or does not admit it, or refuses to answer, evidence may be given of his previous conviction thereof.°* (2) Ifa witness is asked any question tending to show that he is not impartial, and answers it by denying the facts suggested, he may be contradicted. Statements Inconsistent with Present Testimony may be Proved Every witness under cross-examination in any proceed- ing, civil or criminal, may be asked whether he has made any former statement relative to the subject-matter of the action and inconsistent with his present testimony, the cir- cumstances of the supposed statement being referred to suf- ficiently to designate the particular occasion, and, if he does not distinctly admit that he has made such a statement, proof may be given that he did in fact make it.°° The same course may be taken with a witness upon his examination in chief, if the judge is of opinion that he is “adverse” (i. e. hostile) to the party by whom he was called, and permits the question.*? In other cases, as we shall see, a party can- not impeach his own witness, though he is not precluded from introducing witnesses who will testify to the con- trary.®? Impeaching Credit of Witness The credit of a witness may be impeached by the adverse party, by the evidence of persons from his own community who will swear that they know the general reputation of the witness for truth and veracity, that his reputation is bad, 57 Stokes v. People, 53 N. Y. 164, 18 Am. Rep. 492. 58 Steph. Dig. Ev. (Chase’s Ed.) 227. 59 Steph. Dig. Ev. (Chase’s Ed.) 228. 60 Steph. Dig. Ev. (Chase’s Hd.) 229, and cases there cited; State v. Grant, 79 Mo. 113, 49 Am. Rep. 218; People v. Devine, 44 Cal. 452; State v. Glynn, 51 Vt. 577. In some states this foundation for the . impeaching evidence is not necessary. Com. v. Hawkins, 38 Gray (Mass.) 463; State v. Glynn, supra. 61 People v. Mather, 4 Wend. (N. Y.) 229, 21 Am! Dec. 122, 62 Note 71, infra. § 223) WwITNESSES—COMPETENCY—EXAMINATION 649 and that they would not believe him on oath.** In some states the inquiry may be as to the witness’ general moral character.** In most states the impeaching witness must or may be asked whether he would believe the other witness on oath; ** but in a few states this question cannot be ask- ed.°* In all states the inquiry is confined to general reputa- tion, and specific acts by the witness sought to be impeached cannot be shown.*? The impeaching witness may be cross- -examined, and may also be impeached in the manner stated above.®® Impeaching witnesses cannot,.on their examination in chief, give the reasons for their belief; but they may be ask- ed their reasons on cross-examination, and their answers cannot be impeached. The party introducing a witness cannot thus impeach him’® unless, as is the case in some jurisdictions, it is per- mitted by statute. But a party is not precluded by the testi- mony of a witness introduced by him from introducing other witnesses who will testify to the contrary.”! A party whose witness is sought to be impeached may introduce evidence of good reputation in order to sustain his credit.7? Where a witness has been impeached by proving state- ments made by him in conflict with his testimony, some 63 Warner V. Lockerby, 31 Minn. 421, 18 N. W. 145, 821; State v. Randolph, 24 Conn. 363; Laclede Bank v. Keeler, 109 I. 385; Lenox v. Fuller, 39 Mich. 268. 64 State v. Grant, 79 Mo. 113, 49 Am. Rep. 218; Walton v. State, 88 Ind. 9. 65 People v. Mather, 4 Wend. (N. Y.) 229, 21 Am. Dec. 122; Ham- ilton v. People, 29 Mich. 173; Laclede Bank v. Keeler, 109 Ill. 385. 66 Walton v. State, 88 Ind. 9; State v. Rush, 77 Mo. 519. 67 Com. y. Lawler, 12 Allen (Mass.) 586. 68 People v. Mather, supra; State v. Lawlor, 28 Minn, 216, 9 N. W. 698. 69 2 Phil. Hv. 503. 70 People v. Jacobs, 49 Cal. 384. 71 State v. Knight, 43 Me. 11, 134. 72 Hamilton vy. People, 29 Mich. 173; Com. v, Ingraham, 7 Gray (Mass.) 46. 650 EVIDENCE (Ch. 14 courts allow his credit to be sustained by proof of good reputation,’® but other courts do not allow it.74 Offenses against Women When a man is prosecuted for rape, or an attempt to ravish, it may be shown, in most jurisdictions, that the wo- ‘man against whom the offense was committed was of a gen- eral immoral character, although she is not cross-examined on the subject.7> In some states the woman may in such case be asked whether she has had connection with other men, but her answer cannot be contradicted."* She may also be asked whether she has had connection on other occa- sions with the prisoner, and if she denies it she (probably) may be contradicted.”” So, in a prosecution for seduction, the unchastity of the woman may be shown."® 73 George v. Pilcher, 28 Grat. (Va.) 299, 26 Am. Rep. 350; Haley v. State, 63 Ala. 83; Sweet v. Sherman, 21 Vt. 23. 74 Webb vy. State, 29 Ohio St. 351. 75 Rex vy. Clarke, 2 Starkie, 241; Woods v. People, 55 N. Y. 515, 14 Am. Rep. 309. But not where the woman was under the age of consent. State v. Eberline, 47 Kan. 155, 27 Pac. 839. 76 Reg. v. Holmes, L. R. 1 Crown Cas. 334; State v. Reed, 39 Vt. 417, 94 Am. Dec, 337. Contra, Com. v. Harris, 131 Mass. 336; Richie vy. State, 58 Ind. 355. 77 Rex y. Martin, 6 Car. & P. 562; Woods v. People, supra. 78 Com. v. Gray, 129 Mass. 474, 37 Am. Rep. 378. §§ 224-228) HABEAS CORPUS 651 CHAPTER XV HABEAS CORPUS 224-228. In General. IN GENERAL 224. The writ of habeas corpus is a remedy by which a per- son illegally deprived of his liberty may secure his release. 225. The writ may be issued: (a) By a court in term time. (b) By a judge in vacation. 226. The application may be made: (a) By the person imprisoned. (b) By another for him. 227. The writ is used principally to obtain a review of: (a) The legality of an arrest or commitment. (b) The regularity, of extradition process. (c) The right to or amount of bail. (d) The jurisdiction of the court imposing a sentence. 228. The writ commands the person detaining the relator to bring him before the court and show the reason of the imprisonment. Nature and History of Writ The writ of habeas corpus is the remedy provided by law by which any person illegally deprived of his liberty may secure a speedy release.t “The right of the subject to the benefit of the writ of habeas corpus * * * was one of the great points in controversy during the long struggle in England between arbitrary government and free institu- 1 Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; Ex parte Coupland, 26 Tex. 386; Com. vy. Chandler, 11 Mass. 83; Wales v. Whitney, 114 U. 8. 564, 5 Sup. Ct. 1050, 29 L. Ed. 277; Williamson’s Case, 26 Pa. 9, 67 Am. Dec. 374. 652 HABEAS CORPUS (Ch. 15 tions. * * * From the earliest history of the common law, if a person were imprisoned, no matter by what author- ity, he had a right to the writ of habeas corpus to bring his case before the King’s Bench. If no specific offense were charged against him in the warrant of commitment, he was entitled to be forthwith discharged; and if an offense were charged which was bailable in its character, the court was bound to set him at liberty on bail. The most exciting con- tests between the crown and the people of England from the time of Magna Charta were in relation to the privilege of this writ, and they continued until the passage of the statute of 31 Car. II, commonly known as the ‘Great Habeas Corpus Act.’ This statute put an end to the struggle, and finally and firmly secured the liberty of the subject against usurpation and oppression of the executive branch of the government. It nevertheless conferred no new right upon the subject, but only secured a right already existing; for, although the right could not justly be denied, there was often no effectual remedy against its violation. * * * The great and inestimable value of the habeas corpus act of 31 Car. II is that it contains provisions which compel courts and judges, and all parties concerned, to perform their duties promptly in the manner specified in the statute.”2 The writ of habeas corpus is expressly recognized in the United States Constitu- tion, and in the Constitutions of many of the states, in provi- sions which forbid the suspension of the privilege of the writ except when, in cases of rebellion or invasion, the public safe- ty requires it. 2Taney, C. J., in Ex parte Merryman, Taney, 246, Fed. Cas. No. 9,487. And see Bushell’s Case, 1 Vaughan, 185; Crowley’s Case, 2 Swainst. 5; Watson’s Case, 9 Adol. & E. 781. 3 Const. U. S. art. 1, § 9; 1 Stimson, Am. St. Law, §§ 126,127. As to the power to suspend, see Kemp’s Case, 16 Wis. 382; Warren v. Paul, 22 Ind. 276; Ex parte Field, 5 Blatchf. 63, Fed. Cas. No. 4,761; In re Oliver, 17 Wis. 703; In re Fagan, 2 Spr. 91, Fed. Cas. No. 4,604; Ex parte Milligan, 4 Wall. 2,18 L. Ed. 281. But see People v. Gaul, 44 Barb. (N. Y.) 98. Suspension of the writ is no defense in an ac- tion for an illegal arrest, the person wrongfully arrested being merely deprived of this method of securing his release. Griffin v. Wilcox, 21 Ind. 372. Contra, McCall v. McDowell, 1 Abb. (U. S.) 212, Fed. Cas. No. 8,673. §§ 224-228) IN GENERAL 653 Jurisdiction—By Whom Issued . All courts of general jurisdiction have power to issue writs of habeas corpus. Or, when the courts are not in session, the judges thereof may issue it. Justices of the United States Supreme Court can issue the writ anywhere in the United States; judges of the circuit and district courts, anywhere within their respective jurisdictions. In the states the same principle obtains. Application for the writ should be made in each case to the court or judge nearest to the applicant,® unless a good excuse exists why the application cannot be so made.® Questions Reviewable—When Discharge Granted Where a court which has issued a writ of habeas corpus finds that the applicant is privileged from arrest, it will or- der his discharge.’ And so, if the court does not have the powers of a committing magistrate, it will discharge one who has been illegally arrested, as on a void warrant, al- though there is evidence that he is guilty of the offense charged. On the other hand, if the court inquiring on ha- beas corpus has the power to commit, it will not grant a discharge if there is sufficient evidence of guilt to warrant the binding over of the prisoner, even though his arrest was entirely illegal.® 4 Bx parte Clarke, 100 U. S. 399, 25 L. Ed. 715; Rev. St. U. S. 1878, §§ 752-754 (U. S. Comp. St. 1916, §§ 1280-1282). 5 Thompson v. Oglesby, 42 Iowa, 598; Ex parte Ainsworth, 27 Tex. 731; Ex parte Lynn, 19 Tex. App. 120; In re White, 33 Neb. 812, 51 N. W. 287; In re Doll, 47 Minn. 518, 50 N. W. 607; Ex parte Ellis, 11 Cal, 222. 6 Absence of such judge might show a sufficient excuse, but allega- tions that he was prejudiced would not. Ex parte Lynn, 19 Tex. App. 120; Bethuram v. Black, 11 Bush (Ky.) 628. And see People v. Burtnett, 18 Abb. Pr. (N. Y.) 8 7 Ex parte Dakins, 16 ©. B. 77. 8 State v. Potter, 1 Dud. (S. C.) 296; Ex parte Bennett, 2 Cranch GC. C. 612, Fed. Cas. No. 1,311; Lough v. Millard, 2 R. I. 436. ® Rex v. Goodall, Sayer, 129; Rex v. Marks, 3 East, 157; O’Malia vy. Wentworth, 65 Me. 129; State v. Buzine, 4 Har. (Del.) 572; Ex parte Granice, 51 Cal. 875; State v. Killet, 2 Bailey (S. C.) 289; Jones v. Timberlake, 6 Rand. (Va.) 678; Ex parte Smith, 5 Cow. (N. Y.) 2738. Some cases hold that only the jurisdiction of the committing magistrate and the sufficiency of the commitment will be reviewed. Ex parte Jackson, 45 Ark. 158; State v. Bloom, 17 Wis, 521; Com. 654 HABEAS CORPUS (Ch. 15 The writ of habeas corpus may be used to test the regu- larity of extradition process?° It may be employed when bail is refused,** or an excessive amount demanded.?? After indictment, a release may be secured by habeas corpus if it appears on the face of the indictment that no crime is charged.8 This writ does not lie to release a person who is held for trial on an indictment charging him with a crime of which he has already been once in jeopardy, as it will be presumed v. Taylor, 11 Phila. (Pa.) 386; Davis’ Case, 122 Mass. 324. As to whether the constitutionality of the law under which the arrest was made will be inquired into on habeas corpus, the authorities are con- flicting. That it will not, see Platt v. Harrison, 6 Iowa, 79, 74 Amt. Dec. 389; Com. v. Lecky, 1 Watts (Pa.) 66, 26 Am. Dec. 37; Ex parte Fisher, 6 Neb. 309. See, contra, Ex parte Burnett, 30 Ala. 461; Ex parte Rollins, 80 Va. 314; Ex parte Mato, 19 Tex. App. 112. 10 Ex parte Smith, 3 McLean, 121, Fed. Cas. No. 12,968; People v. Brady, 56 N. Y. 182; In re Briscoe, 51 How. Pr. (N. ¥.) 422; In re Watson, 2 Cal. 59; Ex parte White, 49 Cal. 434; Hibler v. State, 43 Tex. 197; Hall v. Patterson (C. C.) 45 Fed. 352; U.S. v. Rauscher, 119 U. S. 407, 7 Sup. Ct. 234, 30 L. Ed. 425. But see Ker v. Illinois, 119 U. S. 486, 7 Sup. Ct. 225, 30 L. Ed. 421; Ex parte Brown (D. C.) 28 Fed. 653. This writ does not lie from a federal court to release a person who has been unlawfully abducted from one state to another and is held in the latter state upon process of law for an offense against that state. Mahon v. Justice, 127 U. S. 700, 8 Sup. Ot. 1204, 82 L. Ed. 283; Pettibone v. Nichols, 203 U. S. 192, 27 Sup. Ct. 111, 51 L. Ed. 148, 7 Ann. Cas. 1047. | : 11 In re Troia, 64 Cal. 152, 28 Pac. 231; Com. y. Keeper of Prison, 2 Ashm. (Pa.) 227, In re Barronet, 1 El. & Bl. 1; U.S. v. Hamilton, 8 Dall. 17, 1 L. Ed. 490; Jones v. Kelly, 17 Mass. 116; Whiting v. Putnam, 17 Mass. 175; Ex parte Champion, 52 Ala. 311; Finch v. State, 15 Fla. 633; Snowden v. State, 8 Mo. 483. 12 Lynch vy. People, 38 Ill. 494; Ex parte Bryant, 34 Ala. 270; Street v. State, 43 Miss. 1; Drury v. State, 25 Tex. 45. But see People v. Dixon, 4 Parker, Cr. R. (N. Y.) 651; People v. Tinder, 19 Cal. 589, 81 Am. Dec. 77. 13In re Corryell, 22 Cal. 178; Ex parte Kearny, 55 Cal. 212; Ex parte Boland, 11 Tex. App. 159; State v. Brewster, 35 La. Ann. 605. Mere defects in the indictment will not be considered. Ex parte Whitaker, 48 Ala. 323; In re Kowalsky, 73 Cal. 120, 14 Pac. 399; Emanuel v. State, 36 Miss. 627; Ex parte Twohig, 13 Nev. 302. But see In re Buell, 3 Dill. 116, Fed. Cas. No. 2,102. Nor the guilt of the accused. People v. McLeod, 1 Hill (N. Y.) 877, 87 Am, Dec. 328; Id., 25 Wend. (N. Y.) 483, 87 Am. Dec. 328, §§ 224-228) IN GENERAL 655 that the trial court will grant the relator the proper relief when he comes to trial.1* But it will be granted if the trial court is actually proceeding to try relator after he has been once acquitted of the offense.15 Judgments of courts having criminal jurisdiction will not be reviewed on habeas corpus as to irregularities in their proceedings ** or the stifficiency of the evidence to sustain a conviction.” The only questions that can be examined are whether the court had jurisdiction 1® of the case, and whether the sentence rendered was within its power.1® 14 People v. Warden of City Prison, 87 Misc. Rep. 595, 150 N. Y. Supp. 24. 15 Ex parte Davis, 48 Tex. Cr. R. 644, 89 S. W. 978, 122 Am. St. Rep. 775. ; : 16 Ex parte Hubbard, 65 Ala. 473; Ex parte Brown, 63 Ala. 187; Ex parte Sam, 51 Ala. 34; Ex parte Gibson, 31 Cai. 619, 91 Am, Dec. 546. Thus error in the consolidation of indictments cannot be in- quired into in habeas corpus proceedings. De Bara v. U. S8., 99 Fed. 942, 40 C. C. A. 194. Nor can error in impaneling the grand jury, or in the grand jury indicting without competent evidence, or ir- regularities in the finding of the indictment by the grand jury, Har- lan vy. McGourin, 218 U. S. 442, 31 Sup. Ot. 44, 54 L. Ed. 1101, 21 Ann. Cas. 849; or errors of law in the trial of the case, Frank y, Mangum, 237 U. S. 309, 35 Sup. Ct. 582, 59 L. Ed. 969; or in erro- neously dismissing the jury, State v. Floyd, 22 N. D. 183, 182 N. W. 662. 17 Hx parte Bird, 19 Cal. 180; Stoner v. State, 4 Mo. 614; Darrah v. Westerlage, 44 Tex. 388. There is a conflict of authority as to whether this writ lies to test the legal existence of a court organized and created under color of a statute. See State ex rel. Bales v. Bailey, 106 Minn. 188, 118 N. W. 676, 19 L. R. A. (N. 8.) 775, 130 Am, St. Rep. 592, 16 Ann. Cas. 338; In re Norton, 64 Kan. 842, 68 Pac. 639, 91 Am. St. Rep. 255. 18 Ex parte Sam, 51 Ala. 34; Ex parte Nye, 8 Kan. 99; Devine’s Case, 11 Abb. Pr. (N. Y.) 90; Bray v. State, 140 Ala. 172, 87 South. 250; Chem'gas v. Tynan, 51 Colo. 35, 116 Pac. 1045. . 19 Stevens v. McClaughry, 207 Fed. 18, 125 C. C. A. 102, 51 L. R. A. (N. 8.) 390; Glasgow v. Moyer, 225 U. 8. 420, 32 Sup. Ct. 753, 56 L. Ed. 1147. An excessive sentence will not necessarily be void, so as to entitle to a discharge. Iix parte Watkins, 7 Pet. 568, 8 L. Ed. 786; Ex parte Mooney, 26 W. Va. 36, 538 Am. Rep. 59. But see Ex parte Kelly, 65 Cal. 154, 3 Pac. 673. In Stevens vy. McClaughry, su- pra, the court said: “Here is the true distinction between the cases in which the writ of habeas corpus may and those in which it may not issue: If the judgment or sentence challenged is without the 656 HABEAS CORPUS (Ch. 15 These rules apply to judgments of inferior courts;?° to summary convictions; ?* to the proceedings of military tri- bunals;?? and to commitments for contempt. In cases of the last sort, a release will not be granted on habeas corpus if the court ordering the commitment had jurisdiction,?® unless the acts charged do not constitute a contempt,”* or the sentence or commitment is void because made indefi- nite 7° or for a longer time than the court had power to or- der.2® The writ of habeas corpus can be used to secure the release of one who is kept in prison after a pardon has been granted,?” or after he has become entitled to a discharge by reason of the statute of limitations.2® In a very few juris- dictions habeas corpus proceedings take the place of a writ of error.?° jurisdiction of the court and void, the writ may issue. If it is erro- neous, but within the jurisdiction of the court which rendered it, the writ may not issue.” 20 See cases in the two preceding notes. 21In re Glenn, 54 Md. 572; Ex parte Reed, 100 U. S. 28, 25 L. Ed. 5388; Com. v. Lecky, 1 Watts (Pa.) 66, 26 Am. Dec. 37; Bell v. State, 4 Gill (Md.) 305, 45 Am. Dec. 130. 22 McConologue’s Case, 107 Mass. 154; Wall’s Case ©. C.) 8 Fed. 85; McClaughry v. Deming, 186 U. S. 49, 22 Sup. Ct. 786, 46 L. Ed. 1049. 23 People v. Cassells, 5 Hill (N. Y.) 164; In re Perry, 30 Wis. 268; Ex parte Cohn, 55 Cal. 193; Ex parte Cottrell, 59 Cal. 420. 24 People ex rel. Hackley v. Kelly, 24 N. Y. 75; Ex parte Perkins (OC. C.) 29 Fed. 900; In re Ayers, 123 U. S. 443, 8 Sup Ct. 164, 31 L, Ed. 216. 25 People v. Pirfenbrink, 96 Ill. 68; In re Hammel, 9 R. I. 248; In re Brown, 4 Colo. 438. 26 Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117; In re Ayers, 123 U. S. 443, 8 Sup. Ct. 164, 31 L. Ed, 216; Holman v. Mayor, 34 Tex. 668; State v. Sauvinet, 24 La. Ann. 119, 13 Am. Rep. 115. 27 Greathouse’s Case, 2 Abb. (U. S.) 382, Fed. Cas. No. 5,741; Peo- ple vy. Cavanagh, 2 Parker, Cr. R. (N. Y.) 650; In re Edymoin, 8 How. Pr. (N. Y.) 478; Ex parte Crump, 10 Ol. Cr. 133, 185 Pac. 428, 47 L. R. A. (N. 8.) 1036. 28 State v. Maurignos, T. U. P. Charlt. (Ga.) 24. 29 People v. Cunningham, 3 Parker, Cr. R. (N. Y.) 531; Kirby v. State, 62 Ala. 51; State v. Glenn, 54 Md. 572; Tomlin v. Fisher, 27 Mich. 524. As to this use in the federal courts, see Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; Ex parte Lange, 18 Wall. 163, 21 L. Ed. §§ 224-228) IN GENERAL 657 Jurisdiction as between State and Federal Courts In all cases where a person is imprisoned by state author- ity in violation of the Constitution, laws, and treaties of the United States, he will be discharged by the federal courts on habeas corpus; *° but this power will not be used so as to obstruct the ordinary administration of the criminal laws of the state through its own tribunal. In cases where a person seeks relief by habeas corpus from a sentence im- posed by a state court for error infringing rights guaranteed by the United States Constitution, occurring in the course of the trial, the federal courts, in the exercise of their dis- cretion, ordinarily require that the person shall have made his objections in the trial court, and, if they were there over- ruled, that-he shall have taken the question for review to the highest court to which a writ of error could be sued out from the Supreme Court of the United States; and, if he has failed to do so, the decision of the state court will not be reviewed by a federal court on habeas corpus.** A state court has no authority to issue a writ of habeas corpus for the discharge of a person held under the author- 872; Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 676; In re Martin, 5 Blatchf. 303, Fed. Cas. No. 9,151. 30 Ex parte Royall, 117 U. S. 241, 6 Sup. Ct. 734, 29 L. Ed. 868; Ex parte Yarbrough, 110 U. S. 651, 654, 4 Sup. Ct. 152, 28 L. Ed. 274; U. 8S. v. Jailer, 2 Abb. (U. 8S.) 265, Fed. Cas. No. 15,463; In re Brosna- han (C. C.) 4 McCrary, 1, 18 Fed. 62; In re Farrand, 1 Abb. (U. 8.) 140, Fed. Cas. No. 4,678; Ho Ah Kow v. Nunan, 5 Sawy. 552, Fed. Cas. No. 6,546; Ex parte Hanson (D. C.) 28 Fed. 127; In re Ah Lee (D. C.) 6 Sawy. 410, 5 Fed. 899; Parrott’s Case, 6 Sawy. 376, 1 Fed. 481; In re Wong Yung Quy, 6 Sawy. 237, 47 Fed. 717; In re Buell, 3 Dill. 116, Fed. Cas. No. 2,102; Ex parte Kenyon, 5 Dill, 385, Fed. Cas. No. 7,720; Church, Hab. Corp. 378. 31 In re Wood, 140 U. S. 278, 11 Sup. Ct. 738, 35 L. Ed. 505; In re Jugiro, 140 U. S. 291, 11 Sup. Ct. 770, 35 L. Ed. 510; Ex-parte Royall, 117 U. S. 254, 6 Sup. Ct. 742, 29 L. Ed. 872; In re Duncan, 139 U. 8. 449, 11 Sup. Ct. 573, 35 L. Ed. 219; In re King (C. C.) 51 Fed. 434; In_re Friedrich (C. C.) 51 Fed. 747. This rule will be relaxed where the case is one of which the public interest demands a speedy deter- mination, and the ends of justice will be promoted thereby. Apple- yard v. Massachusetts, 203 U. S. 222, 27 Sup. Ct. 122, 51 L. Ed. 161, 7 Ann, Cas. 1073. CLARK CR.PROC.(2D Eip.)—42 658 HABEAS CORPUS (Ch, 15 ity, or claim and color of the authority, of the United States, by an officer of that government.*? If it does not appear on the application for the writ by what authority the person is illegally restrained of his liberty, it is the duty of the fed- eral officer having the custody of the person to show, by proper return, information in this respect. But after the judge is fully apprised by the return that the person is held by the officer by the authority of the United States, he can proceed no further. Formerly a distinction was attempted to be drawn by many of the state courts between cases in which the person was held by undisputed lawful authority in contradistinction to cases where he was held by claim or color of authority,** but it is now settled that such a distinc- tion cannot be made.** Application for Writ—By Whom A person unlawfully restrained of his liberty may apply for the writ to secure his own release; or, if he is unable to do so, or is not permitted to make the application, a rela- tive or friend may make the application for him.*> In such 32 Ableman v. Booth, 21 How. 506, 16 L. Hd. 169; Tarble’s Case, 13 Wall. 397, 20 L. Ed. 597; Norris v. Newton, 5 McLean, 92, Fed. Cas. No. 10,307; Ex parte Robinson, 6 McLean, 355, Fed. Cas. No. 11,935. 33 Phelan’s Case, 9 Abb. Pr. (N. Y.) 286; Ohio & M. R. Co. v. Fitch, 20 Ind. 498; Skeen v. Monkeimer, 21 Ind. 1; Ex parte Kelly, 37 Ala. 474; In re Gregg, 15 Wis. 479; In re Spangler, 11 Mich. 298 ; Shirk’s Case, 5 Phila. (Pa.) 833; Ex parte McRobets, 16 Iowa, 600; Ex parte Holman, 28 Iowa, 89, 4 Am. Rep. 159; Ex parte Hill, 5 Nev. 154; McConologue’s Case, 107 Mass. 154; Com. v. Fox, 7 Pa. 336; In re Tarble, 25 Wis. 390, 3 Am. Rep. 85. 34 Tarble’s Case,'13 Wall. 397, 20 L. Ed. 597. 35 For example, a parent, People v. Mercein, 3 Hill (N. Y.) 399, 38 Am. Dec. 644; Com. v. Briggs, 16 Pick. (Mass.) 203; In.re Mitchell, R. M. Charit. (Ga.) 489; Ex parte McClellan, 1 Dowl. P. C. 81; U.S. y. Green, 3 Mason, 482, Fed. Cas. No. 15,256; Com, v. Hamilton, 6 Mass. 273; a guardian, Villareal vy. Mellish, 2 Swanst. 5388; Ferguson y. Ferguson, 36 Mo. 197; a daughter, Com. v. Curby, 3 Brewst. (Pa.) 610; a husband, Ex parte Newton, 2 Smith (Eng.) 617; Ex parte Sandilands, 12 Eng. Law & Eq. 463; Rex v. Mead, 1 Burrows, 542; a wife, Cobbett v. Hudson, 15 Adol. & E. 988; In re Ferrens, 3 Ben. 442, Fed. Cas. No. 4,746; a sister of an orphan, In re Daley, 2 Fost. & F. 258; but not a mere stranger, In re Poole, 2 McArthur (D. C.) 583; Ex parte Child, 15 C. B, 238; Linda v. Hudson, 1 Cush. (Mass.) §§ 224-228) IN GENERAL 659 a case, however, there must be a showing, to the satisfaction of the court, that the person himself is unable to make the application.** A writ may be issued at any period of an im- prisonment which is wrongful. Same—Form of Application “A petition for habeas corpus must be verified,?” and must allege facts showing an illegal imprisonment. When the ground of the petition is that the prisoner has been commit- ted without reasonable or probable cause, it must set out what the evidence on the examination was, in such form that perjury may be assigned upon the allegations if they are false.” *® In all cases, at least probable cause for granting a release from custody must be shown in the application.*®® In some states it is the practice to grant a rule nisi for the prosecuting officer to show cause why the writ should not issue.*? Form of Writ—To Whom Directed—Service The writ of habeas corpus runs in the name of the Presi- dent of the United States, or of the state,*4 and must be signed by the judge or officer authorizing it.t? It is direct- ed to the person who is claimed to wrongfully detain the 885. One need not be actually deprived of his liberty at the time to be entitled to the writ. If he is under arrest, though at large on bail, he is entitled to it. Mackenzie v. Barrett, 141 Fed. 964, 73 C. Cc. A. 280, 5 Ann. Cas. 551. The court will not grant the writ if it is obvious that, before return can be made, the restraint will have terminated. Ex parte Baez, 177 U. S. 378, 20 Sup. Ct. 673, 44 L. Ed. 818. 36¢In re Parker, 5 Mees. & W. 31; In re Thompson, 30 ‘Law J. (N. 8.) 19, 37 Ex parte Walpole, 84 Cal. 584, 24 Pac. 308. Or accompanied by an affidavit. De Lacy v. Antoine, 7 Leigh (Va.) 438. 88 Hx parte Walpole, supra. 89 Sim’s Case, 7 Cush. (Mass.) 285; Ex parte Watkins, 3 Pet. 193, 7 L. Ed. 650; U.S. v. Lawrence, 4 Cranch, C. C. 518, Fed. Cas. No. 15,577. 40 ix parte Farley (C. C.) 40 Fed. 66; In re Jordan (D. C.) 49 Fed. 238; In re Rafferty, 1 Wash. 382, 25 Pac. 465; Ex parte Champion, 52 Ala. 311. 41 Church, Hab. Corp. § 110. 42 St. 31, Car. II. 660 HABEAS CORPUS (Ch. 15 prisoner,*? and commands him to have the body of such per- son before the court or judge at a time and place mentioned therein, and to show the cause of the detention. The writ may be served by an officer or by a private person.*4 No- tice must be given to the prosecuting officer of the issuing. of the writ.*5 » Return A return in writing must be made by the person to whom the writ is directed.*® In most states it is required by stat- ute to be verified,*” though at common law this was not necessary.*® It must either deny the detention of the per- son alleged to be detained,*® or show the reason for his im- prisonment.°° The body of the person detained must be produced in court, or cause must be shown why it is not, such as a denial of the detention. 51 The return may be con- troverted by the relator if he deems the facts not truly re- turned.°? The court may allow the return to be amended.*® After the return and the hearing of the evidence, if no cause for imprisonment of the relator appears, he will be dis- charged.*4 43 See Yudkin v. Gates, 60 Conn. 426, 22 Atl. 776; Nichols v. Cor- nelius, 7 Ind. 611; Com. v. Ridgway, 2 Ashm. (Pa.) 247; People v. Mercein, 3 Hill (N. Y.) 399, 38 Am. Dec. 644. 44 See St. 31 Car. II. 45 Bx parte Smith, 3 McLean, 121, Fed. Cas. No. 12,968; People v. Pelham, 14 Wend. (N. Y.) 48; Lumm vy. State, 3 Ind. 293. 46 Seavey v. Seymour, 3 Cliff, 439, Fed. Cas. No. 12,596. 47 A return to a federal court must be verified. Rev. St. U. S. 1878, § 757 (U. S. Comp. St. 1916, § 1285). 48 Watson’s Case, 9 Adol. & E. 731; In re Hakewill, 12 C. B. 223. And see Crowley v. Christensen, 187 U. S. 86, 11 Sup. Ct. 18, 34 LL. Ed. 620. 49 U. S. v. Green, 3 Mason, 482, Fed. Cas. No. 15,256. 50 State ex rel. Neider v. Reuff, 29 W. Va. 751, 2 8. E. 801, 6 Am. St. Rep. 676; Eden’s Case, 2 Maule & 8S. 226. 51 Rex v. Bethuen, And. 281; Rex vy. Wright, 2 Strange, 901. 52In re Milburn, 59 Wis. 24, 17 N. W. 965; State v. Scott, 30 N. H. 274; In re Powers, 25 Vt. 261. 53 In re Hopson, 40 Barb. (N. Y.) 34; People v. Cavanagh, 2 Parker, Cr. R. (N. Y.) 650. 54In re Doo Woon (D. C.) 18 Fed. 898, 9 Sawy. 417. §§ 224-228) IN GENERAL 661 Second Application—A ppeal A refusal to discharge under one writ does not prevent another application to a different court, unless there is a statute to that effect; and even then a second writ can be granted on new facts or evidence.®> In the absence of such a statute, the decision on the first application would be giv- en great weight, and, as a rule, would not be disturbed un- less on new facts shown.®® For the reason that a second application might be made, at common law no appeal or writ of error was allowed from a decision on an application for a writ.57 But now, by stat- ute, such appeals are allowed in the federal courts and in many of the states. If a person once discharged on habeas corpus is rearrest- ed, he should be again discharged on a new writ.5& But he could be subsequently indicted for the offense. 55 Ex parte Pattison, 56 Miss. 161; People v. Fancher, 1 Hun (N. Y.) 27; Ex parte Robinson, 6 McLean, 360, Fed. Cas. No. 11,935; In re. Breck, 252 Mo. 302, 158 8S. W. 843. 5¢6 Ex parte Lawrence, 5 Bin. (Pa.) 304; Ex parte Campbell, 20 Ala. 89; In re Breck, 252 Mo. 302, 158 S. W. 843. Where liberty has been secured under one writ, the doctrine of res judicata applies, and is conclusive until the condition of the person whose liberty is in question has changed. In re Breck, supra. 57 Yates v. People, 6 Johns. (N. Y¥.) 337; Hammond v. People, 32 Jl. 446, 88 Am. Dec. 286; People v. McAnally, 221 Ill, 66, 77 N. E. 544, 5 Ann. Cas. 590. 58 In re Da Costa, 1 Parker, Cr. R. (N. Y¥.) 129; Com. v. McBride, 2 Brewst. (Pa.) 545. TABLE OF CASES CITED [THE FIGURES REFER TO PAGES] A Aaron vy. State, 516. Aaronson v. State, 530, Abbott v. Booth, 36. Abbott v. People, 632. Ableman v. Booth, 658. Abrigo v. State, 481, Adam vy. State,’ 546. Adams v. New oe ae “Adams yv. People, Adams v. State, 68 *oage ‘478, 486, 488, 571, 639. Adler v. Site ne Adler v. U. S., eee v. State,’ ps0 Ab Bau, Hx part Ahitbol v. Bonet "392, Ah Lee, In re, 657. Ah Peen, Ex parte, 508. Aiken v. State, 331. : Ainsworth, Ex parte, Bia Alderman y. People, epee v. Com. 308" 443, 552, Alexander vy. State, 344. Alford v. State, 35, 58, 446. Alkenbrack v. oa 214, 215, ae 378, 386. 7 Allen’ v. Golb: y, 8 ‘Allen y. Com., oes 493, 570. Allen v. Gray, 4 Allen v. Allen v. Allen vy. State, 132, "509, 570. Allen v. Taylor, 171, 172, 276. Allen v. U. S., 537. Allen v. Wright, 52. Allgood y. State, 382. Allison, In re, 517. Allison v. Com., 618. Allison v. Rheam, 41, 42. Allison v. a 111. Allyn v. State, fs Amann v. ete 393. Ambrose v. State, 456. American Fur Co. v. U. S., 612. Amos vy. State, 614. Andersen v. U. S., 329. Anderson, Ex parte, 89, 148. CLARK Czk.PROC.(2D Ep.) 393. Anderson v. State, 227, 357, 359. | Andrews v. Hundred ‘of Lewknor, 861. Andrews v. State, 284, 498, 494. eee ee R. Co. v. Richards, Angel v. Com., 4 Anonymous, 18, 115, 169, 245, 264. Bi , 275, 306, 35H, 364, 518, 586, Anson y. People, 610. Authony v. Com., 527. Antonez vy. State, 101. Appleyard v. Massachusetts, 657. Archen v. State; 12, 22. Archer’s Case, 103. Ard v. State, 7. Armistead v. Com., 519. Armstrong v. Reople, 8 he 643. Armstrong v. State. , 636. Arnold vy. State, 500), “io, Arnold v. Steeves, 58, 89. Arrington v. Com., B19 4 467. Arrowsmith v. State, 477. Ascher, In re, Ashley v. pe eepn 84, Ashley’s- Case, 5: Ashton v. State, ae Atkins v. ‘ State, 522, Attaway v. State, 481. Atterberry v. State, 555. Atwell, In re, 144. Ausmus v. People, 630. Austin v. State, 646. Avant v. State, 568. Avery v. State, 587. Avirett v. State, 139. Ayers, In re, 656. Aylesbury’s Case, 1038. Aylesworth v. People, 422, B Babcock v. People, 515. Baccigalupo v. Com., 636, Baccio v. People, 603. Baez, Ex parte, 659. Baggett v. State, 258, 259, Bailey v. Ragatz, 64. (663) 664 CASES CITED [The figures refer to pages] Bailey v. Pinte, | 337, 587, 588. Bailey’s Case, 447. Bain, Ex parte, 126, 363. Bainbridge v. State, oat 461. Baker v. People, 350, 355. Baker v. State, 337, 366, 367, 382, bie’ 435, 482, 488, 506, 520, 612, Baldwin v. People, 253, 260, 385. Baldwin v. State, 257, 520, 531. Bales v. Com., 5: Ball v. Cobus, 305. Ball v. Com., 586. Ball v. State, 195, 420, 467. Ball v. U. S., Ballard v. State, 479, 4838, 508. Banks vy. State, Barber v. State, 315, "816, 412, Barge v. Com., 437, 470. Barker v. People, 584. Barker v. State, 552. Barkman v. State, 391. Barnard v. Bartlett, 63. Barnard v. Com., 407. Barnard v. U. s. 610. Barnard’s Case, 596. Barnes v. Barber, 43. Barnes v. People, 393. Barnes v. State, 287, 290, 292, 324, 339, 400. Barnett v. State, 541. Barney v. State, 140, 141. Barnwell vy. State, 336. Baron v. People, 20, 571 Baronnet, Ex parte, 103. Barrett v. Long, 610. Barrett v. State, 444, 564 Barron v. People, 139. Barronet, In re, 106, 654, Barronet’s Case, Baruch, In re, 70. Bass v. State, ee Bassing v. Cady, 79. Batchelder v. Currier, 7, 90. Bates v. Com., 480. Bates v. State, 312, 366. Baude’s Case, 296. Baurose v. State, re Baw v. State, 483, Baxter v. People. 530 "50, 564, Bayard, In re, 584. Baylis v. Lucas, 514. Beal v. State, 13. Beall v. State, 270. Beam v. Link, 142. Bean v. Parker, 115. Bean v. State, 406, 408. Beasley v. People, 315, 316, 335. . Beatson v. Skene, Beattie v. State, 4. Beauchamp v. State, 528. Beavers v. State, 484, 629. Beaverts v. State, 60. Beck v. State, 527. Becker v. Com., 327. Becker y. State, 384. Beckham v. State, 622, 623, Beckwith v. People, 404, Beckwith v. Philby, 48, 52. Bedell, Ex parte, 585. Bedford v. State, a Bedingfield’s Case, 60 Beekman v. Traver, 34. Beers v. Beers, 508. Begerow, In re, 477. Beggs v. State, 17. Beiser v. State, 587. Belcher vy. State, 614. Bell, Ex parte, 8, 95. Bell v. Clapp, 63, ee Bell % State, 316, 417, 443, 458, ell v. State, 21, 656. 2, Bellasis v. Hester, 576. Bellows v. Shannon, 58. Ben v. State, 326, 328. Bengough vy. Rossiter, 101. Benjamin v. State, 88. Bennet v. Talbot, $21. Bennet v. Watson, 106. Bennett, Ex parte, 653. Bennett vv. Com., 587. Bennett ‘v. State, 185, 437. Bennett v. U. Benningfield v. Pea Benson v. Com., 340, 343. Benson vy. State, 236. Benton v. Com., Benton v. State, 493. Bergen v. People, 628. Bergman, Ex parte, 75, 76. Berkley v. Com., 152. Berneker v. State, 633. s Berrien v. State, 376. Berry v. State, 384, 399, 554, 555. Besimer v. People, 111. Bethune v. State, 282. Bethuram y. Black, 653. Biemel v. State, 506. Bigham vy. State, 250. Bill v. People, 547.. Bingham v. Dickie, 393. Bingham v. State, 221 Bird, Ex parte, 655. Bird v. State, 132. 506. Birney v. State, 227. Biscoe v. State, 567. Bishop v. State, 114, 483. Bissell v. Gold, 35, 66. Bittings v. Bae 248. Black, In re, 570. Black’ v. State, 231, 412, 468, Blacker v. State, 626, Blackman vy. Com., 152, 283. CASES CITED 665 {The figures refer to pages] Blackman v. State, 319, 479. Blackmore vy. State, 131. Blair v. State, 505. Blaney v. State, 127, 564. Blatch v. Archer, 55. Blatcher v. Kemp, 39. Bledsoe v. Com., 567. Bleecker v. Johnston, 645. Blenkiron v. State, 530. Bletch vy. Johnson, 171, 276, Block v. State, 518. Blodget v. State, 391. Bloomer v. State, 183, 455. Blount vy. State, 569. Blumenberg v. State, 166, 366. Blyew vy. Com., 446, Boardman v. Wood, 521. Board of Com’rs of Arapahoe Coun- ty v. Graham, 124, Boaz v. Tate, 67. Bob v. State, 602. Boggett v. Frier, 270. Boggs v. State, 345, Boland, Ex parte, 654. Boles v. State, 267, 551, 560. Baling v. State, 405, 549, 616, Bond vy. People, 568. Bonds v. State, 161. Bonnell yv. State, 258. Bonner, In re, 7. Bonner v. State, 548. Bookhout v. State, 37. Boon v. State, 520. Boone v. People, 133, 541, 542. Booth, In re, 34 ‘Bornee, Ex parte, 453. Borst v. Beecker, 515. Borum v. State, 403. Bostic v. State, 550. Bostick v. Rutherford, 95. Bostick v. State, 241. Boulden v. State, 405, 619. Bowditch v. Balchin, 49. Bowen. v. Shopcott, 435. ‘Bowen v. State, 421, 422, 573. Bowers v. People, 242. Bowler v. State, 230. Bowles v. State, 511. Bowlin v. Com., 480. Bowman v. Com., 487, 488. Boyce v. Whitaker, 402. Boyd v. State, 41, 59, 483, 643. Boyd v. U. S., 689, 642. Boyington v. State, 140. Boynton v. State, 97. Boynton v. Tidwell, 49. Bradford v. State, 516. Bradlaugh v. Reg., 166, 181, 240, 241, 242, 249, 369, 370. Bradley v. Banks, 231. Bradley v. Mirick, 628. Bradley v. State, 222. Bradshaw v. Com., 501, Brady v. Davis, 34, 35. Brainard v. Stilphin, 172, 276. Bram v.-.U. S., 169. Bramlett v. State, 486, Branham v. Com., 110. Brassell v. State, 549. Brassfield v. State, 281. Bratton v. Seymour, 171, 276. Bray v. State, 655. Brazell vy. State, 540, 541. Brazleton v. State, 34, 518. Breck, In re, 661. Breese vy. State, 327, 329, 404. | Brennan v. People, 452, 456, 463, 576. Breton, In re, 583. Brewer v. Com., 493. Brewer v. State, 17. Brewster v. People, 509. Bridewell, Ex parte, 103. Bridge v. Ford, 109, 112. Bridge’s Case, 298. Bright v. Patton, 50. Bright v. State, 255. Brinkley v. State, 628. Briscoe, In re, 654. Bouts v. State, 187, 548, 5538, 566, Brock v. State, 152. Brock v. Stimson, 44, 67. Brockway v. Crawford, 52. Brogy v. Com., 627. Brooks v. Com., 52, 57, 59, 64. Brooks v. People, 492. Broome v. Hurst, 115. Brosnahan, In re, 657. Brother y. Cannon, 41. ‘Brotherton -v. People, 619. Broughton v. Moore, 360, 361. Browder _v. State, 111. Brown, Ex parte, 79, 451, 654, 655. 139, 200, 303, 545, 582, 627. Brown, In re, Brown v. Com., 128, 346, 371, 516, 531, Brown v. Foster, 641 .| Brown v. People, 117, 527. Brown v. State, 17, 137, 354, 405, 414, 484, 494, 510, 511, 551, 560, 561, 568, 571, 602. Brown v. U. S., 618, 626. Brown vy. U. 8. Marshal, 18. Brown y. Weaver, 62. ' Brown’s Case, 78. Browne’s Case, 357. Browning v. State, 482, 548, Broyles v. State, 602. Bruce, In re, 76, 79. Brucker v. State, 555. Brunding, Ex parte, 583. Brushaber v. Stegemann, 66, 666 CASES CITED [The figures refer to pages} Bryan, Ex parte, 496. Bryan v. Bates, 50. Bryan v. State, 553. Bryans v. State, 443. Bryant, Ex parte, 654. Bryant v. State, 173. Buckland v. Com., 248. Buckler’s Case, 2 Buckner v. State, 501. Buckrice v. People, 21. Buell, In re, 654, 657. Bulliner v. eople, 499, Burden, Ex parte, 581, 582. Burden v. State, 569. Burdett v. Colman, 65. Burdett v. State, 441 Burdick v. U. S., Burgess v. Com., 59° ‘60, 161. Burgess v. State, Burk v. Com., 565, 567. Burk v. State, 341. Burke, Ex parte, 91. Burke v. Bell, 67. Burke v. People, 587. Burley v. Griffith, 34. Burnett, Ex parte, 654, Burnett v. State, 4 Burney v. State, 494. Burns v. Com, 530 5 Burns v. Erben, 4 Burns v. State, 26. ‘aor 517, 560. Burrell v. State, B21. Burst v. State, 399. Burt, v. State, 603. Burtles v. State, BAT. Burton v. Com., 565. Burton & Conaness vy. Com., 597. Bushell’s Case, 652. Butler v. Com., 88, 128. Butler v. Foster, 101. Butler v. State, 522, 540, 598. Butler v. Turley, 53. Butler v. Washburn, 67. Butman’s Case, 361. Butolph v. Blust, 50, 67. Butts v. Swartwood, 639. Byers v. Com 508. Byrd v. State, "423, 516, 629. Byrne v. State, 189, 140. Cc Cabell v. Arnold, 40, 68, 69. Cable v. Com., 614. Cahill v. People. 47, 50, 65. Caldwell v. Com., 580. Caldwell v. State, 296. Calhoun v. State, 522. Callan v. Wilson, 508. Callaway & Truit v. Gay, 551. Cameron v. State, 413. Camp v. Moseley, 48. , 244, 383. Campbell, Ex parte, 661. Gamebell y. Chace, 640. Campbell v. Com., 643. Campbell v. People, 248, 446, 595. Campbell v. Reg. fou v. Site, 14, 110, 452, Camron v. State, 472. Cancemi v. People, 511, 520. Cannon, In re, 71. Cannon v. People, 632. Cantwell v. People, 487, 488. Cargill v. Com., 535. Carle v. Delesdernier, 44. | Carleton v. State, aes Carlisle v. State, 20, 292, 400. Carlton v. Com. Carlton v. Ponies 684. ‘Carnal v. People, ae 528, Carnett v. State, 5: Carpenter v. People, 404. Carr v. State, 47, 52, 80. Carroll v. State, 530. Carson v. State, 315, 316. Carter. v. State, 270, 480, 573. Carter v. U. S., 397. Carthaus v. State, 484. Cartwright v. State, 542, 560, 561. Cartwright v. Wright, 248. Cary v. State, 52. Cash vy. State, 340. Casily v. State, 348. Casper v. State, 504. Castillo v. State, 603. Case v. Reg., 338, 339, 340, 342, Cathhart v. Com., 165. Caudle v. Seymour, 28, 29, 34, 35. Cawley v. State, 341. Cawthon v. State, 495. Central R. RB. & Banking Co. of Georgia v. Roberts, 517. Chacon v. Territory, 407. Chaffin v. State, 608. Chambers v. People, 306. Chamlington’s Case, 296. Champ v. State, 549. Champion, Ex parte, 654, 659. Chaney, Ex parte, 104. Chapman y. Com., f Chapman v. State, 316. Charlton v. Coombes, 641. Chase v. Fish, 44. Chase v. Springvale Mills Co., 628. Cheek v. Com., 1569, 570. Cheek v. State, 391 Chemgas v. Tynan, 357, 655. Chester vy. State, 430. Child, Ex parte, 658. Childs vy. State, 588. Chiles v. Com., 359. Choen y. State, 171, 276. ‘CASES CITED 667 [The figures refer to pages] Cholmley’s Case, 294. Christian v. Com., Ns Chubb v. Salomons, 640. Churchill vy. Churchill, 43. Chute v. State, 533. City Gouncil v. Payne, 47. City Council of Charleston v. King, 171, 173, > 276. City’ of- Bloomington, v. Heiland, City of Creston v. Nye, 477. Oe of Emporia vy. Volmer, 488, City of Lowell e Morse, 174. Claassen v. U. S., 346. Clair v. State, oar Clark, In re, 77, 78. Clark’ v. ‘Bragdon, 35. Clark v. People, 609. Clark v. Stale, 279, 422, 451, 497. Clark’s Case, 275. Clarke, ix ae 442, 653. Clarke v. Clarke v. State, 308) "443, 515. Clay v. People, 242, 381. Clem v. State, 138, 468, 469, Clements v. State, 61. Clemons v. State, 267. Clere v. Com., 346 Clore’s Case, 521 ‘Cluck v. State, 8380. Cluverius v. Com -Clyncard’s a me S35, 161. Clyne, In re, 152. Coal Heavers’ Case, 187, 349. Coates v. State, 499, 687. Coats v. People, 335. Cobb v. Lucas, 172, 276. Cobbett v. Hudson, 658. Cobia v. State, 4 Cochrane v. a "308, 486. Cocke v. Com., 244. Cockerell v. State, 481, 569. Codd v. Cabe, 40, 58. Cody v. Quinn, 41. Coffee v. State, 221. ° Cohen v. People, 237. Cohen v. State, 15. Cohn, Ex parte, 656. Coker v. State, 559. Cole v. State, 494. Cole’s Case, 108. Coleman v. Com., 492, 638, Coleman v. Hagerman, 520. Coleman v. People, Coleman v. State, 576. Coleman v. penne sees 456. Collier v. State, : Collins v. Lea 120. Collins v. Com., 622, 626. Collins v. Goldsmith, 235. Collins v. People, 265, 388. - 520. Collins v. State, 137, 365, 373, 516. Colt v. People, 599 Combast v. Com., page Combs v. Com., 386. Comer v. State, 325, 688. Comfort v. Fulton, 32. Wee Exch. Bank v. McLeod, Commissioners of Franklin County, In re, 135. Com, v. Abbott, 593. Com. v. Adams, 123, 233, 244, Bees 284, 286, 341, 352, 363, 378, 3 Com. v. ‘Addis, 5286. Com. v. Alden, 418. Com. v. Alderman, “447, 454, 455. Com. vy. Man’ whose Name is Unknown, 301. Com. v. Andrews, 13, 328, 589. Com. v. Anthes, 545, Com. v. Arner, 464, 465. Com. v. Arnold, 452, Com, v. Arrance, 271. Com. v. Ashley, 313. Com. v. Ashton: 198, 257, 258. Com. v. Atwood, 214. Com. v. Austin, 522, 541. Com. v. Ayer, 359. Com. v. Bagley, 187. Com. v. Bailey, 244, 247, 383.. Com. v. Bakeman 223, bo4” 207. Com: v. Baker, 213, 217, 378. Com. v. Ballon, hom Com. v. Barker, 296. Com. v. Barnard, 289, 290. Com. v. Barrett, 125, 309. Com. v. Battis, ‘429, Com, v. Beaman, 137, 262, 385. Com. v. Bean, 309, 312, 368. Com. yv. Bennett, 214. Com. v. Berger, 519. Com. v. Berry, 1 Com. v. Bingham, 503. Com. v._ Birdsall, 335. Com. v. Blair, 599. Com. v. Blake, 427, 428. Com. v. Blanchette, 268. Com. v. Blanding, 17, 19. Com. v. Blood, 178. Com. v. Bolger, 556. Com. v. Borasky, 503. Com. v. Boawartit 447, 547. Com. v. Bowden, "445, Com. v. Boyer, 257. Com. v. Boynton, 224, 226, 228. Com. v: Bradford, 609, 610. Com. v. Bradley, 18. Com. v. Bradney, 417, 418. Com. v.: Brady, 596. Com. v. Brailey, 602. Com. v. Brayman, 629. ‘ y. Brelsford, 458, 683. 668 CASES CITED (The figures refer to pages] Com. v. Brettum, 257, 258. Com. vy. Breyessee, 566, Com. v. Brickett, 115. on v. Briggs, 154, 155, 397, 586, Com. v. Bronson, 114, 115. Com. v. Brooks, Com. v. Brown, "129, 141, 210, 219, 232, “ 829, 342° 349, 354) 390, 3 Campbell, 255, 608, 621. . Canada, 110. 534, 602, m. v. Browning, 466, 467. Com. v. Bryden, Bs: Com, v. Bubser, 458, 459. Com. v. Buccieri, 479, 481, 484. Com. v. Buckley, 276. Com. v. Bugbee, 295, 296. Com. v. Burke, 301, 344, 402, 414. Com. v. Burlington, 305, Com. v. Burroughs, 518. Com. v. Burton, 1389. Com. v. Butler, 176, 202. Com. v. Butterick, 2A8, 258, 298. Com. vy. Buxton, 362. Com. v. Buzzard, 166, 363. Com. v. Buzzell, 522. Com, v. Byrnes, 229, 318. Com. v. can 258, 265. Com. v. Cain, 453. Com. v. Caldwell, 357, 360. Com. v. Call, 208, 572, 576. .v. .v. v. Com Carey, 49, 50, 52, 58, 344, B74, 619. m. v. Carney, 357. Com. v. Carr, 485. Com. v. Carter, 477. Com. v. Castles, 247. Com. v. Certain Intoxicating Liq- uors, 84. a v. Chandler, 651. om. Vv. phepman, 183, 187, 231, oom, 418, 438. Com. v. Chase, 309, 348. Com. v. Chathams, 572. Com. v. Cheney, 48. Com. v. Cherry, 140, 176. Com. v. Chesley, 449, 450, 469. Com. v. Child, 179, 188, 368, 369. Com. v. Choate, 609, 687. Com. v. Christian, 124. Com. v. Churchill, 434. Com. v. Clair, 255, 256, 385, 449, 457, 460. Com. v. Clancy, 249. Com. v. Clapp, 176. Com. v. Clark, 129, 175, 287, 309. Com. v. Gleary, 487, 561. Com. v. Clifford, 309, 313. Com. v. oe aon Com. v. Cod Com. v. Coe. bao 610. Com. Com. Com. Com. Com. Com. Com, Com. Com. Com. Com. Com. Com. Com. Com. Com. Com. Com. Com. Com. Com. \ Com. Com. Com. Com. Com. Com. Com. Com. oe (yi st SASS SAAS SASS ASS Add ASSAAASAS Cohen, 226. Collins, 310, 368. . Colton, 162, ot Cook, 354, 443, 445. Cooley, ee 58. 359. Cooper, 4 sseboom, ae Costello, ca 495. Costley, 399, 604. Cousins, a Cox, 302. Coy, 377. Creadon, 413. Cressinger, 625. Crotty, 35, 36. Crump, 496. Cuffee, 623, 625. Culver, 624. Cummings, 290, 453. Cunningham, 447, 461. Curby, 658. Curran, 326. Curtis, 325. Cutler, i Daggett, 111. Dailey, 511. Dana, 81, 84, 116. Dascom, 446, 454, Davidson, 486. Davis, 190, 191, 233, 396, , 500. ASSAN SAS MAS AAS AS Aas aS SS Deacon, 47, 52, 54, 67, 73. . Dean, 179, 188, 223, "204 . Dejardin, 376. Demuth, 173. Dennis, 359. Densmore, 604, Devine, 352. De Witt, 13. Dillane, 396. Dobbins, 333: Doherty, 222. Donahue, 417, 576. Donovan, Doran, 287. Dorus, 250, 564. Dowdican, 580, Downey, 111. Doyle, 284, 373. Drew, 483, 434, Drum, 413. Dudley, 181, 192. Duffy, 150. Dunham, 483. Dunleay, 247. Durfee, 564. Eastman, 388, 418, 419, Eaton, 334, 326. Edwards, 162, 168. . Eichelberger, 572. CASES CITED 669 {The figures refer to pages] Com. v. Ellis, 326. Com. v. Elwell, 227, 228, 349, 397. Com. v. Emery, 109, 110, 112, Com. v. Endrukat, 44 Com. v. Evans, 465 Com. v. Falvey, 388 Com. v. Faris, 362. Com, v. Fells, 444. Com. v. Ferrigan, 597, 609. Com. v. Field, 55, BS 59 Com. v. Filburn, Com, v. Filer, Bag Com. v. Finn, 269. om v. Fisher, 110, 159, 161, 162, Com, v. Fitzpatrick, 443, 445. Com. v. Follansbee, 643, 644. Com. v. Foster, 40. Com. v. Fox, 658. Com, vy. Fraker, 456. Com. v. Francies, 127 Com. v. Fredericks, 417, 433, 461. Com, v. Fuller, 326. Com. v. Gable, 230, 346, 412. Com. v. Gale, 172, 176, 4338. Com. v. Gallagher, 301. Com. v. Gavin, 212, 252, 378, 387. Com. v. Gay, 358. Com. v. Gee, 140. om. v. George, 565. Com. v. Gerade, 636. om. v. Gibson, 231, 450, 563, 565. Com, v. Gill, 394, 395. v. Com Gillespie, 21, 185, 187, 240, 242, 835, 381, 390, 393, 433, 503. Com. v. Gillon; 21. Com. v. Glover, 392. Com. v. Goddard, 437, 447, 470, 471, 6A1. Com. v. Golding, 471. Com. v. Goldstein, 271, 297, 298. Com. v. Goodhue, Com. v. Goodwin, 599, 600. Com. v. Gould, 275, 392, 442, 451. Com. v. Graves, 643. See Gray, 650. Green, 78, 128, 133, 143, 14, “yz, 451, 455, Com. v. Grey, 00, ei v. Griffin, 279, 73,00, 801, 354, Com. v. Grimes, 256, 266, 389. Com. v. Hackett, 606. Com. v. Hagarman, 176. Com. v. Hale, 478. om. v. Hall, 738, 170, 172, 251, m. 276, 325. Com, 'v. Hamilton, 272, 302, 442, Com. v. Hampton, 306. Com. v. Haney, 618, 619. Com. v. Harley, 223, 379. Com. v. Harmon, 243. Com. v. Harney, 271. Com. v. Harrington, 166, 238, 365, 866, 367, 396. Com. v. Harris, 8, 99, 184, 312, 3138, 326, Com. v. Paeen 897, 4538. Com: v. Hart, 196, 197 204, 213, 315, 316, 318, 319, 320, 4 Com. v. Hartnett, 370. Hatton, 450. Hawkins, 346, 419, 648. . Hayden, 408. Hayes 648. Haynes, 224, 362. . Heffron, 298, 401. . Heist, 522. Com Hersey, 164, 184, 198, 218, 219, 920, 221. Gott. Com. Com. Com. Com. Com. Com. ae Com. v. Herty, 462. Con v. Hill. "143, 315, 391, 425, Com. v. Hills, 335, 342, 343. Com. v. Hinds, 85, 247, 431, 576. Com. v. ae 163, Com. v. 458. Com. v. Holley. 365, 367. Com. v. Holmes, 242, 328, "330, 331, 597, 598, 643. om. v. Holstine, a Com. v. Hooper, 3! are v. Hope, bie ‘219, 326, 327, Com. v. Horton, 430, 431, 508. Com. v. Houghton, 240, 2438. Com. v. Hourigan, 549. Com. v. Howe, 571, 624. Com. v. Hoxey, 214, 821, 361. Com. v. stone 800. Com. v. Hughes, 96. Com. v. Hane 14, 394. Com. v. Hutchinson, 150. Com. v. Hutton, 279. Com. v. Igo, 338. Com. v. Ingersoll, 431. Com. v. Ingraham, 613, 626, 649. Com. v. Inhabitants of Dedham, 174, 176, 184, 433. Com. v. ‘Inhabitants - of North Brookfield, 293, 400. Com. v. Inhabitants of Phillips- burg, 368, Com. v. Inhabitants of Sheffield, 280. Com. v. Inhabitants of Springfield, 291, 292, 358, 359, 400. Com,’ y. Inhabitants ‘of Stockbridge, Com. v. qorerene Liquors, 84. Com. v. Irwin, Com. v. Jackson, | 175, 230, 446, 454, 609. 670 CASES CITED [The figures refer to pages] . McCormick, 444, s McDermott, 602, .» McDonald, 999, Com. v. Jacobs, 340, 394. om, dygtatler ‘of Allegheny Coun- Vs Com. v. James, 160, 161, oR 503. Com. y. Jeffries, 213, 378, 593. Com. v. Jenks, 503. Com. v. Jennings, 315, 316, 320, 393, 394. Com. v. Johns, 378. 554, 5: ss McChord, rig 350, 852. Com, i gaphmenns 6, 115, 116, 600, Com. v. johnston Com. v. Jones, 5: ao7 ‘Com. v. Kearns, 381, 388. Com. v. Keefe, 124, "217, 286, 302. Com. v. Keenan, 208. a v. Keeper of Prison, 40, 104, Com. v. Kelley, 500, 557. Com. v. Kellogg, 225, 379. Com. v. Kelly, 202, 352, 396. Com. v. Kennedy, 47, "362. Com. v. Kenney, 602. Com. v. Kimball, 187, 576. Com. v. King, 626... Com. v. Kirby, 438, Com v. Knapp, tion 383" "Ro, 527, Com. v. Kneeland, 241. Com. v. Knowlton, 6. Com. v. Ladd, 258. Com. v. Lafferty, 89. Com. v. Lahy, 456. Com. v. Lampton, 275. Com. v. e, iS Com. v. Lang, 567 om. v, Lannan, 181, 192, 224, 425, 428. Com. v. Lapham, 420. Com. v. Lavery, 292, 388, 400. Com. v. Law 9. woe v. Lawless, 201, 202, 249, Com. v. Lecky, 654, 656. Com. v. Lee, 101. Com. v. Lesher, 521. Com. v. Lewis, 176, 5038 Com. v. Litton, 418. Com. v. Lockwood, 456, 472. Com. v. Logan, 298, 401. Com. v. ng, Com. v. Lottery Tickets, 31, 83. Com. v. Loud, 448, 450. Com, v. Loveridge, 110. Com, v. Lowery, 405, 573. Com. v. Luscomb, 378, 385, 387. Com. v. Lyons, 18 Com. v. McBride, 661. Com. v. McCarthy, Ck an Com. v. McCaul, .v = Vi - McComb, Deeeteseeatestgesteteee ell, 190, 197, 264, 265, 316, 320. Com. 44 Com. v. Merriam, Com. Vv. Vv. i McGahey,. 46, 51, 65. . McGorty; 636, "645. McGovern, 188. McGuire, 187, 350. McKenna, 425, . McKenney, 378, ou eee oes 48, Macloon, 11, 12, 287, McMahon, 547. McManus, 545, 551. McPike, 414, 606. McShane, 467, Mahar, 123, 270, 363. Maloney, 7. Manfredi, 559. Manley, 272. Manson, 349. March, 488, 529. Martin, 37, ‘198. , 327, . Mason, 110, 111, 647. Maxw 179, 185, 188, Mead, 3 226. Merrill, 222, 469, 470. Com. v. Milby, 188, 309. Com. v. Millard, 482. Com. v. Miller, 285, 345, 351, 442, a 533. . m. v. Moore, 518. Com v. Moran, 36. Com. v. Morgan, 379. Com. v. Moriarty, 215. Com. v. Morrill, 378, 384. Com. v. Morse, 267, 268, 272, 576. Com. v. Mortimer, 449, 460. Com. v. Moseley, 212. Com. v. Mosier, 518. Com. v. Moulton, 249. Com. v. Mullen, 162, 551. Com. v. Mullins, 688. Com. v. Murphy, 234, 250, 348, 406, 409, 410. Com. v. Murray, aT. Com. v. Myers, a 622, 624, Com. v. Newell, 413. Com: v. Nichols, 386. 642, 643. Com. v. Northampton, 358, 359. Com. v. esD Com. v. O’Brien 327, 612, 633. Com. v. O'Connell, 8, 266, 388, 389. Gom. v. Odlin, 190. Com. v. O'Donnell, 181, 192, Com. v. Olds, 445. Com. v. Oa 4 a Com. v. 410 Com. v. Packard 343, 546. Com. v. Park, 187, CASES CITED [The figures refer to pages] Com. v. Parker, 11, 12, 140, 362, 406, 644. Com. v. Parmenter, 15, 16, 172, 276, 382, 600. Com. vy. Parr, 553. Com. v. Perkins, 170, 172, 276. Com. v. Perrigo, 199; 200: Com. v Perris, 270. Com. v. Peters, 446. Ore ie v. BBHLDE, 31, 82, 178, 179, Com. v. ne 425, 503. Com. vy. Poisson, 522, 557. Com. y. Polichinus, 506. Com. v. Pope, 277, 390, 394. Com. v. Porter, 541, 545. Com. v. Powell, 331. Com. v. Prall,’ 453. Com. v. ue att, 643. vy. Pray, 188, 190, 191, 202, Com 211, 218, 294, 309, 500. Com. v. Presby, 4 3 Com. y. President, at of Swift Run Turnpike Co. is Com. v. Price, 390. Com. v. Proprietors of Newbury- port Bridge, 181, 192. Com, v. Purchase, ia7 445. Com. v. Quin, 30 Com. v. Quirk, ni8 Com, v. Radford, 111. Com. v. Ran Com. v. Randall, 214, 377. Com. v. Ray, 116, 348, 383. Com. v. Raymond, 228. Com. v. Reily, 289. oS v. Reynolds, 68, 65, 207, 214, Com. v. Richards, 257. Com. v. Richardson, 375. Com. v. Ricketson, 556. Com. v. Ridgway, 660 Com. v. Roach, Com. v. Roark, 38. Com vy. Roberts, 101, 202, 285, Com. 3 Robinson, 503. Com. Roby, 412, 441, 444, 445, 451, “457, 458, 460, 461, 462, 463, 464, 470, 560, 563, Com. v. des, Com. v. Rogers, 528, 637. Com. v. Roland, Com. v. Ruffner, 474. Com. v. Rutherford, 105. Com. v. St. Clair, 140. Com. v. Sampson, 349. Com. v. Sanborn, 620. Com. v. Sanford, 453. Com. v. Sawtelle, ie or Gom. v. Sayers, 180, 433, 434. Com. v. Scannel, 350. 671 Schmous, 567. ME Com. v. Scott, 570, 605, 608, 612. Com. v. Searle, 244, 359, 383. Com. y. Sego, 396, 623, 625. Com. v. Semmes, 103. Com. v. Shannihan, 315, ae Com. v. Sharpless, 241 Com, vy. Shaw, 192, 385 E 509, 510, Com. vy. Shea, 459. one vy. Shearman, 172, 278, 276, Com. v. Sheedy, 273. Com. vy. Sheriff, 38, 151, 152. Com. v. Sherman, 390 Com. v. Shew, 624. Com. v. Shoemaker, 541. Com. v. Sholes, 169, 230, a Com. v. Simpson, 210, 329, Com. vy. Sinclair, i Com. v. Skelley, 251. Com. v. Slack, 223, 311. Com. v. Slate, "349, 354. Com. vy. Slattery, B65. Com. v. Sliney, Com. v. Sloan, 349. Com. v.: Smith, 139, 140, 154, 265, oie ae th, 135. vy. Smy 35. Com. vy. Snell, 500. Com. v. Snelling, 209. Com. v. Somerville, 448. Com. v. Spilman, 244, 247, 248. Com. v. Squire, 30, 302, 981, Com. v. Son 458, ‘454, Com. v. Stevens, 244, 333. Com. v. Stevenson, $47, ae Com. v. Stone, 160, 162, , 895. Com. vy. Stout, 227, "309, Bie” Com. v. Stow, 246, 3 Com. v. Strangford, 252, "253. Com. v. Strother, 141. Com. v. Sullivan, 30, ‘99, 176. om. Vv. Superintendent of Phil- adelphia Co. Prison, 77. Com. y. Sweney, 240, 241, 245. Com. v. Swinney, Com. v. Sylvester, 336. Com. v. Symonds, 323, 330. oh v. Tarbox, 240, 241, 242, 245, Com. v. Tay, 7. ee vy. Taylor, 14, 175, 245, 383, Com. “y. Thompson, 230, 301, 302, Com. ¥ Thurlow, | 316. Com Or ee , 47, 59, 64, 67, 494, 563 Com. ‘v. Tolliver, 292, 400, 600. Com. v. Tolman, 251. Com. v. Tompson, 274, 391. 672 CASES CITED (The figures refer to pages] Com. v. Tracy, 73. Com. v. Trainor, Com. v. Trask, 103. Com. vy, Traverse, 397. Com. v. Trefethen, 602. Com. vy. Trickey, 459. Com. v. Trimmer, 271, 436, 437. Com. v. Tryon, 348. Com. v. Tuck, ei 155, 326, 329, 331,. 871, 404, 443. Com. v. Tuckerman, 623. Com. v. Turner, 305. Com. v. Tuttle, 320, 339. Com, v. Twitchell, ‘229, 305, 306, Com. v. Van Tuyl, 13. Com. v. Varney, 277, Com. v. Vincent, 90. ec v. Wade, 89, 890, 449, 460, Com. v. Walker, oa Com. v. Wallace, 30, 454. Com. v. Walters, 135, 305. Com. v. Walton, 372. Cony v. Ward, 35, 120, 248, 244, Com. v. Warren, 173. Com. v. Washburn, 402. Com. v. Weatherhead, 348. Com. v. agiaten 198, 519, 522, 528, 597 Com. v. Waderhold, 230. Com. v. Wellington, 212, 216, 293, 395, 401. Com. v. Wentz, 184. Com. v. Whaley, 273. Com. v. Wheeler, 155. Com. v. White, 574. Com. v. Whitney, 181, 192. Com. v. Wilcox, 37, ‘90. Com. v. Williams, 140, 282, 378, 388. Com. v. Wilson, 2 Com. v. Wood, 13, P30 286, 376. Com. v. Woods, 348, $89. Com. v. Woodward, 142, 183. v v. 328, Com. v. Worcester, 35S. Com. Wright, 50, 80, 164, 240, O4i, 245, 246. Com. v. Wyatt, 585. Com. v. Zappe, 549. Conkey v. People, 139, 140. Conner v. Com., 32, 5. Conner v. State, 62. Connor v. State, 13, 289, 297, 371. Conrad v. State, 548. Cook, In re, 79. Cook v. Cox, 189, 245. Cook v. Nethercote, 50. Cook v. State, 259, 396, 497, 566, 630, 644. Cooke v. Maxwell, 158. Cooke’s Case, 261. Cooper v. Adams, 38, 41. Cooper v. State, 410, 473, 528, 587, Copperman v. People, 609. Corbett v. State, 549. va v. New York & H. R. Co.,, Cornelius v. State, 559. Cornell v. State, ‘S03, 401, 631, Cornwell v. State, 161, "168, 559, 560, 574, 623. Corryell, In re, 654. Cotrell v. Com, 629. Cotton _v. State, 111, 551. Cottrell, Ex parte, 656. Couch v. State, 419. Coughlin v. People, 529, 548. Coupey v. Henley, 50. Coupland, Ex parte, 651. Courtney v. State, 134. Covy v. State, 292, 350, 400. Coward v. Badd ‘ddeley, 53. Cowell v. Patterson, 88, 96. Cowles v. Dunbar, 48. Cox, Ex parte, 581, 582. Cox’ v. Coleridge, 92. Cox v. People, 198, 623. Cox v. State, 351, SA, 634. Coy, Ex parte, 70. Coyle v. Com., Coyles v. Hurtin, OL, 55, 56. Crabtree v. State, 5: Craig v. State, 22, 233, Crain v. State, 358. Crain v. U. S., 422 Craven’s Case, 258. Crawford v. U. S., 518. Crawlin, Ex parte, 442, Creek v. State, 1383, 559, Cregier v. Bunton, 525. Crim v. State, 578. Critchton v. People, 295. Crockett v. State, 411. Croft v. People, 449. Cronin v. State, 390. Cropper v. Com., 6. Crosby v. Leng, "460. Crosby v. People, 614. Crosby v. Wadsworth, 427. Crosby’s Case, 103. Crosky v. State, 267. Crosland v. Shaw, 47, 51. Cross vy. People, 945. Cross v. State, 222, Crouther’s Case, 5 Crow v. State, 13, 541. Crowe, In re, 384. Crowley v. Christensen, 660. Crowley’s Case, 652 Croy v. State, 527. Crozier v. Cundey, 84. CASES CITED 673 [The figures refer to pages] Cruikshank v, Gon ne 393. Crumbley v. State, 414. Crump, Ex parte, 656. Cubreth, In re, 73. Cudd v. State, 397. Culver v. State, 635. Cummins vy. People Boe 600. Cundiff v. plate, it Cundiff v. Com., Oynminebam v. * daste, 98, 110, 200, Curnow, Ex parte, 406. Curran’s Case, 503. Curry v. State, 569. Curry v. Walter, 640. Curtis, Ex parte, 487. Curtis v. Com., 423. ou v. People, 169, 224, 229, 230, D Da Costa, In re, 661. Dailey v. State, 111, 509, 510, 545. Dakins, Ex parte 653. Dale v. State, 153, 545. Daley, In re, 658. Daley v. State, 549. Damewood v. State, 257. Damon’s Case, 356, 357, 358. Damron vy. State, 194, Dana v. State, 245, 381. Daniels v. People, 111. Daniels v. State, 29, here Danovan v. Jones Darby v. State, a Darling v. Hubbell, 110. Darrah v. Westerlage, 655. Darst v. People, 509. Daughtery v. State, 480. Dave v. State, i Davids v. People, 438, 434. Davidson v. State, 296, 297, 521. Davis, Ex parte, 10, 11, 655. Davis v. Berry, Davis v. Capper, 89, ‘90. Davis v. Clements, 34, 119. Davis v. Com., 579, 616, 618. Dae v. People, 307, 459,, 524, 561, Davis v. Russell, 48, 49, 52, 5 Davis v. State, 199, 221, 232, Sr, 312, 321, 340, 342, 344, 361, 411, 428, 444° oh 504, 538, 589, 551) é 1, 564, 605, 615, 624, 634. Davis v. U. S., 636. Davis’ Case. 71, 78, 654. Davy v. Baker, 1 Dawson v. State, 480, 540. Day v. Com., 432 , BSI. Day v. Day, 120. CLARK Cr.PR00.(2D Ep.)—43 Day v. People, 568, 573. Day v. Territory, 494, Dean v. State, 159, 160, 161. Dearing’s Case, 230, 231, Deaton, In re, 580. De Bara v. S., 655. De Bernie v. Mg 378. De Berry v. State, 444. . De Haven y. State, 455. Dehm y. Hinman, 40, 44, 55, 60. Deitz v. State, 4 417, De Kentland vy. Somers, 172, 276. De Lacy v. Antoine, Denley v. State, 576. Dennard v. State, 113. Dennis v. State, 214, 401. Derecourt v. Corbishley, 47, 5A. Devine v. State, 88, 91, 114. Devine’s Case, 655. Diaz v. State, 259. Diaz v. U. 8. 466, 495. Dickenson v. State, 1138. Dickerson vy. State, 626. Dickinson vy. Bowes, 172. Dickinson v. Kingsbury, 101. Dickinson v. U. S., 509, 511 Dickson v. State, 644. Dilger v. Com., 50, 61, 62. Dill v. People, 383. Dill v. State, 54. Dillingham v. State, 509. Dillingham y. U. S., 111, 117. Dilts v. arte 171, 276. Dilworth v. Com., 527, Dimick v. Downs, 629. Dingley v. Moor, 361. Dingman v. State, 481. Dinkey v. Com., 404, 406, 462. Dixon v. State, 497. Dobosky v. State, 430. Dobson v. State, 479. Doebler v. Com., 511. - Doering v. State, 47, 48. Dolan v. People, 434. Doles v. State, 444. Doll, In re, 653. Dollar v. State, 540, 541. Donahoe v. Shed, 36, 37, 48. Donald v. State, "432. Donnel v. U. S., 3938. Donnelly v. State, 333, 393, 496, 618, 646. Donohue v. People, 600. Donohue’s Case, 74. Dooley v. State, 558. Doo Woon, In re, 73, 74, 660. Dormer’s Case, 360, 361. Doss v. Com., 539, 548, 558. Dougan v. State, 486. Dougherty v. Com., 493, 494. Dougherty v. State, 56. Doughty v. State, 52. 674 CASES CITED [The figures refer to pages] Douglass v. Barber, 47. Douglass v. State, 497. Dow vy. State, 481, 557. Dowdale’s Case, 72. Doe v. Com., 3385, 341, 342, 516, Dowling v. State, 525. Dowman’s Case, 572. Downing v. ete 3883. Dows’ Case, 71. Doyle v. People, "508, 548, Doyle v. Russell, 40. Doyle v. State, 130. 140, 141, Drake y. State, 538. Draughan v. State, 111. Draughn v. State, 623. Drennan v. People, 26, 50, 59. Drew v. Thaw, 75, 71, 79. Drew’s Case, le Droneberger v. State, 401. Drummond v. State, “365, 367. Drury v. State, 654, Drury v. Territory, 587. Drye v. State, 196. Dryman v. State, 548. Du Bois v. State, 248. Duchess of Kingston’s Case, 642. Duckworth v. Johnston, 34 Dudley v. State, 478. Duff, Ex: parte, 581. Duffies y. State, 90. Duffy v. People, 545. Dugan v. Com., 101. Duke’s Case, 497. Dukes v. State, 420, 506. Dula v. State, 486. Dull v. Com., 258. Dumas v. State, 399. Duncan, In re, 657. Duncan v. Com., 461. Duncan v. State, 277, 399, 553. Dunn v. Com., 492. Dunn v. State, 446, 526. Dunn’s Case, Duppa v. Mayo, 388. Durbin, Hx parte, 583. Durell v. Mosher, 519. Durham v. State, 404, 477. Dutell v. State, 185. Duttenfofer v. State, 642. Dutton v. State, 433, 578, 579. Dwinnels v. Boynton, Dyer v. State, 434 E Pakin v. Burger, 372. Fanes v. State, 48, 49. Early v. Com., 290, 324, 481. Earp v. Com., 48 Easterling v. State, 578. Eastman v. Com., 214. Eastwood vy. People, 534, fuaves v. State, 171. Kekhardt v. Feople, 307. Eden’s Case, 66 Edgerton v. Com., 574. Edmondson v. Wallace, 521. Edmundson v, State, 171, 276. Edsall’s Case, 383. Edwards v. Com., 281, 298. Edwards v. State, 230, 488. Edymoin, In re, 656. Eichorn v. Le Maitre, 435, 436. Highmy v. People, Hiland y. State, 552. Eldred, In re, 18. Eldridge vy. Com., 570. Eldridge v. State, 4384. Ellenwood v. Com., 425, Elliott v. State, 350, 355. Elliott v. Van Puen 629. Ellis, Ex parte, 653. Ellis v. State, “439, 566, 567. Elmore v. State, Emanuel v. State, 654. Emerick v.. Harris, 508. Emery v. Chesley, 66. Emery v. State, 95, 503. Engeman v. State, 161, 552. Engleman y. State, 287. English v. State, 130, 158, 384. Enson v. State, 274, 399. Enwright v. State, 171. Epps v. State, 496. Erber v. U. Erskine v. Die’ ‘ti 276. Eskridge v. State, 6: Etheredge v. U. 8., 310. Evans v. Foster, 701, 107. Evans yv. State, 173, 206. Evarts v. State, 290: Everett _v. State, 351, 641. Evers, Ex parte, 105. Evers v. State, 615. Ezeta, In re, 70. F Fagan, In re, 652. Faire v. State, 492. Farley, Ex parte, 659. Farmer v. eople, 228, Farr v. East, 300. Farrand, In re, 657. Farrell v. State, 324. Farris v. Com., Farrow v. State, 394, fae v. Teruitory, Fergus vy. State, 221. Ferguson v. Ferguson, 658. 484, 546, CASES CITED 675 [The figures refer to pages] Ferrens, In re, 658. Ferris v. People, 443. Fetter, In re, 73, 78. Field, Ex parte, 652. Field v. Com., 588. Filkins v. People, 377. Finch v. State, 310, 494, 654. Findlay v. Fruty 49, 52, 60. Finley v. State, 447. Finney y. State, 17, 285. Firestone v. Rice, 47, 49, 55, 60. First Nat. Bank v. Post, 517. Fisher, Ex parte, 654 Fisher v. Com., 328. Fisher v. People. 544, 637. Fisk, Ex parte, 656. | Fitch v. Com., 482. Fitton, In re, 79. Fitzgerald v. State, 553. Fitzpatrick’s Case, 1038. Flack, In re, 80. Flagg v. People, 623, Flagg v. State, 477 Flaherty vy. Longley, 84. Flaherty v. Thomas, 238. Fleming v. People, 320. ae v. State, 279, 288, Fletcher v. People, 348. Fletcher v. State, 558. Flint v. Com., 535. Flora v. State, 267. Floyd v. State, 34, 465, 551. Fogarty v. State, 637 Follett v. Jeffereys, 641, Fomby v. State, 247, Foote v. Hayne, 641. Foote v. State, 585. Forbes v. Com., 576, Ford v. State, 565. Ford v. Tilly,. 586. Forsythe v. U. S., 6. Tort v. State, 643. ¥ortenberry v. State, 205. Foss, Ex parte, 72, 443. Foster, Ex parte, 104. Foster v. Com., 437. Foster v. People, 600. Hoe vy. State, 152, 158, 407, 493, 57 Foster’s Case, 37, 90. Fountain v. State, 548. Foust v. State, 446. Fouts v. State, 499. Fowler v. State, 268, 350, 547. Fox v. Gaunt, Fox vy. People, 600. Francisco v. State, 324, 327. Frank v. Mangum, 655. Frank v. State, 495. Franklin vy. Com., 496, 2 Franklin v. State, 464, 541, 543; 544. Franklin v.. Talmadge, 171, 276. Frasher v. State, 371 Frazier v. State, 309, 540, 608. Frederick v. State, 359 Freegard v, Barnes, 44. Freel v. State, 569, 573. Freeman - v. Arkell, 143. Freeman v. People, 519, 528, 5380. Freleigh v. State, 2 -French v. State, 493, 582. Friar v. State, 556. Friedrich, In re, 589, 657. Frisby v. State, 384. Frost v. Com., 508 Frost v. Thomas, 58. Fuecher v. State, 153. Fuliambe’s Case, 303. Fulkner v. State, 471. Fuller v. State, 360, 361, 583. Fulmer v. Com., 328, G Gady v. State, 194, 266. Gaffney v. Circuit Judge Missau- kee County, 442. Gahan v. People, 393. Galbreath v. State, 350, 355. Gallagher v. State, 218, 622. Galliard v. Laxton, 4%, Galvin v. State, 48, 57. Gamble v. State, 559. Ganaway v. State, 124. Gannon, In re, 188. Gannon v. People, 451. Garcia v. iste 182, 487, 488. Garcia v. Territory, 585. Gardiner v. People, 443, 600. Gardner v. People, 135, 137. Gardner v. State, 551, 553. Gardner v. Turner, 514. Garland v. ‘Wasting ot 422, Garman v. State. Garner v. State, 09" S51, 542, 632, Garrett v. State, 635, Garthwaite v. Tatum, 521. Garvey, In re, 478. Garvey v.. Com., 238. Gates v. People. 521, 522. Gates v. State, 227. Gatewood v. State, 227, 304. Gatliff v. Territory, 408. Gatlin v. State, 506. Gavieres v. U. S., 459. Gee Wo v. State, 315, 316. Gehrmann v. Osborne, 580. Geiger v. State, 173. Genner v. Sparks, 64, 65, 66. Gentry v. State, 117. 676 CASES CITED [The figures refer to pages] George v. Pilcher, 650. George v. Radford, 66. Geraghty v. State, 276. Gerald v. State, 620. Gerard v. People, 449. Gerrish v. State, 171. Gibbs v. State, 546. Gibson, Ex parte, 655. Gibson y. Com., 450, 451. Gibson v. State, 487, ae Gifford v. People, 4' Giles v. State, 3 gee Gill v. Scrivens, oe Gill v. State, 1538, Gillespie v. State, “te S07, Gillooley v. State, 642 Gilyard v. State, 546. Gipson v. peer 569, 573. Girous v. State, 394. Gise v. Com., 150, 151. Gitchell v. People, 488. Gladden v. State, 515. Glasgow v. Moyer, 655. - Gleason v. McVickar, 205. Glenn, In re, . Glover v. State, 481. Glucksman v. Henkel, 71. Goans, Ex parte, 104. Goddard v. State, 124, Goersen v. Com., 500. Golden v. State, 398. Golding v. State, 463. Goldman v. State, 548. Goldstein v. State, 259, 538. Gompers v. U. S., 150. Gonzales vy. State, 521. Goodall vy. State, "O15. Goodlove v. State, 173, 182, 215. Goodrich v. Hooper, 208. Goodwin v. Dodge, 100. Goodwin v. Governor, 111. Goodwin v. State, 623, 624, 683. Gordon’s Case, 5! Gore v. State, 614, ‘626. Goshen & S. Turnpike Co. v. Sears, 301. Gott v. Mitchell, 44. Gouglefoann v. People, 232. Governor v. Jackson, 101. Sree rer of ‘Louisiana v. Fay, 101, Grace, Ex parte, 508. Grady v. State, 544, 578 Graeter v. State, 369. Gragg v. State, 357. Graham, In _ re, 581. Graham y. Com., 152. Graham v. State, 390, Grainger v. Hill, 66. Granice, Ex parte, 653. Grant v. State, 206, 266. 644, Grantham v. State, 271. Gray y. State, 117, 215. Gray’s Case, 618. Greathouse’s Case, 656. Green, In re, 564.” Green v. Com., 233, 429, 4 Green v. State, 11, 12, 32; Bo, 144, 221, 329. Greenfield v. People, 630. Greenough, In re, 78. Greenwood v. State, 456, 468. Greeson v. State, 167, 169, 214, Gregg, In re, 658. Gregg v. State, 233. Gregory v. Com., 321, 362, Gregory v. State, 101. Gresham v. AV EIEER | ad Griffin v. Coleman Griffin v. ete Bia 309, 883, 411, 430, 522. Griffin v. ‘Wilcox, 652, Griffith, In re, 152. Griffith’ v. State, 206 207, 335. Grimm v. People, 497. Grimmett v. Askew, 5. Grimmett v. State, 489. Grimwood v. Barrit, 205. Grisham v. State, 469. Griswold v. Sedgwick, 35, 42. Gross v. State, 129. Grosse v. State, 66. Grubb v. State, 636. Gruber v. State, Grumon v. Raymond, "35, 42, 838. Guedel v. People, 449, 450. Guenther v. Day, 84. Guenther v. People, 567, 568, 569, 571, 5738, 574. Guess v. State, 435. Guest v. State, 568. Gunter v. State, 466, 687. Gurley v. Gurley, 314. Gurley v. State, 540. Gurney v. Tufts, 42. Gurnsey v. Lovell, 35. Gustin v. State, 456. Gut v. Minnesota, 486, Guynes v. State, 408. H Hack v. State, 423. Hackett v. Com., 231, Hackett v. King, 597. Hackney v. bhi 80. Hager v. Falk, Hakewill, In re, “360. Hale v. Henkel, 134. Haley v. State, 394, 405, 650, Hall v. Com., 280, 482, 576. Hall v. Hawkins, 4. Hall v. Patterson, 654. CASES CITED 677 (The figures refer to pages] Hall v. Roche, 58. Hall v. State, 110, 111, 287, 393, 463, 493, 496, 556, 568, 598, 614, Hall v. U. 539. Halsted y. Brien 35. Ham v. State, 12, 80. Hamblett v. State, 256, 257, 266. Hamilton v. Com., 506, 492, 578. en v. People, 90, 545, 614 Hamilton v. Reg., 223 Hamilton v. State, 221, 413, 462. Hammel, In re, 6. Hammell v. State, 199. Hammett v. State, 570. Hammond v. Brewer, 295. Hammond v. People, 661 Hampton v. Brown, 111. Hampton v. State, oe Handcock v. Baker oe , 54, 64. Handly v. Com., Hankins v. People. 469. Hanks v. State, 12. Hannum v. State, 571. Hanoff v. State, 647. Hanrahan v. People, 290. Hanson, Ex parte, 657. Harbin v. State, 116. Hardin v. State, 140, 390, 484. Harding v. People, $15. Harding v. State, 436. Hardison v. Beare 586. Hardy v. Com., 413. Hardy v. State, 545, 564. Hardy’s Case, 640. Hargrove v. State, | 581, 605, 608. Harlan v. McGourin, 655. Harlan v. State, 399. Harland vy. Territory, 80, 516. Harman y. Com., 232, 339, 340, 341, 346. Harp v. Osgood, 114, 115. Harp v. State, 471 Harper v. State, 620. Harrall v. State, 1387. Harrington v. Dennie, 114. Harris v. Atlanta, 67. Harris = People, 378, 492, 509, 573. Harris v. ‘State, 200, 267, 494. Hart, Ex ae 15. Hart v. Cleis, 320. Hart v. es 171, 276. Hart’s Case, 234. Hartman v. Aveline, 77, 78. Hartranft, Appeal of, 640. Hartzell v. Com., Harvey v. Com., 569, 570. Harvey v. State, 480. Harvey’s Case, 103. 494, -Hayne’s Case, Haskins v. People, 15, 290, 292, 3878, 388, 400. Haskins v. ee aon a 66. Haslip v. State, 321, Hastings v. Eo $05. Hatcher v. State, 552. Hathaway v. State, 188, Hatton v. Treeby, 50. Hatwood v. State, 283. Haught v. Com., Hawes v. State, sae Hawkes vy. Hawkey, 209. ! Hawkins v. Com., 63, 64. Hawkins v. State, 547. Haworth y. State, 267. Hawthorn v. State, 258, 373. Hayes v. Mitchell, 51. Hayes v. State, 423. Hayley v. Grant, 480. Hayner v. People, 505. Haynes v. “one Cy 603. Haynes v. U. 582 S360 Hays v. Hamilton, 479. Head v. Martin, 62. Headley v. Shaw, 172, 276. Heath v. State, 329. Hechter v. State, 574. Heckman v. Sear 35, 37. Hector v. State, 4 Heikes v. Com., 292, 400. Heine v. Com., 613. Heineman v. State, 323. Helm v. State, 522. Henderson:v. Com., 481. Henderson v. People 570. Henderson v. State, 399. Hendrick v. Com., 455, 519, 528. Hendricks v. Com., 437. Hendryx v. State, 506. Hennessy v. State, 244, 383. Henning v. State, 555. Henson vy. State, 570. Henwood v. Com., Hepler v. State, 89. Herman v. People, 341, 404, 413. Hernandez v. State, 12, 377. Herris, In re, 70. Herron v. State, 392, 576. Hess v. State, 230, 243. 348, 413. Hewitt v. i 126, 166, 315. Hewitt’s Case, 4 Heyden’s Case, 234. Heydon’s Case, 285, 298, 351. Heymann v. Reg., 368, 369. Hibbs, Ex parte, 70. Hibler v. State, 654. Hickam v. People. oe 488. Hicks v. State, 484, 614 Higges v. Henwood, 182, 352. Higginbotham y. State, "481. “678 ‘CASES CITED (The figures refer to pages] Higgins v. Com., 488. Higgins v. People, 608. Hight v. U. S., 105. Hightower v. State, 182. Hilands. v. Com., 448. Hilderbrand v. State, 340. Hill, Ex parte, 658. Hill’ v. Com., 550, 645. Hill v. People, 499, 509. a State, 413, 427, 495, 497, Hines vy, State, 443, 447. Hinkle v. Com., 325, 326. Hinktom v. State, 170. Hinson, Ex parte, 579, 580. Hirn v. State, 316. Hite v. Com., 495, 629. Hite v. State, 448 470. Hittner v. State, 555. Ho Ah Kow v. Nunan, 657. Hobbs, Ex parte, 76. Hobbs v. Branscomb, 48, 49. Hobbs v. State, 258. Hoberg v. State, 556, 560. Hodge v. State, 4 me 594, 598, 636. Hoffman v. State, 4 Hogg v. Ward, 49. Hoggatt v. Bigley, 46. Hoghtaling v. Osborn, 564. Hogshead v. State, 517. Holcomb v. Cornish, 46. Holcomb v. Holcomb, 629. Holder v. State, 535, 536, 544, 608. Holford v. State, 274 Holley v. Mix, 48, 52. Hollingsworth Vv. Duane, 515. Holloway v. Reg., 193. Holman, Ex parte, 658. Holman v. Mayor, 656. Holmes, Ex parte, 70. Holmes v. Com., 497. Holmes v. Jennison, 70. Holmes vy. State, 436, 628, 636. Holmes v. Walsh, 353. Holmes’ Case, 356. Holt v. Com., 481. Holt v. U. 8., 133. Hood v. State, 482. Hooker v. Com., 495. Hooker v. State, 260, 385, 528. Hooper, In re, 75. Hooper v. State, 2438, 458. Hoover v. State, 397. Hope,.In re, 75, 76. Hope v. Com., 265, 388. Hope v. People, 133, 609. Hopkins, Ex parte, 122, 164, 181. Hopkins v. Crowe, 50. Hopson, In re, 660. Hopt v. Utah, ‘492, 494. Horan v. State, 227. Horbach v. State, 595, 632. Horn v. State, 407, 408, 488, 546, 549, 600, 6 8, Horn v. U. S., Hornbeck v. oe “608. Hornsby v. State, 346, 373. Horsey v. State, 576. Horthbury v. Levingham, 361. Horton v. State, 200, 245, 616. Hoskins v. People, 259, 421. Hoskins v. State, 325, 379, 571. Houghton v. Bachman, Housh y. People, 31. How v. Strode, 587. Howard v. Com., 488, 495. Howard v. Kentucky, 495. Howard v. People, 397. Howard vy. State, 637. Howel v. Com., 306. Howel’s Case, 232. Howle v. State, 112. Hoye v. Bush, 35. Hoyt v. People, 327. Hronek y. People, 547, 568, 639. Hubbard, Ex parte, 655, Hubbard v. Mace, 65. Hubbard v. State, 499. Hudson vy. State, 130, 140, 346, 360, 529. Hoff v. State, 452. Huffman v. Com., 313. Huffman’s Case, 169. Huggins v. State, 226. Hughes v. State, 10, 568. Huidekoper v. Cotton, 143. Huish v. Sheldon, 586. Huling v. State, 140. Humbard v. State, 390. Hume vy. Ogle, 294, 437. Humes v. Taber, 43, 83. Hummel v. State, 258. Humphrey v. State, 493, 494. Humphries v. State, 515. Hunley v. State, 478. Hunt, Ex parte, 583. Hunt v. Com. -, 480. Hunt v. State, 544. Hunter v. Com., 340, 341, 418. Hunter v. State, 333, 334, 394, 558. Huntington v. Shultz, 66. Hurd v. Com., 483. Hurley v. cae Ter 168. Hurt v. State, 452, 456. Hurtado v. California, 127. Hussey v. Davis, 84. Hutchins v. State, 273. Hutchinson v. State, 285. Hutchison v. Birch, 65. Hutchison v. Com., 553. Hutchison v. State, 111. Hutto v. State, 206. Hyde v. U. S., 18. Hyden v. State, 551, CASES CITED [Th6 figures refer to pages] I Ike v. State, 306. Imlay v. Rogers, 144. Ingalls v. State, 636, 643. Ingram vy. State, 106, 437. Innes, Ex parte, 76. Inwood v. State, 508. Irvin v. State, 206. Irwin v. State, 110. Isaacs vy. Brand, 49. Isaacs v. U. S., Isaacs v. Wiley, 171, 276. Isham v. State, 406. J Jackson, Ex parte, 653. Jackson v. Com., 5, 12, "gg, 91, 493, 494, 619. Jackson v. Pesked, 368. Jackson. v. State, 62, 130, 206, 306, 392, 396, 444, 463, 480, 487, 545, 549, 564, 586. Jackson ex dem. Pell v. Prevost, Jackson’s Case, 57, 78. Jacobs v. Com., 284, 297, 396, 493. Jacobs v. State, 50, 457. Jacquemine v. State, 101. Jahn, In re, 508. Jambor_ v. State, 442, James vy. Com., James v. Rutlech, 209. James v. State, 2367, 342, 344, 578. vee v. People, 481, 487, 488, Jane v. Com., 237. Jane v. State, 230, 279, 294, 297. Jansen v. Ostrander, 5. Jefferds v. People, 625. ' Jefferson v. People, 315, 316. Jefferson v. State, 421, 520. Jeffries vy. Com., 202, 395, Jenkins v. Mitchell, 530. Jenkins v. State, 407, 441, Jennings, In re, 583. Jennings v. Com., 327, 346. Jensen v. State, 316. Jerry v. State, 161, 169, 229. Jesse v. State, 517. Jewell v. Com., 526. Jillard v. Com., "304, Jim v. State, 547. Johns vy. State, 18. Johnson, In re, 7. Johnson v. Americus, 67. Johnson v. Browne, 70. Johnson v. Castle, 630. Johnson v. Com., 367, 482. Johnson v. Leigh, 64. Johnson v. Randall, 110. Johnson vy. State, 34, 37, 187, 258, 343, 352, 377, 451, 452, 487, 517, 522, 531, 541; 547, 570, 587, 598, 603" 605, 618, 639. Johnson v. U. S., 150. Johnston v. Riley, 35, 78. Jones, Ex partes, 107, Jones v. Com., 2: 345, 346, 569, 570, 571, er, Jones vy. Fletcher, 83, 84. Jones v. Kelly, 6 Jones v. Leonard, 78. Jones v. Macquillin, 172, 393. Jones v. Reg., 184, 31 12, Jones v. Robbins, 125, 126, 508. Jones v. State, 173, 185, 196, 206, 221, 391, 392, 399, 406, 420, 441. 458, 521, 525, 527, 540, 546. 551, 5D7, 561, 576, 600, 614, 617, 618, 619, 628. Jones v. Timberlake, 653. Jorasco v. State, 391. Jordan, In re, 659. Jordan’ y. Com., 606. Jordan y. State,” 624. Jordt v. State, 261. Josslyn v. Com., 235. Joy v. State, 443, 451. Judah v. McNamee, 53l. Jugiro, In re, 657. Jumpertz v. People, 554, 559. Justice v. Com Justice v. State, 399, 419, 619. 445, K Kaelin v. Com., 230. Kahn v. Reedy, 517. Kalloch v. Superior Court of City ane County of San Francisto, Kane v. People, 333, 335, 337, 339, 342, 346, 348, 361, 420, Kearny, Bx parte, 654, Keech v. State, 578. Keefer v. State, 335. Keehn vy. Stein, 36. Keenan v. State, 52, 54, 559. Keene ‘v. Meade, 171, 376. Keener v. State, 595. Keeton v. Com., 466, 467, 468. Keith v. Tuttle, 57. Keithler v. State, 506, 552. Keller v. State, 206. Kelley v. People, 602, 614. Kelley v. State, 173. Kellum v. State, 499, 569. Kelly, Ex parte, 655, 658. Kelly, In_re, 18, 120. Kelly v. People, 587. 680 CASES CITED | [The figures refer to pages] Kelly v. State, 94, 494, 537. Kelsey v. Parmelee, 39 Kelsy v. Wright, 68. Kemmler, In re. 585. Kemp’s Case, 652. Kendrick v. Com., 642. Kennedy v. Duncklee 41, 42. Kennedy v. People, 304 407. Kennedy v. State, 52, 368, Kennegar v. State, 335. Kenrick v. U. 8., 361 Kent v. State, 629. Kentucky v. eontan TT, 78. Kenyon, Ex parte, 657 Kepner v. U. S., 456. Ker v. Illinois, 7, 71, 654. Kernan v. State, 59. Ketchingman y. State, 342, Keyes v. State, 505. Kidd v. State, 269. | Kidd y. Territory, 579. Kilbourn v. State, 321. Killins v. State, eae Kilrow v. Com., 166. Kimpton’s Case, 77. Kincaid v. Howe, 172, 276. Kincaid v. People, 250. Kindred v. Stitt, 52, 53. King, In re, 657. King v. Fearnley, 226. Reine = we tio 112, 114, bee ing v. ate, 247, 330, 398, 483, 488, 519, 557, 560, 561, 588, 625, ae, Kingsbury’ s Case, 71, 79. Kinney v. State, 171, 306. Kirby v. State, 517, 656. Kirk v. Com., f Kirton v. Williams, 427. Kit v. State, 233. Kitrol v. State, 141. Klawanski v. People, 122, 431. Klein v. People, 354. Klock v. People, 443, 477. Knoll v. pate 680. Knot v. Gay Knowles y. go 361. Knox v. State, 449. Kohlheimer v. State, 448, 450. Kopke v. People, 315. Kowalsky, In re, 654. Kramer v. Com., 609, 610. Krans, Ex parte, 49. Kroer v. People, 339. Krug v. Ward, 39. 4 L Lacey v. State, 155. Lackey v. State, 147. ‘Laclede Bank v. Keeler, 649. Lacy v. State, 140. Lagrone vy. State, 309. Lamb v. State, 515. Tuambert v. People, 181, 189, Lambeth y. State, 552. Lamkin v. People, ae Lancaster v. Lane, 46 Lancaster v. State, 531. Landa y. State, 16, 19. Lander v. People, 604, Lane v. People, 451. Lanergan v. People, 602. Lang v. State, 406. Langdale v. People, 205, 243, 383. Langdon v. People, 171, 276, 686, 637. ; 581, Lanes, Ex parte, 440, 448, Tenciord v. State, 610. Langham vy. State, 627. Lanier v. State, 321, 3 376. Larned v. Com., 191, 221, 256, 257, 266, 302, 389. La Rose v. State, 111. Lascelles v. Georgia, 71, 80. Lascelles v. State, $34.” Latham v. Bia 206. Latham v. S., 534, 536. Launock v. vee 65. Lavarre y. State, 258. Lavelle v. State, 369. Lavender v. State, 260. Lavina v. State, 74, Lawn v. People, 496. Lawrence, Ex parte, 661. Lawrence v. Com., . Lawrence v. Hedger, 48, 49. Lawrence v. State, i Lawson v. Buzines, 66 ee yv. Com., 205, 287, 333, 342, Leach y. People, 520. Leache vy. State, 637. Leathers v. State, 130. Lebkovitz v. State, 330. Ledbetter v. State, 39. Ledbetter v. U. S., 279, 370. Ledgerwood v. State, 450, 584, Ledwith v. Catchpole, 48, Lee v. Clarke, 305, 360. Lee v. Gansel, Lee v. State, 116, 117, 141, 284, 294, 443, 492, 495, 520, Lefevre v. State, 624. Lefler v. State, 206, 547. Leftwich v. Com., 195, 258, 264. Leigh v. Cole, 60. Lembro & Hamper’s Case, 306. Lenox v. Fuller, 649. Lepper v. U. S., 539. Lester v. State, 103, 107, 298, 444, 190, 47. CASES CITED 681 {The figures refer to pages] Leverette v. State, 384. Levison v. State, 154. Levy v. Edwards, 51. Levy v. State, 456. Lewallen y. State, 569, 600. Lewellen v. State, 352. Lewis vy. Board of Com’rs of Wake County, 124, 128, 134. Lewis v. State, 48, 59, ae 259, *390, 481, 519, 521, 530 Lienburger v. State, oe Lilly v. “People, Ber 588. Linbeck v. State, Linda v. Hudson, 6am Lindsay v. Com., 155. Lindsay v. People, 639. Lindsey v. State, 350, 355. Linford v. Fitzroy, 101. Lisle v. State, 527. Lister v. Mundell, 586. Lithgow v. Com., 520. Litman v. State, 3884. Littell v. State, 210, 211. Little, Ta re, 80. Little v. Com., 604, 607. Livingston v. Com., 630. Lloyd, In re, 4138. Lloyd v. State, 29. Loakman v. State, 481, Loeb v. Jennings, 585. Loeffner v. State, 539, 637. Logan v. State, 138. Logan v. U. 8., 445, 499, 521, 613, 614, 639. Lohman v. People, 414, 647. Long v. People, 422, 480, 484, 501. Long v. State, 52, 54, 59, 267, 377, 517, 548, 551, 568. Long’s Case, 230, 231, 232, 272. ‘Longfellow v. State, 564. Lopez v. State, 638. Lopez & Sattler’s Case, 71. Lord v. State, 258, 499, 564, Lorton v. State, 328, 378, 388. Lott v. State, 173, 411. Lougee v. State, 124. Lough v. Millard, 34, 653. Louisville, N. O&T Mask, 518. Lovett v. State, 451. Low v. People, 256, 257, 266. Low’s Case, 144, Lowe v. State, 182, 547. Lowery Vv. State, 627. Loyd v. State, 480. Lueas v. State, 410. Lujan, Ex parte, 579. Lumm v. Plates 105, 107, 660. Lusk v. State, 1 Luter v. State, 188. Luttrell v. Sere 381. Lutz v. Com., 5 R. Co. v. Lynch v. Com., 495. Lynch v. Grayson, 630. Lynch vy. People, 105, 107, 654. Lynch v. State, 541, 544. Lynes v. State, : 398. Lynn, Ex parte, 653. Lyon v. Com., 135. Lyons v. People, 335. Lyons v. State, 116. M Maas v. Territory, 636. Mabry v. State, 517, 519. McAnally, Ex parte, 104. McAuly v. State, 258. McBean y. State, 574. McBride v. State, 290. McCabe, Ex parte, 70. McCall v. McDowell, 652, McCall y. Parker, 107 McCann v. Com., 442. McCann v. State, 5 555. McCarty v. State, 112, 252, 258, McCaskey v. State, 449. McClain v. Com., 5A7. McClaughry v. Deming, 656. McClellan, Ex ‘parte, 658. McClure v. State, 158, 527. McCole v. State, 101. McCollough v. State, 415. McCombs v. State, 399. McConnell v. Kennedy, 40. McConologue’s Case, McCorkle v. State, 363, 564, McCowan v. State, 269. Moree v. State, 88, 289, 546, 549, McCreary v. Com, 441, 453, 554. McCue v. Com., 579. McCullough vy. Com., 47, 127, 134, 137. 358. McCullough vy. State, 335, 567. McCutcheon vy. People, 307. McDade v. State, 396. McDaniel’s Case, 307. McDermott y. State, 482. “| McDivit v. State, 259. McDonald v. State, 257. McDonald v. Wilkie, 48. McDonnell v. State, 245.. McDonough v. State, 111. McDuffie vy. State, 517. Mc}Hlroy v. State, 231. McElvaine v. Brush, 585. McEntee v. State, 569, 572. McFadden vy. Com., 444, 527. McFarlan v. People, 5. McFarland v. State, 454, 471. McGary v. People, 394. McGear v. Woodruff, 508. 682 CASES CITED ‘[The figures refer to pages] McGee v. State, 385. McGehee v. State, 285. McGlinchy v. Barrows, 84. McGowan v. State, 521, 545. McGraw v. Com., McGregg v. State, 337, 519, 566. McGregor v. State, 210. McGuffie v. State, 547, 572. McGuire v. People, 638, McGuire v. State, 360, 501, 528. McGuire v. Wallace, 477. McHargue v. Com., ‘620. McIntire v. Com., 136. McIntyre v. People, aoe McJunkins vy. State, 5 Mack v. State, 629, Mackalley’s Case, 352, 377. McKay v. Speak, 171, 276. mee v. State, 284, "428, 449, 505, 06. McKee, In re, 127. McKee v. State, 135. Mackenzie v. Barrett, 659. McKenzie v. State, $42, 444, Mackin v. U. S., 126. McKinley v. State, 365. McKinney v. U. 8., 124, 133. McKnight, Ex parte, 79, McLain v. State, 446, 559. McLane v. State, 282. McLaughlin, Ex parte, 444, 445. McLaughlin v. Com., 206. McLaughlin v. State, 166, 278, 365, 366, 393. McLean v. State, 539, 554, 559. McLennon yv. Richardson, 64, McMahan v. Green, 55. McMahan v. State, "249, McMeen v. Com., 550. MeMillan vy. State, 486. McNealy v. State, 481. McQuillen v. State, 139, 140. McQuoid v. People, 242° McQuown, In re, 510. McRae v. Americus, 456. McRoberts, Ex parte, 658. Macrow v. Hull, 586. McVay v. State, 629. McVey, In re, 408 MeWhirt v. Com., 412. McWilliams v. State, 558, 561, Madison v. Com., 110. Mahan vy. State, 160. wee vy. St. Louis & H. R. Co., Maher v. State, 559. Mahon v. Justice, 7, 71, 654. Maile v. Com., 3 Main v. McCarty, 50, 57. Maine v. State, 618. Major’s Case, 258. Malison, In re, 88 Malone v. State, 407. Maloney v. Traverse. gis Manchester, In re, 77, 7 Mangham v. State, 566, Manke v. People, 630. Manly v. State, 488. Mann vy. Glover, 528, Mann v. State, 561, Mansfield v. State, 539. Marbles v. Creecy, 74. March vy. Com., 98. Markley v. State, 284, Markwell v. Warren Co., 95. Marler v. Com., 336, 481. Marsh v. State, 253, 530. Martha v. State, 443 Martin, In re, 657. Martin v. Com., 434, 473, 598. Martin v. People, 453. Martin v. State, 15, 150, 222, 338, age: 483, 488, 502, 521, 567, 628, Martins v. State, 268. Marvin v. State, 378. Mary v. State, 308. Mask v. State, 354. Mason v. State, ae is) 392. Massey v. State, 4 Massie v. Com., 13. Massie v. State, 26. Mastronada v. State, 430. Mathews v. Swatts, 578. Mato, Ex parte, 654. Maton v. People, 503. Matthews v. State, 315, 316. Matthews v. U. S., 398, Mattox v. U. S., 561, 574, Maul v. State, 481. Maull v. State, 406. Maurer v. People, 493. Maxwell v. Dow, 127. Maxwell v. State, 637. May v. State, 479, 574. Mayer vy. People, 610. Mayo v. State, 335, 337. Mayor v. Quirk, 641, Mayor of Doncaster v. Day, 627. Mead v. Haws, 35, 36. Mead v. State, 196, 346, 550. Medlock v. State, 396. Mee v. State, 248, 383. Meece v. Com., Meek v. Pierce, 39 82, 83. Megowan v. Com., 281 3897. Melton v. State, 195. Melvin v. Fisher, 35. Mercer v. State, 566, 574. Meredeth v. People, 502. Merrick vy. State, 333. Merryman, Ex parte, Mees v. State, 38. 2 40, 333, CASES: CITED 683 {The figures refer to pages] Merwin v. People, 258, 265. Messner v. People, 578. Methard y..State, 282. “Meyers, Ex parte, 619. Miazza v.. State, 442. Milan y. State, 222. Milburn, In re, 660. Miles, In re, 71. Miles v. State, 549. Miller v. Foley, 35. Miller v. Grice, 43. Miller v. People, 224, 248, 383, 421, 580, 624. Miller v. State, eee 335, 346, 363, 866, 4838, 484, 538 Milligan, ‘mee parte, | ($52. Milligan’ v. pute Mills v. Com., 943 567, y(n Mills v. cee Mills v. U. 8., 550. Mindex v. State, 395. Minet v. Morgan, 642. Minis vy. U. S., Minor v. State, 111. Mishler v. Com., 117. Mitchell, In re, SF Mitchell vy. Lem Mitchell ee State. 5o 0.99, 483, 503, 568, 567, 588. Mix v. Woodward, 208. Mixon v. State, 444, 480. Mockabee v. Com., 25. Mohr, In re, 78, 79. Monahan v. State, 4380. Money v. Leach, 34, 35, 36. Montag v. People, 636. Montague v. Com., 2 oe iY, Montee v. Com., Montgomery v. ie 545, 617. Moody v. People, 484. Mooney, Ex parte, 655. Moore v. Com., 223, 531, 687. Moore v. Illinois, 455, Moore v. People, 399. Moore v, State, ‘206, 259, 391, 399, 401, a. Moore v. S., 597, 608. Moore v. Waitt, 34, 43. Moran v. Com., 520. Moreland v. State, 478. Morgan v. Com., 200. Morgan v. Devine, 458. Morgan y. Edwards, 205. Mowen v. State, 377, 448, 515, Morley v. Chase, 53. Morman v. State, 227. Morrell v. Quarles, 74. Morris v. ae , 405, 422, 452, 468, 528, 5 Morrow v. Be 101, 459. Morton v. People, 165 Morton y. Skinner, 78. Morville v. State, 275. Mose vy. State, 124, 137. Moses v. Sone 517, 519. Mott’s Case, 261. Mount v. State, 443, 456, 501. Mowbray v. Com., Mowry v. Chase, 66. Moyer v, Com. 310. Moyle’s Case, 361. Muely v. State, 547. Muleahy v. Reg., 161. Mullinix v. People, 339. Mull’s Case, 482. Munford v. State, 448. Munly v. State, 528. Munshower v. State, 576, Munson v. McClaughry, 582. Munson v. State, 243, 411, 421, 568. Murdock v. Ripley, 60 Mure v. Kaye, 49. Murphey v. State, 196. Murphy v. Com., 460, 464, 511. Murphy v. People, 508. Murphy v. State, 166, 273, 293, 378, 450, 452, 509, 544, 603. Murray Vv. State, 221, 334, Muscoe v. Com., 488. Musgrave v. State, 80. Musick v. People, 129, 141. Musser vy. State, 612. Myers v. Com., 367. Myers v. Morgan, 582. N Nabors v. State, 569, 573. Nancy, The, v. Fitzpatrick, 301, Nase v. State, 22. Neal v. State, 583. Neales v. State, 509. Nealy v. State, 586. Ned v. State, 519. Neely v. People, 520. Neiderluck v. State, 398. Neims y. State, 520. Nelson v. Com., 481 Nelson v. State, 516. Nelson v. U. S., 315, Nemecof v. U. 273. Nemo v. Com., 566, 570. Neubrandt v. "State, 380. Newberry v. State, 480. Newcomb v. State, pos 378, 547. Newman v. People. Newman v. State, 393 334. Newton, Ex pee 658. Newton v. Maxwell, 173. Newton v. State, 547. Nicely, Appeal of, 566. 684 CASES CITED [The figures refer to pages] Ricuens) In_ re, 418, 419. Nichols v. Cornelius, 660. Nichols v. State, 2! Nichols v. Thomas, 35, 41, 42 Nicholson v. Hardwick, 48. Nicholson v. State, 111, 625. Nicolls v. Ingersoll, 99 1 ‘Nixon vy. State, 477. Noble y. People, 519, 521. Noble v. State, 200. Noblin v. State, 553. Noe v. People, 290. Nolan v. State, 443, 451, 492. Noland vy. State, 547. Noles v. State, 42, 158, 165. Nomaque v. People, 135, 137, 496, 564, 567. Noonan vy. State, 630. Norris v. Newton, a Norris v. State, 13, 14, 6 ees v. People, 46, aie “79, 480, Norton, In re, 655. Norton v. People, 268. Norton v. State, 563. Novkovic v. State, 614. Nowak v. Waller, 68, 89. Nugent v. State, 444 Nye, Ex parte, 655. Oo O’Brian v. Com., 443, 447. O’Brian y. State, 46. O’Brien v. Com., 546. O’Brien v. People, 502. O’Brien v. State, 401. 7 Ochs v. People, 528. O’Connell v. Reg., 346, 582. O’Connor vy. State, 49, 521. Ogee v. State, 569. O'Hara v. eon; 97, 147, Ohio & M. R. Co. v. Fitch, 658. Oily’s Case, 161. Oldham v. Com., 535. Olds v. Com., 482. O’Leary v. People, 407, 408. Oliver, Ex parte, 579. Oliver, In re, 652. O’Malia v. Wentworth, 653. O’Méara v. State, 442. Omer v. Com., 632. Omichund v. Barker, 639. Opinion of the TUB SCe In re, 76. Orange vy. State, Orman v. State, OL Ormsby v. Peoples 614. Orr v. State, Osborn, Ex parte, 107. Osborn v. Com., 96. Osborne v. State, 390, 391. 369, 370, 634, Osgood v. People, 274. Osiander v. Com., 519. Overstreet v. Com., 201. Owen v. State, 335. Owens v. State, 130, 390. P Pace v. Com., 482. Pack vy. State, 112, 117. Packer, In re, 582. Padfield v. Cabell, 34. Padfield v. People, 550, 570 a Padgett v. Lawrence, 172, 276 Page, Ex parte, 581. Page v. Com., 569, 573. Page v. State, 393, 517, 518. Pain, Ex parte, 210. Paine v. Fox, 205. Valnter v. People, 552, 598, 609, Palfrey’s Case, 356, 358. Palin v. State, 396, 502. Poe v. People, 182, 281, 297, Palmer vy. State, 483, 520. . Palmore v. State, 514 Palmquist v. State, 493. Pancho vy. State, 171. Papineau v. Bacon, 67, 88, 91. Parchman v. State, 393, 449, 460. Pardee v. Smith, 90. Park v. Evans, 65. Park v. State, 117. Parker, In re, 659. Parker v. Bidwell, 114. Parker v. Com., 571. Parker v. Elding, 432. Parker v. State, 567, 621, 634. Parker v. Walrod, 41, 42. Parker v. Webb, 361. Parkinson v. People, 421, 422. Parris v. People, 125. Parrish v. State, 418, 545. Parrott’s Case, 657. Parsons v. Lloyd, 41, 42. Parsons v. State, 637. Partain v. State, 569. Paschal, In re, 581. Pate v. State, 597. Patrick v. People, 363. Pattee v. State, 378, 430. Patterson v. Com., 135. Patterson v. People, 172, 504. Patterson v. State, 111, 377, 530, 544, 633. Pattison, lx parte, 108, 661. Payne v. People. 265. Payne v. State, 520. Peake v. Oldham, 209, Pearce, Ex parte, 77. 443, CASES CITED 685 {The figures refer to pages] are v. Atwood, 83, 34, 41, 48, Pearce v. Texas, 77. Pearson v. Wimbish, 126. Pease y. Burt, 115. Pease v. State, 538. Peebles v. State, 365. Peeples v. State, 537. Peiffer v. Com., 555. Pellum v. State, 548. Pendleton v. Com., 243. Penn’a vy. Bell, 162. Pennsylvania v. Bell, 361. Pennsylvania v. Huston, 355. Pennsylvania v. McKee, 284. People v. Abbott, 406, cae 537. People v. Ackerman, 548 People ras Adams, 18, 18, 19, 86, People v. Adler, 52, ees 337. People v. Ah Lee Doon, 481. People v. Ah Sing, 233, "269. People v. Aiken, 337, $38, People v. Allen, 306, 529. People v. Amaya, 523, 602. People v. Anderson, 481, 545. People v. Annis, 540. People v. Antoniello, 220. People v. Antonio, 571. People v. ‘Argentos, 608, 609. eae v. Arnold, 189} 613, 614, . People v. Arnstein, 12. People v. Austin, 337. People v. Badgley, 243. People v. Baker, 297, 486. People v. Ball, 258. People v. Bannister, 570. People v. Barker, 530. People v. Barrett, 399, 448, 448, 579, 580. People y. Barric, 451. People v. Barry, 546. People v. Bartlett, 113. People v. Bartz, 47, 48. People v. Baughman, 111. People v. Bawden, 417, 637. People v. Beach, 646. People v. Beam, 327 People v. Beatty, 140. People v. Beauchamp, 491, 494. People v. Becker, 618. People v. Becktel, 30. People v. Belcher, 35. People v. Bemmerly, 561, 637. People v. Bentley, 407. People v. Bernstein, 538. People v. Blackman, 502. People v. Blakeley, 641. People v. Bianchino, 603. People v. Blankman, 111. People v. Blevins, 5O5. People v. Bodine, 487, 530. tle v. Bogart, 243, 258, 259, People v. Boggs, 569. People v. Bonney, 566. People v. Boor rte: oe 689. People v. Brady, 7 620, 654. People v. Brecht, 619, People v. Breose, 291. People v. Briggs, 471, People v. Brock, 93, 96. People v. Brown, 621. People v. Bunkers, 643. People v. Burgess, 282, 396. People v. Burke, 3 People v. Burt, 44, 49. People v. Burtnett, 653. People v. Bush, 193, 534. People v. Butler, 130. People v. Cage, 443, ras 445. People v. Campbell, 122, 128, , 166, 363, 365. People v. Carolin, of? People v. Carpenter, 106, 112, 523. People v. Casborus, 450, 451, 456. People v. Casey, 329, 581 i, 643. People v. Cassells, 656. People v. Cassidy, 620, 621. People v. Castaldo, 391. People v. Cavanagh, 656, 660. People v. Cebulla, 521. People v. Chalmers, 407, 413. People v. Chapman, 93. People v. Chase, 619. v. People Chin Mook Sow, 618. People v. Chuey Ying Git, 259. People v. Chung Lit, Bit People v. Chun Heon me LP People v. Clark, 152, 271, Sele 496, 517, 6380. y. Clary, 114. v. Clement, 152. v. Colbath, 615. vy. Cole, 62, 646. people Vv. Coleman, 581. People v. Collins, 172, 246, 276, 433, 479, 484, 612. People v. Congleton, 196, 221. People v. Connor, 446, 447, People v. Cook, People v. Corbett, 497. People v. Corning, 453. People v. Costello, 335, 339, People 3 People People People People People v. People v. People v. Cronkrite, 336. People v. Crotty, 22. People v. Crowley, 380. People v. Cuatt, 455, 469. 686 People 656. People People People People People People People 607, People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People People vy. Cunningham, 105, 106, v. Curling, 346, 571. v. Curtis, 70, 95. v. Dailey, 609. vy. Damon, 521, 528. v. Danihy, 345. v. eee 408. v. Davis, 2 E000, 517, 604, 613, 618, Dennis, To, 111. cu dddadvagagdds dsaw a tdeladodan aeetdag wi Aste seed datas CASES CITED {The figures refer to pages] Derringer, 349, 550. Devine, 2 Dickerson, 6381. Dill, Dillon, 687. Di Pasquale, 153, Dixon, 108, 654 Dole, 550, 551, B52. Douglass, 557, Dowdigan, Dowling, 22. Droste, 494. Duford, 205, 206. Dumar, 166, 188. Dupounce, 643. Durrant, 528, 530. Eastwood, 629. Ebner, 116, 496, 497. Eckford, 418, 419, Elliott, 92. Ellsworth, 407, 409. Enoch, 307, 331, 359. Evans, 97, "98. Fahey, 8. Fairchild, 270. Fancher, 661. Fanshawe, 522. Farrell, 452. Fay, 384 Fice, 550. Finley, 635. Fisher, 442, 443. Fitzgerald, 608. Flynn, 550. Fox, 466. , S61. Franklin, 243, 244, 383. Freeman, 535. Fuhrmann, 486. Fuller, 90, 92, 519. Garbutt tt, 637. Gardner, 13, 446, Garnett, 458. Gates, 270, 271, 642. Gaul, 652. Genet, O89, Getchell, 223, Gibbs, 608. Gibson, 608. Gill, 11. Gillman, 111, Girardin, 242. People People People People People 510. People People People People People People People People People People People People People People People People People People People People People People People People People 597, People People People People People People People People People People People People People People People People People People People People 519. People People People People People People People v v. v. Vv, Vv. Vv. v. Gordon. 3 Gleason, 93, 182. Goldenson, 182, 480. . Goldstein, 457: Goodrich, 580. . Goodwin, 441, 445, 509, 452, 627. ose Graham, 487. . Granice, 7. Graves Gray, 619. Green, 534, 539. Greene, 445. Gregory, 282, 294, Grider, 536. Grill, 452. Grutz, 611. Grzesczak, 457. Hagan, 366. pay 183. Haley, 25, 50, 227. Hall, 270, 380, 490. Hamilton, 4,” Handley, “457, Hanifan, 98. Harding, 469. Hardisson, 451. Harper, 548. Harrington, 92. Harris, 487, 499, 552, Hart, 553. Hartman, 489, 490. Hawes, 549. Hawkins, 279, 350, 355. . Hayes, 5388, 644. Haynes, 378, 384. . Heath, 421, 42 Aaa4444 Adodavdddaddddde die deatiddd fda td ddd caddie daa te @ Heffron, ai. Heise, 151. Hennessey, 626. Henries, 526. Hidden, 139. Higgins, 450. Hildebrand, 37. Hines, Hodges, 20. Holbrook, 257. Holcomb, 34, 83. Holmes, 568. Honeyman, 292, 293, 400, Hood, 199. Horton, 128, 140. Ho-Sing, 415, 463. . Hovey, is Havel, 258, 349. . Huggins, aoe 112, Hughes, 555. Dannie v. Hulbut, 138, 142, 143, 144. CASES CITED 687 {The figures refer to pages] People v. Humphrey, 13. People v. McAnally, 661. People v. Hunt, 549, 552. People v. McCallam, 405, 543. People v. Hunter, 111, 117. People v. McCann, 637. People v. Hyler, 135. People v. McCauley, 138. People v. International Nickel Co.,} People v. McCausey, 152. 6, 18, 19. People v. McDaniels, 465. People v. Irving, 647. People v. McFarlane, 452. People v. Jackman, 246, 328. People v. McGloin, 639. People v. Jacks, 405. People v. McGonegal, 479, 522, 584. People v. Jackson, 230, 367, 404,| People v. McGowan, 403, 461, 462. 413, 479. People v. McGuire, 540, 594, 599. People v. Jacobs, 649. People v. McHale, 423. People v. Jassino, 549. People v. Machen, 499. People y. Jewett, 129, 188, 140,| People v. McIntyre, 504. 141, 158. People v. Mack, 112, 587. : People v. Johnson, 48, 120, 328,] People v. McKay, 451, 526, 366. People v. McKenna, 373. People v. Jones, 88, 417, 463, 493.| People v. Mackinder, ae People v. Justices of Court of Spe-} People v. McKinney, 3 cial Sessions, 508. People v. McLean, 50, Be 58, 516. People v. Kane, 109, 112. People v. McLeod, 107, 155, 654, People v. Kearney, 643. People v. McNutt, 546. People v. Keefer, 520, 522. People v. McQuade, 529. People v. Kelly, 366, 576, 584, 642.) People v. McQuaid, 630. People v. Kelm, 147. People v. Madas, 617. People v. Kemmler, 585. People v. Mahoney, 522. People v. Kemp, 249. People v. Majors, 466. People v. Kennedy, 511. People v. Marion, 381. People v. Kenyon, 645. People v. Markham, 439. People v. Kerm, 446, 457. People v. Marks, 550. People v. Kerrigan, 489. People v. Marquis, 566. People v. Kibler, 228. People v. Mather, 284, 486, 519, People v. Kindleberger, 537. 520, 521, 529, 647, 64 648, 649. People v. King, 130, 133. People v. Mathews, 536. People v. Kingsley, DAI, 248. People v. Matteson, 639. People v. Knapp, 462. People v. Mead, 34, 605, 608, 632. People v. Kuhn, 88. People v. Mercein, 658, 660. People v. Lake, 276. People v. Miller, 583. People v. Lane, 542, 605, 608, 626.| People v. Mitchell, 12, 223, 227, People v. Lange, 524, 236, S561, People v. Langtree, 639. People v. Molineux, 609, 611. People v. Larubia, 530. People v. Mondon, 133. People v. Lauder, 132, 183, 134,] People v. Monroe, 417. 434, People v. Moore, 56. People v. Laurence, 210. People v. Morehouse, 53. People v. Lee, 487. People v. Morgan, 139. People v. Lee Yune Chong, 566,|/ People v. Mosher, 17. B67. People v. Moyer, 537. People v. Lemperle, 551. People v. Mulkey, 380. People v. Leong Quong, 173. People v. Mullings, 535. People v. Lewis, 482, 605. People v. Murphy, 14. People v. Lillard, 53, 61. People v. Murray, 306, 490. People v. Linzey, 556. People v. Myers, 637. People v. Liscomb, 583. People v. Napthaly, 92. People v. Littlefield, 253, 570. People v. Nash, 58, 446, People v. Lockwood, 171, 276. People v. Nelson, 151. People v. Loftus, 603. People v. Nesce, 579. People v. Logan, 480. People v. Neumann, 548, People v. Lohman, 227. People v. Nevins, 119. People v. Lord, 150. People v. Newman, 627. People v. Luby, 429, 511. People v. poet "607, 615. People v. Lynch, 30. People v. Noelke, 647. 688 People People People People People People People People People People People People People People People People People People People People 6238. People People People People People People People People People People People People People People 521, People People People People People _ People People People People People People People People People People People People poole Peo CASES CITHD [The figures refer to pages] Ny Sam Chung, a O’Brien, 540, 547. Bae ne, 589. Ogle, 643. Oleott, 445. Olivera, 237. Oliveria, 526. Nei, 511. 69. Parker, 270, 323, 604. Pearne, 406. Pelham, 660. Perdue, 569. Perkins, 493. Perry, 103, a 105, 107. Peterson, Petit, 222. ‘ Pettanza, 535. Phelps, 343, Phillips, 34, 382, 547, Pico, 261. Piper, 568. Pirfenbrink, 656. Pline, 445. Pool, 25, 59, 67. Porter, "154. Powell, 505. Prague, 407, 408. Purcell, 460, 464, 466. Pyckett, : Quanstrom, 6389. Raher, 550. Randazzio, 623. v. Rathbun, 15, 18, 19, 518, 529, 547, 600. ee 524. Recorder of Albany, 31. Reed, , 383, 3885. Reggel, 144. Reilly, 276, 580. Reynolds, 522, Richmond, 548. Riley, 233. Robinson, 493. Roby, 228 Rogers, 236. Rohl, 546. Rohrer, 337, 339 Ronsse, 88. Rose, 8. Ross, 444. Rowe, oe Royal, v. Teun O35, 336, 337, SASASAS AS AS AAS SASS Poe sdeiaseasd . AAASASSAS SSAA SS AAS on. * 342, 343. 379 People People People People People People v. St. Clair, "206. v. St. Maurice, 579. v. Sansome, 561. v. Saunders, 460, 464. v. Schafer, 530. v. Schenck, 13, 73. People v. Schmidt, Bay 439, 451. People v. Schultz, 2 373. People v. Sennott, 50.” People v. Sepulveda 568. People v. Shaw, 618. People v. Sherman, 95. People v. Shirley, 106. People v. Shufelt, 477. People v. Shulman, 609. People v. Sidwell, 574. People v. Simpson, 606, 620, 625. People v. Slater, 293, 400. People v. Smith, 91,116, 227, 345, B47, 373, 429, 536. People v. Soto, 260. People v. Southwell, 139. People v. Sowell, 532, People v. Spencer, 636. People v. Squires, 285. People v. Stager, 115. People v. Stanford, 255, 260. People v. Stanley, 605, 614, 629. People v. Staples, 13. People v. Stark, 166, 188. People v. Stevens, 456, 614, 626. People v. Stewart, 52: 23, 603. People v. Stockwell, 75. People v. Stokes, 30, 561, People v. Swaile, People v. Symonds, 556, 559, 560. People v. Tanner, 521. People v. Tarbox, 491. People v. Taylor, 179, 188, 198, 242, 313, 4387. People Vv. Telford, 316. People v. Thayer, 527. People v. Thorn, 583. People v. Thorne, 560. People v. Thurston, 180. People v. Tinder, 105, 654. People v. Toledo, 511, 527. People v. Tomlinson, 199, 610. People v. Tower, 373, 423 People v. Troy, 521. People v. Tubbs, 114. People v. Tupper, 502. People v. Tecritad 588. People v. Van Alstine, 223. People v. Van Blarcum, 271. People v. Van Horne, i038. People v. Van Santvoord, 283, 396. ao v. Vermilyea, 106, 480, 482, People v. Villarino, 438. People v. Vincent, 488. People v. Walbridge, 301, 361, 402. People v. dhorn, : People v. Walker, 430, 587. People v. Waller, 518. v. People Warden of City Prison, 655. CASES CITED 689 [The figures refer to pages] v. Warner, 205, 206, 2438, vy. Warren, 42, 43, 44, 620. v. Watters, 417. v. Webb, 443, +33. v. Weeks, 477, Div. People v. Weil, 335, 336, 531. People v. Weinseimer, 609. People vy. Wells, 585, 572. People v. een 456. People v. Wenk, 281. People v. Wentz, 623, 625. People v. Wessel, 197. People v. West, 306, 313, 569. v. Westbrook, 639. y. Wheeler, 91, 522. People v. 230, 403, 405, v. Whitely, 569. People v. Wieger, 626. People v. Wiley, 20, S65, 378, 383, Willett, 602. Williams, 264. Wilson, 47, 481, 482. Winchell, 497. Wolcott, 623. Wong Ark, 616. Wong Wang, 290. Wood, 609, 610 Weeden, 629. People Wri 73, 8, 97, 241, 333, 350, 346, ae , 645. People v. Young, 629. People v. Yund, 604. People ex rel. Allen v. Hagan, 120. People ex rel. American Surety Co. vy. Benham, 76. ae] oO 3 S oi oO sasdgeaaasa ae ex rel. Bullock v. Hayes, . People ex rel. Forsyth v. Court of maa of Monroe County, 580, rel. Gallagher v. Hagan, ‘Hackley v. Kelly, People ex 76. People ex rel. 656. People ex People ex People ex rel. Howes v. Grady, 92. rel. Post v. Cross, 80 rel. St. Clair v. Davis, People ex rel. Stabile v. Warden City Prison of City of New York, 443, 445. Peoples, In re, 89, 90. Perkins, Ex parte, 656. Perkins v. Com., 248, 244, 383. Perkins v. State, 143, 144, 420. Perrin v. State, 487, "488, 597, 598. Perry, In re, 656. Perry v. State, 578. Perteet v. People, 486. CLARK Cr.Proc.(2D Ep.)—44 Pervear v. Massachusetts, 584. Petchet v. Woolston, 360. Peter v. State, 39. Peters v. State, 189, 494. Peters v. U. 487. Peterson v. State, 849, 588. Petrie v. Woodworth, 172, 393. Pettibone v. Nichols, 654 Pettit v. State, 480. Petty v. State, 284, 569. Pfister v. State, 255. Pfitzer, Ex parte, 73. Phelan’s Case, 658. Phelps v. People, apes 306. Philips v. Com., 5 Phillips v. Com., 373, 480. Phillips v. Fadden, 67. Phillips v. Tielding, 345. Phillips v. People, 446, 455. Phillips v. Smith, 161. Phillips v. State,” 3873, 3877. Phillips v. Trull, 52, 53. Pickens v. State, 171 203, 560. Pierce v. State, 521, B45. Piercy v. People, 114. Pierson v. People, 597, 609, 642. Pierson v. State, 487, 530, 545, Pike v. Hanson, Pilcher v. State, 606. Pinkney v. East Hundred, 388. Pinkney v. Inhabitants, 361. Pitcher v. People, 236. Pittman y. State, 407. Pittsburgh, C., C. & St. L. Ry. v. State, 576. Plake v. State, 636. Platt v. Harrison, 654. Platt v. Hill, 301, 402. Plummer vy. State, 550. Plunkett v. Cobbett, 640. Poff v. Com., 614. Pointer v. U. S., 335, 338, 549. Polite v. State, 405. Pollard v. Com., 519. Pollard v. State, 541. Polson v. State, 406, 413, 569, 603. Pond v. People, 62. ess In re, 658. Poole v. Symonds, 268. Pope v. State, 557, 560, 561. Porter v. State, 239, 259, 877. Portwood v. State, 221, 239, Posteene v. Hanson, 101, Poteete v. State, 29. Potter v. Casterline, 136. Potter v. State, 382. . Pow v. Beckner, 47. Powell v. State, 110, 113. Power v. People, 488. Powers, In re, 660. Four v. State, 227, 406, 517, 690 CASES CITED [The figures refer to pages] Pratt v. State, 406. Presley v. State, 391. Preston vy. People, 456. Preswood v. State, 530. Prewitt v. Lambert, 530. Price v. Graham, 35. Price v. People, ae 484, Price v. Seeley, 5: Price v. opts 495, Paedewile v. People, 413. Prindle v. State, 236, Prine v. Com., 493. Pritchett v. State, 448, 502. Proctor v. State, Proper v. State, 6038. Pruitt v. State, ane 5381. Pugh v. State, 1 Purvis v. State, 430. Putnam vy. U. §8., 174, 277, 394. Pybos v. State, 180. Pye’s Case, 389. Q Queenan vy. Oklahoma, 527. Quesenberry v. State. oo Quinn v. Heisel, 47, Quinn v. State, "339, a8, 554, 555. R R. v. Cole, 608. R. v. Dove, 630, R. v. Fowkes, 606. R. v. Palmer, 599, 630, 631. R. v. Patch, 600. Rafe v. State, 52. Rafferty, In re, 659. Rafferty v. People, 26, 38, 42. Rahm v. State, 641. Rain v. State, 559. Rains v. State, 259, 624. Raisler v. State, 210. Ramsey v. State, 48, 60. Randolph v. Com., 185. Randolph v. State, 399. Ransom v. State, 423. Rasmussen v. State, 366. Ratcliffe v. Burton, 65. Rather v. State, 6387. Ratigan v. State, 549. Rawlins v. Hllis, 57. Rawson v. Brown, 508. Rawson v. State, 279, 287, Raymond v. Com., 610. Read v. Case, 115. Reagan v. U. S., 490. Real v. People, 630. Ream v. State, 274. Rector v. Com., 623. 64, i, 276, 448, 481, Redd v. State, 599, Reddick v. State, 458. Redman v. State, 345, 503, Redmond v. State, 93, 98. Reed, Ex parte, a. . Reed, In re, Reed v. Com., 369 Reed vy. Rice, 55, 81, 83. Reed v. eS 391. Reese v. U. S., 118, 114. Reeve v. Wood, 639. Boavas v. State, 158, 434, 617, 619, Reg. v. Ackroyd, eee Reg. v. Allday, 571 Reg. v. Aspinall, 181, 198, 369. Reg. v. Atkinson, 349, 350. Reg. v. Austin, 152. Reg. v. Badger, 101. Reg. v. Bedingfield, ee Reg. v. Beeston, Reg. v. Bell, ; Reg. v. Berry, 498. Vs Bidwell, 207, 208. Reg. v. Bird, 377, 384, a} 470. Reg. ¥ Birmingham & G. Ry. Co., Reg. v. Blake, 612, 613. Reg. v. Boardman, 258. Reg. v. Bolam, 483. Reg. v. Bond, 256. Reg. v. Boswell, 622, Reg. v. Bowen, 327. Reg. v. Bowers, 325. Reg. v. Bowman, 446. Reg. v. Boyes, 642, Reg. v. Brown, 437, 438. Reg. v. Brownlow, 298, Reg. v. Campbell, 391. Reg. v. Charlesworth, 427, 428. Reg. v. Chidley, 626. Reg. v. Clark, 329. Reg. v. Clarke, 221. Reg. v. Cohen, 348. Reg. v. Cooke, 258. . v. Cooper, 610. . v. Coulson, 242, . Vv. Cox, 263. . Vv. Craddock, 202. . v. Cranage, 401, . v. Crespin, 214. . v. Crisham, 187. . v. Dale, 171, 276. . v. Davis, 394. . v. Deane, 446. . v. Devett, 350, 355, Reg. v. Dixon, 181. . v. Dovey, oo 354. . v. Downey, 37. LV Drake, Bas 381, 382, 384. Reg. v. Drury, 451, . v. Faderman, 437. 2 Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. PPPPrer v. v. Vv. v. 442, Reg. ieee eg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Pes. eg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. Reg. ASAS SSAA AR SAS ARS SASS ASRS AR AAS AA SAA SAR SAAS ASS AAAS SS Vv. ve CASES CITED 691 [The figures refer to pages] Foxby, 233. Francis, 610. Frost. aot 527, Fussell, 3 Cane 363. Garbett, 626, 643. Gazard, 640. Geering, 611. Giddins, 327, 338. pocaards 192, 427, 433, 470, Qeldewith, 369. Gorbutt, 41, ~ Gould, 462, 6 . Gray, 280, 568 610, 611, Hall, Harman, 358. Harper, 258. Harris, 184, 201. Hind, 618. Hodgson, 223. Holmes, 362, 650. Ingham, 148. Ingram, 3 James, ose. 576, 393, 418. Jenkins, 619, Johnson, 95. Jones, 346. King, i Lane, 357, 358. Langhurst, 484, Langley, U8 358, Larkin, 226. Light, 50. Mabel, 47. McKay, 8&6. McKenna, 216. McNamara, 534. Mansfield, 255. Marsden, 50. Martin, 176, 533. Maweridge, 939. Michael, 18. Moore, 304, 623. Morris, 460, aes 466. Murdock Neale, 414. Newboult, 389. Newton, "444, Nott, 312. O’Brien, 333. O’Gonnor, 289, 290. Parker, 152. Payne, fe Pelham, 298. Pikesley, 94. Powner, 312. Pugh, 300. % Purchase, 438. Rhodes, 291, 378. Richardson, 611, 640. . Rider, 533. . Vv. Reg. v. Robins, 149. Reg. v. Robinson, 626. Reg. v. Rogers, 14, Reg. v. Rowed, 179. Reg. v. Rowlands, 184, Reg. v. St. George, 424. Reg. v. St. Jehps amt, 400. Reg. v. Salvi Reg. v. Scaife, ats, 628. Reg. v. Scott, Reg. v. Sell, ae Reg. v. Sheen, 428. Reg. v. Simpson, 491. Reg. v. Stanbury, 14. Reg. v. Stokes, 202, 637. Reg. v. Stonnell Reg. v. Stroud, 391. Reg. v. Swinnerton, 94, Reg. v. Tancock, 452. Reg. v. Taylor, 219." Reg. v. Templeman, 430. Reg. v. Thompson, 26, 625. Reg. v. Trueman, 333, 338. Reg. v. Tuchin, 371. Reg. v. Vaux, 448. Reg. v. Vodden, 565, 566. Reg. v. Walker, BO. Reg. v. Warman, 377 Reg. v. Waters, 176, 346, 369. Reg. v. Waverton, 345, Reg. v. Webster, 268. Reg. v. West, 258. Reg. v. Westey, 301, 302, 402. Reg. v. Whalle 533. Reg. v. Whitehead, 269, 646. Reg. v. Wigg, 321, 361. Reg. v. Williams, ‘247, 348, 406. Reg. v. Willis, 238. Reg. v. Wilson, 382, 390, 417. Reg. v. Wyat, 356, 361. Reg. v. Wyatt, 207. Reggel, Ex parte, 77, 78. Register v. State, 566. Reich vy. State, 139, 141. Reid v. Ham 2 Reid v. State, 515, 564. Reifsnyder v. Lee, 85. Reinhart v. People, 597. Reinitz, In re, 70. Reins v. People, 556, 560. Rema v. State, 279. Remsen v. People, 6382. Reneau v. State, or Renshaw, In re, 74, Respublica v. Arnold, io, 478, Respublica v. Cleaver, 419, Respublica v. Honeyman, 282. - Respublica v. Mesca, 516. Respublica v. Newell, 361. Respublica v. Roberts, 406. Respublica v. Tryer, 305. 692 Rex v. . Adams, 268. . Airey, 307. . Alford, 376. . Atkinson, 248. . Backhouse, 65. . Bailey, 172, 277. . Bainton, 419. Rex Rex Rex Rex Tex d4444<4 CASES CITED [The figures refer to pages] Reuck v. McGregor, 52, 54. Revoir v. State, 636. 173, 275, 392. Rex v. Baldwin, 353. dex v. lex v. = | ee ae Ball, 587. Baxter, 196, 197, 267, 315, . Beach, 205, 381. : Beaney, 260. . Bear, 248, 245, 206. Beech, . Bellamy, 376. . Belstead, 270. ’ Belton, 418. Benfield, 324, 327, 328, 339, RetO. "B48, 349, 350, 851. Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex Rex + 388 Rex Rex Rex Rex SS sts" eee eo eee, | oO Me Aads444223° Berriman, 275, 390, 392. Berry, 359, Bethuen, 660. Birch, 248. Birchenough, 459. Birket, 253. Birkett, 258, 381, Blackson, 336. Bootie, 67. Bothwick, 642, Bright, 50. Brisac, 17, 21. Brown, 419. Bryan, 315. Bullock, a 2938, 400. Burder, . Burdett, ia ‘17, 18, 21, 255, . Burgiss, 85. . Burkett, 419. Burks, 234. Burnett, 230. Burridge, 2385, 289, 290, 353, . Burroughs, 242, . Bush, 391, 392. Butler, 636, Butterworth, 354, Carlile, 491. Carson, 388. . Cartwright, 294. Cary, 352. * Chalkley, 253, 309. Chandler, 39 Rex Rex Rex Rex Rex Rex . Chapple, 261. v. Chard, 193, 257. . Cliviger; 2 Charlesworth, 364. Chatburn, 359. . Clark, 461. Clarke, 102, 650. Clendon, 327. Clerk, 358. Clewes, | 597, 624, 643, Collins, 361, Combs, 417. Coogan, 461, Cook, ers abe. 7358, Gooke, 4 Cooper, 139, 190, 362, Cotterall, 580. Cowle, 485. Cox, 263, 360. Cramlington, 235. Craven, 257. Crighton, 230, 231. Crippen, 559, Crowhurst, 191. Curvan, 49. Darley, 161. Davis, 306, 309. Dawson, 380, 381, 462, 572. Deakin, 268. "391. Dean, 434, 435. De Berenger, 198. Deeley 215, 278, 395. D’Eon, 479, 480, 481, 482, Dickenson, 359, 361. Dixon, Donnellan, "597, Doolin, Dowlin, 205. Duffin, 380. Eden, 376. Edmonds, 519. Edmunds, 602. Edwards, "106, 255, 262, 885, Emden, 448, 457, 461, 469, Eriswell, 627 Etherington, Tos. Evans, 160. . Everett, 186. Fagg, 94, Fauntleroy, 326 . Fearnley, 160, 432, 436, 438. Fell, 120. Finnerty 62. Forsgate, 449, a . Forsyth, 253, 3 . Foster, 264, 393, 393, 606. Francis, 298, 405, 572. CASES CITED 693 [The figures refer to pages] Rex yv. Freeman, aie Rex v. aa Rex v. Fry, Rex wv. Tale Iss, 265, 307, 340, Rex yv. Furneaux, 385. Rex v. Furnival, 219. Rex v. Gakes, 235. v. Gamlingay, 295. v. Gascoine, 532, Rex v. Geary, 578. v. Gibbs, 264. v. Gibson, 427, 435, 437, v. Giddins, 338. v. Gilbert, 159, 264. Rex v. Gilchrist, 189, 201, 240, 241, 245, 381. Rex v. Gilham, {a Rex y. Gill, 211 Rex v. Gillham, 205, 255, 378, 388. Rex v. Girdwood, Rex v. Goddard, "435, Rex v. Goldstein, 241, 258. Rex v. Goodall, 653. Rex v. Gough, on Rex v. Gray, Rex v. Great Coola, 293, 400. Rex v. Green, 94. Rex v. Greepe, 208. Rex v. Griffith, 231. Rex v. Gutch, 187. Rex v. Haddock, 438. Rex v. Halloway, 262, 385. Rex v, Hammersmith, 433. Rex v. Hannum, 175. Rex v. Hardy, 612, 613. Rex v. Harpur, 183. ee a Bt s Hares, 294, 321, 361, 364, Rex v. Oat 205, 206, 382. Rex v. Hayes, 161. Rex v. Haynes, 239, 295, 345. Rex v. Heaps, 355, 568. Rex v. Hempstead, 354. ‘Rex v. Henry, 196. Rex v. Hensey, 424. Rex v. Hertford, 580. Rex v. Higgins, 599, 881. Rex v. Hill BOL, 378, 384, Rex v. 628. Rex v. Holland, 364, 438. Rex v. Hollaway, 255. Rex v. Hollingberry, 212. Her Hollond, 227, 280, 289, 295, Rex v. Hood, 35, 42. Begs Horne, 179, 185, 188, 193, Rex v. How, 189. Rex v. Howarth, 59, 66. Rex v. Humphrey, 190. Rex vy. Hunt, 52, 54, 379. 470. Rex yv. Hunter, 241, 247, 381. Rex v. Jarvis, 315. Rex v. Jenks, 270, 380. Rex v. Jenour, 328. Rex v. Johnson, 10, 17, 21, 234, 255, 256, 257, 305, 335, 336, 340, 342° 418, 432° 435. Rex v. Joliffe, © 4838. Rex v. Jones, 86, 212, ait 839, 842, 344, ae 425, 481, 4 Rex v. Judd, 120. Rex v. Kendal, 120. Rex v. Kendall, 39. Rex v. Kettle, 256, 385. Rex v. Kingston, 236, 335, 339, 342, 352, 356. Rex v. Kinnear, 555. Rex v. Kinnersley, 355, 382. Rex v. Kinsey, 86. Rex v. Knight, 192. Rex v. Knollys, 435. Rex v. Lad, Rex v. Landaff, "372. Rex v. Lawley, 228. Rex vy. Lease, 419. Rex v. Leefe, 246. Rex v. Levy, 339. Rex v. Lewellin, 304. Rex vy. Lincoln, 376. Rex v. Lloyd, 623. Rex v. Lookup, 357. Rex v. Lovell, 275. Rex v. Lyon, 245, 488. Rex v. McKenzie, 576. Rex v. Mallinson, 304. ae v. Marchioness Dowager, 2938, Rex v. Mariot, 234. Rex v. Marks, 120, 653. Rex v. Marsack, 301, 402. Rex v. Marshall, 191, 302. Rex v. Martin, 347, 258, 650. Rex v. Mason, 191. 3 10, 500. Rex v. Mathews, 214, 294, 821, 361. Rex v. oe 196, 536. Rex v. May, 2438. Rex v. Mayhew, 644. Rex v. Mead, 658. Rex v. Messingham, 354. Rex v. Michael, 195. Rex v. Middlehurst, 199, 379. Rex v. Milton, 59. Rex vy. Monteth 380, 412. Rex v. Moore, $0. Rex v. Morley, 164. Rex v. Morphew, 482. Rex v. Morris, 211, 214, 394, 581. Rex v. Mosley, 1838, "617, '6 619. Rex v. Munoz, 310. Rex v. Napper, 2938, 400. Rex v. Nichols, 355. Rex v. Nield, 240, 241. Rex v. Nixon, 364. Rex vy. North, 200. Rex v. Norton, 275, 390, 392. Rex v. O’Donnell, 86. Rex y. Ogilvie, 277, Rex v. Palmer, 319, 320. Rex v. Pappineau, 362. Rex v. Parker, 13. Rex y. Patience, 56. Rex v. Patrick, 173, 269. Rex v. Peace, 172, 277. Rex v. Peas, 13. Rex v. Pedley, 335. Rex v. Pemberton, 197, 315. Rex vy. Percival, 521. Rex _v. Perrott, 179, 181, 182, 189, 307, 310. Rex v. Pewteruss, at, Rex v. Pewtress, 347, 420. Ree a Philipps, 218, 219, 221, 224, Rex v. Philips, 350, 851. Rex y. Plant, 457, 459. Rex y. Platt,’ 120. Rex v. Plestow, 376. Rex v. Plummer, 572. Rex v. Powell, 240, 245, 381 Rex v. Powner, Rex v. Pratten, 320. Rex v. Pritchard, 425, 498. Rex v. Quail, Rex v. Reading, 201. Rex v. Remnant, 120, 268. Rex v. Rickman, 270. Rex v. Ridley, 294, 401. Rex v. Rivers, 94. Rex v. Feeeinsat, 125, 577. Rex v. Roche, 70. Rex v. Rogers, 270. Rex v. Rossiter, 313. Rex v. Royce, 159, 160, 572. Rex v. Roysted, 160. Bee Rushworth, 228, 224, 227, Rex v. Ryan, 306. Rex v. Sadi, 272. Rex v. St. Weonard’s, 298, 400. Rex v. Sawyer, 359. Rex v. Semple, 417. Rex v. Shakespeare, 170, 172, 393, 395, 434. Rex v. Sheen, 470. Rex v. Simpson 446. Rex v. Singer, 335. Her Smith, 94, 120, 195, 233, Rex v. Speke, 578. Rex v. Spicer, 253. Rex v. Sterling, 235. Rex v. Sterne, 335, 336, 405. Rex v. Stevens, 179, 202, 212, 285. Rex v. Stevenson, 444, CASES CITED {The figures refer to pages] Rex v. Steventon, 305. Rex v. Stock, 270. Rex v. Stocker, Ao Rex v. Stoughton, Rex vy. Stratton, "a7? 233, 442, 471, Rex vy. Streek, "497. Rex v. Stride, 262, 263 Rex v. Suddis, 179. Rex v. Sulls, 275, 277, 392. Rex v. Sutton, 300, 515. Rex v. Tannet, 393. we Taylor, 14, 318, 349, 352, Rex v. Testick, 247. Rex v. Thomas, 304, 419, Rex v. Thompson. 353. Rex v. Tilley, 193. Rex v. Tomlinson, 183. Rex v. Towle, 351. Rex v. Trafford, 349. Rex v. Trelawney, 304. Rex v. Trevilian, 419. Rex v. Trueman, 338. Rex v. Turner, 195, 306. Rex v. Tyers, 385. Rex v. syandercomb, 404, 448, 457, 458, 469, 470. Rex v. Wadtragton, 577. Rex v. Walker, 391. Rex v. Ward, 298. Rex v. Wardle’ 210, 292, 400. Rex v. Warre, 160.’ Rex v. Watson, 17. Rex v. Webster, 460. Rex v. Weir, 39. Rex v. Welland, 304. Rex v. Westbeer, 412. Rex v. Weston, 355, 419. Rex v. Wheatly, 418, 420. Rex v. White, 270, ’298, 390, 400. Rex v. Whitehead, 191. Rex v. Whitney 261. Rex v. Wicks, 258. Rex v. Wilcox, 247. Rex v. Wildey, 469, 470. Bee Wilkes, 120, 245, 363, 364, Rex v. Wilkins, 269. Rex v. Williams, 192, 275, 298, 879, 419, 582. Rex v. ‘Wilson, 234, Rex v. Winter, 358. Rex v. Withal, 327, 404. Rex v. Woodfall, 218, 543. Rex v. Woodward, 293, 400. Rex v. Wooller, 566, 574. Rex v. Woolmer, 48, 59. Rex v. Wright, 660. Rex v. Wyndham, 108, 104, 120. Rex v. Wynn, 417, 418. Rex v. York, 119 Rex v. Young, 349. CASES CITED 695 [The figures refer to pages] Reyes v. State, 370. Reynolds y. Orvis, 38, 39, 44. Reynolds v: People, 459. Reynolds v. State, 363, 448, 520, 526. Reynolds v. U. S., 628. Rhea v. State, 481, 634, Rhodes v. State, 517, Rice v. Com., 645. Rice v. People, 274, Rice v. Rice, Goes Rice v. State, 6, 521. Rich v. State, 227. Richards v. Com., 418, 516. Richards v. Moore, 515. Richards v. State, 147, 478, 493, 505, 558, 561, SOE: Richards v. U. s., Richardson y. Fishes 586. Richey v. Com., 398. hichie v. Com., 498. Richie v. State, 650. Richmond, The, v. U. S., 71. Ricker, In re, 120. Rickles v. State, 469. Riddle v. State, 384. Riley v. State, 11. Ritchey v. State, 266. Rivers, Ex parte, 486. Rivers v. State, 304, 389. Rix v. State, 625. Robbins vy. People, 456. Robbins v. State, 12. Roberts v. Com., 482. Roberts v. Orchard, 49. Roberts v. People, 480. Roberts v. Reilly, TT, 78, 79. Roberts v. State, 25, 50, 59, 278, 295, 807, 498, 559, 570, 632, Roberts v. Trenayne, 306. Robertson v. Arizona, 61. Robertson v. State, 499. Robinson, Ex parte, 570, 658, 661. Robinson, In re, 71. Robinson v. Com., 249, 253. Robinson v. Harlan, 41. Robinson v. State, 152, 379, 380, 450, 451, 452, 480, 546, 566, 570. Roddy ¥. Finnegan, 50. Rodman y. Harcourt, 438. Rodriquez v. State, 599. Roe v. State, 131, 160. Rogers v. Com., 193, ee, 357, 563. Rogers v. People, 404, Rogers v. State, 174, B46, 275, 277, 892, 394. Roguemore y. State, 643. Rohan v. Sawin, 48, 49, 53. Roland v. People, 452, Rolland v. Com., 139 Rollins, Ex parte, 654. Rollins’ v. State, 369, 483. Rolls v. State, 462, 493, 494. Roman v. State, 58, 385. Rooker v. State, 240. Roosevelt v. Gardinier, 171, 276. Roper v. Territory, 559. Itose v. State, 158, 347. Rosen v. U. S., 0. Rosenberger v. Com., 1386. Ross v. Irving, 507. Ross v. State, =u 49, 152, 276. Roten v. State, 595. Rothbauer v. State, 565. Rough v. Com., 365, 366. Rough’s Case, 262, 263, 385. Rountree v. State, 233. Rouse vy. State, 521. Roush y. State, 223, 382. Roussell v. Com., 481. Rowan v. State, 198. 127, 165, 166. Rowand v. Com., i Rowe v. People, 502. Rowe v. State, 560, 561. Rowland v. State, 484, 435. ete Inhabitants de Yarton, 160, Royall, Ex parte, 657. Royce v. Terr., 183 Ruble v. State, 468. Rudder vy. State, 445. Rufer v. State, 625. Ruloff v. People, 52, 54, 534. Rumsey v. Washington Terr., 128. Runnels y. State, 587. Russel v. Com., 359. Russell v. Hubbard, 44. Russell v. State, 200. Russen v. Lucas, 66, Rust v. State, 458. Rutledge v. Krauss, 80. Ryalls v. Reg., 212. Ryan v. People, 60 600. Ryan v. State, 600. Ryle’s Case, 232 S Sacheverell’s Case, 240, 241, 249. Sadberry v. State, 466. Safford v. People, 578. Sahlinger v. acon i St. Louis v. State, “306 Sale v. State, 30. Salisbury v. Com., 52. Salisbury v. State, 258, Salm v. State, 487. Sam, Ex parte, 655. Sam’ v. State, 520. Sample v. State, 477. Samuel y. Payne, 48. Samuels v. State, 468. San Antonio & A. P. Gray, 517. , 626. R. Co. v. 696 CASES CITED [The figures refer to pages] Sanders v. State, 207, 231, 298, 330, 868, 556, 615. Sanderson v. Com., 335. Sandilands, 658. Sanford v. Michele 41, 42, 44, 83. Santo v. State, 81, 83. Sapir v. S., 609. Sarah v. State, 231, 335, 337. Sargent v. State, 567. Sargood, Ex parte, 582. Sartain v. State, 583. Sasse v. State, 533. Savacool v. Boughton, 41, 43, Savage v. State, 473. Savory v. Price, 394. Sawyer v. U. S., Sayers v. State,” 579. Sayres v. Com., 597. Scaggs v. State, 493. Seavage v. Tateham, 89. Schaser v. State, 646. Schayer v. People, 379. ' Scheer v. Keown, 35. Schick v. U. S., 508, 509, 510. Schintz v. People, 502. Schmidt, Ex parte, 1438. Schneider v. Com., 101. Schnell v. State, 527, 529. Schnier v. People, 544, Schulman y. State, 511. Schumaker vy. State, 515. Schurman, Tn re, 121. Schuster v. State, 544. Schwab v. Berggren, 496, 578. Scircle v. Neeves, 67. Scoggins v. State, ma Scott, Ex parte, & Scott’ v. Brest, * Scott v. Com., 340, 377, 420. Seott v. Eldridge, 50 Scott v. Ely, 35. Bote v. People, 228, 499, 547, 549, Scott v. Soans, 433. Scott v. State, 481. Scudder v. State, 230. Scully v. State, 20. Scurry v. Freeman, 18. Seal y. State, 515. Sealy v. State, 526. Seavey v. Seymour, 660. Sedlock v. State, 560. Serpentine v. State, 279, 284, Serra v. Mortiga, 181, 373. Severin v. People, 4 60, 464. Seville v. State, 612. Shadgett v. Clipson, 35. Shaffner v. Com., 608. Shanley v. Wells, ay 50, 68. Shannon v. Jones, Shannon v. State, oa, 519. Sharp v. State, 306, 365, 376, 384, 537 Shattuck v. People, 113. Shaw v. State, 423. Shay v. People, 205. Shearman y. State, 564. Sheldon, Ex parte 75, 76, 77. Shelton 'v. Com., 138, 282, 498, 494. Shelton v. State, 278, 282, 569. Shepherd v. State, 1 Sheppard v. State, 388. Sherrod v. State, 495. Sherwood, Ex parte, 50, 51. Shideler v. State, 454, 455. Shiflett v. Com., 366, 497, 579, 623. Shirk’s Case, 658. Shoecraft v. State, 607, 615. Shoemaker v. State, 516. Shoop v. People, 134. Shore v. State, 104, 116. Shovlin v. Com., 58, 59. Shouse v. Com., 354, Shular v. State, 533. Shultz v. State, 551. Siebold, Ex parte, 656. Sim’s Case, 659. Simmons v. Com., 18, 286. Simmons v. State, 231. Simmons v. U. S., 444, 547. Simmons vy. Vandyke, 67, 88. Simons vy. People, 499, 617. Simpson v. Com., 111. Simpson v. State, 18, 19, 51, 588. Sims v. State, 13, 639. Skates v. State, 482. Skeen v. Moment oo Skidmore v. State, Skinner v. State, sgt, Slaughter v. Com., 222, Slaushter v. State, 275, 392, 452, 63 Slaten v. People, 110. Slattery v.. People, 602. Sledd v. m., 565. Sloan v. People, 600. Slomer v. gle, 26, 40, 44. Small v. Com., 620. Smith, Ex parte, 104, 653, 654, 660. Smith vy. Boatman ‘Savings Bank. Smith v. Boucher, 31. Smith v. Bone 35. Smith v. Clark, 40, 58. Smith v. Com., 333, 467, 468, 519, 520, 555 623, 643. Smith v. Cooker, 503. Smith v. Donelly, 50, 52. Smith vy. State, 77 116, 240, 243, 244, 258, 383, 419, 458, 468, 479, 484° 496, 531, 568, 574, 614 Smoke v. State, 270. CASES CITED [The figures refer to pages] Smotherman vy. State, 39. Sneed v. State, 481. Snodgrass v. Com., 494, Snowden v. State, ‘654. Solomon v. People, 101, 110. Somervell vy. Hunt, 34, 119. Somerville vy. Richards, 49, Somerville v. State, 206. Sontag, Ex parte, 143. South v. People, 626. Southworth v. State, 321, 361. Spalding vy. Preston, 50. Spangler, In re, rie Spangler y. Com., Sparf v. U. S., B43 85455, 546. Sparks v. Com., 135. Sparks v. State, BSL, Sparrenberger v. State, 132. Spears, Ex Dante TT. Speart’s Case, 199. Speers v. Com., 327, 335, 340. Spencer v. Com., 6. Spencer v. State, 583. Sperry v. Com., 492. Spieres v. Parker, 320. “Spies v. People, 544, 550. Spradling v. State, 6 Sprague v. Birchard, “43. Spratt v. State, 136. Sprouce v. Com., 519. eounos vy. Com., 595. Staff, In re, 509, 510. Stager v. U. S., 4, Stalls v. State. 521. Stanley, Ex parte, 74, 477. Stanley v. State, 18, 140. Stanton v. State, 551, 552, 574, Stape v. People, 643. Staples v. State, 47, 49. Starkey v. Eeoals 619. Starr v. Com., 116. State v. Aine, 317, 318, 320. State v. Abbot, 104. State v. ‘Abbott, 580. State v. Able, 627. State v. Abrisch, 487. State v. Absence, 312. State v. Ackles, 222, 409. State v. Adam, 134. State v. Adams, 112, 180, 228, 238, 315. State v. Addy, 580. State v. Ah Lee, 397. State v. Albee, 485, 486. State v. Albin, 417, "419. State v. Alderton, 553. State v. Alexander. 405, 637. ‘State v. Alford, 593, 595, 646. State v. Allen, 76, 112, 265, 268, 357, “407, 434, 444, 543, 560. State v. Allison, 349, 355. State vy. Almos, 549. | State ! State State v. v. v State v. State v. v. State v. 697 Almy, 429, 510. . Alred, 483 . Ames, 290 Amidon, 373. . Ammons, 185. . Anderson, 328, 867, 523, 86. . Angel, 173. . Anthony, 168, 278. . Antonio, 516. . Appleton, 171. . Archer, , . Armstrong, 381, 365. . Arnold, 289, 366, 420. : Arthur, 1 . Asbury, 150. . Atkins, 208. . Atkinson, . Auburn, 280. . Austin, 565, 567 . Bacon, 135, ‘BS. '295, 297. zi Baden, 260. . Badnelley, 605. . Bagan, 02, 526. 250, 352, 564, 406. Bagwell, 308. Bailey, 14, 15, 212, 297, 655. 334, 480, 484, State v. State v. State v. State v. State v. State v. 500. State v. State v. State v State v. State v. State v. State v. State -v. State v. State v. State v. State v. State v State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. Baker, 144, 278. Baldwin, boa, Baldy, 557, ual, Ball, 436. Ballard, 193. Baltimore & O. R. Co., Bancroft, 282, 396. Bandy, 120. . Bangor, 575. . Banks, 231, 481, 482. . Banner, 526. . Barber, 335, 528, 530. NS Barker, 130, 522, 583. 4 Barnes, 418, 468, 469. . Barr, 421. . Barrett, 368. 599. . Barrontine, 526. . Bartlett, 18, 505. . Barton, 559. . Bassett, 260. Bates, 134, 608. . Bauerle, 522. . Beadon, 221. . Bean, 382, 393. . Beasley, 540. a Benton, ‘org. 279, 283. . Beatty, 496. . Beaucleigh, 289. . Beckner, 632. . Beckwith, 278, 282, 295. . Bedard, 603. . Bedell, 250. . Beebe, 115. 698 State State State State State State State State 890, Autdddaaas ee CASHS CITED [The figures refer to pages] Beeder, 499, Behimer, 452. Behm, 280. Behrman, 621. Belden, 452, 462. Belk, 66. ss Belknap, 559, 6 2 ole 178, 300, "335, 341, State v. Belvel, 130, 487, 488. ee v. Benham, State v. Benjamin, 309, 310, 451, State v. Bennett, 309, 574. State v. Benthall, 418. State v. Benzion, 101. State v. Bergman, 9 State v. Berning, 568. State v. Berry, 110, 361. State v. Best, 574. State v. Beswick, 165. State v. Bibb, 382 State v. Bielby, 328 State v. Bierce, 309. State v. Bishop, 175, 176, 417. State v. Black, 171 48. State v. Blaisdell, State v. Blake, 423. State v. Blakeney 281, 296, 297. State v. Blan, 349, State v. Bland, 62. State v. Blankenship, 3938. State v. Bleekley, 139. State v. Blevins, 465. State v. Blize, 644, State v. Bloedow, 227. State v. Bloodworth, 316. State v. Bloom, 6, 653. State v. Bone, 526. State v. Bonney, 245. State v. Boogher, 147. State v. Borroum, 139, 140. State v. Boswell, 127. State v. Bougher, 306. State v. Peuelines, 828, 499, 541. State v. Bowen, 4 609. State v. Bowers, 261, 266. State v. porn, 134, 308. State v. Boyd, 1 State v. Bendis, "249, 354, 452, 484, 600, 602. ieee vy. Brady, 170, 206, 221, 327, State v. Brainerd, 129, 141. State v. Brand, 534. State v. Brandenburg, 542. State v. Branham, 396. State v. Brannon, 403, 462, 463. State v. Brauneis, State v. Bray, 229. State v. Brecht, 30. 155,’ 442, 456, State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State. v. State v. State v. Brennan, 159. Brennan’s Liquors, 57., Brent, 407. Brewington, 249. Brewster, 71, 600, 654. Brickell, 158, 162. Briggs, ‘642. Briley, 305. Brinyea, 637. Brisbane, 539. Brittain, 40. Brock, 423. Brooks, 164, 165, 434, 479, .489, 516, 550. State v. State v. Broughton, 144, 210. Brown, 50, 136, 13, 47, 181, 192, 204, '227, 242) 265, 278; 283) ao 306, 381; 349, 447; 449, 3 State v. State v. State v. State v. State v. State v. eee e Stay 304, Sor State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State SNS He 8S te 1s Nets ae OS Brownlow, 241, 245. Bruce, 154, 561. Brumley, 550. Brumo, 619. Brunker, 397. Brunson, 185. Bryan, 280, 577. of dae ese: 59, 112, 117, Bryson, 397. Buchanan, 454. Buckles, 253. Buckman, 3821, 362. Bugbee, 571. Buhs, 496. Bullard, 557, 561. Bundy, 392. Burdett, 251. Buredoerfer, 454, Burge, i Burgess, 399. Burk, 408, 404. Burke, 154. Burket, 448. Burlingham, 417, Burns, 559. Bushey, 192, 295. Buster, Butcher, 185, 196. Butler, 320, 542. Buzine, 73, Buzzell, 538. Byrne, 608. Cadle, 362. oat 806, 548. Caff oe 249 Cain, i Stall. 58, 230. . Calfer, 147, State Add 44544N5444444444444444444d84544 CASES CITED [The figures refer to pages] Callahan, 248, 490. . Cameron, 328, 378, 388. . Cannon, 113. . Cantlin, 549, 587. Canty, 564. . Carlisle, 540. Carpenter, 51, 227, 474. . Carr, . Carroll, 6, 380. . Carruth, OH ts . Carter, i, 867, 535, 618, . Carver, 139 140, 576. . Casados, 306. . Casavant, 366. . Casey, 576. Caspary, 207. . Cassel, O57, 313, 360, 361. : Castor, 266. . Caswell, 34, 119. . Catlin, 552. . Chairs, 129, . Chamberlain, ‘365, 367. . Chambers, 639. . Champeau, 443, 445, . Chandler, 305. Chapin, . Cher: * Child, 7459. 153. : Childers, 241. Chisnell, 330. Chitty, 191, 500. Christian, 366. . Christmas, 328. Circuit Court in and for Beadle pouney, 501 State State State State State State State Ry. State State State State State State State State State State State State State State State State State State AdAAS4SSa48444844804844942 ¢ : Clair, 548. : Clariésa, ie 140. . Clark, 514, : Clary, aor . Clayton, 130, 190. * Glements, 537. ” Gleveland, c., C. & St. L. 5 ee Click, 3. Gidea’ 486, 485, 583. Clifton, 496. Cobb, 88, 301. Cocker, 404, Coekfield, 385, 386. Codington 130. Cody, Goella, es, 538, 534, 628. Cofren, 83. Cohn, 597, 598. Colbert, 418, Cole, 141, 147, 417, 454. i ere 487, B46. . Coley, 4 % Colne, 124, 190, 382, 549. . Collis, 1 Colly, 207. State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State 555, State State State State State State State State State State State State State State State State State State State State State State State State ae SESAASSSASTAASSAAAAAAAANA QA ARGH ASASAS SAS AAASSS AAAS ASS S88 S13, 221, 699 . Collyer, 407, 418. . Colter, 405. Colvin, 454. Comings, 329. Comstock, 165, 166. Conable, 488, Conlan, 4382. Conley, 158, 159, 290, 503. Conlin, 08. Conneham, 116. Conner, 325. Connor, 408. Conrad, 418. Conway, 576. Cooler, 521. Coon, 5 n, 568. Cooper, 6, 331. Copeland, 427, 453. Copp, 242, Corbett, 208. Corrigan, a 212, Corson, I Cotton, 280, 297, 400. Cowan, 135. Cowell, 406. Cox, 124, eee 186, 187. Graddock, “185. og rns 487, 488, 505, oon 206, 424, 560. Crank, 183, 275, 346. Graton, 526. Crawford, 284. Crimmins, 330, 398. Crippen, 109, 111 Crocket, 493. Crogan, 401. Croney, 523. Cronin, 617, 620. Crosby, 118, 114. Cross, 493, 497. Croteau, 543, 545. Crow, 43, 260, 262. Crummey, 413. Curran, 393. Currier, 326. Curtis, 34, 58, 240. Daubert, 335, 341. Daugherty, 166, rt 616. Davidson, 135, 582 Davis, 6, 130, 133, 141, 232, 243, 269, 275, 59" 304; 306, 392, 396, 444, 509, 516, 567, 637. State v. Dawes, 252. State v. Dawkins, 547, 566. 700 ‘State v. State v, State v. 418. State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State State 622. State State State State State State State v. State v. State v. SASSS AS SANS AANASASASANAAASANAAN AA AANAAAANAA #Ads42 CASES CITED (The figures refer to pages] Dawson yar Day, 235, Dayton, 133, 269, 361, 417, . Dearborn, 462.. Deaton, 350, 351. Decker, De Graff, 520 588, 623. De Laney, 407. e Lay, 307. Douniece 324, Dent, 185, 193, 517. Denton, 258, 486. De Rance, 687. Deschamps, 478. Devine, 169. Devlin, 504. 34, Dickinson, 617, a 619. Dickson, 597, 629. Dierberger, 61. Dimmitt, 587. Dineen, 380. Divine, 572. Dixon, 442. Doax, "401. Dobbins, 610. Dodge, D778, 280. Dominique, 496. Don Carlos, 587. Donelon, 604, 614. Donnegan, 253. Donovan, 133. Dooley, 89. Dorr, 362. Douglas, 13. Douglass, 569. Dowell, 252, 255. Dowers, 190. Downing, 30. Doyle, 575, 638. Drake, 34, 200, 281, 397, . Driver, 584. Dry Fork R. Co., 151. Duane, Duff, 531. . Duffy, 482, 520, 547, 612. . Dugan, 559, 561. Duggan, 434. Dukes, 615. Dunean, 129, 138, 140, 141, 479, 492, 493, 496,572,’ 600, 606, 616. State v. State v. 141. State v. State v. Dunn, 242, 369. Durham Fertilizer Durr, 551. Dusenberry, 484, 560, 574. Co., State State State State State State State State State v. v. v. Vv. Vv. v. Vv. v. v. State v. State v. Edson, 252, State v. Edwards, 114, 205, 206, 210, 231. Sgt AA te AAA AA en tS etd AsAASAAAASASAS S444) Eames, 307, Ean 210, 3505; 536. Karly, 33 Eason, Easter, 4138, 140, 141, Eaton, Eberline, 650. . Ebert, 126. Eddon, 618. Edlevitch,- 420. . Egglesht, 328. . Hiden, 451, 456. . Hid a . Elkins, 135, 496. er, 450, Ellington, 510, 520. Ellis, 200, 210, 267. Ellison, 20, 390, Elvin, 479. Elrod, 69. Emery, 428, 484, 444. England, 168, Engle, 556. . English, 390. Enke, 478. Eno, 4038, 571 Epps, 446, 454, 494, 497. Bstlinbaum, Hvans, 357, 358, 359, 407, Everett, 34. Ewing, 572. Fancher, 182. Faile, Fairlamb, 516, 540, 560. Farmer, 339. Farley. 399. Farr, 473. Farrand, a Farrington, Fasset, 133, 435, 142, 144, Fee, A Feeny, 171. Feilen, 585. Fellows, 419. Fenlason, 565. Fenn, 265, 388. Ferguson, 270, 396. Ferry, 29' . Ferrell, 396. Fesperman, 8. Field, 519 Files, 482. Finlayson, 572. Fitzgerald, 7. . Fitzpatrick, 84, . Fitzsimon, 336, 337, 341, 09. State v. Foster, 519, 559. State v. Fox, 328. CASES CITED 701 [The figures refer to pages] 329, 614. 155, 166, 250, State v. Flemming, 139. State v. Fletcher, 616. State v. Flint, 412. State v. Flowers, 93, 418, State v. Floyd, 655. State v. Flye, 335, 337. State v. Flynn, 86, 633. State v. Fogerty, 559. State v. Fontenette, 422, State v. Foot, 110. State v. Ford, 497, 517. State v. Forno, 111, 112. State v. Forshner, 129, 524. State v. Foster, aes 519, 559. State v. Fowler ks State v. Fox, 161. 272, 328, 483. State v. Foy, 264. State v. France, 275, 392. State v. Frank, 413. State v. Franzreb, 334. State v. Frazier, 343, State v. en 89, 1385, 206, 227, 365, 367, 369, 370. State v. French, 572. State v. Friend, 255, 260. State v. Frier, 520, 522, 555. State v. Frisby, 384. State v. Froiseth, 133. State v. Fuller, 60, 499. State v. Gainor, 605. State v. Gardner, 227, 501, State v. Garrett, 59, 61. State v. Garthwaite, 477. State v. Garvey State v. Gary, tse State v. Gates, 235. State v. Gay, 348. State v. Genz, 429 State v. Gessert, 11. State v. Gibbs, 148. State v. Gilbert, 101, ve 161, 162, 200, 210, 215, 230, 287. State v. Gil e, 520, 548, * State v. Gill, 450. State v. Gilmore, 205. State v. Ginger, 680. State v. Glasgow, 161. State v- Glave, 423, State v. Gleason, 146. State v. Glenn, 508, 656. State v. Glover, 80. State v. Glynn, 648. State v. Godfrey, 290, 554. State v. Goode, 992, State v. Goodenow, 228. State v. Goodman, 245. State v. Goodrich, 265. State v. Goulding, 309. State v. Flanders, State v. Fleming, 405. Sie vy. Gove, 227, 306, 361, 368, State v. Goyette, 34. State v. Graham, 178, 493. State v. Grant, 6, 49, 50, 172, 243, oe 327, 383, 612, 613, 614, 648, State v. Grate, 495. . State v. Gray, 198. State v. Grear, 625. Bae V7 v. ae Works Milling, etce., 0. State v. * Green, 188, 200, 446, 454, 568, 614 State’ v. Greenman, 139. State v. Griffice, 138. State v. Griffin, 310. State v. Grigsby, 117. State v. Grisham, 189, 404. State v. Griswold, 86. State v. G. S., aig: 282, 287, 396. State v. Guest? i State v. Guinness, “497. State v. Gummer, 274, 339, State v. Gustin, 241. State v. Gut, 486. State v. Habib, 16. State v. Hack, 542, 616. State v. Hackett, 458. State v. Hadcock, 270. State v. Haddock, 162, 287. State vy. Haddonfield & ©. Turn- pike Co., 225. State v. Hageman 225. State v. Hailey, 153. State v. Haines, 529. State v. Halder, 205. State v. Hale, 497. State v- Halford, 380. State v. Hall, 78, 79, 80, 182, 308, 420, 444, 548. State v. Hallock, 610. State v. Ham, 365. State v. Hambleton, 261, State v. Hamer, 111. State v. Hamilton, 628. State v. Hamlin, 139, 140, 142, 144. State v. Hammons, 370. State v. Hand, 171. 1 State v. Handy, 589. State v. Haney, 204, 325, 333, 396. State v. Hang "Tong, 0. State v. Hanks, 366. State v. Hanshew, 371. State v. Hanson, 278. State v. Harden, 565, 567. State v. Hardwick, 201 State v. Hare, 398. State v. Harkins, 643. State v. Harlow, 559. State v. Harmon, 411, 568. 702 State v. State v. CASES CITED [The figures refer to pages] Harpe Haris’ 6: és, "129, ae 161, 169, 334, 385, 388, 4 State State State’ v. Harrison, 993” roe 501, 559, 560. State v. Hart, 223. State v. Hartfiel, 228. State v. Hartnett, 399. State v. Hartwell, 95. State v. Harvell, 152; State v. Hascall, 3878. State v. Haskett, 155. State v. Hastings, 448. State v. Hattabough, 460, 464. State v. Hause, aa State v. Havely, 395 State v. Haven, 192, “201, 323. State v. Hawks, 133. State v. Hawley 587, 548. State v. Haycroft, 423 State v. ee, 1B. 247, 629, 630, 631. State v. Hayes, 297. me v. Hayward, 147, 242, 243, State v. Hazard, 335. State v. Hazledahl, 167. State v. Heacock, 488. State v. Heathman, 119. State v. Heck, 204, 228. State v. Hedge, 206. State.v. Heed, 644. State v. Height, 86. State v. Heller, 152. State v. Helvin, 97. State v. Henderson, 140, 616. State v. Hendrix, 588. State v. Hengen, 14. State v. Henn, 329, 331. State v. Hennessey, 328, 388. State v. Henning, 487, 488. State v. Henry, 337. State v. Hensley, 490. State v. Hertzog, 345. State v. Hessenius, . State v. Hester, 200, 559. State v. Hickman, 307, 419, 482. State v. Higgins, 310, 312: State v. Hilberg, 608. State v. Hilderbrand, 614. State v. Hill, 101, 103, 105, 266, 542, 557. State v. Hillstock, 481. State y. Hobbs, 32, 34, 282, 289, State v. Hobgood, 530, 600. State v. Hodge, i State v. Hodgdon, 267. State v. Hodgeden, 231: State v. Hodges, 324, 343. v. v Hodgkins, 446, . Hodgson, 165, 576. State State State State State State State State State State State State State State State State State 542, State 600. State State State State State v. State State State State State State State State State State State State State State State State State State State State State State 303, State State State State State 578. State State State State State Astssa° A AAxSASASS Aaa AA ASS sdrddxa a c v. v. v. v. v. v. v. v. Vv, v. v. v. v. v. v. v v. v. v. v. v. 3 SaaS .LSs. 8, . Ivey, 136. : Ivins, . Izard, 573. 244, ae 315, 835, 383, 524, 548, Hoffman, 261, 423. Hogan, 333,” Hollingsworth, 1388. Holly, 360. Holmes, 54, 103, 252. Holtdorf, 117. Homan, 350. Honeycutt, 444, Hood, 341, 617. Hooker, 191. Hoover, a Hopson. Horan, "384° Horton, 417. Houser, 393, 548, 628. Hover, 3086. Howard, 486, 499, 536, Howell, 481, 552, 560, 588, Hoyt, 567, 599. Hudson, 15, a0 19, 22. : Hughes, 129, 172, 175, 176, 276, 364, 419, on 422,’ 450, 493. ull, Humphreys, 258, 358. . Hunter, 13, 158, 421 . Hurds, -219. . Hurlbut, 494. . Hurley, 418. . Hutchinson, 569, 570, 587. . Huting, 637. . Hutson, 393. . Igo, 559. Ingalls, 282. Ingles, 466. . Ingram, 598, . Inness, 467. . Inskeep, 326. . Ireland, 501, 155. 608. Jackso: on, 223, 297, Jacobs, 141, 298, 401, 589. James, 32, 48, 55, 521. Jeffors, 444 Jenkins, 366. Jennings, 221, 408, 571, Jericho, 208. Jesse, eet Jewell, §21 Jim, 230. 258, 358, 359. John, 567. CASES CITED 703 [The figures refer to pages] State v. Johnson, 12, 18, 1538, 171, 201, 278, 297, 327, 359, 360, 366, 892) 407) 413; 419; 505, 506, 619. State x; ones, 10, 33, 34, 37, 41, 96, 162, 199, 285, 334; 418, 108, E86, 548, 5 O68, ‘State’ v. Jordan, 408, 546 State.v. J. P., 419. State v. Kane, 302. State v. Kattlemann, 452, 574. State v. Keach, State v. Kealy, 80. oes v- Roan’ 171, 235, 276, 357, 59. State v. Bete, 477. State v. Keehn, 502, 558. State v. Keeland, 405, aoe 621. State v. Keen, 307, 4 410. te v. Keena, 136, Sar" 251, 267, State v. Keener, 205, 418. State v. Kegan, 2338. State v. Keith, 471. State v. Kelley, 608. State v. Rem, 145, 147. State v. Kemp, 453. State v. Rendall, 210, 496. State v. Keneston, 306. State v. Kennade, 553, 632. State v. Kennedy, 363, 413. State v. Kern, 210. State v. Kerr, 169. “State v. Kesslering, 313. State v. Keyes, 125. State v. Kibby, 339, 3438. State v. Kilcrease, 432. State v. Killet, 29, 30, 653. State v. Kinder, 94, State v. King, 408, 548. State v. Kinghorn, 447. State v. Kinney, 608. State v. Kirby, 41, 58, 69. State v. Klinger, 481, 482, 630. State v. Knapp, 486, 608. State v. Knight, 552, 649. State v. Knouse, 451 State v. Knowlton, 259. State v. Koontz, 480. State v. Kring, 92, 424, 492, State v. Krinski, State v. Kruise, ‘361 110. State v. Kye, 376. State v. ay 406. State v. Bore, 278. State v. Teese 414. State v. Lakey, 298. State v. Lamb, 331. State v. Lamon, 292, 400. State v. Land, 281. State v. Landry, 295. State v. Lane, 159, 167, 287. v. State Lang, 352, State v. Langdon, 151. Langford, 560, 608. Lapage, 610. Larger, 510, Larkin, 459. Lasecki, 606, 608. Lauver, "29, Lawler, 233. Lawlor, 649. Leabo, 522. Leach, 25, 34. Leak, 2, Learned, 165, 166, 366. Le Blanch, 13. Le Cerf, 114, 115. Ledford, 127, 508. State v. Le Duff, 519, 530. State v. Lee, 451, 458, ree 456, 508, 504, 568, 571, 627 State v. Lee Doon, 493 State v. Lessing, 462. State v. Leunig, 555. State v. Levy, 481. State v. Lewis, 47, 50, 92, 128, 465, State v. State v. State v. State v. State v. State v. State v. State v. State .v. State v. State v. State v. State v. State v. State v. 479, 500, 539, 637. State v. Lincoln, 335, 341, 393. State v. Lindsey 406. State v. Litch, 284, 285. ee v. Little, 273, 307, 808, 446, State v. Littlefield, 464. State v. Littschke, 449. State v. Lockbaum, 313. State v. Lockhart, 117, 221. State v. Locklin, 470. State v. Lockwood, poh 509, 510. State v. Loeb, 111, 117. State v. Loehr, 499. State v. Logan, 132, 133, 136. State v. Long, 571. State v. Longbottoms, 258, 388. State v. Longley, State v. Longton, 98. State v. Lonsdale, 642, State v. Lopez, 357. State v. Lord, b State v. Love, 128. State v. Lowder, 37. State v. Lowry, 454, 572. State v. Lucker, 497. State v. Luke, 281. State v. Lund, 330, 398. State v. Lyon, 295, Saas State v. McAfee, 48, 515. State v. McAllister, 169, 344, 345. State v. McAninch, 350. State v. McAvoy, 407 , 410. State v. McBride, 567. State v. McCarter, 219 State v. McCarthy, 379, 363, 365, 7. State v. McCarver, 501. 704 State State 589. State State State State State State 253, 329 State’ 548. State State State State State State State State State State State State State State State State State State State State State State State State State State State State State ‘State State State State State State State State State State 366. State State State State State State State State v. v. v. v. ve Vv. Vv. Vv. Vv. ASAASASAAAASAAASASAASASAASASAASASAAAAAS sadsAdAd8 . McDowell, CASES CITED [The figures refer to pages] aoe v. McClung, 232, 405, 437, McCord, 452. McCormick, 560, 561, 576, McCory, 508. McCoy, 427, 481, 687. McCracken, 291, 297. McCue, 574. McDaniel, 288. _pieonnl 42, 48, 282, McDonnell, 548, 544, 546, 280. Mace, 166, 185, 188. MacFarland, 598. McGaffin, 307 McGinniss, 399. McGlothlen, 643. McGraw, 15. McGregor, 176. McIntire, 391. McIntosh, 521. Mack, 505 540, 542. McKee, 448, 444, 446. McKettrick, 359. McKiernan, 236, 347. McKinney, 546. McLain, 260, 385, 545. McLennen, 407, MeMillan, 171. McNab, 103. McNally, 34. McNamara, 574. McNaught, 574. McNeil, 155. McNinch, 60. MacRae, "268. Maddox, 141, 315, a Madigan, 557, Magrath, 396. Mahon, 60, 66, 114. Main, 443. Maine, 509. Mainor, 349. Malia, 483. Mallon, 334, 600. Malloy, 251. Maloney, 227, 521. Manley, 119, 191. Mann, 28, Manning, Mansfield, 509. Marceaux, 541. Marcks, 326, 410. Marion, 162, 326. Marlier, 241. Marqueze, 550. . Marren, 587. Marshall, 111, 580. 43, 171, 276, 365, State v. Martin, aoe 140, 171, 276, 888, 452, 488, 576 State v. Martinez, 106. State v. Massey, 306. State v. Mathers, 640. State v. Matthews, 189, 325. State v. Maurignos, 656. State v. May, 284, 367, 406. State v. Mays, State v. Mead, 447. ‘State v. Meadows, 236 State v. Meek, 316 State v. Meekins, ae State v. Melrose, 614 State v. Melton, 118, 409, 410, 411. State v. Mercer, State v. Merrill, 328, "381. State v. Merriman, 518, 630. State v. Metsch, State v. Mewherter State v. Meyer, etn eGts v. Meyers, 118, 186 "293, 400, State v. Michael, 638. State v. Middleton, 140. State v. Milam, 627. | State v. Miller. 82, 88, 180, 152, 250, 331, 494, 522, 549, 559. State v. Miles.” 570. State v. Millican, 539. State v. Mills, 101, 564. State v. Minski, 488, State v. Minton, 614. State v. Mitchell, 414, 419. State v. Mix, 555. State v. Moberly, 586. State v. Molier, 206, 381, 383. State v. Montague, 340, 342, 344. ee vy. Montgomery, 421, 422, State v. Moody, 155, 509, 530. State v- Moor, 444, 445. State v. Moore, ah 62, 147, 329, 378, 380, 386, 606. State’ v. Moran, 508, : State v. Morea, 520, 527. State v. Morey, 263. State v. Morgan, 165, 306. State v. Morphin, 328. | State v. Morris, 124, 152, 405, State v. Morse, 235. State v. Morton, 326. State v. Moses, 183. State v. Moss, 421, 422. State v. Mott, 208. State v. Mowry, 59. State v. Mueller, 406. State v. Muir, 456. State v. Mulkern, 603. State v. Munch, 287 State v. Munger, 335, 284, 316, 396. State v. Murdock, 230. State State 258, State State State State State State State State State ne Sta 530, dete State State State State State State State State 503, State State State State State State State State State State State State State 354, State State State State State State State State State State State State State State State State State State State 557. State State aAxc ccc dc AAAS SAN AN ANd AAS AN AANAASAA os dade daae: CASES CITED 705 [The figures refer to pages] v. Murdy, 480, 484. v. Murphy 116, 117, 237, 325, 326, 634. Murray, 25. Myene 137, 206, 550. Myric Nagle, 327. | Nail, 352. Naramore, 200. Narcarm, 433. Narrows Island Club, 316. . Nash, 468, 481, 527, 572, v. Nelson, 110, 323, 325, 328, 0, $33) 334, 387, 342) 343) 845, . Nerbovig, 90. Newfane, 140. Newton, 328. . Nichols, 336, 648. . Nickleson, 306, 494, Nieburg, 540. Niers, 196. Niles, 603. Nixon, 167, 251, 293, 401, Noble, 214, 216. Noland, Nordstrom, 579, 633. Norman, 455. Norton, 160, Norvell, 450, ot 456. Pan aS Hate Oakley, 259. O’Bannon, 199, 303. O’Brien, 315, 316, 348, 03, 559. O'Connor, 77. Odell, 446. O’Donald, 355. -O’Donnell, 279, 284, 317. O'Driscoll, 527. Offutt, 279. QO’ Grady, 549. Olds, 487. Oleson, 456. Oliver, 65: O’Neal, 550. O’Neil, 329, 577. Orrell, 296. Orrick, 505. Ostrander, 140. Owen, 153, 183, $81. 2 Owens, 890. . Oxendine. Palmer, igs Bh9, 324, 329, v. Pankey, 485, 563. vy. Papa, 547. CuaRrK Cr.PR0c.(2D Ep.)—45 Bae v. Parish, 405, 451, 456, State v. Parker, 26, 189, 279, 306, 324, 446, 555, 556. State’ v. Parmelee, 4138. State v. Passaic Agr. Soc., 437. State v. Paterno, ee State v. Patrick, 222, State v. Patterson, be Ci, 112, 190, 288, 618, 619, 624, 626. State v. Baul, "192. State v. Pauley, 12. State v. Pay, 88. State v. Payne, 446. State v. Peacock, soe 498. State v. Perkins State v. Perry, is a8, 192, 557. State v. Peters, 2: 3, 376. State v. Pea. "368, 392, 394, State v. Pettit, 548. State v. Peyton, 6. State v. Phelps, 321,361, 608. State v. Phillips, 446, 453, 612. State v. Phinney. 58, 59, 205. State v. Pierre, 172.” State v. Pike, ‘175, 176. State v. Pile, 349. State v. Pitts, 137. State v. Place, 560. State v. Plunket, 260, 261, 304. State v. Pollet, 499. State v. Pomeroy, 86. State v. Populus, 555. State v. Porter, 335. State v. Potter, 427, 519, 588, 653. State v. Potts, 243, 517. State v. Powell, 148, 453. State v. Prater, State v. Pratt, 284. State v. Prescott, 559. State v. President, ete, of N. J. Turnpike Co., 225. State v. Presi, Bir, State v- Preuss State v. Dace, 60, 161, 296, 407. State v. Primeaux, 484, State v. Pritchett, 498. State v. Pugh, 25, 60. State v. Pullens, 241, 245, 398. State v. Purdie, | 413. State v. Push, 517. State v. Quarrel, go State v. Quee State v. Guimby; 1050, 524, State v. Quinn, 500. State v. Raiford, 304. State v. Railroad Co., 303. State v. Raines, 306. State v. Rainsberger, State v. Randolph, T10, 5539, 649. State v. Rankin, 456. 706 CASES CITED [The figures refer to pages] State v. Ratts, 359. State v. Raven, 616. Stute v. Ray, 449. State v. Raymond, 206. State v- Reckards, 497. State v. Rector, 206, 231, 418. State v. Redman, 442, “444, 450, State v. Reed, 137, 287, 462, 493, 516, 549, 550, 561, 619, 620, 650. State v. Reeves, 418, 427. State v. Reid, 290, 536. State v. Reidell, 636. State v. Renfrow, 423. State v. Renkard, 314. State v. Reonnals, 13. State v. Reuff, 660. State v. Reynolds, 166, 316, 373, 879, 390, 453. Rheams, 545. Rhodes, 451. Richards, 553. Richter, 79. Ricketts, 564. Rickey, 141, 417, 419, Riddle, 267. Rider, 16. Ridley, 6. Riebe, 240. Riffe, 418. Riggs, 610. Riley, 151, 271. Ripley, 359. Ritty, 96. ee 278, 282, 419. Roane, 52, 62. State’ v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. State v. 242. State v- Robertson, 327. State v. Robinson, 21, 162, 282, 407, 448, 549. ae v. Rockafellow, 108, 129, 140, 14 State v. Rodgers, 467. State v. Roe, 154. State v. Roesener, 635. State v. Rohfrischt, 570. State v. Rollins, 118, 632. State v. Roper, "230. State v. Rose, 445, 465, 632. State v. Rosenbaum, (68. State v. Ross, 71, 467, 549, 584, 613. State v. Roth, 30. State v. Roulstone, 351. State v. Round, 18. State v. Rout, 257. State v. Rowe, 34, 116. State v. Rowlen, 223. State v- Rowley, 364. State v. Rucker, 230. Roberts, 5, 50, 189, 191, State v. Rush, 2 817, 574, 649. State v. Rushing, State v. Russell, 139. ‘190, 191, 488, , 536, 645. State v. Rust, 306. State v. Ryan, 267, 405. State v. Ryder, 508, State v. 8S. A. L., 290. State v. Salts, 290. State v. Sanders, 183, 399, 493. State v. Sandlin, 498. State v. Sauvinet, 656. State v. Schaefer, 637. State v. Schele, 408, State v. Schieler, 96. State v. Schmidt, 559. State v. Schoenwald, 545. State v. Schricker, 365, 366. State v. Schumm, 417. State v. Scott, 114, 342, 406, 4138, 516, 660. State v. Scribner, 185, 313. State v. Scurry, 390, 393. State v. Seamons, 287. ao, v. Security Bank of Clark, State v. Seren: 484. State v. Sexton, 284, 363, 371, 419. State v. Seymour, State v. Shaeffer, 13. State v. Shank, 501. State v. Shanley, eT State v. Sharp, 140, 1 State v. Phar 46, "Sk 163, 91, 213, 304, 307, 517. State’ v. cee 409. State v. Sheeley, 521. State v- Shelton, 33, 48. State v. Shepard, 413,463. State v. Sherburne, 215. ‘| State v. Sheridan, 86. State v. Sherman, 326, 623. State v. Sherrill, 390. State v. Shonhausen, 259. State v. Shores, 138. State v. Shuler, 306. State v. Sides, 372. State v. Sigman, 60. State v. Silverman, 253. State v. Simien, 484. State v. Simmons, 71, 349, 453. a v. Simpson, 267, 312, 454, State v. Sims, 50, 477, 545. State v. Slamon, 86. State v. Sloan, 151. State v- Slocum, 290. State v. Small, 14. Pale vy. Smalley, 386, 340, 3441, State v. Smiley, 17. CASES CITED T07 [The figures refer to pages] State v. Smith, 57, 63, 71, aoe 194, |; State v. Swope 228, 235, 284, 292, $03. 327 328) State v. roe 30, 140, 337, 354, 372, 400, 420, 425, 449, State v. Talbert, 617 621, 453) 460, 461, 464; 465, 493, 494 State v. Talmage, 466. 545, 547, 576, 601, 62: 3 646. State v. Tatman, 444. State v. Sneed, 298, 401. State v. Tatro, 623. State v. Snell, 381. State v. Taunt, 248, 259, 266, 389. State v. Snow, 543. State v. Taylor, 111, 151, 308, 403, - State v. Solomons, 453. 417, 422, 508, 600. State v. Sommers, 315. State v. Tennison, 95. State v. Soper, 508, 640. State v. Terline, 615. State v. Sorenson, ’90. State v. Terrebonne, 363, 364. State v. Sorter, 531. State v. Thomas, 231, 265. State v. Sortor, 542. State v. Thomason, 258. State v. Soule, 357, 358, 359, 360.| State v. Thompson, 84, 279, 336, State v. Sovern, 210, 366, 423, 394, 423, 560, 620. State v. Sparks, 231. State v. Thorne, 307, 556, 560. State v. Sparrow, 561. State v. Thornton, 408. State v- Spear, 208. State v. Thurston, 328. State v. Spencer, 84, 235, 519, 637.| State v. Tighe, 505. State v. Spidle, 586. State v. Tilden, 56° State v. Spillman, 481. State v. Tilghman, 5ud, 560, 561. State v. Spirituous Liquors, 83. State v. Tillery, 265. State v. Spray, wee State v. Timmens, 393. State v. Spurgin, 4 State v. Tingler, 223. State v. Squire, a "363, 371. State v. Toland, 524. State v. Stalcup, 60. State v. Tolever, 290. State v. Staley, 623, 625. State v. Tomlinson, 124, 152. State v. Sree 526, State v. Toth, 138. State v. Stanton, 306. State v. Town, 521. State v. Staples, "93. 202, 211. State v. Townley, 361. State v. Starling, 637. State v. Townsend, 59, 240, 241, State v. Startup, 166, 365, 366. 242, 249, 369, 381, 499, State v. Staton, 632. State v. Trapp. 390. State v. Stedman, 312, 4138. State v. Trefethen, 319. State v. Stegner, 480. State v. Triplett, 407, 414. State v- Steifel, 405. State v. Trout, 637. State v. Stein, 235. State v. Trull, 495. State v. Stephen, 223, 247. State v. Tucker, 183. State v. Stephens, 118. State v. Tuller, 287, 340. tate v. Stephenson, 1 199. State v. Turlington, 62, 131, 481, State v. Stevens, 257, 258, 288, 328, 487. 550. State v. Turnage, 360. State v. Stew, 161. State v. Turnbull, 293, 311, 401. State v. Stewart, 12, 21, 78, 80,] State v. Turner, 547. 241, 3338, 341, $48, 423, 521, State v. Twining, 365. State v. Stickney, 489, State v. Twitty, 241, 245. State v. Stimson, 258, 266. State v. Tyler, 627. State v. Stoll, 454. State v. Tyrrell, 221, 272. State v. Stout, 324. State v. Ulrich, 639, 640. State v. Strasburg, 507. State v. Underwood, 18, 49, 483. State v. Straub, 422. State v. Upton, 173, 561. State v. Strayer, 501. State v. Valentine, 412, 450. State v. Street, 185. State v. Van Cleve, 365, 386, 367. State v. Strodemier, 559. State v. Vanderpool, 70, 71. State v. Stunkle, 130. State v. Van Doran, 199. State v. Sturgis, 580. State v. Vann, 579. Siate v. Sullivan, 134, 480, 487. State v. Van Ness, 446. State v. Sullivant, 113, State v. Varnado, 541, 542. State v. Summons, 108, 104. State v. Vaughan, 497. State v. Sutton, 159, 341, 450. State v. Vaughn, 119. State v. Swaim, 396. State v. Vermont C. R. Co., 174. 708 CASES CITED [The figures refer to pages] State v. Vincent, 137, 167, 420. State v. Vittum, 172; 276. State v. Wadsworth, 348, State v. Wagner, 169, 328, B44, 345, 346. Wakefield, 454. Walker, 124, 422, 443. Wall, 214, 417. Walsh, 241, 245, 317. Walters, BAT. State v. ea a 610. State v. Ward, 189, 247, 328, 417, ae 454, ast, 647. State’ v. State v. State v. State v. State v. State’v. Ware, 366. State v. Warner, 458, 603. State v. Warren, 328. State v. Wasden, 158. State v. Washington, 357, State v. Waters, 407. State v. Watson, 98, 307, 481, 4384. State v. Watts, 418. State v. Way, 560. State v. Wear, 477. State v. Weare, 364. State v. Weatherspoon, 446. State v. Weatherwax, 107 State v. Weaver, 293, 381, 382. State v. Webb, 442. State v. Weber, 564. State v. Webster, 171, 316, 520. State v. Weed, 44, State v. ae eee, 568. State v. Welch, 307. State v. Weldon, 638, 639. State v. Welker, 295. State v. Wellman, 112. State v. Wenzel, 36, 71, 110. v. State West, 495, 573, 616. Se Ve v. Wheeler, 240; 248, 247, State v. Ae vhipple, 442. State v. Whiskey, 8&4. State v. Whitaker, 34, 37. State v. White, 362, 364, 406, 408, 414, 469, 497. State’ v. Whitney, 205, 206. State v. Whitson, 445, 600, 601. State v. Whitt, 230. State v. Whitton, 139, 483. State v. Wick, 521. State v. Wilcox, 127. State v.. Wilkins, 601. State v. Williams 111, 158, 159, 161, 171, 198, 236, 257, 259, 297; 303, 328) 336, 388; 411; 421) 430, 449, 460, 518, 519, 561, 581, 587, State v. Williamson, 629. State v. Willis, 295. State v. Wilson, 222, 391, 421, 545, 549, 551, 552, 561, 564, 569, 619. State y. Wimberly, 205, 232, ‘388, State v. Wimbush, 28, 29, 35. State v. Winchester, 486, 488, 548. State v. Winninger, 101. State v. Wise, 97, 567. State v. Wiseback, 461. State v. Wishon, 420. State v. Witham, 245. State v. Witt, 393. State v. Wolcott, soe aan State v. Wood, 325, State v. Woodard, 34, $48. State v. Woodley, 111, State v. Woodrow, 276. State v. Woodruff, 445. State v. Woods, 88, 98. State v. Woodward, 347. State v. Woolard, 541. State v. Wooley, 521. State v. Woolsey, 496. State v. Wooten, 463. State v. Worden, 509. State v. Workman, 549. State v. Worley, 34. alate v. Witeht: 129, 241, 268, 359, State v. Wyatt, 213, 305. State v. Wyckoff, State v. Wyse, 485. State v. Yancey, 161. State v. Yanta, 408, 409. State v. Yarbrou h, ‘454. State v. Yates, 4 0. State v. Yocum, 603. State v. Young, 522, 608. State v. Zule, State ex inf. Hadley v. Standard Oil Co., 183. State ex rel. Battle, In re, 454. State ex rel. Lewis v. Arnauld, 120. State ex rel. Matranga v. Record- er, 89. State ex rel. Vickery v. Wofford, 488. West v. Thompson, State of Indiana v. Tolleston Club of Chicago, 7 Stazey v. State, 399. Steagald v. State, 642. Stedman’s Case, 185. Steel v. Smith, 316, 320. Steele v. People, 481. Steerman v. State, 12, 22, Stegar v. State, 233. Stegars v. State, 115. Stein v. State, 226. Steiner’s Case, 456. Stephens v. Com., 480. Stephens v. People, 497, 555, 630. State ex rel. 34 CASES CITED 709 [The figures refer to pages] Stephens | v. ae 241, 350, 355, , 569, 572. sipteae v. Wilkins, 43. Stephen’s Case, 290. Sternack y, Brooke 50. Stetson v. Packer, 3 Stevens v. Com., og 378, 389. Stevens v. Dimond, 358, Stevens v. Fassett, 447. Stevens y. McClaughry, 655. Stevens v. State, 341, 404, 405. Stevick v. Com., 341. Stewart v. Com., 264, 265. Stewart v. Jessup, 13. Stewart v. People, 564. Stewart v. State, 183, 186, 258, See 407, 413, 421, 443, 446, 477, Sthecsbene v. Fisher, 119. Stichtd v. State, 384. Stiener v. State, 546. Stiff, Ex parte, 104. Stocken v. Carter, 50. Stockholm v. State, 480. Stocks v. State, 444. Stoddard vy. Tarbell, 41. Stokes v. People 520, 595, 648. Stokes v. State, Stollenwerk y. State, 260. Stoltz v. People, 574. Stone v. Dana, 838, 84. Stone v. People, is. “444, Stone y. State, 160, 561. Stoneham yv. Com., 421, 422, Stoner y. State, 655. Storrs v. State, 340, 465. Storti v. Com., 585. Stoughton v. a 11, 223. Stout v. Com., 230, 296, 297. Stout v. State, 12, 418, Bene Stover v. People, 00, Strader v. State, 2 Strang v. State, 19. Strange v. State, 135. Stratton v. Com., ; Strawhern v. State, 418. Street v. State, 654. Strickland v. State, 290, 645. Stuart v. Com., 442, 448, 567. Stuart v. People, 88. Stubbs, In re, 456. Stubbs v. State, 498, 494, 497. Stukeley v. Butler, Stultz v. State, 481. Stumm v. Hummel, 518. Sturat v. People, 97. Sturm v. Potter, 39. Sugg v. Pool, 49. Sullivan v. Com., oan Sullivan v. People, Sullivan v. State, 238° 578, 618. Sultan, In re, 77, 79. , 636. Summerfield _v. Com., 105. Sumpter v. State, 313. Super, Ex parte, 494. Sutcliffe v. State, 451. ea v. People, 480, 484, 554, Swaim y. Stafford, 49. Swalley v. People, 153. Swallow v. State, 552. Swann v. State, 548. Swart vy. Kimball, 31, Swartzbaugh v. People, tin Swearingen, Ex parte, 77. Sweat v. State, 15. Sweet v. Sherman, 650. Swiney v. State, 417.° Swisher v. Com., 620. Sylvester v. State, 580. 516, T Tabart v. Tipper, 244, 246. Tabler v. State, 497. Tackett v. State, 34, Taff v. State, 582. Taintor v. Taylor, 76. Tani, Ex parte, 582. Tanner v. Wiggins, 583. Tarble, In re, 658. Tarble’s Case, 658. Tarlton v. Fisher, 44, Taulman y. State, 30. Tayloe, Ex parte, 103. Tayloe’s Case, 105. Taylor, In re, 581. Taylor v. Com., 1389, 159, 160, 161, 222, 290, 390, 392) 552, 574, 600. Taylor v. Foster, 641. Taylor v. State, 137, 211, 261, 432, Taylor v. Strong, 47, 50. Taylor y. Taintor, 76, 78, 114. Taylor’s Case, 14. Teachout v. People, 626. Teagarden v. Graham, 52. Teas, v. State, 137. Teat v. State, 443. Tefft v. Ashbaugh, 43. Tefft v. Com., 159, 167. Templeton v. People, 96. Terrill, In re, 5. Territory v. Brash, 421. Territory v. Cutinola, 145, 147. Territory v. Do, 291. Territory v. Dooley, 414, Territory v. Bvans, 407. Territory v. Godfrey, 603. Territory v. Harding, 137. Territory v. Hart, 129, 144. Territory ,v. Hicks, 12, 399. Territory v. Kirby, 608. ‘710 CASES CITED [The figures refer to pages] Territory v. McFarlane, 235. ‘Yerritory v. McKern, 628. Territory v. O'Donnell, 195. Territory v. O’Hare, 547 , Territory v. Ortiz, 511. Territory v. Pendry, 266. Territory v. Pratt, 289. Territory v. Richardson, 471, 472. Territory v. Youree, 621 Terry, Ex parte, 508. Testick’s Case, 258. Thayer v. People, 140. Thayer v. State, 134. Thomas v. Com., 200, 377. Thomas v. Croswell, 209. Thomas v. Incorporated Village of Ashland, 50. Thomas v. Kinkead, 62. ‘Thomas v. eae 49.' Thomas vy. 108, 242, 267, 270, 305, S16, 534, 621. Thompson, In re, 659. Thompson v. Com., 357, 449, 561, 587, 624, 625. Thompson v. Fellows, 34, 119. Thompson y. Lee, 171, 276. Thompson v. Oglesby, 653. Thompson v. People, 502. Thompson v. Hichardson, 376. Thompson v. State, 289, 334, 553, r603, 633, 645. Thornell v. People, 137. Thorpe v. State, 562. Threadgill v. State, 621. Thurman y. State, 17. Thurmond v. State, 277. Tidwell v. State, 399. Tilley v. Com., 434. Tilton v. State, 567. Timberlake v. State, 171. Timmerman vy. Territory, 281. Timms v. State, 390, 391 Timothy v. Simpson, 54. Tindle v. Nichols, 148, 144. Tippins v.. State, 12, 13. Tipton v. State, 168, 235. Tobart v. Tipper, 383. Tomlin v. Fisher, 656. Tomlinson v. Territory, 331. Tompkins v. State, 3386, Tooel v. Com., 528. Tooke v. State, 496. Toole v. State, 289. Totten v. U. g., 640. Tousey v. State, 111. Tower v. Com., 290, Towndrow, Ex parte, 105. Town of Van Buren v. Wells, 456. Townsend v. People, 346. Trabune v. Com., 632. Tracy, Ex pe "496, 497. Tracy v. Com., 328. 540, Tracy v. Williams, 35, 43, 46, 91. Trask v. People, 244, 383. Ae ee of Middletown v. Ames, Trimbla v. State, 520. Trogdon vy. State, 552. Troia, In re, 654. Trono v. U. S., $52. Trout v. State, 211. Troutman, In re, 76. True v. Plumley, 564. Tubbs v. Tukeg,’ 38, 44, 67, 89. Tucker, In re, 129. Tucker v. People, 276. Tucker’s Case, 129, 141. Tuell v. Wrink, 4. Tullis v. Fleming, Tully v. Com., 20 BS. 236, 312. Tully v. Peopl e,- 5 Turbeville v. State, 502. Turk v. State, 346. Turner v. Conkey, 489. Turner v. Muskegon Circuit Judge, 210, 409, 410. Turner v. Pearte, 586. Turner v. People, 125, 170, 396. Turner vy. State, 227, 327, 377. Turner’s Case, 183. Tugs vy. Com., 161, 176, 290, 298, Turpin v. State, 349, 355. Tuttle v. Com., 238. Tweedy v. Jarvis, 171. Tweedy v. Jarvis, 276. Twohig, Ex parte, 654. Tyler v. People, 12. Tyra v. Com., 511. U | Ullery v. Com., 104 Underwood v. State, 633. U.S. v.. American Naval Stores Oo. 326. . Amy, 455. Angell, 627. . Aurandt, 421, 422. Bachelder, 305, 306, 307, Ball, 181, 449. Ballard, 150, 152, 158. Barnhart, 455. Battiste, 545. Benner, 66. Bennett, 258. Benson, 129, 142. Bishop, 115. Blodgett, 139. Bornemann, 158, 162. Boyd, 52. . Breinholm, 246. ded axssa ow RARNANNS - Pdddedeidscce SASS ASS AA AAA nrnrnTn nina ratAtA QO oR fa 8a OSA aa AAS Atanas ett ee 4 ww pan rningn Asiciticicecicieietet ct ry RANNRDANANNANANNRNBM NAN nap oe iN Sedtddidcidde cciceiciicieicicictcieicteicicl or wo LRLDDANNARNNNNN BD RAR DMN NNN NNN es Seisideidsicicicictetes tet o = CASES CITED [The figures refer to pages] . Brooks, 500. Brown, 134, 474. Burns, 289. Buzzo, 227. Carll, 227, Clark, 226, 227. Cobban, 134. Collins, 133. Conrad, 279. Cook, 283, 308, 314, 317. Coolid ge, . Cruikshank, 61, 309. Davis, 495. De Walt, 126. Douglass, 526. Duconrnau. 586 Dunne, 579. Edgerton, 134, 420. Edwards, 235. Eliiot, 212, 213, 304. Ewan, 1 142° Farring, 443. Faulkner, 636. Feely, 116 Fox, 190, 476, 477. Furlong, 344, 346, 361, . Gale, 576 S Gibert, 361, 425, 445. Goggin, 3 Gonzales, 452. Gooding, 188, - 808, 318. Green, 8, 660. Hall, 639. Hamilton, 108, 654. Hanway, 520. Harding, 354. Haskell, 557. Hess, 309. Hill, 128. Howard, 214, 216, 217, 89, 390, 391, 394, . Howell, 248, Insurgents, 160. Irvine, 150, 151. Jailer, 657. Jones, 103, 141, 450. Keller, 544. Kelly, 503. Kimball, 127, 133. La Coste, 213, 284, Lancaster, 305. Lawrence, 659. Lehman, 218, 304. . Leonard, 405. . Lewis, 139. dAdd448488 Britton, 16, 240, 241, 305, 9. 179, 181, 188, aad dae serdar aes ened seneeccideice LA EANARDAA ANNA DD ANNAN NADAL AND nnNnn nh nnn H aS ARRAN 4d< DR aa_aa_ ace v v. Unsel v. v. . Mayfield, 626. . Mills, 84, 85, 313. . Moller, 469. . Taylor, sddSddS SAAS 4th AhANA AANA AAAS A ASS ASAAHS #ss8 711 Linnier, 579. Molloy, 423. - More, 453. Moses, 640. Nathan, 226, Nelson, 316. Nickerson, 300. Olsen, 456. Poneto, 189, Plumer, 346, 577. Pridgeon, 581. Rauscher, 70, 654, Reed, 128, 136. . Reese, 179, 188. Reichert, 208. Rockefeller, 427. Rosenthal, 134. . Sanges, 453. Santos, 497. Sauer, 111. Scott, 340. Shoemaker, 155. ‘Simmons, 134, ee Staats, 936, 237, 305. Stone, 623 Swan, 560. 543, 544. Thompkins, 107, Tureaud, 146. * Tuska, 142. Va.-Car. Chemical Co., . Watkinds, 227. Watson, 154. West, 343. White, 98, 117, 141, 152, . Williams, 129, 139, 141. . Wilson, 471, 472, 579, 580, . Wong Dep Ken, 126. d, 644. Untreiner v. State, 521. Upchurch vy. State, 444, Updegraff v. Com., 303, 306. Updegraph v. Com., 249. Upshur v. State, 334. Upstone Vv. People, 629. Vv Vaden v. State, 334. Valentine v. State, 571. Valesco v. State, 260, 385. 712 CASES CITED {The figures refer to pages] Vanauken v. Beemer, 514. Van Blaricum y. People, 527. Vance v. Com., 479. Vance vy. State, 393, 644. Vander v. Griffith, 300. Vander Plunken v. Griffith, 402. Vanderkarr y. State, 124, 137, 487. Vandermark v. People, 171 Vandeveer v. Wartecus 47, Vandeventer " erates 634, Vane’s Case Vanhook v. ane 140. Van Meter v. People, 482. Van Sciever, In re, 77. Vanvickle v. ae ae Vaughan y. Com., 3: Vaughan v. State, 549, 551, 560, 627. Vaughn v. Gom.: 482. Vaughn v. State, 434, Vaux v. Brook, 232. Vaux’s Case, 181, 182, 469. Vavasour v. 320. Veatch v. State, tO. 570. Veazie’s Case, 381. Vermilyea, Ex parte, 514, 519. Village of Chorley, Case of, 40. Villareal v. Mellish, 658.° i Vincent v. People, 113. Virginia, Ex parte, 657. Voorhees, In re, 77, 78, T9. Vowell v. State, 496. Vowells v. Com., 285. WwW Waddell v. State, 339. Wade v. Chaffee, 48, 49. Wade v. State, 498, 556, 634. Wadgymar v. State, 147. Wakely v. Hart, 46, 52. Wales v. Whitney, 651. Walker, In re, 80. Walker v. Kearney, 30. Walker v. People, 147, 637. Walker y. State, ee ‘2686, 327, 376, 377, 480, 485, 622 , 638, Walker’s Case, 532. Wall v. State, 341. Wall’s Case, 656. Wallace v. People, 243. Wallace v. State, 139, Bobs 580. Wallenweber v. Com., 101. Waller v. State, 452, 564. Waller & Bogg v. Com., 154. Walls v. State, 17. Walpole, Ex parte, 659. Walsh, Ex parte, 96. Walsh. In re, 582. Walston v. Com., 525. Walter v. People, 525. ' Walter v. State, 172. 468. 541, 542, Walters v. Com., 406. Walters vy. State, 637. Walton v. State, 249, 448, 649. Walton’s Case, 480. Wandell v. State, 323. Ward v. Bird, 320. Ward v. People, 269, 509, 624. Ward v. ptate, 127, 182, 205, 389, 393, 527, Warfield v. Oe ie 493. Warner vy. eer: 649. Warner v. Shed Warner v. State, 406, 411, 484, 578. Warren v. Com., 526. Warren v. Paul, 652. Warren v. State, 496. Warriner v. State, 447, 455. Wartner v. State, 429. Washburn v. People, ‘Wastiiginn v. State, 33, 136, 570, Waterman, v. State, 80, 137. Waters v. People, Watkins, Ex parte, 651, 655,, 659. Watson, In re, 654. Watson v. State, 55, 604. Watson v. Watson, 44, Watson’s Case, 652, 660. Watt v. People, 22 Watts v. Com., 57. Way, In re, 31, 50. Weale v. Clinton Circuit Judge, 80. Weatherford v. Com., 348. Weatherford v. State, 570. Weathers v. State, 243 Weaver v. People, 580. Weaver v. ate 446. Webb, In re, 583. Webb v. State, a 40, 50, 530, 650. Webber v. Gay, 44. Webster v. Com., 333. Webster v. People, 378. Webster’s Case, 1 Weeks v. U. S., at Weems v. U. S., 584. Weimer v. Bunbury, 52. Weinzorpflin. v. State, 574. Welch v. Gleason, 86. Welch v. Scott, o2, 34, 43. Welch v. State, 1 we v. Com., igs, 218, 283, 284, Wells v. Iggulden, 358. Wells v. Jackson, 28, 38, 35, 36. Wells v. State, 118, 392. Welsh v. State, 546, 616. Wemyss v. Hopkins, 447, Wertz v. State, 401. Wesley v. State, 555. West v. vane ges West v. Com., West v. State, ot83, 344, CASES CITED 713 [The figures refer to pages] Westbrook v. State, 568. Weston v. State, 448. Whalen v. Com., 258. Wheeler v. Nesbitt, 89. Wheeler v. State, 486. Wheeless y. State, 536, 542, 553. Whitcher vy. State, 414. Whitaker, Ex parte, 654. White, Ix parte, 74, 654. White, In re, % i, 582, 653. White v. Com., 2 359, 482, White v. naa 51. White v. Kent, 50. White v. People, 349, oe 391. White v. Polk County, White v. Reg., 179, White v. State, 117, 83. 434, 484, 587, 588, 625. White v. Territory, 244, 383, 547. ve v. Washington Territory, Whitehead v. Keyes, 66. Whitehurst v. State, 494. Whitesides v. People, 196, 287. Whiting v. Putnam Whiting v. State, 306, 309. Whitney v. Com., 624. Whitworth v. Clifton, 44. Wickard v. State, 201. Wickwire v. State, 427, 487. Widner v. State, 255. Wiggins v. Norton, 68, 89, 90. Wilburn v. State, 140. Wilcock v. State, 540. Wilcox v. Nolze, 7 Wilcox v. Smith, 43. Wilcox v. State, 371. Wile v. State, 230. Wiley v. State, 554, 555. Wilkerson v. State, 598, 605. Wilkerson v. Utah, 585. Wilks v. Lorck, 35, 36. Williams v. City Council of Aw gusta, 508. Williams v. Com., 285, 378, 445, 500, 569. Williams v. Dickenson, 639. Williams v. Jones, Williams v. Ogle, 392, 393. Williams v. Reg. 359. Williams y. Shelby, 110, 118. Williams v. Spencer, 6 Williams v. State, 86, 166, 230, 258, 807, 396, 399, 419, 420, 509, 521, ao 544, 545, 558, 561, 568, 586, Williams v. Weber, 80. Williamson y. State, 399. Williamson’s Case, 651. Willis v. People, 275. Willis v. State, 519, 623. Wills v. Jordan, 49. Wills v. People, 17. Wilmarth v. Burt, 41, 44. Wilson, Ex parte, 71, 126. Wilson, In re, 119 Wilson v. Com., 620. Wilson vy. Laws, 487. Wilson v. People, 248, 383. Wilson v. Rastall, 641. Wilson v. State, 52, 134, 256, 265, aut. 450, 458, 493, 494, 520, 551, Wilson v. U. S., 127, 183, 624. Winburn v. State, Winebiddle v. Porterfield, 49. Winfield v. State, 287. Wingard v. State, 292, 400. Wingfield’s ee 294, 295. Winn v. State, 457, 550. Winslow v. State, 219, 221, 270. Winsor v. Reg., 445. Wisdom yv. State, 622. Wise v. State, 482. Withers v. Com., 504. Withers v. Harris, 245. Withers v. State, 401. Withipole’s Case, 433, oan 471. Witt v. State, 231, Witten v. State, Boe Wofford v. State, 259. Woblford v. State, 541. Wohlgemuth y. ave S., 384 Wolf v. Com., 623. Wolf v. State, 47, 59, 124, 166. Wolfforth v. State, 586. Womack vy. State, 335, 468. Wong v. City of ‘Astoria, 508. Wong Yung Quy, In re, 657. Wood, In re, Wood v. Brown, 240, fal, 245. Wood v. Com., 114, Wood v. Fletcher, "TL, 176. Wood v. Ross, 38, 39, ‘44, Wood v. State, 206, 543, 553, 558. Woodburne’s Case, be Woodford v. Ashley, 376. Woodford v. People, 271. Woodin v. People, 547. Wooding v. Oxley, 53. Woodruff v. U. S., 581. Woods v. People, 650. Woods v. State, 307, 556, Woodsides v. State, 167. Woolfolk v. State, Fe 483. Woolley v. State, 5 - Woolnoth v. Meadows, 208, 209. Work v. yotrimgton, ce qT, 78. Work v. State, 507, 511 Wormeley v. Com., 481, ‘487. Wortham v. Com., 155, 447, Worthington v. Mencer, 638. Wragg v. Penn Tp., 456. Wray, Ex parte, 104. 714 CASES CITED (The figures refer to pages] Wray v. People, 480. Wrexford v. Smith, 52. Wright v. Clements, 245. Wright v. Com., 221. Wright v. Court, 60, 67, 89. Wright v. Keith, 57, 60. Wright v. People, 573. Wright v. Rex, 202, Wright v. State, 154 443, 450. Wright v. Tatham, 638 8. Wrote v. Wigges, 462, 463. Wyatt v. Aland, 212. Wyatt v. State, 403, 559. Wynn v. State, 570. Y Yaner v. People, 95. Yarber v. State, 571. Yarbrough, Ex parte, 657. Yarbrough v. Com., 11: Yater v. State, 488. Yates v. People, a 59, 66, 661. Yeldell vy. State, 5 388. Young v. People, 111. Young v. Rex, 335, 842, 344, 349, 350, 352, 355. Young v. State, 161, 168, 324, 553, 624, 625. Ysaguirre vy. State, 561. Yudkin v. Gates, 669. Z Zachary v. State, 469. Zarresseller v. People, 357. Zeigler v. Com., Zellers v. State, 391, 393. Zembrod v. State, 105. Zoborosky v. State, 191. Zoldoske vy. State, 630, 644. INDEX [THE FIGURES REFER TO PAGES] A ABATEMENT, See Plea in Abatement. ABBREVIATIONS, Use of, in indictment, 203, 287. ABSENCE, Of the accused, during preliminary examination, 92, During the trial, 492. Of judge during trial, 502. Of defendant as ground for continuance, 479. Of defendant’s counsel as ground for continuance, 479. Of witnesses as ground for continuance, 480. ACCESSARIES, Jurisdiction of offense, 18. Indictment against, 353. ACCUSATION, Mode of accusation, 122. Necessity for formal accusation, 122. Necessity to use form prescribed by statute, 122. See, also, Complaint; Indictment; Information; Pleading. ADDITION, Of defendant, pleading, 174. Of third persons, 277. ° See, also, Names. ADJOURNMENT, Of preliminary examination, 89. See, also, Continuance. AFFIDAVITS, On application for continuance, 483. On application for change of venue, 487. Of jurors, to impeach verdict, 574. AGGRAVATING CIRCUMSTANCES, Allegation of, 237. AIDER BY VERDICT, In general, 367. ALTERNATIVE ALLEGATIONS, In general, 199. Rejection of matter as surplusage, 210. CLARK Cr.Proc.(2D Ep.) (715) & 716 INDEX [The figures refer to pages] AMBIGUITY, In indictment, 202. AMENDMENT, Of indictments, 363. Of caption of indictment, 161, 364. Of information, 364. Effect of modern statutes, 364. Of plea in abatement, 435. Of verdict, 565, 567. See, also, Aider by Verdict; Formal Defects, ANIMALS, Description of, 259. Dead animals, 262. ANTICIPATING DEFENSES, Not necessary in pleading, 197. APPEAL, In general, 588. _ By state, 453, 589. ARGUMENT, Of counsel, 538. ARRAIGNMENT, In general, 421. Necessity for, 421. On new trial, 423. On appeal from justice’s court, 423. On change of venue, 423. Manner of, 423. Standing mute, 425. Deafness and dumbness, 425. Insanity, 425. Joint defendants, 425. ARREST, In general, 24. é Rights and liabilities of parties, lawful arrest, 25, Unlawful arrest, 26. By warrant, 27. Issuance of warrant, 27. Bench warrant, 28. Necessity for complaint, 28. Sufficiency of complaint, 29. Competency of complainant, 30. Evidence to authorize issuance of warrant, 32, Sufficiency of warrant, 32. Form, 33, 34. Jurisdiction, 33. Time of issuance, 83. Contents, 34. Before whom warrant returnable, 37. Life of warrant, 38. Alteration, 38. INDEX TW17 (The figures refer to pages] ARREST—Continued, Execution of the warrant, 38. The warrant as a protection to the officer, 41. Arrest without a warrant, 45. By officer, 46. By private person, 51. Assisting officer, posse comitatus, 54. Hue and ery, 56. Time of arrest, 57. Notice of purpose and authority, 58. Use of force in effecting arrest, 60. Breaking doors, windows, etc., 63. . What constitutes an arrest, 65. Duty after arrest, 67. Authorized arrest in unauthorized manner, 68. Taking property from person arrested, 85. See, also, Bail; Fugitives from Justice; Habeas Corpus; Prelimi- nary Examination; Searches and Seizures. ARREST OF JUDGMENT, In general, 575. Motion in arrest after pleading guilty, 431. Effect, former jeopardy, 450. ATTORNEYS, For the state, who may act, 505. For defendant, appointment, 505. On preliminary examination, 92. Opening of case, 532. Arguments of, 538. Misconduct of, 534, 539. AUTREFOIS ACQUIT AND CONVICT, PLEAS OF, In general, 439, 469. Necessity for plea, 469. Character and sufficiency of plea, 469. Pleading over in plea, 470. Reply and issue on plea, 470. Demurrer to plea, 470. When bad for duplicity, 470. Right to plead over after plea is overruled, 470, Time of pleading, 471. Degree of certainty required, 471. ‘ What constitutes former jeopardy, 442. y Jurisdiction of former court, 446. Character of court, 447, 455. Courts-martial and state courts, 456. Errors and irregularities on former trial, 447. Insufficiency of former indictment, 448. Variance between former indictment and proof, 449. Former judgment executed, 450. Mistrial through defendant’s fault or by consent, 450. Verdict set aside, judgment arrested or reversed, new trial, 451. Writ of error or appeal by state, 453. New trial after acquittal, 453. ° 718 INDEX [The figures refer to pages] AUTREFOIS ACQUIT AND CONVICT, PLEAS OF—Continued, Effect of fraud on former prosecution, 454. Several sovereignties, 455. Violation of statute and of municipal ordinance, 455. Necessity for former judgment, 456. Identity of offenses, 457. B BAIL, In general, 99. Jurisdiction to admit to bail, 100. Liability of magistrate for refusing or delaying to admit to bail, 101. Right to release on bail, 102. Sufficiency of bail, 105. Sufficiency of sureties, justification, 106. Who may become bail, 106. Remedy of the accused on denial of bail, 107, 651. The bail bond or recognizance, 108. Release of sureties, 113. Arrest and surrender of the accused, 114. Breach of bond or recognizance, or forfeiture of bail, 115. BENCH WARRANT, For arrest, 28. BILL OF PARTICULARS, In general, 499. BINDING OVER, See Bail; Recognizance. BOND, To keep the peace, or for good behavior, 2, See Bail. BREACH OF PEACE, Surety to keep the peace, 2. BURDEN OF PROOF, See Evidence. CAPTION, Of indictment, 158. What it should show, 159. Showing as to court, 159. Ag to place of holding court, 159. As to time of presenting indictment, 160. Name of judge or judges, 160. That finding is upon oath or affirmation, 160. Names of grand jurors, 160. Number of grand jurors, 161. Qualifications of grand jurors, 161. Reasons for affirming instead of swearing jurors, 161, Amendment, 161. Reference to other parts of record, 162. INDEX 719 [The figures refer to pages] CERTAINTY, See Pleading. CHALLENGE, Of jurors, see Grand Jury; Petit Jury. CHANGE OF VENUE, In general, 485. On application of state, 486. On application of defendant, 485, 486, Grounds, 486. Affidavits, 487. Discretion of court, 487. Number of applications, 488. Joint defendants, 488. Erroneous denial of motion, effect on jurisdiction, 489, CHARGE OF COURT, To grand jury, 131. To petit jury, see Instructions. Charging crime in different ways, 3338, 334, See, also, Indictment. CLERICAL ERRORS, In the indictment, 170, 205. In statement of time, 286. In verdict, 569. COERCION, Of jury, 557. COLLATERAL ATTACK, On judgment, 5. COMMENCEMENT, Of indictment, 166. See, also, Pleading. Of separate ceunts, 344. See Time of Prosecution. COMMITMENT, By magistrate, 118. Sufficiency, 120. Effect of errors and irregularities, 120. COMPLAINT, For issuance of warrant of arrest, 27. For issuance of search warrant, $2. On preliminary examination, 91. In prosecutions in inferior courts, 149, Form and sufficiency, see Pleading. CONCLUSION OF INDICTMENT, In general, 356. Against the peace, etc., 356. Of what government, 857. Against the form of the statute (contra formam statuti), 358. When necessary, 358. Statuti or statutorum, 360. 720 INDEX [The figures refer to pages] CONCLUSION OF INDICTMENT—Continued, Rejection-as surplusage, 321, 361. Several counts, 344, 360. Constitutional and statutory provisions, 362. “To the great damage of,’ etc., 362. “To the evil example of all others,” 362. “To the great displeasure of Almighty God,” 362, “To the common nuisance,” etc., 362. CONCLUSIONS OF LAW, See Pleading. CONDUCT, Of judge, 536. Of the jury, 554. Of attorneys, see Attorneys, Of trial, see Trial. CONDUCT OF TRIAL, See Trial. CONFESSION, Or plea of guilty, 428. After plea of not guilty, 427, 429, After demurrer, 427. After plea to the jurisdiction, in abatement, or specially in bar, 427. Withdrawal of, to plead not guilty, 427, 429. Effect as a waiver of errors and defects in pleading, 431. Implied confession, or plea of nolo contendere, 430. Extrajudicial confessions as evidence, see Evidence. CONSENT, Cannot confer jurisdiction, 7, 122. Cannot cure fatal defect in indictment, 123. To entry of nol. pros., 155. Of defendant, to discharge of jury, 443. Waiver of right to be present during trial, see Presence of Defendant. Waiver of jury trial, see Petit Jury. CONSOLIDATION, Of indictments, 504. CONSTITUTIONAL LAW, See specific titles. CONTINUANCE, Right to speedy trial, 476. On application of state, 476. On application of defendant, 478. Want of preparation, 478. Absence or sickness of defendant, 479. Absence or sickness of defendant’s counsel, 479, Absence of witnesses, 480. Local prejudice or excitement, 482. Practice, affidavits, 483. Joint defendants, 484. INDEX 721 [The figures refer to pages] CONTINUANCE— Continued, Discretion of court, 484. Of preliminary examination, 89, CONTINUANDO, See Time and Place. CORONER’S INQUISITION, In general, 148. As dispensing with necessity for preliminary examination, 88. COUNSEL, For the state, who may act, 505. For the defendant, appointment, 505. At preliminary examination, 92. Argument of, 538. Misconduct, 534, 539. Sickness or absence of, as ground for continuance, 477, 479, COUNTS, See Joinder of Counts and Election. COUNTY, See Place of Trial; Pleading; Venue, COUNTY ATTORNEY, See Attorneys. COURTS, Of criminal jurisdiction, 5. Effect of illegality in creation or constitution of, 5. Place of sitting, 5. Time of sitting, 5. Number of judges, 5. De facto court or judge, 5. Collateral attack on judgment, 6, Jurisdiction by consent, 7. The various state courts, 8 The federal courts, 9. See Jurisdiction. CRUEL PUNISHMENT, In general, 584. CUSTODY, Of the jury, 554. Of defendant during trial, 491. D DARREIN CONTINUANCE, Plea puis darrein continuance, 428, DE FACTO, Judge or court, 5. DEFENSES, ; : ‘ Matters of defense need not be anticipated in pleading, 196. CLarkK Cr.Pr0c.(2p Ep.) —46 722 INDEX [The figures refer to pages] DELAY, In granting preliminary examination, 89. See Continuance; Time of Prosecution; Time of Trial. DELIBERATIONS, Of the jury, 554. DEMURRER, To indictment, 436. Necessity for, 438. General or special, 437. Time of demurring, 428, 438. Indictment good in part, 437. Withdrawal of, to plead guilty, 427, Effect of sustaining, 438. Defects cured by amendment, 438. See, also, Amendment, To plea in abatement, 434. To plea of autrefois acquit or convict, 470. Pleading over, after demurrer to indictment, 427, 437. After demurrer to plea in abatement, 435. After demurrer to replication to plea in abatement, 435. To evidence, 553. DEMURRER TO EVIDENCE, In general, 553. DISCHARGE OF JURY, Effect, 443. DISJUNCTIVE ALLEGATIONS, In general, 199. Rejection as surplusage, 209, DISQUALIFICATION, Of jurors, see Grand Jury; Petit Jury. Of judge as ground for change of venue, 486. DISTRICT ATTORNEY, See Attorneys. DUPLICITY, In general, 322. Rejection of matter as surplusage, 210, 329. Effect, 322, 330. In special plea in bar, 428, In plea of autrefois acquit or convict, 470. E HLECTION, Between counts, see Joinder of Counts and Election. Between several offenses shown by the evidence, 329, 39& ERROR, WRIT OF, In general, 588. By state, 589. j INDEX 723 (The figures refer to pages] EVIDENCHE, ' Facts in issue, 590. Facts relevant to facts in issue, 592., Facts necessary to explain or introduce relevant facts, 596. Motive, 597. Preparation, 599. Subsequent conduct or condition of defendant, 599. Statements accompanying acts, 601. Statements in presence of defendant, 601. Conduct and complaint by person injured, 602. Res gestae, 604. Othér crimes, 605, 607. Acts and declarations of conspirators, 612. Hearsay, 615. Declarations of persons. other than defendant, 615. Dying declarations, 617. Admissions and declarations by defendant, 620, Confessions, 621. Evidence given in former proceeding, 627. Opinion evidence, 628. Experts, 629. Character, 631. Evidence wrongfully obtained, 633. Presumption of innocence, burden of proof, 684. Witnesses, their competency, and mode of examination, 638. Who may testify, 638. Privileged communications, 640. Defendant not to be compelled to criminate himself, 642, Of jurors to impeach verdict, 574. Secrecy as to proceedings by grand jury, 142. Corroboration, when required, 643. Number of witnesses necessary, 644. Excluding witnesses from court room, 644. Failure to call witnesses, 644. Compelling state to call witnesses, 645. Bxamination of witnesses, 645. Examination in chief, cross-examination, and re-examination, 645. To what matters cross-examination and re-examination must be directed, 646. Leading questions, 646. Questions proper on cross-examination, 647. Exclusion of evidence to contradict answers to questions test- ing veracity, 647. Statements inconsistent with present testimony may be proved, 648. Impeaching credit of witness, 648. Offenses against women, examination of prosecutrix, 650. Demurrer to, 553. At preliminary examination, 92-94, Before grand jury, 132. Compelling the accused to testify before grand jury, 183. See Pleading and Proof—Variance. 724 INDEX [The figures refer to pages] EXAMINATION, Of witnesses, see Evidence. See Preliminary Examination, EXCEPTIONS AND PROVISOS, In statute, negativing in indictment, 314. EXCESSIVE BAIL, See Bail. EXCESSIVE PUNISHMENT, In general, 584. EXTRADITION, See Fugitives from Justice. EXCLUSION, Of persons from courtroom, 489. F FEDERAL COURTS, See Courts; Habeas Corpus. FORCE, Use of force in restraining the accused, 92, Restraint of defendant during trial, 491. In making arrest, see Arrest. FORFEITURE, Of bail, 115. FORM, Of indictment, ete., see Pleading. FORMAL DEFECTS, In general, 165, 364, 367, 371. Cure by amendment, 363. Aider by verdict, 367. Cure by statute, 364. Waiver of, by pleading guilty, 431. See Clerical Errors. FORMER JEOPARDY, See Autrefois Acquit and Convict, Pleas of, FRAUD, Effect on plea of former jeopardy, 454, FUGITIVES FROM JUSTICE, In general, 69. International extradition, 69. Interstate rendition, 72. Trial on a different charge, 70, 72, 79. Fugitives fraudulently or forcibly apprehended, rights, 69, 71, 80. See Arrest. INDEX 125 (The figures refer to pages] G GENERAL ISSUB, See Plea of Not Guilty. GENERAL VERDICT, See Verdict. GOOD BEHAVIOR, Requiring surety for, 2. GRAMMATICAL ERRORS, In the indictment, 170, 205. In statement of time, 286. In verdict, 569. GRAND JURY, Jurisdiction and powers, 127. Selecting and summoning, 128, 138. Qualifications of jurors, 128, 138, Exemption from jury duty, 129. Constitution of, 130. Impaneling and swearing, 130. Number of jurors, 130. Charge of the court, 131. Finding indictments, 132. Witnesses and evidence, 132. Rights of persons against whom charge is pending, 133, 138. Effect of hearing illegal evidence, 132. Effect of compelling the accused to testify, 133. Presence of persons in jury room, 134. The finding of the jury, 135. Indorsement of finding on bill, 135. Sufficiency of evidence to authorize finding, 135. Number of indictments, 136. Resubmitting case, 186. Effect of ignoring bill, 136. Countersigning by prosecuting officer, 136. Presentation and filing of indictment, 137. Indorsing names of witnesses and of prosecutor, 137. Minutes of testimony before grand jury, 188. Dissolution of jury, 138. Objections to organization, constitution, and qualifications of jury or jurors, 138. Secrecy as to proceedings, 142. Record of indictment and finding thereof, 158, Caption of indictment, see Caption. GUILTY, See Plea of Guilty. s 726 INDEX [The figures refer to pages) H HABEAS CORPUS, In general, 651. Nature and history of the writ, 651. Jurisdiction, by whom issued, 653. Questions reviewable, when discharge granted, 653. Jurisdiction as between state and federal courts, 657. Application for writ, by whom, 658. Form of application, 659. Form of writ, to whom directed, service, 659. Return, 660. Second application, appeal, 661. HABITUAL CRIMINALS, Indictment for second or third offense, 237. HEARING, See Preliminary Examination. HUE AND CRY, See Arrest. IMPEACHMENT, Of verdict by jurors, 574. IMPLIED CONFESSION, Or plea of nolo contendere, 430. IMPRISONMENT, See Arrest; Bail; Commitment; Habeas Corpus; Judgment and Sentence; Preliminary Hxamination, INCONSISTENCY, In indictment, 201, INDICTMENT, Necessity for formal accusation, 122. Fatal defects not curable by consent, 122. Presentment and indictment distinguished, 123, 187. When lies, 124. When necessary, 125. Finding indictments, 132. Witnesses and evidence, 132. Rights of persons against whom charge is pending, 133, 138. Effect of hearing illegal evidence, 132. Effect of compelling the accused to testify, 133. Presence of persons in jury room, 134. Indorsement of finding on bill, 135. Sufficiency of evidence to authorize finding, 135. Number of indictments, 136. Resubmitting cases, 136. Effect of ignoring bill, 136. Countersigning of indictment by prosecuting officer, 136, Presentation and filing of indictment, 187. Indorsing names of witnesses and prosecutor, 137. INDEX q27 [The figures refer to pages] INDICTMENT— Continued, Record of indictment and finding thereof, 158, Caption of indictment, 158. Furnishing copy to defendant, 498. Loss of, supplying copy, 501. Consolidation of indictments, 504. Form of indictment, see Pleading. Sufficiency, see Pleading. ; - Effect of want of preliminary examination or irregularities therein, 96. As dispensing with necessity for preliminary examination, 89. See, also, Pleading. INDUCEMENT, In general, 192, 207, 246. INFERENCE, Cannot aid indictment, 191. INFORMATION, In general, 144. Distinguished from indictment, 145. When lies, 145. Different kinds, 145. Loss of, supplying copy, 501. Form and sufficiency, see Pleading, INNUENDO, In general, 208, 246. INSANITY, Of defendant, effect, 425, 497. INSTRUCTIONS, In general, 542. Province of court and jury, 543. Jurors as judges of the law, 543. Jurors as judges of the facts, 546. Direction of verdict by court, 547. Character of, whether erroneous, 548. On what points necessary, 550. Necessity for request to charge, 550. Granting and refusing requests, 550. Objections and exceptions, 552. INTENT, Allegation of, 218. Rejection as surplusage, 225. Variance between indictment and proof, 379. INTERNATIONAL EXTRADITION, See Fugitives from Justice. INTERSTATE RENDITION, See Fugitives from Justice. 728 INDEX [The figures refer to pages] JEOFAILS, STATUTES OF, In general, 371. JOINDER OF COUNTS AND ELECTION, In general, 331. Same offense charged in different ways, 333. : Charging same transaction as constituting different offenses, 334. Joining statutory and common law offenses, 336. Separate and distinct offenses, 337. Exceptional doctrine in some states, 339. Joining felony and misdemeanor, 340. Effect of misjoinder, 342. Construction and form of separate counts, 344, Commencement, 167, 344. Conclusion, 344. Showing as to oath of grand jury, 169. Repeating name and description of defendant, 175. Reference in one count to matter contained in another, 167, note, 169, 175, 345. Some counts bad, effect, 345, 571. JOINDER OF OFFENSES, In a single count, see Duplicity. In separate counts, see Joinder of Counts and Hlection. JOINDER OF PARTIES, In general, 347. : Principals in first and second degree, 349, 351. Principal and accessory, 352. Conviction of one and acquittal of the other, 354. Effect of misjoinder, 355. Several counts, 355. Arraignment and pleas, 425. Continuance as to some defendants only, 484. Separate trial of joint defendants, 503. Change of venue as to some defendants only, 488, JUDGE, Number of judges, 5. De facto judge, 5. Objection to, by plea to the jurisdiction, 432. Misconduct and improper remarks by, 536. Absence from court room during trial, 502. Prejudice or disqualification as ground for change of venue, 487. See Courts. JUDGMENT AND SENTENCE, In general, 578. Excessive punishment, 584. Cruel and unusual punishment, 584, Collateral attack on judgment, 7. On confession, plea of guilty, 428, INDEX 729 [The figures refer to pages] JUDGMENT AND SENTENCE—Continued, On plea of nolo contendere, 430. Evidence in mitigation of sentence, 431. On overruling demurrer or plea, 427, 437, 471. After plea in abatement is overruled, 435. After overruling of demurrer to plea in abatement, 435. After overruling of demurrer to replication to plea, 435. See Jurisdiction. JUDICIAL NOTICE, Facts judicially noticed, pleading, 194, JURISDICTION, In general, 4. Courts illegally created or constituted, 5. Place of holding court, 5. Time of holding court, 5. Number of judges, 5. De facto court or judge, 5. Collateral attack on judgment, 6. The various state courts, 8. The federal courts, 9. As determined by locality of crime, 10. See Venue To issue warrant of arrest, 32. : To conduct preliminary examination, 90. Of magistrate, 98. To admit to bail, 100. See, also, Arrest; Bail; Commitment; Preliminary Examination. Of grand jury, 127. Effect of erroneous denial of motion for change of venue, 489. By consent, 7, 122. Plea to the jurisdiction, 431. As bearing on question of former jeopardy, 446, © See Venue. JURY, See Grand Jury; Petit Jury. JURY TRIAL, See Petit Jury. JUSTICES OF THE PEACE, Jurisdiction to punish, 98. : See, also, Arrest; Bail; Commitment; Preliminary Examination. K KNOWLEDGE, Allegation of, 225. _ Rejection as surplusage, 228, 381. Variance between allegation and proof, 381, 730 INDEX [The figures refer to pages] L LANGUAGE, Of indictment, 203. See, also, Pleading. LIMITATIONS, See Time of Prosecution, LOCALITY OF CRIME, See Venue. LOCAL PREJUDICE, As ground for continuance, 482. As ground for change of venue, 487. LOSS, - Of indictment or information, supplying copy, 501. M MAGISTRATES, Jurisdiction to punish, 98. See, also, Arrest; Bail; Commitment; Preliminary Examination. MAINPRISH, Explained, 100. MINERALS, Description of, 264. MISCONDUCT, Of judge, 536. See, also, Judge. Of the jury, 554. See, also, Petit Jury. Of attorneys, see Attorneys. MISJOINDER, Of offenses, see Duplicity; Joinder of Counts and Election. Of parties, see Joinder of Parties. MISNOMER, See Names; Pleading. MONEY, Description of, 258. MOTION IN ARREST, See Arrest of Judgment, MOTION TO QUASH, In general, 416. Grounds, 416, 419. Time of motion, 417. Objections to grand jury, see Grand Jury. MITTIMUS, See Commitment. INDEX 1 [The figures refer to pages] N NAMES, Of defendant in the aac 170. Of third persons in the indictment, 272, 390. Using initials, 171, 276. Middle name or initial, 171, 276, 392. Junior, senior, etc., 172, 276. Idem sonans, 172, 392, 394, Names of same derivation differing in sound, 172. Person known by more than one name, 172, 276, 392, Name held out by defendant, 173. Giving second name after alius dictus, 172, 394. Name of defendant unknown, 173. Name of third person unknown, 274, 302. Of corporation, 178, 276, 394. Variance between indictment and ginal 879, 390. NEW TRIAL, In general, 585. On motion of state, 453. Plea of former jeopardy, 453. NOLLE PROSEQUI, In general, 154. Effect, 443. NOLO CONTENDERH, Plea of, 430. NOT GUILTY, See Plea of Not Guilty. NOTICE, Allegation of, 225. Judicial, 194, © NUMBER, Statement of, in describing property, 264, Of judges, 5. Of grand jurors, 130. : O OATH, To grand jury, see Grand Jury. To petit jury, see Petit Jury. : To officer in charge of jury, see Petit Jury. OFFICERS, ; See Arrest; Fugitives from Justice; Searches and Seizures, OPENING, Of case by counsel, 532. OWNERSHIP, Allegation of, 267. Variance between indictment and proof, 389. 132 INDBX {The figures refer to pages) Pp PARDON, Plea of pardon, 471. Time of pleading, 407. PARTIAL VERDICT, In general, 572. PARTICULARS, BILL OF, In general, 499. PEACE, Surety to keep the peace, 2. PEREMPTORY CHALLENGE, See Petit Jury. PERSONAL PROPERTY, Description of, in the indictment, 251, Written instruments, 257. Money, 258. Animals, 259. Dead animals, 262. Minerals, 264. Trees, crops, etc., 264. Number and quantity, 264, Value, 264. Ownership, 267. Name of owner, see Names. Variance between indictment and proof, 384, PETIT JURY, Right to trial by jury, 507. Waiver of right, 509. Furnishing defendant a list of jurors, 498, Number of jurors, 511. Selecting and summoning, 512. Qualification of jurors, 512. Challenges, 512. To the array, 514. To the polls, 515. Principal challenges, 515. Propter defectum, 515. Propter affectum, 517. Propter delictum, 523, For favor, 528. Peremptory challenges, 524. Passing jurors at request of state, 525. Time and mode of challenge, practice, 526. Examination on voir dire, 528. Appointment of triers, 529. Effect of error in overruling challenge, 530. Exemption from jury duty, 523. Discharging and excusing jurors, 530. Swearing the jury, 531. INDEX 133 [The figures refer to pages] PETIT JURY—Continued, Impeachment of verdict by jurors, 574. Discharge of, effect, 443. Custody, conduct, and deliberations of jury, 554. Coercion of jurors, 557. Manner of arriving at verdict, 557. Province of, see Instructions. View of locus in quo, 533. See Verdict. PLACH, See Time and Place; Venue, PLACE OF TRIAL, In general, 10, 485. See, also, Venue. Change of venue, 485. On application of state, 486. On application of defendant, 485, 486. Grounds, 486. Affidavits, 487. Discretion of court, 487. Number of applications, 488, Joint defendants, 488. Erroneous denial of motion, effect on jurisdiction, 489, PLEADING, The accusation, 157. Form of indictment, in general, 157. Statutory forms, 164, 165. Following precedents, 164. Power of the legislature to prescribe or dispense with forma, 165. Commencement of indictment, 166. Commencement of subsequent counts, 167. Statement of venue, 167. Showing as to presentment, ete., 168. Showing prosecution by authority of state, 168. Showing as to oath or affirmation, 169. Clerical and grammatical errors, 170. The statement, 170. Name and description of defendant, 170. See, also, Names. Addition of defendant, 174. Repeating name and description, 175. Effect of misnomer, 176. Statement of offense, 177. In general of certainty, 177. Reasons for requiring certainty, 178. Degrees of certainty, 179. Strictness in applying rules, 180. Stating ingredients of offense, 181. Facts to be stated, and not conclusions of law, 184. Descending to particulars to identify offense, 188. Mode of averment, argument, and inference, 191. Unnecessary matter not to be stated, 193. 734 INDEX {The figures refer to pages] PLEADING—Continued, Facts necessarily implied from facts stated, 193, Facts judicially noticed, 194. Conclusions of law from facts stated, 195. Matters of evidence, 195. Matters of defense, 196. Facts not known, 198. Disjunctive or alternative allegations, 199. Repugnancy, 201, 285, 294. English language, 203. Abbreviations, 203, 287. Use of videlicet or scilicet, 204. Clerical or grammatical errors, 205, 287. Inducement, 207. Innuendo, 208. Surplusage, 209. Allegation of intent, 218. Allegation of duty, 225. Allegation of notice and request, 225. Allegation of knowledge, 225. Technical terms and phrases, 228. In indictments for treason, 230. “Feloniously” in indictments for felony, 230. Indictments for murder, 231, 236. For rape, 232. For burglary, 232. For larceny, 232. For robbery, 233. For piracy, 233. Common barretgrs, common scolds, etc., 233, In indictments for riot, 233. For maintenance, 234. For forcible entry, 234. “Not having the fear of God before his eyes,” etc., 234. “Being moved and seduced by the devil,’ 234. “With force and arms,” or “vi et armis,” 234, “Larceny,” 235. In indictments for perjury, 235. For forgery or counterfeiting, 235. Statutory offenses, 236, 305. Aggravating circumstances, 237. Second or third offense, 237. Setting forth written instruments, 239. Describing written instruments, 240, 257. Setting forth spoken words, 249. Description of real property, 250. Description of personal property, 251, Written instruments, 257. Money, 258. Animals, 259. Dead animals, 262. Minerals, 264. Trees, crops, etc., 264. INDEX 35 [The figures refer to pages] PLEADING—Continued, Number and quantity, 264. Value, 264. Ownership of property, 267. Description of third persons, 272, See, also, Names. Addition of third person, 277, Statement of time, 278. Time of day, 281. Continuando, 286. Statement showing prosecution barred, 282, Stating impossible or future day, 284. Clerical and grammatical errors, 286, Statement of place, 288. Transitory offenses, 291, Local offenses, 293. Local description, 293. Repugnancy, 294. “From” and “into,” 294. Repeating time and place, 295. Use of words “then and there,” 295, Use of word “and,” 295. The word “immediately,” 297. “Instantly,” 298. “Being,” 298. Indictments on statutes, 299. Reciting or referring to statute, 300. Recital of statute as surplusage, 301. Designation of offense as surplusage, 301. Description of offense, 302. Necessity to follow language of statute, 305. When sufficient to follow language of statute, 309. Negativing exceptions and provisos, 314. When indictment professedly on statute is good at common law, 321. Conclusion contra formam statuti as surplusage, 321. Against principals in the first and second degrees, 351. Against principal and accessory, 352. Against accessory, 353. Duplicity, 322. Surplusage, 329. Effect, 330. Joinder of counts, and election, 331. Same offense charged in different ways, 333. Same transaction as constituting different offenses, 334. Statutory and common-law offenses, 336. Distinct offenses, 337. Exceptional doctrine in Massachusetts and other states, 339. Joinder of felony and misdemeanor, 340. Effect of misjoinder, 342. Construction and form of separate counts, 344. Commencement, 344. 736 INDEX {The figures refer to pages] PLEADING—Continued, Conclusion, 344, Reference in one count to matter in another, 345, Some counts bad, effect, 345. Joinder of parties, 347. See, also, Joinder of Parties. Principal in first and second degrees, 347, 351. Principal and accessory, 352. Joinder of parties in different counts, 355. Effect of misjoinder, 355. Several counts, 355. Conclusion of indictment or information, 356. Against the peace, etc., 356. ; Of what government, 357. Against the form of the statute, 358. When necessary, 358. Statuti or statutorum, 360. Rejection as surplusage, 321, 361. Several counts, 344, 360. Constitutional and statutory provisions, 362. “To the great damage of,” etc., 362. “To the evil example of all others,” 362. “To the great displeasure of Almighty God,” 362, “To the common nuisance,” etc., 362. Amendment, in general, 363. Of indictment, 363. Of caption, 364. Of information, 364. Effect of modern statutes of amendment, 364, Aider by verdict, 367. Formal defects cured by statute, 371. Waiver of objections, 368, 371. See Pleading and Proof—Variance, Motion to quash, 416. Grounds, 416, 419. Time of motion, 417. Demurrer, to indictment, 4386. General or special, 487. Necessity for, 438. Time of demurring, 428, 438. Indictment good in part, 437. Withdrawal of, to plead guilty, 427. Effect of sustaining, 438. Defects cured by amendment, 488. See, also, Amendment. To plea, in abatement, 434. To plea of autrefois acquit or convict, 470. Pleading over after demurrer to indictment, 427, 437. After demurrer to plea in abatement, 435. After demurrer to replication to plea in abatement, 435. Pleas of the defendant, in general, 421. The various pleas, 425. Number of pleas, successive pleas, 426. Time of pleading, 428, 434, 471, 472. INDEX 37 [The figures refer to pages] PLEADING—Continued, Duplicity, 428, 470. Confession or plea of guilty, 428. After plea of not guilty, 427, 429. After demurrer, 427. / After plea to the jurisdiction, in abatement, or specially in bar, 427. Withdrawal of, to plead not guilty, 427, 429. Effect as waiver of errors and defects in pleading, 4381. Implied confession, or plea of nolo contendere, 430. Plea to the jurisdiction, 431. Degree of certainty’ required, 432. Plea in abatement, 4382. Pendency of another indictment, 433, Misnomer of defendant, 176, 433. Degree of certainty required, 434, Duplicity, 428. Time of filing, 434. After plea of not guilty, 428. Demurrer to plea, 434. Issue on plea, 482-436, Right to plead over after plea is overruled, 435. Quashing plea, 435. Amendment of plea, 435. Pleas in bar, 439. Special pleas in bar, 439. After plea of not guilty, 428. Plea puis darrein continuance, 428. Duplicity, 428. Autrefois acquit and convict, or former jeopardy, 439, 469. Necessity for plea, 469. Character and sufficiency of plea, 469, Pleading over in plea, 470. Reply and issue on plea, 470. Demurrer to plea, 470. When bad for duplicity, 470. Right to plead over after plea is overruled, 470. Time of pleading, 471. Degree of certainty required, 471. See, also, Autrefois Acquit. Plea of pardon, 471. Time of pleading, 471. Agreement to turn state’s evidence. 472. Plea of not guilty, general issue, 473. Necessity for, 421, 422. What it puts in issue, 473. Joint defendants, 425. After plea in abatement or specially in bar, 427, After pleading guilty, 427. 2 Withdrawal of, to plead guilty, 427. Replication, to plea in abatement, 432-436, To special plea in bar, 470. Rejoinder, 435. Criark Cr.PRoc.(2D Ep.)—47 738 INDEX [The figures refer to pages] PLEADING AND PROOF—VARIANCE, In general, 374. Mode or manner of committing offense, 375. Surplusage, 377. Proof of part of charge, 378. Name and addition of defendant, 379. Intent, 379. Knowledge, 381. Written instruments and sy ken words, 381. Description and proof of real property, 384, 400. Description and proof of personal property, 384, Ownership of property, 389. Name and description of third persons, 390. See, also, Names. As to time, 395. 3 As to place, 398. Indictments on statutes, 401. - Effect of modern statutes, 402. Conviction of minor offense, 403. Illustrations of the rule, 404. Minor offense must be charged, 408, Felony and misdemeanor, 411. On proof of higher offense, 413. Conviction of higher offense, 415. As bearing on question of former jeopardy, 448. PLEADING OVER, See Pleading. PLEA IN ABATEMENT, In general, 432. Pendency of another indictment, 433. Objections to grand jury, see Grand Jury. Misnomer or misdescription of defendant, 176, 433. Degree of certainty required, 434. Duplicity, 428. Time of filing, 484. After plea of not guilty, 428, Demurrer to plea, 484. Replication and issue on plea, 432-436. Right to plead over after plea is overruled, 435. Quashing plea, 435. Amending plea, 435. PLEA OF AUTREFOIS ACQUIT OR CONVICT, See Autrefois Acquit and Convict, Pleas of. PLEA OF GUILTY, In general, 428. After plea of not guilty, 427, 429. After demurrer, 427. After plea to the jurisdiction in abatement, or specially in bar, 427. Withdrawal of, to plead not guilty, 427, 429. Effect as a waiver of errors and defects in ‘pleading, 431. Implied confession, or plea of nolo contendere, 430. INDEX 739 [The figures refer to pages] PLEA OF NOT GUILTY, In general, 473. Necessity for, 421, 422. What it puts in issue, 473. Joint defendants,. 425. After pleading in abatement or specially in bar, 427. After pleading guilty, 427. ' Withdrawal of, to plead guilty, 427. PLEA OF NOLO CONTENDERBE, % In general, 430. PLEA OF PARDON, In general, 471. Time of pleading, 471. PLEA PUIS DARREIN CONTINUANCE, In general, 428, PLEAS, See Pleading. PLEAS IN BAR, See Agreement to Turn State’s Evidence; Autrefois Acquit and Con- vict, Plea of; Not Guilty, Plea of; Pardon, Plea of; Pleading. PLEA TO THE JURISDICTION, In general, 431. - Degree of certainty required, 432. POLLING THE JURY, In general, 567. POSSE COMITATUS, See Arrest. PRACTICE, See Specific Titles. PREJUDICE, Of community as ground for continuance, 482. As ground for change of venue, 487. Of judge as ground for change. of venue, 487. PRELIMINARY EXAMINATION, In general, 87. When necessary, 88. Waiver, 88. Time of granting, effect of delay, 89. Jurisdiction, 90. Change of venue, 90. Mode of conducting examination, 91, Complaint, 91. Attorneys, 92. Presence of the accused, 92. Intimidation and restraint of the ere 92. Examination of witnesses, 92. Examination of the accused, 98. Statement of the accused, 94. Sufficiency of the evidence, 94, 740 INDEX [The figures refer to pages} PRELIMINARY EXAMINATION—Continued, Binding over the witnesses, 95. Decision of magistrate and return, 96. Effect of want of examination or irregularities therein, 96, Presumption of regularity of penn aedtnes; 97. Waiver of objections, 98. Power of magistrate to convict and punish, 98. PRESENCE, . Of judge during trial, 502. Of defendant, during trial, 492. At preliminary examination, 92, PRESENTMENT, Distinguished from indictment, 123, 137. PRESUMPTION OF INNOCENCE, See Evidence. PREVENTION OF OFFENSES, In general, 2... ; PRINCIPAL AND ACCESSORY, Jurisdiction of offense, 18. See Pleading. PROOF, See EXvidence; Pleading and Pea ot-Aarintica, PROPERTY, See Personal Property; Real Property. PROSECUTING ATTORNEY, See Attorneys. PROVINCE OF COURT AND JURY, See Instructions. PROVISOS AND EXCEPTIONS, In statute, negativing in indictment, 314, PUBLIC TRIAL, Right to, 489. PUIS DARREIN CONTINUANCE, The plea, 428. PUNISHMENT, See Judgment and Sentence; Verdict. QUALIFICATION, Of jurors, see Grand Jury; Petit Jury. QUANTITY, Statement of, in describing property, 264, QUASHING INDICTMENT, In generat, 416. See, also, Pleading. Grounds, 416, 419. Time of motion, 417. INDEX 41 {The figures refer to pages] R REAL PROPERTY, Description of, in the indictment, 250.: Allegation of ownership, 267. Name of owner, see Names. Variance between indictment and proof, 384, 400. REASONABLE DOUBT, See Evidence. — RECOGNIZANCH, To keep the peace, or for good behavior, 2. Binding over witnesses on preliminary examination, 95. See Bail. RECORD, Of indictment and finding thereof, 158. Caption of indictment, what must appear, 158. Showing as to court, 159. As to place of holding court, 159. As to time of presenting indictment, 160. Name of judge or judges, 160. : That finding is upon oath or affirmation, 160, 169. Names of grand jurors, 160. Number of grand jurors, 161. Qualifications of grand jurors, 161. Reasons for affirming instead of swearing jurors, 161, Place from which jurors were summoned, 168. Amendment of caption, 161. Reference to other parts of record, 162. REDUNDANCY, See Surplusage. REJOINDER, In general, 435. RENDITION OF FUGITIVES, See Fugitives from Justice. REPLICATION, To plea in abatement, 432-436. To special plea in bar, 470. REPUGNANCY, In general, 201. Rejection of matter as surplusage, 211. In statement of time, 285. In statement of place, 294. REQUEST, Allegation of, 225. REQUESTS, See Instructions. RESTRAINT, Of defendant during trial, 491. Bite! Of the accused, at preliminary examination, 92. 742 INDEX [The figures refer to pages] S SCILICET, Use of, in indictment, 204. SEALED VERDICT, In general, 564. SEARCHES AND SEIZURES, In general, 80. Complaint, 82. Warrant, 83. Hxecution of warrant, 84. The warrant as a protection to the officer, 85. Taking property from person arrested, 85. See Arrest. SECOND OR THIRD OFFENSE, Indictment, 237. SECRECY, As to proceedings before grand jury, 142. SEIZURES, See Arrest; Searches and Seizures. SENTENCE, See Judgment and Sentence. SEPARATE COUNTS, See Joinder of Counts and Election, SEPARATION, Of the jury, 554. SEVERAL COUNTS, See Joinder of Counts and Election. SEVERANCE, Of joint defendants, 355, 503. ; SICKNESS, Of defendant as ground for continuance, 479. Of defendant’s counsel, 479. Of prosecuting attorney, 477. SPECIAL PLEAS IN BAR, See Agreement to Turn State’s Evidence; Autrefois Acquit and Convict, Plea of; Pardon, Plea of; Pleading. SPECIAL VERDICT, In general, 571. SPEEDY TRIAL, Right to, 475. SPOKEN WORDS, Setting forth in indictment, 249. Variance between indictment and proof, 381. STATE COURTS, See Courts; Habeas Corpus. * INDEX [43 [The figures refer to pages] STATH’S ATTORNEY, See Attorneys. STATUTES OF JEOFAILS, In general, 371. STATUTES OF LIMITATION, See Time of Prosecution. STATUTORY OFFENSES, Indictments on statutes, 299. Reciting or referring to the statute, 300. Recital of statute as surplusage, 301. Designation of offense as surplusage, 301. Description of offense, 302, Necessity to follow language of statute, 305. Use of technical terms, 236, 305. When sufficient to follow language of statute, 309. Negativing exceptions and provisos, 314. When indictment professedly on statute good at common law, 321. Conclusion contra formam statuti as surplusage, 321. SUMMING UP, Of counsel, 538. SURETIES, To keep the peace, or for good behavior, 2. See Bail. SURPLUSAGE, In general, 209. Disjunctive allegations, 209. Duplicity, 210, 329. Repugnancy, 211. Erroneous designation of offense, 212, 304. Erroneous recital of statute, 301. Erroneous conclusion contra formam statuti, 321. Failure to prove, not a variance, 377. Allegation of intent, 225, 381. Allegation of knowledge, 228, 381. Unnecessary use of the term “feloniously,” 230. Allegations as to property, 214, 385, Unnecessary matter of description not surplusage, 214, 385. Allegation as to ownership of property, 389. Name and description of third persons, 394. Allegations as to time, 395. Allegations as to place, 398. Place stated as matter of local description, 399. Use of videlicet or scilicet, 204. In verdict, 569, 570, 573. 744 INDEX [The figures refer to pages] T TECHNICAL TERMS AND PHRASES, In general, 228. “Unlawfully,” 229. In indictments for treason, 230. “Feloniously” in all indictments for felony, 230, 236, In indictments for murder, 202, 231, 234, 236. For rape, 232. For burglary, 232. For larceny, 232. For robbery, 233. For piracy, 233. Common barretors, common scolds, ete., 233. In indictments for riot, 233. For maintenance, 234. For forcible entry, 234. “Not having the fear of God before his eyes,” ete., 2384 ‘Being moved and seduced by the devil,” 234. “With force and arms,” or “vi et armis,” 234, “Larceny,” 285. In indictments for perjury, 235. For forgery or counterfeiting, 235. Statutory offenses, 236, 305. TIME AND PLACE, Statement of time in the indictment, 278. Time of day, 281. Continuando, 286. Statement showing prosecution barred, 282, Stating impossible or future day, 284. Clerical and grammatical errors, 286. Variance, 395. Statement of place in the indictment, 288, Transitory offenses, 291. Local offenses, 293. Local description, 293. Surplusage, 395. Repugnancy, 294. “From” and “into,” 294. Variance, 395. Repeating time and place, 295. “Then and there,” 295. “And,” 295. “Immediately,” 297. ‘Instantly,’ 298. “Being,” 298. 7 See, also, Venue. TIME OF PROSECUTION, In general, 149. Effect of delay at common law, 149, Statutes of limitation, 150. Running of statute, 150. INDEX 745 . [The figures refer to pages] TIME OF PROSECUTION—Continued, Exceptions, 152. Interruption of statute, 152. Indictment showing prosecution barred, 282. TIME OF TRIAL, In general, 475, Right to speedy trial, 476. Continuance on application of state, 476. Continuance on application of defendant, 478, Want of preparation, 478. Absence or sickness of defendant, 479. Absence or sickness of defendant’s counsel, 479, Absence of witnesses, 480. Local prejudice or excitement, 482, Practice, affidavits, 483. Joint defendants, 484. Discretion of court, 484. See, also, Time of Prosecution. TRESPASS, See Arrest; Searches and Seizures, TRIAL, Time of trial, 475. Right to speedy trial, 476. Continuance on application of state, 476. Continuance on application of defendant, 478. Want of preparation, 478. Absence or sickness of defendant, 479. Absence or sickness of defendant’s counsel, 479. Absence of witnesses, 480. Local prejudice or excitement, 482. Practice, affidavits, 483. Joint defendants, 484. Discretion of court, 484. Place of trial, 10, 485. See, also, Venue. Change of venue, 485. On application of the state; 486. On application of defendant, 486. Grounds, 486. Affidavits, 487. Discretion of court, 487. Number of applications, 488. Joint defendants, 488. Erroneous denial of motion, effect on jurisdiction, 489. Right to public trial, 489. Excluding persons from court room, 489. Custody of defendant, 491. Restraint of defendant, violence and intimidation, 491, Presence of the defendant during trial, 492. Insanity of defendant, 497. Copy of indictment, 498. Furnishing defendant list of witnesses, 498. Furnishing list of jurors, 498. 746 ' INDBX {The figures refer to pages] TRIAL—Continued, . Bill of particulars, 499. Supplying lost indictment or information, 501. Presence of judge, 502. Separate trial of joint defendants, 503. Consolidation of indictments, 504. Counsel for the prosecution and the defense, 505, Opening of case by counsel, 532. . View by jury, 583. Misconduct of prosecuting attorney, 534, 539. Misconduct of judge, 536. Summing up and argument of counsel, 538. Instructions or charge of court to the jury, 542. Province of court and jury, 543. Jurors as judges of the law, 543. Jurors as judges of the facts, 546. Direction of verdict by the court, 547. Character of the charge, whether erroneous, 548, On what points necessary, 550. Necessity for request to charge, 550. Granting and refusing requests, 550. Objections and exceptions, 552. Demurrer to the evidence, 553. Custody, conduct, and deliberations of the jury, 554, Coercion of jurors, 557. Manner of arriving at verdict, 557. For questions relating to the jury, see Petit Jury, See Verdict. TRIAL BY JURY, See Petit Jury. V VALUE, Allegation of, 264. VARIANCE, See Pleading and Proof—Variance. VENUE, In general, 10. Constitutionality of statutes, 12. Homicide, 10, 19, 22. Assault, 19. Larceny, 138. False pretenses, 13, 18. Embezzlement, 14. Burglary, 15. Robbery, 15. Forgery, 15. Uttering forged instrument, 15, 19. Threatening letters, 16, 19. Libel, 17, 19. Bigamy, 17. Nuisance, 18. Abduction, inveigling, etc., 18. INDEX TAT (The figures refer to pages] VENUE—Continued, Seduction, 21. Crimes committed while personally absent, innocent agent, 18, 22. Accessaries in another county, 19. Offenses committed near county boundaries, 21. Offenses partly in one county and partly in another, 21. Locality of crime against the United States, 22. Statement of, in charging offense, 288. See Time and Place. Statement of, in commencement of indictment, 166. Change of venue, see Place of Trial; Change of Venue. On preliminary examination, 90. VERDICT, In general, 562. Direction of, by the court, 547. Custody, conduct, and deliberations of jury, 554, Coercion of jurors, 557. Manner of arriving at verdict, 557. Gambling verdict, 557. Inability to agree, 565. Rendition and reception by court, 563. Sealed verdict, 564. Correction or retraction by jury, 565. Polling the jury, 567. Amendment by court, 567. Sufficiency, in general, 568. Informalities, 569. Surplusage, 569, 570, 573. Finding degree of crime, 570. Finding as to punishment, 570, General verdict, 344, 571. Special verdict, 571. Partial verdict, 572.. Impeachment of verdict by jurors, 574, Conviction of minor offense, 403. Conviction of higher offense, 414. Joint defendants, conviction of part, 353. Aider by verdict, 367. VIDELICET, Use of, in indictment, 204, VIEW BY JURY, In general, 533. VIOLENCE, In restraining the accused, 92, 491, In making arrest, see Arrest. 748 INDEX [The figures refer to pages] W WAIVER, Of objection to grand jury, 189, 140. Of preliminary examination, 88. Of objections to want of preliminary examination, or irregularities therein, 98. Of jury trial, see Petit Jury. See Consent. WARRANT, See Arrest; Fugitives from Justice; Searches and Seizures, WITNESSES, * ¥ Before grand jury, 1382. At preliminary examination, 92. Absence of, as ground for continuance, 480. Compelling accused to testify, before grand jury, 1383. Furnishing the defendant a list of, 498. Indorsing names on indictment, 137. Secrecy as to proceedings beforé grand jury, 142. Requiring witnesses to enter into a recognizance to appear, 95. See Evidence. WORDS, Setting forth written words in the indictment, 239, Setting forth spoken words, 249. Technical terms and phrases, 228. See Technical Terms and Phrases. WRIT OF ERROR, See Error, Writ of. WRITTEN INSTRUMENTS, Setting forth or describing in indictment, 239. Variance between indictment and proof, 381. WEST PUBLISHING CO., PRINTERS, ST. PAUL, MINN. Catalogue of the Hornbook Series Dp West Publishing Company Saint Paul, Minnesota C11579. } ihn ae nt a Te | _ Admiralty ‘By ROBERT M. HUGHES, M. A., of the Norfolk, Virginia, Bar. 1901. | 504 pages. a 75 delivered. TABLE OF CONTENTS, The Origin and History of the Admiralty, and its Extent in the United States. Admiralty Jurisdiction as Governed by the Subject-Matter. General Average and Marine Insurance. Bottomry and Respondeitia; and Liens for Supplies, Repairs, and Other Necessaries. Stevedores’ Contracts, Canal Tolls, and Towage Contracts. Salvage. Contracts of Affreightment and Charter Parties. Water Carriage as Affected by the Harter Act of February 13, 1898. Adniralty Jurisdiction in Matters of Tort. The Right of Action in Admiralty for Injuries Resulting Fatally. Torts to the Property, and Hereifi of Collision. The Steering and Sailing ‘Rules.’. ~“~ Rules as to Narrow Channels, Special Circumstances, and General Precautions. Re Damages in Collision Cases. ™~° «= Vessel Ownership Independent of ie Limited Liability Act. Rights and Liabilities of Owners as Affected by the Limited Lia- bility Act. The Relative Priorities of Maritime Claims. A Summary of Pleading and Practice. APPENDIX. . The Mariner’s Compass. . Statutes Regulating Navigation, Including: (1) The International Rules. (2) The Rules for Coast and Connecting Inland Waters. (8) The Dividing Lines peeves the High Seas and Coast Wa- ters. (4) The Lake Rules. G (5) The Mississippi Valley Rules. (6) The Act of March 3, 1899, as to Obstructing Channels. 3. The Limited Liability Acts, Including: (1) The Act of March 38, 1851, as Amended. . = (2) The Act of June 26, 1884. 2 . Section 941, Rev. St. as “Amended, Regulating Boadiae of ‘Wess sels. . Statutes Regulating Evidence in the Federal COUR. . Suits in Forma Pauperis. ro The Admiralty Rules of Practice. Ne » AM C11579-2 Agency By FRANCIS B. TIFFANY, Author of ‘Death by Wrongful Act,” “Law of Sales,” ete, 1908. 609 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. Part 1 —IN Gea n Als 1. introductory Damiitions. 2. Creation of the Relation of Principal and Agent—Appointment. 3. Same (continued)—Ratification. 4. What Acts Can be Done’ by Agent—Illegality—Capacity of Parties—Joint Principals and Agents. Delegation by Agent—Subagents. ' . Termination of the Relation.. . Construction of Authority. DN Part 2—RIGHTS AND LIABILITIES BETWEEN PRINCIPAL AND THIRD PERSON. 8. Liability of Principal to Third Person—Contract. 9. Same (continued). 10. Admissions by Agent—Notice to Agent. ; 11. Liability of Principal to Third Person—Torts and Crimes. 12. Liability of Third Person to Principal.. . Part ae THIRD. PERSON. 18. Liability of Agent to Third Person (including parties to con- tracts). 14. Liability of Third Person to Agent., Part a RIGHTS AND LIABILITIES BHTWEEN PRINCIPAL. AND AGENT. 15. Duties of Agent to Principal. 16. Duties of Principal to Agent. Appendix. ‘C11579-3 Bailments and Carriers By A. M. DOBIE, Professor of Law, University of Virginia. 1914. 852 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. . Definition and Classification of Bailments. . General Principles Common to All Bailments. . Bailments for the Bailor’s Sole Benefit. . Bailments for the Bailee’s Sole Benefit. . Bailments for Mutual Benefit—Hired Use of Things. . Bailments for Mutual Benefit—Hired Services about Things. . Bailments for Mutual Benefit—Pledges. . Innkeepers. . Private and Common Carriers of Goods. . Liabilities of the Common Carrier of Goods. . Liability under Special Contract. . Commencement and Termination of the Liability of the Com- mon Carrier of Goods. . The Rights of the Common Carrier of Goods. . Quasi Carriers of Goods—Post-Office Department. . Actions against Carriers of Goods. . The Nature of the Relation. . Commencement and Termination of the Relation. . Liabilities of the Common Carrier of Passengers. . The Rights of the Common Carrier of Passengers. . The Baggage of the Passenger. . Actions against Carriers of Passengers. Supplement—The Federal Interstate Commerce Acts. C11579-4 Banks and Banking By FRANCIS B. TIFFANY, Author of “Tiffany on Sales,” “Tiffany on Agency,” ete. 1912. 610 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. 1. . Deposits. . Checks. . Payment of Checks. ws Be oe Be ee one Oo COON D A BP Introductory. . Clearing House. . Collections. . Loans and Discounts. Bank Notes. . Banking Corporations. . Representation of Bank by Officers. . Insolvency. . National Banks. . Savings Banks. Appendix. With Key-Number Annotations C11579-5 Bills and Notes By PROF. CHARLES P. NORTON. Fourth Edition: By WM. UNDERHILL MOORE, ‘Professor of Law, University of Chicago. 1914. 732 pages. $8.75 delivered. TABLE OF CONTENTS. Chap. 1 2. . Introduction. Of Negotiable Bills and Notes, and Their Formal and Essen- tial Requisites. 8. Acceptance of Bills of Exchange. 4. Indorsement. %. Of the Nature of the Liabilities of the Parties. 6. Transfer. 7. Defenses Commonly Interposed against a Purchaser for Value without Notice. : 8. Purchaser for Value without Notice. 9. Presentment, Dishonor, Protest, and Notice of Dishonor. 10. Checks. Appendix—The Negotiable Instruments Law. C11579-6 Chap. 1. 2. 3. 10. 11. 12. Var * » Common-Law ‘Pleading By: BENJAMIN l SHIPMAN, LL.B. Second Edition. 1895, 615 pice = 1 delivered. WUE TABLE OF: CONTENTS. Forms of Action. Forms of Beatin. The Parties fo Actione: . The Proceedings in an Action. x . The Declaration. . The Production of the Issue. . Materialty in Pleading. . Singleness or Unity in Pleading. . Certainty in Pleading. Consistency and Simplicity in Pleading. Directness and Brevity’ in Pleading. ° Miscellaneous Rules. Appendix. ClIS79-7 Constitutional Law By H. CAMPBELL BLACK, Author of Black’s Law Dictionary, Treatises on Judgments, Tax Titles, Bankruptcy, ete Third Edition. 1910. 868 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. . Definitions and General Principles. . The United States and the States. . Establishment and Amendment of Constitutions, . Construction and Interpretation of Constitutions, The Three Departments of Government. . The Federal Executive. . Federal Jurisdiction. i . The Powers of Congress. . Interstate Law as Determined by the Constitution. 10. The Establishment of Republican Government. 11. Executive Power in the States. 12. Judicial Powers in the States. 13. Legislative Power in the States, 14. The Police Power. 15. The Power of Taxation. 16. The Right of Eminent Domain. 17. Municipal Corporations. 18. Civil Rights, and Their Protection by the Constitution. 19. Political and Publie Rights. 20. Constitutional Guaranties in Criminal Cases, 21. Laws Impairing the Obligation of Contracts. 22. Retroactive Laws. PHOAAMTAWNH With Key-Number Annotations C11579-8 Construction and Interpretation of Laws By H. CAMPBELL BLACK, Author of Black’s Law Dictionary, and Treatises on Constitution- al Law, Judgments, ete. Second Edition. 1911. 624 pages. $3.75 delivered, TABLE OF CONTENTS. Chap. ae 2. Construction of Constitutions. 3. 4. Presumptions in Aid of Construction, and Consideration of Ef- 1 AD Nature and Office of Interpretation. General Principles, of Statutory Construction. fects and Consequences of Act. . Literal and Grammatical Construction, Meaning of Language, and Interpretation of Words and Phrases. . Intrinsic Aids in Statutory Construction. . Extrinsic Aids in Statutory Construction. . Construction of Statute as a Whole and with Reference to Ex- isting Laws. . Interpretation with Reference to Common Law. 10. 11. 12. 138. 14. 15. 16. 17. 18. Retrospective Interpretation. Construction of Provisos, Exceptions, and Saving Clauses. Strict and Liberal Construction. Mandatory and Directory Statutes and Provisions. Amendatory and Amended Acts. Construction of Codes and Revised Statutes. Adopted and Re-enacted Statutes. Declaratory Statutes. The Rule of Stare Decisis as Applied to Statutory Construc- tion. With Key-Number Annotations C11579-9 Contracts By. WM. L. CLARK, Jr., Author of “Criminal Law, ” ‘eCriminal | Procedure,” and “Corporations. 2 Third Edition: By A, H, THROCKMORTON, Professor of: Law, Western Réserve: University. 1914. 779 pages. $3.75 delivered. TABLE OF CONTENTS, Chap. 1. Definition, Nature, and Requisites of Contract in General. 2. Offer and Acceptance, 3. Classification of Contracts—Contracts under Seal, and Con- tracts of Record. i Contracts Required to be in Writing—Statute of Frauds. 2 Consideration. . Capacity of Parties. . Reality of Consent. . Legality of Object. . Operation of Contract. 10. Interpretation of Contract. ' 11. Discharge of Contract. 12. Quasi Contract. OMAN HD oR With Key-Number Annotations. C11579-10 Corporations By WM. L. CLARK, Jr. Author of “Criminal Law,” “Criminal Procedure,” and “Contracts.” i Third Edition: By I. MAURICE WORMSER, Professor of Law, Fordham University Law School. 1916. 803 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. Of the Nature of a Corporation. . Creation and Citizenship of Corporations. . Effect of Irregular Incorporation. . Relation Between Corporation and Its Promoters. Powers and Liabilities of Corporations. . Powers and Liabilities of Corporations (Continued). Powers and Liabilities of Corporations (Continued). . The Corporation and the State. . Dissolution of Corporations. . Membership in Corporations. . Membership in Corporations (Continued). . Membership in Corporations (Continued). . Management of Corporations—Officers and Agents. . Rights and Remedies of Creditors. . Foreign Corporations. CHADARWNH Bee ee aR WHE S C11579-11 Criminal Law By WM. L. CLARK, Jr. Author of a “Handbook of the Law of Contracts.” Third Edition: By WILLIAM E. MIKELL, Dean of the Law School, University,of Pennsylvania. 1915. 582 pages. $8.75 delivered. TABLE OF CONTENTS. Chap. A. Oo ON 13. 14. 15. 16. 17. 18. Definition and Nature of Crime. ‘ 2. The Criminal Law—How Prescribed. 3. 4, 5. Classification of Crime. . The Mental Element in Crime. . Persons Capable of Committing Crinie and Exemptions from Responsibility. . Parties Concerned in the Commission of Crimes. . The Overt Act—Attempts, Solicitations and Conspiracy. . Offenses against the Person. , . Offenses against the Person (Continued). 10. 11, 12. Offenses against the Habitation. Offenses against Property. Offenses against the Public Health, Safety, Comfort, and Mor- als. Offenses against Public Justice and Authority. Offenses against the Public Peace. Offenses against the Government. Offenses against the Law of Nations. Jurisdiction. Former Jeopardy. C11579-12 Criminal Procedure By WM. L. CLARK, Jr., Author of a “Handbook of Criminal Law,” and a “Handbook of Contracts.” ' Second Edition: By WILLIAM E. MIKELL, Dean of the Law School, University of Pennsylvania. 1918. 747 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. 1, Jurisdiction. t 2. Apprehension of Persons and Property. 8. Preliminary Examination, Bail, and Commitment. 4. Mode of Accusation. 5. Pleading—The Accusation. 6. Pleading—The Accusation. 7. Pleading—The Accusation. 8. Pleading—The Accusation. 9. Pleading—The Accusation. 10. Pleading and Proof. 11. Motion to Quash. 12. Trial and Verdict. 18. Proceedings after Verdict. 14. Evidence. 15. Habeas Corpus. C11579-13 Damages | By WM. B. HALE, Author of “Bailments and Carriers.” Second Edition: By ROGER W. COOLEY. 1912. 632 pages. $3.75 delivered. TABLE OF CONTENTS Chap. Ag 2. 10. wins 12. 13. 14. . Compensatory Damages. Definitions and General Principles. Nominal Damages. . Bonds, Liquidated Damages and Alternative Contracts. . Interest. . Value. . Exemplary Damages. . Pleading and Practice. . Breach of Contracts for Sale of Goods. Damages in Actions against Carrier. Damages in Actions against Telegraph Companies. Damages for Death by Wrongful Act. Wrongs Affecting Real Property. Breach of Marriage Promise. With Key-Number Annotations C11579-14 Elementary Law BY WALTER DENTON SMITH, Instructor in the Law Department of the ‘University of Michigan. 1896. 367 pages. $3. 75 delivered. TABLE OF CONTENTS. Chap. Part 1—ELEMENTARY JURISPRUDENCE. . Nature of Law and the Various Systems. — . Government and its Functions. Goyernment in the United States. The Unwritten Law. i Equity. The Written Law. The Authorities and their Interpretation. Persons and Personal Rights. . Property. wads Classification of the Law. ° TID OUR Oo No e O00 Part 2.—THE SUBSTANTIVE LAW. 11. Constitutional and Administrative. Law. 12. Criminal Law. 13. The Law of Domestic Relations. 14. Corporeal and Incorporeal Hereditaments. 15. Estates in Real Property. 16. Title to Real Property. 17. Personal Property. 18. Succession After Death. 19. Contracts. se 20. Special Contracts. 21..Agency. 22. Commercial Associations. 23. Torts. Part 3—THE ADJECTIVE LAW. 24, Remedies. 25. Courts and their Jurisdiction. F 26. Procedure. 27. Trials. C11579-15 Equity By JAMES wW. EATON, Editor 3d Edition Collier on Bankruptcy, Co-Editor American Bankruptcy Reports, Eaton and Greene’s Negotiable Instruments Law, ete. 1901. 734 pages. $3.75 delivered. ’ TABLE OF CONTENTS. Origin and History. General Principles Governing the Exercise of Equity Jurisdiction. Maxims. Penalties and Forfeitures. Priorities and Notice. ' Bona Fide Purchasers Without Notice. Equitable Estoppel. Election. Satisfaction and Performance. Conversion and Reconversion. Accident. Mistake. Fraud. Equitable Property. Implied Trusts. ' Powers, Duties, and Liabilities of Trustees. Mortgages. s Equitable Liens. Assignments. Remedies Seeking Pecuniary Relief. Specific Performance. Injunction. : Partition, Dower, and Establishment of Boundaries. Reformation, Cancellation, and Cloud on Title. Ancillary Remedies. C11579-16 Equity Pleading By BENJ. J. SHIPMAN, LL.B., Author of “Shipman’s ‘Common-Law Pleading.” 1897. 644 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. sr 1. Equity Pleading in General. 2. Parties. 8. Proceedings in an Equitable suit. 4, Bills in Equity. 5. The Disclaimer. . Demurrer. . The Plea. . The Answer. o oa AH OD . The Replication. ao ca a Te C11579-17 Evidence By JOHN JAY McKELVEY, A. M.,, LL.B. Author of “Common-Law Pleading,” etc. ¢ Second Edition. . 1907. 540 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. dy Tutraduetory, 2. Judicial Notice. 3. Questions of Law and Questions of Fact. 4. Burden of Proof. 5. Presumptions. 6. Admissions. %. Confessions. 8. Matters Excluded as Unimportant, or as Misleading, though Logically Relevant. : 9. Character. 10. Opinion Evidence. 11. Hearsay. 12. Witnesses. 18. Examination of Witnesses. 14. Writings. 15. Demurrers to Evidence. C11579-18 Executors and Administrators By SIMON GREENLEAF CROSWELL, Author of “Electricity,” “Patent Cases,” ete. 1897. 696 pages. $3.75 delivered. . TABLE OF CONTENTS. Chap. Part 1.—DEFINITIONS AND DIVISION OF SUBJECT. 1. Definitions and Division of subject. Part 2—APPOINTMENT AND QUALIFICATIONS. . Appointment in Court. Place and Time of Appointment and Requisites Therefor. Who may Claim Appointment as Executor. Who may Claim the Right to Administer. Disqualifications for the Office of Executor or Administrator. Acceptance or Renunciation. . Proceedings for Appointment of Texecuions and Administra- tors. 9. Special Kinds of Administrations. 10.. Foreign and Interstate Administration. 11. Joint Executors and Administrators. 12. Administration Bonds. Part 3—POWERS AND DUTIES. 13. Inventory—Appraisement—Notice of Appointment. 44. Assets of the Estate. 15. Management of the Estate. 16. Sales and Conveyances of Personal or Real Assets. 17. Payment of Debts and Allowances—Insolvent Hstates. 18. Payment of Legacies. 19. Distribution of Intestate Estates. 20. Administration Accounts. Part 4—TERMINATION OF OFFICE. 21. Revocation of Letters—Removal—Resignation. Part 5—REMEDIES. 22. Actions by Executors and Administrators, 23. Actions against Executors and Administrators. 24. Statute of Limitations—Set-off. 25. Evidence and Costs. WAM OUR go bs thas ve 011579-19 Federal Jurisdiction and Procedure By ROBERT M. HUGHES, of the Norfolk Bar, Author of “Hughes on Admiralty,” and Lecturer at the George Washington University Law School. Second Edition. 1918. 766 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. 1. _ 19. 20. 21. 22. “23. SOMABARAPRWY Of the Source of Federal Jurisdiction and the Law Adminis- tered by Federal Courts. . The District Court—Its Criminal Jurisdiction and Practice. Same—Continued. . Same—Miscellaneous Jurisdiction. Same—Bankruptcy. Same—Continued. Same—Continued. Same—Continued. Same—Particular -Classes of Jurisdiction. . Same—Jurisdiction to Issue Certain Extraordinary Writs. 11. 12. 13. 14. 15. 16. 17. 18. Same—Original Jurisdiction Over Ordinary Controversies. Same—Continued. Same—Continued. Same—ZJurisdiction by Removal. Same—Continued. Same—Continued. Other Courts Vested with Original Jurisdiction. Procedure in the Ordinary Federal Courts of Original Juris- diction—Courts of Law. Same—Courts of Equity. Same—Continued. Appellate’ Jurisdiction—The Circuit Court of Appeals. Same—The Supreme Court. Procedure on Error and Appeal. The United States Supreme Court Rules, the Rules for Practice for the Courts of Equity of the United States promulgated Nov. : 4, 1912, the Judicial Code, and the portion of the Deficiency Ap- propriation Bill of October 22, 1918, abolishing the Commerce Court, are given in an Appendix. With Key-Number Annotations C11579-20 Insurance By WILLIAM REYNOLDS VANCE, Professor of Law, University of Minnesota. 1904. 683 pages. $3.75 delivered. The principal object of this treatise is to give a consistent state- ment of logically developed principles that underlie all contracts of insurance, with subsidiary chapters treating of the rules peculiar to the several different kinds of insurance. Special attention has been given to the construction of the standard fire policy. This treatment will help to bring about, we believe, the much desired clarification of this branch of the law. The chapters cover,— Historical and Introductory. Nature and Requisites of Contract. Parties. Insurable Interest. Making the Contract. The Consideration. Consent of the Parties—Concealment. Consent of the Parties—Warranties. Agents and their Powers. Waiver and Estoppel. The Standard Fire Policy. Terms of the Life Policy. Marine Insurance. Accident Insurance. Guaranty, Credit, and. Liability Insurance. Appendix. C11579-21 International Law By GEORGE GRAFTON WILSON, “Professor of International Law, Harvard University, Lecturer on International Law in Brown University and in the United States Naval War College. \ 1910. 623 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. sl . Persons in International Law. . Existence, Independence and Equality. . Property and Domain. . Jurisdiction. . Diplomatic Relations. Consular and Other Relations. . Treaties and Other International Agreements. . Amicable Means of Settlement of International Differences. . Non-Amicable Measures of Redress Short of War. . Nature and Commencement. : . Area and General Effect of Belligerent Operations. . Rights and Obligations During War. . Persons During War. ‘ . Property on Land. . Property on Water. . Maritime Capture. . Rules of War. . Military Occupation and Government. . Prisoners, Disabled and Shipwrecked. 20. Non-Hostile Relations between Belligerents. 21. Termination of War. , 22. Nature of Neutrality. 23. Visit and Search. 24, Contraband. 25. Blockade. ’ 26. Continuous Voyage. 27. Unneutral Service. 28. Prize. AAO or WON Pee ee Peep CMAAAKwWNHWEH SO w C11579-22 Judicial Precedents or the Science of Case Law By H. CAMPBELL BLACK, Author of Black’s Law Dictionary, Treatises on Judgments, Tax Titles, Bankruptcy, Constitutional Law, ete, ‘ 1912. 766 pages. $3.75 delivered. TABLE OF CONTENTS Chap. fe 1. Nature and Authority of Judicial Precedents. Dicta. . Doctrine of Stare Decisis. . Constitutional and Statutory Construction. . Rules of Property. The Law of the Case. : . Authority of Precedents as Between Various Courts‘ of the Same State. 8. Authority of Precedents as Between the Various Courts of the United States. 9. Decisions of Federal Courts as Authorities in State Courts. 10. Decisions of Courts of Other States. 11. Decisions of Courts of Foreign Countries. 12. Federal Courts Following Decisions of State Courts;. in General. / 13. Same; Matters of Local Law and Rules of Property. 14. Same; Validity and Construction of ‘State Constitutions and Statutes. 15. Same; Federal Questions. 16. Same; Commercial Law and. General Jurisprudence. 17. Same; Equity and Admiralty. 18. Same; Procedure and Evidence. 19. Effect of Reversal or Overruling of Previous Decision. AQP wp C11579-23 Mining Law By GEORGE P, COSTIGAN, Jr, Professor of Law, Northwestern University. 1908. 765 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. 1. 2. Ct fos) onmn 10. 11. 12. 138. 14, 15. 16. 17. 18. 19. 20. 21. 22. 25. 26. 27. 28. The Origin and History of American Mining Law. The Mining Law Status of the States, Territories, and Posses- sions of the United States. . The Land Department and the Public Surveys. . The Relation Between Mineral Lands and the Public Land Grants. . The Relation Between Mineral Lands and Homestead, Timber and Desert Entries. . The Relation Between Mineral Lands and the Various Public Land Reservations. " . The Relation Between Mineral Lands and Townsites. . Definitions of Practical Mining Terms. . Definitions of Mining Law Terms. The Discovery of Lode and Placer Claims. Who May and Who May not Locate Mining Claims. The Location of Lode Claims. The Location of Mill Sites. The Location of Tunnel Sites and of Blind Lodes Cut by Tun- nels. ‘The Location of Placers and of Lodes within Placers. The Annual Labor or Improvements Requirements. ‘The Abandonment, Forfeiture, and Relocation of Lode and Placer Mining Claims. Uncontested Application to Patent Mining Claims. Adverse Proceedings and Protests Against Patent Applications. Patents. Subsurface Rights. Coal Land and Timber and Stone Land Eutries and Patents. . Oil and Gas Leases. . Other Mining Contracts and Leases. Mining Partnerships and Tenancies in Common. Conveyances and Liens. Mining Remedies. ~ Water Rights and Drainage. Appendices. C11579-24 Municipal | Corporations By ROGER W. COOLEY, LL.M., Professor of Law, University of North Dakota, and Author of “Briefs on the Law of Insurance,” etc., ete. 1914, 723 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. 1. . Creation of Municipal Corporations. Dnonrnrna ff WwW Ww Pe Pe ee eB ep OAR A Fw HY HS Corporations—Public and Private. . Legislative Control. . Alteration and Dissolution. . The Charter. : . Proceedings and. Ordinances. . Officers, Agents, and Employés, . Contracts. . Improvements. . Police Powers and Regulations. . Streets, Sewers, Parks, and Public Buildings. . Torts. . Debts, Funds, Expenses, and Administration, . Taxation. . Actions. . Quasi Corporations—Counties. . Same—Same. . Quasi Corporations Other Than Counties. C11579-25 Chap. 1, 2. 3. 10. 11. Negligence By MCREON BARROWS, A. B., LL, B. 1899. 634 pages. $3.75 acimaeat TABLE OF CONTENTS. Definition and Essential Elements. Contributory Negligence. Liability of Master to Servant.. . Liability of Master to Third Persons. . Common Carriers of Passengers. . Carriers of Goods. . Occupation and Use of Land and Water. . Dangerous Instrumentalities. . Negligence of Attorneys, Physicians,-.and Public Officers, Death by Wrongful Act. Negligence of Municipal Corporations. C11579-26 Partnership By EUGENE A. GILMORE, Professor of Law, University of Wisconsin, and Author of Gilmore’s Cases on Partnership (American Casebook Series.) 1911. 721 pages. $3.75 delivered. 7 % TABLE OF CONTENTS. Chap. 4 1, What Constitutes a Partnership. Formation and Classification of Partnerships. The Nature and Characteristics of a Baten Nature, Extent, and Duration of Partnership Liability. Powers of Partners. > 7 FY ON Rights and Duties of Partners Inter se. 7. Remedies of Creditors. 8. Actions Between Partners. 9. Actions Between Partners and Third Persons. 10. Termination of the Partnership. 11. Limited Partnerships. With Key-Number Annotations C11579-27 Persons and Domestic Relations By WALTER C. TIFFANY. Second Edition: Edited by Roger W. Cooley. 1909. 656 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. Part 1—HUSBAND AND wite, . Marriage. . Persons of the Spouses as Affected by Coverture. . Rights in Property as affected by Coverture. . Contracts, Conveyances, etc., and Quasi-Contractual Obliga- tions. Wife’s Equitable and Statutory Separate Estate. . Antenuptial and Postnuptial Settlements. . Separation and Divorce. ABH Pwr Part 2—PARENT AND CHILD. . Legitimacy, legitimacy, and Adoption. . Duties and Liabilities of Parents. . Rights of Parents and of Children. S00 Part 3—GUARDIAN AND WARD. 11. Guardians Defined—Selection and Appointment. 12. Rights, Duties, and Liabilities of Guardians. 13. Termination of Guardianship—Enforcing Guardian’s Liability. Part 4—INFANTS, PERSONS NON COMPOTES MENTIS, AND ALIENS. 14. Infants. 15. Persons Non Compotes Mentis and Aliens. Part 5—-MASTER AND SERVANT. 16. Creation and Termination of Relation. C11579-28 Real Property By WM. L. BURDICK, Professor of Law, University of Kansas. 1914. 997 pages. $3.75 delivered. TABLE OF CONTENTS. Part 1—THE NATURE OF REAL PROPERTY AND TENURE Chap. ; 1. Introduction. 2. Whatis Real Property. 3. 4, Anglo-Saxon and Feudal Land Law. THEREOF. Fixtures. Part 2—RIGHTS IN REAL PROPERTY. . Estates in Fee Simple. . Estates in Fee Tail. . Estates for Life. . Life Estates Arising from Marriage. / . Homesteads. . Estates Less Than Freehold—Estates for Years. . Estates Less Than Freehold (Continued)—Tenancies at Will, from Year to Year, and at Sufferance. . Joint Ownership of Hstates. . Conditional or Qualified Estates. . Equitable Estates—Uses and Trusts. . Estates in Expectancy. . The Rule against Perpetuities. . Easements, Profits 4 Prendre, Rents, and Franchises. Part 3—MORTGAGES AND OTHER LIENS UPON REAL PROPERTY. 18. Mortgages. 19 20 21 22. 23. 24, 25. 26. 27. . Mortgages (Continued.) . Mortgages (Continued.) . Liens Other Than Mortgages. Part 4—THE ACQUISITION AND TRANSFER OF REAL PROPERTY. Title in General. Title by Devise and Descent. Title by Official Grant. Restraints and Disabilities of Transfers. The Creation of Interests in Land by Powers of Appointment. Deeds and Their Requisites. 28. Conditions, Covenants, and Warranties in Deeds. 29. Abstracts of Title. C11579-29 Real Property By EARL P. HOPKINS, A.B., LL. M. 1896. 589 pages. $3.75 delivered. vor ak ¢ TABLE OF CONTENTS. Chap. 1. What is Real Property. 2. Tenure and Seisin. 3. Estates as to Quantity—Fee Simple . 4. Estates as to Quantity—Estates Tail. 5. Estates as to Quantity—Conventional Life Estates. 6. Estates as to Quantity—Legal Life Estates. 7. Estates as to Quantity—Less than Freehold. 8. Estates as to Quality, on Condition—on Limitation. 9. Estates as to Quality—Mortgages. | 10. Equitable Estates. 11. Estates as to Time of Enjoyment—Future’ Estates. 12. Estates as to Number of Owners—Joint Estates. 13. Incorporeal Hereditaments. 14. Legal Capacity to Hota ha Convey Realty. 15. Restraints on Alienation. 16. Title. ae C11579-30 _ Sales By FRANCIS B. TIFFANY, A.B., LL.B. Author of “Tiffany on Death by Wrongful Act.” Second Edition. 1908. 534 pages. $3.75 delivered, TABLE OF CONTENTS. Chap. 1. Formation of the Contract. 2: Formation of the Contract—Under ene Statute of Frauds. 3. Effect of the Contract in marine t ine Property—Sale of Spe- cific Goods. . : 4. Effect of the Contract in Passing the PEOperiy— wale of Goods not Specific. 5. Fraud, ‘and Retention of Possession. ‘ 6. Illegality. 7. Conditions and Warranties. 8. Perforthance. “9. Right's of Unpaid Seller against the Goods. 10. Action for Breach of the Contract. Appendix: Sales Act—English Sale of Goods Act. C11579-31 - Chap. 10. 11. Suretyship and Guaranty By FRANK HALL CHILDS, of the Chicago Bar. 1907. 572 pages. $3.75 delivered. TABLE OF CONTENTS. # . Definitions, Parties, Distinctions, and Classifications. . Formation of the Contract. . The Statute of Frauds. . Construction of the Contract. . Rights and Liabilities as Between the Creditor and the Sure- ty. . Rights and Liabilities of the Surety and of the Principal as to each other. . Rights and Liabilities of Co-Sureties as to each other. . Parties to Negotiable Instruments Occupying the Relation of Sureties. . Official Bonds. Judicial Bonds. Bail Bonds and Recognizances, C11579-32 Torts By H. GERALD CHAPIN Professor of Law, Fordham University Law School. 1916. 709 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. Ne AD oP wo oO 16. 17. 18. 19. 20. 21. Part 1—GENERAL PRINCIPLES. . The Tort Concept. . General Principles—Legal Responsibility as Dependent upon Condition of Mind and Proof of Damage. . General Principles (Continued)—Liability under the Legal Rules Defining Cause and Effect. . General Principles (Continued)—Defenses. . General Principles (Continued)—Parties. . General Principles (Continued)—Parties. . General Principles (Concluded)—Conflict of Laws. Part 2.—SPECIFIC TORTS. 5 Infringement of Personal Security. . The Right of Privacy. . Injuries to Reputation—Defamation. 11. 12. 13. 14. 15. Infringement of Private Property—Trespass. Infringement of Private Property (Continued)—Conversion. Infringement of Private Property (Continued)—Waste. Infringement of Private Property (Continued)—Fraud. Infringement of Private Property (Continued)—Slander of Title. Infringement of Private Property (Continued)—Interference with Contractual Rights. : Interference with Domestic Relations. The Obstruction and Perversion of Legal Remedies. Negligence. Nuisance. Conspiracy. C11579-83 Torts By EDWIN A. JAGGARD, A:M., LL.B, Formerly Professor of the Law of Torts in Minnesota University ‘ ?' Taw School. ° ‘ 1895.2 vols. 1807 pages. $7.50 delivered. TABLE OF CONTENTS... Part 1—IN GENBRAL. Chap. 1. General Nature of Torts. 2. Variations in the Normal Right to Sue. .3. Liability for Torts Committed by or with Others. 4. Discharge and Limitation of Liability for Torts. 5. Remedies. Part 2—SPECIFIC WRONGS. 6. Wrongs Affecting Safety and Freedom of Persons. 7. Injuries in Family Relations. 8. Wrongs Affecting Reputation. 9. Malicious Wrongs. ' 10. Wrongs to Possession and Property. 11. Nuisance. 12. Negligence. 18. Master and Servant. 14. Common Carriers. C11579-34 Wills By GEORGE E. GARDNER. Second Edition: By WALTER T. DUNMORE, Dean of the Western Reserve University Law School. 1916. 552 pages. $3.75 delivered. TABLE OF CONTENTS. Chap. 1. Introduction—History of Wills. 2. Form of Wills. 3. Form of Wills (Cortinued)—Nuncupative—Holographic—Con- ditional Wills. 4, Agreements to Make Wills, and Wills Resulting from Agree- ment. ; 5. Who may be a Testator. 6. Restraint upon Power of Testamentary Disposition—Who may be Beneficiaries—What may be Disposed of by Will. 7. Mistake, Fraud, and Undue Influence. 8. Execution of Wills. 9. Revocation and Republication of Wills. 10. Conflict of Laws. 11. Probate of Wills. 12. Action for the Construction of Wills. 18. Construction of Wills—Controlling Principles. 14. Construction (Continued)—Description of Subject-Matter. 15. Construction (Continued)—Description of Beneficiary. 16. Construction (Continued)—Nature and Duration of Interests. 17. Construction (Continued)—Vested and Contingent Interests— Remainders—Executory Devises. 18. Construction (Continued)—Conditions. : 19. Construction (Continued),—Testamentary Trusts and Powers. 20. Legacies — General—Specific—Demonstrative—Cumulative— Lapsed and Void—Abatement—Ademption—Advancements, 21. Legacies Charged upon Land or Other Property. 22. Payment of the Testator’s Debts. 23. Election. . 24, Rights of Beneficiaries Not Previously Discussed. C11579-35 PS FRE a hy