s^ %ojnvDjo' -n <-> 713DNVS01^ ^/5a3AINfl-3WV ^OdlTVDJO^ ^ nSANGflfr. ~, ce •^1 :; > ,.,.\tUNlVERi//, ^f <\Af.rMI\/CDr/v 1^1 %3AINn-^^''' A^lOSANCflfj> 'M^^myi^ ^tllBRARYQ/: ^•tfOJITVOJO"*^ C>v' 4? 3 .^.OFCAIIFO/?^ ^OAavaaiii^'^ ■^/5il9AINn-3WV^ 'VERS//, .^ v^lOSANCElfj> T" O r-i ii: ^ ;5 %a3AiNajftv^ [UNIVER% liJNV-liUV^^^' "^a JAIN.I LIBRARYO/c ^^^t•LIBRAl muw"^' ^^Oy O ii_ UNIVERJ-//, UDNYSOV"^^ XXV XXVl TABLE OF CASES. [References are to Sections.'\ Annie Henderson 3360 Annie M. Small, The 3308 Ansley v. State 2999 Ausman v. Veal 3172a Anson v. People 2994 Ant, The 3372, 3380 Antrim's Case 3423 Apnlion, The 3257 Appleton V. State 3043 Applewhite v. Foxworth 3202 Aquila, The 3358 ArabiMIa. The 3332, .3338 Archer v. State 2786, 2936, 2938. 2939 Arcia v. State 2714, 3115 Argus. The 3382 Ariadne, The 3251, 3342, 3375, 3381 Aries. The 3347 Armitage v. State 2960, 2993 Armor v. State 2729 Armstead v. State 2934. 2939 Armstrong v. People 3148, 3149, 3151, 3152 V. Ross 3213 V. Scott 3199 V. State 2777 3009 3139 Arnold v. Blackwell 3230 V. Cost 2985 2997 V. Flattery 3066 V. Sinclair 3177 V. Slaughter 3226 State 2780, 2863, 2869, 3129 Aron V. Wausau 3123 Arter v. Chapman 3226 Arthur, The 3330, 3346, 3347, 3353 Arthur M. Palmer, The 3381 Arthur v. Oakes 2951 Ashbrook v. Commonwealth 3064 Ashford V. State 2910, 2914 Ashley v. State Ashmead v. Colby Ashworth v. State Askew V. State Astley V. Astley Asp V. Warren Aszman v. State Atchison v. State Athenian, The Atkins V. Fibre &c. Co. V. State Atkinson v. Plumb Atlanta, The 3170 3217, 3230 3172 3041a 2794 3234 2729, 2733 3086, 3091 3359 3255 2726, 3041 3216 3346, 3347, 3309 Atlantic, The 3292 Atlantic &c. Ins. Co. v. Wilson 3199 Atlas, The 3244, 3251, 3374 Atlas &c. Co. V. Colon, The 3359 Atlee V. Packet Co. 3251, 3372 Atterberry v. State 2820, 3049 Attorney-General v. Cohoes Co. 3067 V. Delaware &c. R. Co. 3067 V. Gaskill 3195 V. Jamaica Pond &c. Co. 3067 V. New .Tersey R. Co. 3067 Atwood V. Cornwall 2959 V. Harrison 8197 V. Shenandoah Val. R. Co. 3223, 3225 Audlev's Case 3093 Aultfather v. State 3171 Aurania and Republic, The 3377 Aurora, The 3324, 3343 Austin V. Chambers 32] 4 V. Commonwealth 3036 V. State 3014 Anstine v. People 3093 Australia. The 3273, 3280, 3281, 3293 Autrey v. Cannon 310S Averv V. State 2934 Avoca, The 3351, 3352 Aver V. Messer 3199 Aztecs, The 3351 B B. B. Saunders, The 3375 B. C. Terry, The 3357 B and C, The 3372 Babbitt v. Dotten 3213 Babcock v. Carter 3217 V. People 2980, 2982, 3035 Baccio V. People 3099 Bachellor v. State 3000 Bachelor v. Nelson 3196 Bacon v. State 2721 Bags of Linseed 3240 Baigorry, The 3323, 3324 Bailey v. Commonwealth 3000, 3093. 3166 V. Myrick 3226, 3227 V. O'Bannon 3193 V. State 2731, 2797, 3014, 3015, 3035, 3054, 3056, 30.58. 3101. 3113, 3141, 3150, 3151, 3152 V. Warden 3426 Bain v. State 3095 3171 Bainbridge v. State 2720, 2731 Baker, The 3354, 3360 Baker v. Ilemenway 3355 V. Mayo 3232 V. Safe Deposit &c Co. 3175 V. State 2941, 2944. 2984. 3042. 3059 , 3115 3169 V. Pnited States 2792 V. Williamson 3205 Baker &c. Co. v. Excelsior, The 3355 Balchen v. Crawford 3206 Baldez v. State 2709 Ball V. Townsend 3197 V. T'nited States 27.30 Ballard v. Lippman 3222 V. McMillan 3221 V. White 3233 Ballow V. State 3057 Baltic Merchant, The 3303, 3304, 3308, 3369, 3379 Baltimore &c. Tpk. Road v. State 3064 Baltimore &c. Co. v. V 'illiams 3221 Bank v. Fenwell 3220 V. Jefferson 3211 Bank of Union v. Nickell 3231 Banks v. State 2804 3052 Bankus v. State 3122, 3127 Bannen v. State 3107 Bannon v. Overton 3231 Barber v. Lockwood 3272 V. People 2862 2874 V. State 2866 Barbour v. Commonwealth 3029 Barfleld v. Kelly 3196 V. State 2996 Barker v. Commonwealth 3141, 3142. .",152 V. Rav 3174 3175 V. State 3092 Barlow v. State 3172 Barnaby v. State 3009 Barnebee v. Beckley 3218 Barnegat. The 3355 Barnes v. Haynes 3218 v. State 3100, 3101. 3103. 3105, 3141 , 3145 3151 V. Stuart 3175 Barnett v. State 2849, 3099. 3102. 3105 3107 Barnum v. Barnum 3235 V. State 2996 Barnwell v. Marion 3220 Baron Holberg. The 3382 Barr v. Essex &c. Council 2951 V. Haseldon V. People 3211 2727 TABLE OF CASES. XXV 11 [References are to Sections.'] Barrague v. Slter Barrara v. State Barrett v. Crane V. Hopkins V. Sargcant 3199 2785, li78G 3424 3426 3214 Barron v.^Mayor of Baltimore 3431 V. State ;-!l-^ Barrow v. Rhinelander 3196 Bartender v. State 3010 Barth v. Rosenfeld 3176 Barthelemy v. People 3169 Bartlett v. Gale 3199 V. State 2979 Bartley, The •■53o2 Bartley v. State 2964 Barton v. Baltimore &c. Alliance 3200 V. Barton 3199 V. State 3166 Bartow v. People 2965, 2972 Barwis v. Keppel 3426 Bashaw v. State 2863 Bass V. State 3037, 3093 Bassett v. United States 2874 Bast V. Bast 2792 Basve V. State 3027, 3039, 3041 Batavier, The 3389 Bate &c. Co. v. Gillette 3221 Bateman v. Burge 3066 Bates V. State 2984 Bateson v. State 3033 Batten v. State 2724, 3025, 3027, 3029 Baurle v. Long 3221 Baxter v. New York &c. R. Co. 3193 V. People 2777, 2778, 2781 Bay of Naples, The 3360 Bayntun v. Cattle 2897 Beach v. Fulton Bank 3212 V. Hancock 2829, 2831, 2832, 2S33. 2834 V. State 3087, 3089 Beaconsfield. The 3355 Beals V. Illinois &c. R. Co. 3201 Beamer v. Morrison 3209 Bean v. People 3092, 3093, 3097, 3104 V. State 2785 Beard v. Green 3234 V. State 2732, 3063. 3065 V. United States 3041a Bearse v. Three Hundred and Forty Pigs Copper 3363 Beaslev v. People 2771 V. State 2729, 3166 Beatson v. Skene 3288 Beatty v. State 3056 Beaty v. State 2962, 2972 Beaven v. Commonwealth 2747 Beavers v. State 3046 Becherdass Ambaidass, The 3298 Beck V. Railway &c. Union 2929 V. Team.sters' &c. Union 2931, 2951 Becker v. Saginaw Cir. Judge 3183 Bedford v. State 3020 Bcdgood V. State 3101 Bee. The 3319, 3357 Beebe v. Knapp 2938 Beech v. Haynes 3193, 3201 Beeche Dene. The 3269 Beers v. Botsford 3213 Beggs V. State 2859, 2860, 2864 Belcher v. State 2942 Belden v. Chase 3375. 3376 Belfast, The 3240 Bell V. Farmers' &c. Bank 3201 V. Mallory 3127 V. Norwich 2999 V. Sennefif 3070 V. State 2723. 2828, 2889. 2804. 2990. 2994, 2999, 3011, 3068 V. Woodward 3175 Bell's Case Belle. The Bellerophon. IL M. S. Bellows V. Stone Helo V. Wren Belt V. Spaulding Ben V. State Benbow v. I^ow Benedict v. State Benitu Kstenger, The Bennefleld v. State 2889 3271 3288 3201, 3203. 3213 3169 2758, 2759 3038 3214 3035 3323, 3327 3172 Bennett v. Massachusetts &c. Ins. Co. 3215 V. People 3119 V. State 2727, 3059a V. Welch 3178, 319« Benson v. Keller 3213 V. Le Roy 3216 V. State 3167 V. Woolverton 3199 Benstine v. State 3099, 3101 Benter v. Patch 3216 Bentley v. Davidson 3175 V. State 3001 Benton v. State 3169 V. Whitney 3296 Berckmans v. Berckmans 2791, 2792 Bergen v. Joseph Stickney 3367 V. People 3168 Berkeley v. Commonwealth 2822, 2823, 2827 Berkey v. Judd 2717 Bermuda, The 3340 Bernardi v. Motteux 3258, 3340 Bernhardt v. State 2729 Bernie v. Vandever 3222 Bernon, The 3323 Berry v. Hull 2897 V. Montezuma, The 3271 V. Sawyer 3199 V. State 2714, 2717, 2732, 2848, 2913, 2981, 3115 Bersh v. State 2718 Bertha. The 3300 Bessette v. State 3094, 3103 Bessie Morris, The 3367 Betsy. The 3320, 3335 Betts V. State 3065 Bevans v. Sullivan 3206 Bewicke v. Graham 32S6 Beyer v. People 2738, 2741, 2742, 2744, 2751 Bice V. State 3101 Bick V. Williams 3175 Bickerdike v. Allen 3199 Bielschofsky v. People 2976 Hierne v. Ray 3200 Bigelow V. Nickerson 3247 Biggerstaff v. Biggerstaff 3177 V. Commonwealth 3075, b090 Billings V. State 3025, 3035 Bilz V. Bilz 3217 Bindernagle v. State 3009, 3065 Bingham v. Cabot 3320 V. Yeomans 3199 Binns v. State 3045 Birch V. Mather 3195 Bird V. Commonwealth 2863 V. State 3013, 3059a. 3108 V. Styles 3198 V. United States 3036 Birdsong v. State 3114 Birdwell v. State 3024 Birmingham Fire Ins. Co. v. Pulver 2S1G Biscoe V. Coulter 31 9i) Bishop V. Bishop 3214 V. Ranney 2817. 2822. 2828 V. State 2991, 2994, 3014 V. United States 3457 TABLE OF CASES. IReferences are to Sections.l Bishop Fisher's Trial 3156 Bissman v. State 3165 Bivens v. State 3014 Black V. Lamb 3176 V. Louisiana, The 3300 V. Shreve 3176 V. State 3046, 3055 Blacliburn v. State 3040 Blaciver v. I'hepoe 3214 V. State 2725, 2732, 3059 Blaclimore v. Brider 3168 Blaclistone, The 3388 Blaclcwall, The 3348, 3351, 3352, 3354. 3360 Blacliwell v. State 3123 Blades v. Higgs 2857 Blain v. State 2937 Blair v. Silver Peals Mines 3199 Blaireau. The 3348 Blaisdell v. Bowers 3205 Blake, The 3296 Blake v. Barnard 2820, 2831 V. State 3041a V. Swain 3194 Blakeley v. State 2784 Blakeney v. Ferguson 3206 Blakey v. Johnson 3175 Bland v. People 2714, 2997, 3167 Blease v. Garlington 3178, 3217 Bledsoe v. State 3001 Blewett V. State 3000 Block V. Universal Ins. Co. 3195 Bloom V. State 2714 Bloomer v. State 2822 Blossom, The 3382 Blue V. Peter 2944 Bluflf V. State 2954, 2955 Blum V. State 2977 Bluman v. State 2780, 2816 Blunt V. Commonwealth 3056 Boak V. State 3146 Board of Trustees &c. v. Huston 3227 Board &c. v. Casey 3067 Bodenhamer v. State 2894 Bodwell V. Heaton 3216 Boes V. State 2735, 2749 Bogart, In re 3398, 3419, 3421 Boger V. State 2802 Bogert V. Furman 3231 Boggs V. State 2714 Boggus V. State 2991 Bohan v. Port Jervis Gas-L. Co. 3060 Bohan v. Commonwealth 3041a Bohn Mfg. Co. v. Hollis 2951 P.oisseau v. State 3166 Bonner v. State 2719 Bolckow V. Fisher 3274, 3278 Bold V. Hutchinson 3216 Boles V. State 3140 Bolivia, The 3386 Boiling V. State 3036, 3043, 3134 Bollman, Fx parte 3158 Bolware v. Bolware 3234 Bolzer v. People 3035 Bond V. Commonwealth 2811 V. State 3010, 3038 V. Welcomes 3218 V. Worley 3195 Bone V. State 3000 Bonner v. State 2857 Bonsall v. State 3129 Boesch V. Graff 3236 Boone v. Chiles 3213 Booth v. Commonwealth 3055 V. People 2703 V. Wilev 3212, 3213 Bootle V. Blundell 3175 Booty in the Peninsula 3347 Bork V. People 2714, 2968 Borrego v. Territory Boscow V. State Boskenna Bay, The Boston, The 3253, 3259, Boston &c. Co. V. Dana Bothnea, The Bothnia, The Botker v. Towner Bottomley v. United States Boulden v. Mclntire Boutwell V. Marr 2920, Bow V. People 3130, Bowe V. State Bowen, Ex parte V. Matheson V. State 2777, 3264, 3330, 3332, 3370, 2720, 2921, 3134, 779, 2979, Bowers v. Cutler V. European, The V. McGavock V. State 3141, 3146, 3147, Bowler v. State 2980, Bowles V. State Bowley v. Goddard Bowlin V. State Bowling V. Commonwealth Bowlus V. State Bowman v. O'Reilly Boxes of Opium v. United States Boyce v. People 3145, 3146, Boyd V. Alabama 3011, 3016, 3032, Boykin v. People Boyle V. State 3017, 3027, 3030, Boyne, The Bovnton v. State Brabham v. State 2877, Brace v. Evans Bracev v. State Bracken v. State 3145, 3150, Bradford v. People V. State Bradley v. Chase V. People V. State 3136 V. Webb Bradshaw v. People 2753, 2754 V. State Brady, The Brady v. State V. Yost Brainord v. Arnold 3213 Branch v. State Brandon v. Cabiness 3214, Brandt v. Wheaton Brannock v. Bouldin Branson v. Commonwealth Brauer v. State 3092. 3093, 3104. Bray v. Atlanta, The V. State 3099, Breakey v. Breakey Breckenridge v. Commonwealth Breeze, The Bremen, The Bremmerman v. .Jennings Brennan v. I'eople 2782, Brennon v. State Bressler v. I'eople Brewer v. Browne V. Norcross V. State 2860, Brewster v. Bours V. Miller Brice v. Nancy, The Briceland v. Commonwealth Bridgers v. State 272T 2978 3253 3267, 3340 2969 3335 3379 3298 2955 2865 2951 3139 3008 2777 2951 3026, 3045 32li6 3360 320a 3148, 3153 2981 3041 3363 3129 2785 3038 3213 3328, 3329 , 3148 , 3040 2706 3036. 3169 3360 3082 , 2886 2951 2982 , 3153 2771 3172a 3214 3069 , 3139 3231 , 2755 2792 3383 2972 3177 , 3227 3172 , 3216 3176 2937 2725 3172a 3299 , 3100 2865 3129 3368 3366 3236 3101 3048 2713 3217 3202 2995 3176 2951 3293 2727 2965 TABLE OF CASES. XXIX [References are to Sections.} Bridges v. State 2938 Hrifjht, Kx parte 3419 Brig},'s V. Commonwealth 3029 V. Neal 3221 Britannia, The 3375 British Empire, The 3353, 3303 Britt V. Bradshaw 32u:i V. State 2975 2981, 3055 Brittain v. State 3042 Brock V. ("ommonwealth 3170 V. State 3145, 3170 Brockett v. Brockett 3175 Brockman v. Aulger 3223 Brodie v. Skelton 3213 Brogy V. Commonwealth 3100 Brokaw v. McDougall 3234 V. State 3059a Brooke v. I'eople 2714, 3052 Brooklyn, The 33.S4 Brooks V. Adams 3415, 34 L' 4 V. Adirondack, The 3359, 33t;4 V. Daniels 3424 V. I'eople 3i;!() V. State 2918, 3055, 3068, 308S, 3134 V. Thomas 3198 Brosn v. State 2984 Brothertou v. People Bronx v. Ivy, The Brow V. State Brown v. Brown V. Bulkley V. Burrows V. Chambers V. <"ommonwealth 3014, 3015, 3017. 3204, V. Grove V. Jacobs &c. V. .lones V. Kendall V. Lull V. McDonald V. People 2715, 2720, 3032, 3033, 3093, 3097, 3041a, Co. 3250, 2953, 2975, 3045, V. Pickard V. Pierce V. Runals V. State 2722, 2731, 2746, 2814, 2827, 2913, 2969, 2980, 3009, 3016, 3017, 3019, 3020, 3036, 3041a, 3059, 3074, 3077, 3087, 3089, 3093, 3098, 3135, 3107, 3170, V. Swann V. Thornton V. Wadsworth V. Worster Brownell v. People Browning v. State Brownlee v. Martin 3175, V. State Bruce V. Child Brucker v. State Brueggestradt v. Ludwig 3234, Brnen v. People Brundage v. Deschler Bniiier v. State Bruschke v. Furniture Makers' ITnion Bryan v. Morgan Bryant, In re Bryant v. Commonwealth V. Leyland V. State 2822, 2829, 3015, Bubster v. State Buchanan v. Alwell V. Kerr 3310 3171 3205 3205 3250 3214 2K08, 3044, 3104 3218 2920 3292 2836 3293 3195 3050, 3090 3193 3199 3218 2756, 3000, 3022, 3079, 3166, 3172 3195 3253 3419 3223 3039 2941 3177 3100 321 3001 3043 3225 3236 3191 2940 2717, 2718 3357 2990, 2707 Burton v. State 2829, 2831, 2834, 27S6 3101 2998 2915 3166 3218 3035 5028, 3043, 3044 Busby V. Littlefield 3198 Bush V. Sprague 2920 Bussey v. Bussey 3218 Bustros V. White 328."(. 8290 Butler V. Boston &c. Co. 3244, 3245 V. Catling 3205 V. Commonwealth 2937 V. State 2705, 2718, 2990, 3075, 3121 V. Wood 27r.9 Butler &c. Co. v. Georgia &c. R. Co. 3231 Butt V. Conant 2702 Butterfleld v. Boyd 3367 Buttram v. State 3008 Buzard v. McAnulty 3193 Bybee v. State 2786, 3006 Byers, Kx parte 3246, 3247 Byington v. Wood 3229 Byrd v. Belding 3221 V. Commonwealth 3041a C. F. Sargent. The Cachemirc. The Cadmus, The, v. Matthews (^idwell V. State Calm v. State Cain v. State Cairnsmore, The Caldwell v. Leiber v. State Calkins v. Evans v. State Call V. Perkins 3299 33.-)5 3293 30r., 3( •(•.(», 3074, rn<;r. 31t!9 2726, 2764, 2765, 3172a 3067 V. Snell V. Snelling V. Snow V. Soulas V. Spear V. Spratt V. Squire V. Stambaugh V. Stan- V. Stearns V. Stebbins V. Steimling V. Stevens V. Stevenson V. Stewart V. Stone V. Storti V. Straesser V. Sturtivant V. Siigland V. Talbot V. Taylor 8165 2893 2809 2931 2957 2954 3052, 3055 3055 2997 2978, 2981 3063, 3065 2718, 2975 3036 3038 2720, 3027 3094, 3109 2986, 2997 2759, 2761, 2766, 3000, 3044 V. Tenney 2967. 2971 V. Thomas 3172a V. Thompson 2770, 2802, 30-J7, 3104 V. Thurlow 2714 V. Tibbetts 2766, 2767 V. Timothy 3171 V. Titus 3056 V. Trefethen 2723 V. Trimmer 3053 V. Tucker 2808 V. Tuckerman 2967, 2969 V. Twitchell 3026 V. T'pton 3064, 3066 V. Van Stone 3170 V. Van Tuyl 2984 V. Vieth 3165 V W 2760, 2762, 2765 V. Waite 2989, 3165 V. Walden 3172 V. Walker 2978 V. Wallace 2924, 2925, 2926, 2977, 2978, 3170, 3171 V. Ward 2924, 2931. 2946 V. Warden 3068 V. Warren 2978, 3165 V. Waterman 2920, 2931 V. Webster 2709, 2713, 2717. 3012. 3016, 3025, 3043, 3046 V. Weiss 2726 V. Wells 2999 V. Wermouth 2731 V. Werutz 2732, 3030, 3042 V. Wesley 2715, 2814 V. White 2820. 2824, 2832, 2994, 3056, 3090, 3135, 3140 V. Whitman 3167 V. Whittaker 2754 V. Willard 2787 V. Williams 2715, 2914. 2916, 3044. 3046, 3130, 3170, 3172 V. Winnemore 3039 V. Wood 2759, 2762, 2764. 2787. 2978, 2984, 3167 V. Woods 2998 V. Woodward 2719, 3041 V. York 2716, 2717 V. Zelt 2706 Compagnie Commerciale De Trans- port &c. V. Charente &c. Co. 3355 Compton V. State 2874, 3018, 3043 Comstock V. State 3092 3102, 31 22 3259' 3216 3101, 3102 2729 3199 2774, 2937 3-;51 3014, 3024, .S083 H30(> 3016. 3054 33V2 3041a 3196, 3221 Co- Mur- Coney v. State Confiscation Cases, The, Conger v. Cotton Conkey v. People Conly V. Commonwealth v". Nailer Connaughty v. State Connecticut, The Connell v. State Connemara, The Conner v. State Connolly v. Ross Conraddy v. I'eople Consequa v. Fanning Considine v. United States Consolidated Fastener Co. lumbian &c. Co. Consolidated Steel &c. Co. ray Constable's Case Constitution. The Continental, The Continental Ins. Co. v. Board &c. Continental Nat. Bank v. Ileilman Conway v. Reed V. State Conyers v. State Cook V. Dolan V. State 2703, 2785. 2774, 2863, 3039, 3040, V. Stevenson Cooke V. Cooke Coolman v. State 3014, 3017, Coon v. Abbott Coons V. Clirystie Cooper V. Commonwealth 3054, V. Mc.Tunkin V. State 2731, 2916, 3059, 3120, 3149, V. Tappan 3201, Cope V. Dry Dock Co Copeland v. Crane 3199. V. State 3017, Copenhagen, The Copp V. Decastro &c. Co. 3250, 3114, 3118. 3077, 3087, 2852, 3300, 3177, Copperman v. People Corbett. In re Cordway v. State Corey v. People Corks V. Belle. The Cornelia Amsden. The Cornelison v. Commonwealth Cornelius, The Cornelius v. Commonwealth V. Grant Corrnell, The Cornett v. Combs V. Williams Corning v. Baxter Cortez V. State Corwin v. Jonathan Chase, The Cory V. Gertcken Costa Rica, The Costello V. State Cote V. Murphy 2929, Cottage City. The Cotton V. State Couch V. Commonwealth 2742, V. State V. Steel Countee v. State Countess of Harcourt Countess of Lauderdale. The County of Harlan v. Whitney Count'z V. Geiger Courtenay v. Williams Courtney v. State Cowan V. Milbourn 2725 3185 2951 3246 3314 3251 2951 3195 2836 2723 3010 2951 2802, 3107 3227 2792 3022 3183 2951 3090 :.'844 3112, 31 52 3215 3354 3229 3038 3320 3252. 3254 3120 3420 3088 2856 3367 3301 2819 3324 3041 3167 3395- 3175 3419 3218 2939 3359 3197 336.3 3066 2951 3356 2720 2751 2997 3299 2996 3296 3323 3215 3204 3233 3008- 2891 TABLE OF CASES. XXXV [References are to Sections.'] Cowan V. People 2970, 2981. 2984 Cox V. AlliriKham .3212 V. Commonwealth 2786 V. State 2856, 2870, 3009. .30.30 Coxwell V. State 2778, 3036, 3112 Coyne v. People 3070 Crabb v. "State 3170 Craft V. Commonwealth ^786 V. Russell 3201, 3211 V. Schlag 3193, 3199 Craig, In re 3421 Craigs, The 3348, 3357 Craige v. Craige 3214 Crammer v. Fair American, The 3298 Cranburne's Trial 3154 Crane v. People 2789, 2792, 2793, 2795, 2796 Crass V. State 2714 Crawford v. Kirksey 3205 V. Moore 3213 V. Osmun 3232 V. State 2702, 2725, 2873, 3009. 30:;i8, 3059, 3059a V. William Penn 3261 Creighton v. State 3146 Creve Coeur &c. Co. v. Tamm 3218 Crew V. State 3108, 3129 Crews V. State 2720 Crichton v. People 2762 Cridland, Kx parte 3258 Crislip V. Cain 3236 Crist V. Brashiers 3196 Crittenden v. State 2937 Croarkin v. Hutchison 3198 Crockett v. State 3033 Crockford v. State 3059a Croglian v. State 3092, 3141 Cromwell v. Island City, The 3348 Crook V. State 2780 Croom V. Sugg 2991 Crosby v. People .301.5, 3017 Cross V. People 2785, 2998 V. State 3015, 3099. 3102, 3105. 3172a Crossman v. Card 3235 Crothers v. Lee 3213 Crouse v. State 3068 Crow V. Jordan 3095 V. State 2713 2831, 2834 Crowe V. Wilson 3211 Crum V. State 3050, 3057 Crumes v. State 3139 Crump V. Commonwea th 2929. 2931. 2951, 3079 Crusader. The 3263, 3270 Crusen v. State 3087 Crver v. State 3172 Cuba. The 3339 Culp V. State 3052 Culver V. Culver 2791 2794 V. State 2982 Cumberland &c. Co. v. Glass Bottle &c. Asso. 2951 Cummings v. State 2719 Cummins, In re 29S2 Cummins v. (Commonwealth 3049 V. Cummins 3201 Cunningham v. State 2982, 3141, 3144. 3151 3152 Cupps V. State 3019 3020 3026 Cnrby v. Territory 3102 3108 Curran v. Galen 2951 v. State 3110 3113 Curtis V. Hubbard 2850 V. Kirkpatrick 3175 V. State L'99<; Gushing v. Laird 3 2 SI V. United States 3337 3341 Cushman v. Ryan 3267 3280 3281 Cutler V. State V. Territory Cutsinger v. Commonwealth Cypress, The I). II. Miller. The I). S. Gregory. The Dabney v. State I>acey v. People Dai ley v. State Daily v. Daily Dainese v. Hale Dains v. State Dale v. McKvers v. State Dalzell V. Manufacturing Co. Dammaree's Trial Dana v. Cosmopolitan &c. Co. Danenhoffer v. State 2792, 3015, ::f018, 3;'.85, Co. V. Stonewill Danforth v. State Daniell v. Bond Dann v. Kingdom Danner Land &c. Ins. Co. Dansev v. State Danville &c. R. Co. v. Common wpalth Darnell v. State Darrell v. Commonwealth Darst V. People Dashiell v. Grosvenor Dashing v. State Daub v. Englebach Davev v. Marv Frost. The David Dows. The 3367. 3368 David Pratt, The 3250, 3391. 3273, 3280, 3038, 2785 3259, 3264, 3294, 2918, 3038, 271.5. 3016. 3092 2725, 2816, 3017. 3023. 3093, 3137 Davidson v. Commonwealth v. People V. State 2719. 2731 3025, 3026, 3028, 3029, 3037. 3070, 3073. 3078. Davis V. Adams 3261, v. Commduwealth 2705, 2871, V. r)avis V. Guilford V. lyeslie V. People V. Schwartz V. State 2911. 2994. 3043 V. Territory V. United States V. Zimmerman Davison, In re Davison v. People Daw v. Garrett Dawson v. State 2720. 2785, 3093, Day V. Day V. .Tones Daylesford. The Davton Mfg. Co. v. Metal Polishers' &c. Union 2929, Deaderick v. Watkins I)"Israeli v. .Towett I)e Arman v. State De Beaumont v. Webster De Cock. The De Haven v. State De llihns v. Free De Lovio v. Boit De Mott V. Benson Do Roux V. (iirard De Vaux v. Salvador Dean v. Commonwealth 2726, 3026, 3242, 2828 3091 3166 3295 3379 3389 3036 2728 3065 2794 3258 3020 3200 2863 3212 3162 327.> 2844 3024 3287 2863 3206 3170 3064 3167 3104 .■^122 3213 2952 3193 335l» 3392 3279, 3281 31 (!8 3041 3006. 3044. 3091 )• 3264 2873: 3220' 321.3; 3306; 3041a 3236 2910, 3033, 3166 3059a 2728 2951 3421 3016 3214 3172 2791 3198- 3251 2951 3211 3312 .3024 3178 3372 3008 3215 3246 3230 3217 3372 3027 XXXVl TABLE OF CASES. [References are to Sections.] Debs, In re 2951 Deer, The 3384 Degenhardt v. Heller 2818, 2830 Delin V. Mandeville 2735 Deimel v. Brown 3198, 3199 Deitch V. Staub 3221 Dejarnette v. Commonwealth 3010 Del Col V. Arnold 3320 Delahoyde v. People 3114, 3120 Delambre, The 3363 I»elauey, Ex parte 2890, 2894, 2895 Delano v. Winsor 3198 Delaware &c. R. Co. v. Bowns 2951 Delz V. Winfree 2951 Demaree v. Commonwealth 3039 Demartini v. Anderson 3063 Dement v. State 2952 Demmick v. United States 3059a Dempsey v. People 3071 Den V. Banta 3162 V. Johnson 2937 Denman v. State 3138 Dennis v. State 3001, 3007. 3062, 3064 Denton v. State 2968, 2969 Dentz, The 3375 Detroit Nat. Bank v. Blodgett 3175 Devlin v. New York 2898 Devoto V. Commonwealth 3118 Dewing v. Hutton 3227 I>exter v. Arnold 3232 V. Gordon 3201 V. Munroe 3272 Dey V. Dunham 3196 Diamond Drill &c. Co. V. Kelly 3217 Diana. The 3338 Dibble v. People 2718 Dick V. Hamilton 3206 V. State 3109 I)ickenson v. State 2838 Dickey v. State 3001 Dickinson v. Torrey 3224 Dickson v. State 3169 Dictator, The 3271 Diffenderffer v. Winder 3235 Diggs V. State 2899, 2905 Dilcher v. State 2943, 3080 Dill V. People 3091 V. State 3129 Dillin V. I'eople 3044 Dillingham v. State 3166 Dinwiddle v. State 3167 Diomede 3346, 3347 Disco, The 3293 Distilling &c. Co. v. People 2951 Ditzler v. State 2941 Divina Pastora, The 3269 Dixon V. Cyrus, The 3299 V. People 2865, 2867 2872 V. State 3035 3123 Doan V. State 2913 Doane v. Dunham 3210 Dobson V. State 2725 Dodge V. Israel 3184 V. State 3071 3095 Dodwell V. Burford 2836 Doherty v. IloUiday 2941 Dole V. Erskine 2848 Domingues v. State 2829 Domville v. Solly 3216 Donohoe v. State 2978 2981 2982 Danahue v. Donahue 2865 2867 Donald v. Guy 3379 Donaldson v. State 2841 Donnell v. Columbian Ins. Co. 3226 Donnelley v. Territory 2822 Donnelly v. State 2770 Don Carlos, The 3364 Don Francisco, The 3287 Don Moran v. People 3092 . 3096 Dooley v. State Dordrecht, The Doremus v. llennessy Doris Eckhoff, The Dorr V. Tremont Nat. Bank Dorsey v. Hammond V. State Dos Hermanos, The 3320, Doss V. I'eople V. State V. Tyack Dotson V. State 2859, 2860, 2871, 3346, 2975, 3332, 3038, Dotterer v. Saxton Dougherty v. People Douglas V. ^lerceles Douglass, The Douglass V. Eyre 3298, 3307, V. State 3009, Dove V. State Dover v. State Dow V. Spenny Dowdell V. Carpy Dowell V. General Steam Nav. Dowling V. Crapo Dows V. McMichael Downey v. State Doval V. State Doyle V. State Drake v. State V. Stewart Dravo v. Fabel Drew V. State Driscoll V. I'eople Drum right v. State Drury v. Conner Drysdale v. Ranger, The Dubose V. State Duchess of Kent, The Duckworth v. Tucker Dudley v. Dudley Dudney v. State Dueber &c. Co. v. Howard &c. Duffield V. Smith Duffln V. People Duffy V. People V. State Dugan V. Bridge Co. V. Commonwealth Dugdale v. Reg. Duke of Manchester, The Duke V. State Dukes V. State Dumas v. State Dumesnil v. Dupont Dunaway v. People Dunbar, Ex parte Dunbar v. United States Duncan v. Commonwealth V. State Dunham v. Gates 3203, 3204, V. Jackson Dunn V. Dunn V. People 2762, 3004. V. State 2718, 2731, 60, 2763 3312, 3123, 2728, Co. 3038, 3102, 3065, 2921, 3296, 3296, Co. 3415, 2714, 2863, 3419, 2731 3205 3011 3026, Dunnett v. Tomhagen Dupont de Nemours v. Vance 3244, 3261, 3262, 3263 Dupree v. State Dupuy de Lome, The 3355 Durand v. People Durant v. I'eople Durham v. United States Durland v. United States Dutch Church v. Smock Dwight V. Pomeroy Dyer v. People V. State 3166 3347 2951 3392 3176 3235 3036 3333 3056 3049 3176 2964. 2972 3224 3123- 3230 3382 3317 3128 3057 3167 2991 2920 3372 3153 3211 3001 3041 3129 3169 2938 3178 2721 3134 3059 3199 3300 2726 3301 3320 3175 3009 2951 3423 2993 2732 3129 3067 2732 3068 3366 3169 3019 3046 3069 3017 3427 2707 . 3172 3041 , 3206 3201 3176 , 3032 3037, 3099 3306 3260, , 3272 3037 , 3359 3130 3111 3427 2731 3234 3174 3170 3102 TABLE OF CASES. XXX VI 1 [References are to Sections.'] Dyer v. Williams D.vgden, The Dyues v. Hoover 3201, Slill 3419, 3425, 342(>. 3427, 3478 E E. B. Ward, Jr., The E. IT., The 3351, Eads V. II. D. Bacon 3270, Eagle, Tlie Eagle Wing, The Ealing Grove, The Earll V. I'eople Earlv Times &c. Co. v. Zeiger Earn well. The 3259, East Missouri v. Horseman East Tennessee Land Co. v. Leeson Easton, I'x parte Eaton's Case Eberhart v. State Eberling v. State 2735, Echols V. State Eckels V. State Edens V. State Edgar v. State Edgington v. T'nited States Edmonds v. State 3025, 3049, Edmonson v. State Edsall v. Brooks 2876, Edward. The 3263, 3269, Edwards v. Elliott v. State 2732, 2777, 2999, V. Susan, The v. Territory Edwin Baxter, The 3273, Edwin H. Webster, The Eenrom, The Egan. In re Egerton v. Jones V. Keillv Eggart v. State 2759, 2761, 2763, Eggleston v. State Egynt, The 3350, 3354, Ehlert v. State Ebrman v. Swiftsure, The Eighmv V. People 3077, Eiland" v. State 3018, Eisenlord v. Clum El Dorado, The 3300, El Ravo Elder v. State Eldridge v. State V. Turner Eleanor. The Eleanora. The Elfrida. The 3362, Eliza and Katv, The Elizabeth Frith, The 3296, 3308, Elizabeth. The v. Bickers Elkin V. I'eople Ella. The Ella and Anna, The 3344, 3345. Ella Constance. The Ella Warley. The Elliott V. Commonwealth V. State Ellis V. Ellis V. State 2706, 3041, 3093, V. Woods Elliston V. Hughes Ellwood V. Walter Ellzev V. State 2921 Elmore v. State 2724 Elphicke v. White Line &c. Co. 3363 Elsebe, The 3393 3352 3280 3247 3370 3296 27(1" 321 S 32(!0 2920 3226 3240 2891 3096 2741 2709 3051 3108 3171 2721 3051 3034 2878 3308 3431 3053, 3170 3308 3046 3279 3367 3341 3400 3233 3221 2765 2963 3360 3171 3359 3087 3041a 2863 3352 3347 3168 2792 3212 3314 3389 3363 8333 , 3311 3308 2948 3346 , 3316 3.-! 56 3:'.4(! 3050 2887 3221 3099, 3100 3204 3195 3224 , 2029 , 3166 3353, , 3365 3332 EIsov v. State 2948, Elwcll v. Martin Isly v. I'oontz Elysville Mfg. Co. v. Okisko Co. lOmac V. Kane Embden, The lOmerson v. Atwater 320(i. v. Berkley v. State I'";mery v. Ohio Candle Co. Eniig, In re ICmily, The Emily B. Souder, The lOiiinia. The I^mnions v. State i;mory v. Collings I'mi>r(>ss 3346, lOmulous, The 3355, 3303, lOndraught, The lOngland v. State Enlow v. State 3041, 3041a, Ennesser v. Hudek Ennis v. Smith v. State 2962, Enright, The FInright v. Amsden Epperson v. State 2972, Eppinger v. Canepa Epps V. State 3037, Erie R. Co. v. Heath Erin, The Erskine v. Commonwealth Ertz V. Produce Exchange Erwin v. State Espalla V. State Estes V. Carter V. State ICstrado, Ex parte Estrella, The Etna, The Ettinger v. Commonwealth Eubanks v. State Euler V. Sullivan Evans V. Evans 2794 V. Peonle 2759, 2766, 2746 3253 3198 2935, V. State 2724, 2779, 2816, 2840. 2938, 3030 V. Winston Evanston v. Myers Eveleth V. Crouch Everett v. State 3025 Evers v. State Eversole v. .Maull Ewell v. State Ewing v. Sandoval &c. Co. Excelsior, The 3355 Exchange Bank v. Russell Explorer. The 3251, 3372 I'^yler v. State Isyre v. Potter i:zell v. State 2990 32.53 3175 3215 2951 3323 . 323(» 31!l(! 27:'.! 2951 3234 3382 3359 3288 3000 3246 3347 3364 3323 2012 .3042 3236 3258 2972 3240 3226 3U17 3214 3044 3187 3355 2806 2951 3041a 2988 2703 3111 2750 3319 3293 3026 2999 3064 , 3227 2937. 2938 2838. , 3043 3216 3171 3174 , 3027 2729 3200 3168 3213 , 3380 940 , 3393 3104 3213 3028 E. >reyer Boot &c. Co berg Co. Eager v. State Eahnestock v. State l''ain v. Commonwealth Fairfield, The Faitoute v. Haycock Falcon. The I'allin V. State Falvey v. State l''anni('. The l''anning v. State Fanny Brown, The Shenk- 3177 3102 3044 304 2 3357 3218 3330, 3332 3018. 3020 2918 3380 3129 3348, 3349. 3350, 3352, 3355 xxxvm TABLE OF CASES, [References are to Sections.] Fanny Fern, The 3368, 3372 Fant V. Miller 3204 Farbach v. State 3171 Farley v. Kittson 3208, 3211 V. State 2706. 2910, 2913 Farmers' Bank v. Butterfield 3177 V. Sprigg 3194 Farmers' Loan &c. Co. V. Northern Pac. R. Co. 2951 Farmers' Mut. Ins. Assoc, v. Berry 3220 Farmers' &c. Trust Co . V. Central Railroad 3221 Farnam v. Brooks 3199 Farnley, The 3378 Farragut, The 3375, 3380, 3381 Farrall v. State 3171 Farrar v. Bernheim 3191 V. State 2824 3214 3267 V. Campbell V. McKee 3200 V. I'eople 2776 V. State 2726 V. Weitz 3095 Farrer v. State 3046 Farrington v. State 2995 Farris v. Commonwealth 3018 V. I'eople 2720, 3026 Fashion, The 3378 Fashion, The v. Ward 3259 Fastbinder v. State 3020 Fa licet t V. Mangum 3226 Faulk V. State 2731 Favorita, The 3392 Fay V. Commonwealth 2981 V. r>atlev 3204 Fehn v. State 3171 Feister v. People Felsenthal v. State 2915 2721 F'elton V. State 3092, 3096, 3097, 3236 Fenno v. Primrose 3176 Fenton v. Read 2867 Fenwick v. State 2719 Fergusen v. State 2782, 3128, 3143, 3148. 3152 Fertich v. Michener 2844 Fidelity Ins. &c. Co. v. Shenandoah Iron Co. 3228 Field V. Holland 3206 v. Romero 3236 V. State 3018 V. Wilbur 3198 Fielding v. State 3171 Fields V. State 3020, 3038, 3053 Files V. State 3054 Financier 3346 Finch V. State 3036, 3043 Findley v. Findley 3231 V. State 2709 Finn v. Commonwealth 2954 Finnegan v. Dugan 3095 Finney v. State 2859, 2860, 2874 Fire Damer. Die 3320 First Nat. Bank v. Simms 32.35 Fish V. Miller 3211 Fisher v. Carroll 3177 V. People 2732 V. Ronalds 3278 V. Sibyl, The 3348 V. State 2910, 3127 Fitch V. Stamps 3206 V State 3015, 3018 Fitzgerald v. Fitzgerald 2835 V. o'Flaherty 3193 V. State 2964 Fizell V. State 3094 Flagg V. Mann 3217 Fleener v. State 2962, 2965, 2969, 2971, 2972 Fleischmann v. Stern 3193 Fleming v. People 2862 V. State 2815, 3050, 3056 Fletcher v. People 2843 V. State 2721, 2995 Flinn v. State 2717 p-lora First Nat. Bank V. Burkett 3172 Flottbek, The 3350, 3352, 3354, 3355 Flying Fish, The 3267, 3323, 3337 Flynn v. State 3000 Foldeu V. State 2997 Fong Yuk, In re 3063 Fonville v. State 2990, 3044 Foote V. Lefavour 3196 V. Silsby 3185, 3223 Forbes v. State 3065 Ford V. State 2728, 2732, 2810, 2811, 2836, 2939, 3000, 3004, 3011, 3013, 3109 Forest Hill &c. Asso. v . McEvoy 3234 Forman v. Commonwea 1th 3045 Forney v. Hallacher 2863 Forrest v. State 2831 Forsigheid, The 3346. 3347 Forsyth v. Clark 3204 Fort V. State 2786, 2912 Fortenberry v. State 2964 Fortitudo, The 3150, 3250 Fortuna 3343 Fortune v. Watkins 3218 Fossdahl v. State 3171 Foster v. Commonwealth 3108 V. Ooddard 3232 V. Sampson 3310 V. State 2835, 3036, 3059. 3071. 3078, 3079, 3113, 3230, 3232 V. Thrasher 2941, 2942 Fouts V. State 2939. 2943 Fowler V. Payne 3231 V. I'eople 29S0 V. State 2707, 2732 Fox V. People 2724, 2990, 2994, 2995 Francia's Trial 3164 Franconia, The 3374 Frank C. Barker, The 3300 V. Herold 2951 V. Lilienfeld 3206 Frank's Appeal 3175 Franklin v. Greene 3175 V. Meyer 3221. 3223 V. State 3059 Fraser v. Burrows 3287 Frazee v. State 2999, 3007 Frazer v. I'eople 2764 Frazier v. State 2720, 2917, 3102, 3107 V. Swain 3227 Fred W. Chase, The 3372 Freddie L. Porter, The 3382 Frederick, The 3323 Freeland v. People 3128 V. Wright 3226 Freeman v. State 3088 V. Tatham 3193 Freeny v. B'reeny 3217 Freiberg v. State 3171 Fremont, The 3383 French v. Gibbs 3218 V. State 2729 Friedberg v. People 3114, 3116 Friederich v. People 3016 Friends, The 3372 Frink V. Adams 3198 Fritzler v. Robinson 3216 Frost V. Rosecrans 2717 Frye v. Ogle 3427 Fryrear v. I^awrence 3199 Fulcher v. State 2972, 3054 Fullagar v. Clark 3216 Fuller V. Fuller 3234 TABLE OF CASES. XXXIX [References are to Sections.'] Puller V. People Fulton V. State V. Woodman Funderburg v. State Futiderburk v. State Fuiidy V. State Fii(]ua V. ("onimonwealth Funiish v. Commonwealth Fussoll V. State Futfh V. State G 3071, •G. W. Jones, The Gabe v. State Gadson v. State •Gafford v. State Gage V. Arndt Gahagan v. People Gainer v. Russ Ciaines v. Rroekerhoff V. New Orleans V. State Galbraith v. Galbraith V. McCormick Galen Gallaher v. State Gallery v. State Galloway v. State l V-. State 2785 2999 3026 Hart V. Bloomfield 3183 v. Carpenter 3211 V. Clark 3215 Hart V. Hawkins v. Hicks 2921, 2229, 2934, V. Hopson 2940, V. State 2725, 3055, 3056, V. Stribling V. Ten Kyck 3193. 3201, 3211, Hartfield v. Brown Hartley v. I'onsonby 3299, Hartnett v. Plumbers' Supply Asso. Hartwell v. United States Harvev v. State V. Territorv 3142, 3149, Harwell v. State 3114, Harwood v. .loues V. People 3063, Haskell v. P.aile.v Hatch V. Indianapolis &c. R. Co. Hal chard v. State 2764, Hatchett v. Commonwealth Hately v. State Hatfield v. Gano Hathaway v. Hagan 3221, V. Rice 2844, Hathcote v. State Hauk V. State Haulenbeck v. Cronkright Hausenfluck v. Commonwealth Ilauser v. People V. Tate Ilavermeyers &c. Co. v. Compania &c. Fspanola Ilaveron v. Goelet Hawes V. Brown 3212, V. State Hawkins v. State 3033, 3041. 3097, Haxby, The 3360, Hayes v. Hammond V. People 2861, Haymond v. Camden Ilaynes v. State Hayward v. Carroll V. Eliot &c. Bank Hays V. Carr V. People V. Pittsburgh &c. Co. V. State 2723, 2767, 2822, Hazard's Cargo. The Hazen v. Commonwealth 2924, V. State Hazzard v. Vickery Heacock v. Ilosmer Head V. State 3017. Hearn v. State Hearne v. De Young Heartt v. Corning Heath v. Commonwealth V. Frie R. Co. Hebblethwaite v. Hepworth Hebe, The Hecox V. State Hedderich v. State Hedley. Ex parte 2965, Iledley v. Pinkney &c. Co. Heeg v. Licht Heeren v. Kitson Heffron v. Gore Heflin v. State 3065, .3071. 3077. 3082. 3083, 3084, Hoine v. Commonwealth Ileiliiian v. Commonwealth Hcintz V. T'rilon Quarter Sessions Helen and George, The 3363, llellin V. State Helgoland. The Helm V. First Nat. Bank 3212 2936, 2942 2942 3059 3213 3223 3209 3305 2951 27.SO 3153 3152 3119 3206 3065 3169 3228, 3229 2771 2777 2774 2764 3230 2845 3166 2713 3236 3150 2727 2937 3273 3300 3216 3013 3096, 31(»4 .3366 286.3 3236 2987 3206 3198 3213 2817 3259 2835, 2919 3335 2931 3009 2901 3175 3028 2784 3194 3208 2720 3105 2S61 334.S 3050 2703 3405 3299 3069 3198 3226 3078, 3086 2930 3004 3074 3364 3077 3153 3175 xlii TABLE OF CASES. IReferences are to Sections.'i Helser v. McGrath Hemingway v. State Ilemiup, Matter of Hemphill v. State Henderson, Ex parte Henderson v. Foster V. Harness V. Huey V. People V. State 2743, 2919, 2964, 3038, Hendle v. Geiler Hendrick's Case Hendrix v. Holden V. State Henline v. People Hennessey v. Versailles, The 3359, Henrich v. Saier Henrick and Maria, The Henry v. Curry V. Mayer V. State Henry, The Henry Coxon, The Henry Ewbank, The Henry Miller's Case Henry Steers, Jr., The 3348, Henslev v. State Henson v. State 3014, Hercules. The 3314, Herkimer, The Herman v. State Hermann v. State Hermine. The Hermon. The Hernandez v. State 2940, 292 Johnson v. Commonwealth 2866. 2899, 2916, 2965, V. Crippen V. Cyane, The V. Gallagos V. Harmon V. Johnson V. Jones V. Lewis V. McGrew V. Meyer V. Miller V. Patterson V. People V. Sanford V. Sayre V. State 2786. 2817, 2824, 2825 2830. 2835, 2843, 2845, 2931, 2946, 2979. 2980, 3026. 3041. 3046. 3049. 3058. 3059, 3095, V. Thirteen Bales &c. V. United States Johnston v. Glancy V. State Johnston Co. v. Meinhardt Johnstone v. Sutton Joiner v. State Jolly V. State V. T'nited States Jones V. Abraham V. Belt V. Byrne 3103, 3250, 3122, 2808, 3117, 3229, 2806, 3296, 3353, 3307, 3357, 2708, 3024, 2865, 3399, 3217, 2939, 3050, 3070, 3090, 2714, 2722, 3421, 2727 2827] 2874, 2997, 3052. 3100. 3212. 2723, 2994, 3198, 3198, 3178 3207 3214 313."> 3324 3377 3329 2982 3292, 3293 3105 2838 3299 3270 3378 3108 3087 3300 3227 3123 3227 3283 3214 2939, 3121 3259 3234 2956 3324 3364 3383 2808 3009 3095 3228 3041 3330 3369 3355 3329 3379 3368 3311 3308 3:{.'.8 2859, 3049 3198 3300 3235 3175 2867 3423 3226 3211 3235 2940 2853 3102 3227 3426 2785, 2829, 2929, 3015, 3057, 3120 3328 3026 3213 2724 2951 3426 2995 2938 3052 3199 3205 3234 Jones V. Commonwealth 2983, 3129, 31X4 V. Davis 3292 V. Douglass 3221 V. Ilardestv 3206 V. llurlburt 2939, 2941 V. Jones 2865, 2867, 3053, 3095, 3211 V. IMason 3200 V. Massey 3221 V. People 2725, 3038, 3059, 3059a V. Person 3197 V. Phoenix, The 3315, 3316, 3317 V. Seward 3423 V. Spencer 3217 V. State 2707, 2709, 2719, 2725, 2760, 2763, 2813, 2817, 2866, 2808, 2912, 2915, 2959, 2977, 2980, 2999, 3013, 3023, 3026, 3035, 3043, 3045, 3059, 3102, 3119, 3131, 3132, 3139, 3140, 3141, 3144, 3148 3174 2981 2951 3231 3272, 3352 3323 3231 3132 2980 3032, 3035 3218 3341 3367, 3392 3240 3323 2772 3215 3066 3206 3213 3335, 3341 3333, 3338, 3340 3250 2991 3227 3251, 3267 333T 3116, 3117 2820, 2829 3056- V. Thomas V. T'nited States V. Westervelt V. White Jonge Bastiaan .Jonge Pieter. The Jordan. Ex parte Jordan v. Commonwealth V. Osgood V. State V. Warner's Estate Joseph H. Toone, The Joseph W. Gould, The Josephine, In re Josephine, The Joseiihine v. State Joynes v. Statham Judd V. Fargo V. Seaver Judy V. Gilbert Juffrouw Anna, The Julia, The 3323 Juliana, The Jumpertz v. People June v. Myers Juniata. The Juno, The Jupitz V. People Justice v. Phillips Justices &c. V. Henderson K Kahn v. State v. Weinlander 3179, Kallisto. The Kamhira. The Kammermeyer v. Hilz Kankakee &c. R. Co. v. Horan Kansas L. & T. Co. v. Sedalia Elec. R. &c. Co. 3223, Kay V. Eowler Kazer v. State Keating v. Pacific &c. Co. V. People Keaton v. Miller V. State Keator v. People 3071, Keble v. Hickringill Kee V. Kee V. State Keeble v. Hickeringill Keefe v. State Keely v. State Keen v. Maple Shade &c. Land Co. Keener v. State 2728, Keesier v. State Keetou v. Commonwealth 2792 3199 3367 3293 3177 3193 3224 3221 2816 3299 3052 3213 3152 3075 2833 3231 2721 288a 2834 3056 3213 3041 2723 3140 TABLE OF CASES, xlv IReferences are to Sections.} 3042. 3195, 2723, 3212, 2719, 3026, 2709, 30C6, 2912 2757. 3144. Kopton V. State Kegg V. State Kei.ser v. State Keith V. Henkleman V. State Koithler v. State Kelch V. State Keller v. State Kelley v. Boettcher V. I'eople V. State Kellock V. Home c&c. Ins. Co, Kellogg V. Singer &c. Co. V. \Vood Ke'lum V. i:merson Kelly V. Kelly V. I'eople V. State 2912, 3093, V. Wayne Co. Clr. Judge Kelsey v. Hobby V. Western Kelsoe v. State Kemp, In re 3400, Kenah v. John Markee, Jr., The Kendriek v. Commonwealth Keneval v. State Kennedy v. Davenport V. Kennedy V. Meredith V. I'eople V. State Kenney v. State Kenny v. Lembeck Kent V. People V. State Kenyon v. People 3147, 3148, 3152 Keone v. People Kernan v. State Kerosene Lamp «S:c. Co. v. Fisher Kerr v. South I'ark Comrs. Kerrains v. People Ketehell v. State Keyes v. State V. United States 3419 Keystone. The Kidd V. Maniey Kidder v. Barr Kidwell V. State Kief V. State Kilbourn v. Latta Kilgore v. State Killins V. State Kilpatrick v. Commonwealth 3014 Kilrow V. Commonwealth Kimball v. Harman Kimberly v. Arms King V. Bryant V. Burdett V. Commonwealth V. Payan V. I'ouy Gold Mine Co. V. State 2714, 2725, 2768, 3022, 3030, 3063, 3065, 3071 Kingen v. State Kinnebrew v. State Kinney v. Koopman Kiphart v. State Kirby v. State V. Tnited States Kirby Hall. The Kirk V. Commonwealth V. Territei-v Kirkham v. People Kirkman v. Vanlier Kirland v. State K'rtley v. State Kissel V. liPwis Kistler v. State 2920 3218 3122 3197 2721, 2877 3129 2997 3170 3175 3102 2778 2728 3153 3218 2937 2806 3287 3199 3196 3259 3213 3172a 3147 3178 3217 3213 3026 3423 3264 3006 2860 3206 3216 3217 3027 3137 3098 3216 3023 3049 3145, 3153 3038 3029 3222 3175 2717 2980 3039 3434 3266 3214 3209 3168 2823 3198 3036 2720 3016 3118 2951 3236 3222 3234 3028 3202 3174 2918, 3075 2847 2774 3069 3126 3030 3113 3387 2960 3041a 3043 3226 2836 2984 3063 2887 3082, 3089, Kitchen v. State Klein v. Landman V. People V. State 2822, 2828, 2831, Kline v. Kline V. Triplet! Kiutts V. McKenzie Knagg V. Goldsmith 3307, 3312, Kneeland v. State Kniekerbacker v. Harris Kniekerbocker v. People Knights V. State 2720, Knowles v. Slate Koch V. State Koerner v. State Kohlraeyer v. Kohlmeyer Kohn V. McNulta Kollock V. State Komrs v. People Kossakowski v. People Kota V. I'eople Kotter V. People Krambiel v. Commonwealth Kramer v. Commonwealth Kramme v. New lOngland Krause v. Commonwealth Krchnavy v. State Kreamer v. State Krona, The Kruschke v. Stefan Kuhliger v. Bailey Kunde v. State Kurtz V. Moffitt The 3280, 3345, 3346, Soo River &c. Co. 3345 3141, 3150, 2981 3296 L. B. Goldsmith L'Alerte L'Invincible I^a Amistad de Rues La Belle Coquette La Bellone La Clorinde La Fernier ^ La Furieuse La Gloire La Ilenriette La Matt v. State La Melanie La Rosae v. State La Rue v. State Ladd v. State Ladv Campbell Lady Pike, The Laiiig V. Uaine I.iakG V. Skinner Lake Krie &c. R. Co. v. Bailey V. (Jriffin V. Indianapolis &c. Bank I-ake Shore &c. R. Co. v. McMillan Lamar v. State Lamb v. Parkman V. State 2760, 2763, 2765, Lambert v. People 2925. 2929. 2933, 2948, 3075, 3090 Lambe's Case Lambeth v. State I-ambright v. State Lamden v. State Liimington, The 3314, 3351, 3354, Lampkin v. State I.ampton v. State Lamson v. Drake Lancaster v. Arendell y. State 2708, 2709, 3026, 3090 2865 2727 2834, 2805 2817 3212 3218 3314, 3317 3006 3199 2725 2813 3008 2997 3036 3224 3177 2713 2774 2970 3016 2990 2747 2813 3259 3050 30l'4 3171 3366 3213 3214 3026 3419 3281 3347 3319 3329 3330 3347 3347 3299 3346 3347 3347 3095 3344 3152 3041a 3166 3300 3384 3194 3196 2951 3176 3200 3211 2934 3264 3050. 3056 2931. 3134 3037 2965 3030 3074 33r,r, 2988 2741 3230 3197 3043. 3046 xlvi TABLE OF CASES IReferences are to Sections.1 2968, 3328, 2954, 2802, 3102, Land v. Cowan Lander v. Seaver Landis v. Lyon Lane v. State 2825, 3015, 3017, 3049, Lang V. Merwin V. State Langdon Cheves. The Langdon v. Goddard Langford v. People V. State Langley v. Fisher I>angrish v. Archer Langsdale v. Bonton Langstaff v. LangstafiE Langston v. State Langtry v. State Lannan v. Clavin Lanning v. Smith Lanphere v. State Lanterinan v. Abernathy Larkins's Appeal Lassiter v. State Laswell v. Robbing Latham v. Latham Laughlin v. State Laura, The Laverty v. Vanarsdale Lawless v. State Lawrence v. Hester V. Lawrence V. State 3053, 3071, 3079, 3093, 3095, Lawson v. State 2796, 2827. 2830, Layman v. Minneapolis &c. Co. Leach v. Fobes V. Kundson Leak v. State Leame v. Bray Lebanon v. Heath Le Bon Aventure Le Caux v. Kden Ledbetter v. State Lee. In re Lee V. Beatty V. Lacey V. State 2721, V. Willock Lee Tong, In re Leeds V. Marine Ins. Co. 3199. I-efler v. State Leg-ore v. State Leigh V. Ward Lehigh Valley R. Leipsic, The Leland, The 2977, Co. V. McFarlan 3369, 3380, 3386, Lemon v. Rogge Lemons v. State 3027, Lenert v. State Le Neve v. Le Neve Le Niemen Leonard v. Poole V. State V. Territory 2713 Leonards v. Shields Leslie v. State Lester v. State L'Etoile, The Lettz V. State Leuthold v. Fairchild Levert v. Redwood Levi V. State Levy V. People 2777. V. State 2963. Lewallen v. State 2724, Lewis, In re Lewis V. Commonwealth V. Elizabeth and Jane, The 2714, 2919, 2910. 3314. 3218, 3221 3212 2844 3176 3032, 3052 2999 3041 3342 3214 2918 3070 3214 3001 3066 2794 3052 2863 3229 3200 3105 3213 3206 2998 3234 2794 3099 3357 2920 2996 3213 3227 3080, 3227 3166 3216 3211 3175 3079 2836 3497 3347 3320 3053 3166 3214 2726 3099 3227 2999 3206 2979 3099 3206 3213 3359 3387, 3389 3234 3038 2792 3199 3346 2951 2905 2726 3426 3059 3049 3346 3009 3195 3231 3113 2778 3041 3040 3153 3170 3306 Lewis V. Hoover V. Mason V. North V. Owen V. People V. State 3201 2723 2720, 2825 3155 3071, 3077 3149 2725, 3016, 3017, 3059, Licette v. State Life Asso. &c. V. Boogher Liggett V. State Lillie V. State Lima. The Limerick v. State Limland v. Stephens Lincecum v. State Lindo v. Rodney Linehan v. State Links V. State Linn v. Commonwealth Linsday v. People v. State Linton v. State Lion, The Lipes V. State Lippincott v. Bechtold Lipschitz V. People Lisbon v. Lyman List V. Miner Little V. State V. Stephens Littlefield v. State Littlejohu v. Regents Littleton v. State liively. The Livesey v. Livesey Liverpool &c. Co. v. Phenix Ins. Co. Liverpool I'acket. The 3332, 3335 Lizzie Frank. The Lloyd V. (iuibert V. Pennie Loan &c. Bank v. Peterkln Lock V. Foote Lockhart v. Leeds V. State Lockman v. Miller liockwood V. State Loehner v. Home Mut. Ins. Co. Loewenstein v. Rapp Loft us v. Fischer Loggins V. State 2723 Logne V. Commonwealth Lohman v. State 3002 London Merchant, The London Guarantee &c. Co. v. Horn London Packet. The 3323, 3327 Londonderry v. Chester Long V. State 2816, 2975, 3055, 3129, 3131, 3132, 3170, 3179, V. Tampico, The Longley v. Commonwealth Longshore &c. Co. v. Howell Loomis V. Fay V. People 2975 Lopez V. State Loraine v. State Lord Abergavenny v. Powell Lord Arundell v. Pitt Lord Derbv. The Lord Melville's Trial Lord Middieton, The Lord v. State 2798, 2799, 2801, Lorimer v. State Lossen v. State Lott V: State Lottawanna, The Louis, The Louisa Agnes, The 3242, 3244 2724 3202 3175 3210 3151 3023, 3172a 3114 2S75 3079 3046- 3296- 2941 3297 3108 3320 3023 3057 3074 , 2785 , 2994 2797 3375 2715 3231 2S06 , 31G3 2817 3044 3211 , 3088 3218 3053 3332 3233 3258 , 3341 3299 3258 3217 3175 3207 3212 2786 3206 3052 3965 3212 3175 , 2780 3041a , 3011 3253 2951 , 3332 2803 3106, 3183, 3355 3355 3019 2951 3199 , 3056 2786 3065 3212 3212 2835 2702 3346 2803. 2874 3068 3172 3166 , 3245 3320 3341 TABLE OF CASES. xlvii [References are to Sections.'] 2707, 2723, 3009, 3099, 3100, Louisa Jane, The 3301, Louisiana, The 3379, 3383, Love V. Keowne V. I'eople V. State Loveden v. Loveden Lovejoy v. Churchill . V. JMichels Lovell V. Galloway V. Johnson V. State Lovett V. State Lowder v. State Lowe V. State V. Traynor Lowenthal v. State Lowery v. I'eople 2861, V. State 2785, Lowman v. State Lowry v. Rainwater Loyd V. State Lucas V. Bank of Darien V. State Lucille, The Luck V. State 2714, Lucke V. Clothing Cutters' &c. Lucken v. Wichman Lucker v. Commonwealth Ludwig Ilolberg, The 3367, 3371, Luke V. State Lull V. Clark Luminary, The Lumpkin v. State Lundell v. Cheney Lurch V. Holder Luster v. State Luther v. Borden Lutton V. State Luttrell V. State Lycoming F. Ins. Co. v. Schwenk Lyell V. Kennedy 3280, 3290, Lyle V. State Lyles V. State 3032, V. United States Lyman v. Kansas City &c. R. Co. V. People Lynch v. Metropolitan &c. Co. V. Rosenthal Lyndhurst, The Lynes v. State Lyon V. Tallmadge Lytle V. State 2729, M M. J. Cummings, The Mabel Comeaux, The Mabey. The 3267, Mabry v. Stale Macauley v. Tierney Mace V. State Mack V. Sharp V. State INIackaye v. Mallory Mackenzie v. Flannery Mackey v. State Mackmurdo v. Smith Maclellan v. Seim Maconnehey v. State Madden v. State Madison v. Wallace Madonna del Burso, The Magbee v. Kennedy Magee v. Moss, The 3292, V. People Maggie Hammond, The Maggie J. Smith, The Magna Charta, The Magnet, The 3363 3389 3195 2726 2792 2790 3226 2951 3195 3211 3168 3024 2910 3106 3177 2874 2787 3041 3 3166 3332 33S6 3251 3199 319a 3246 2702 2997 3145 2847 3174 3218 3169 3231 3255 3426 2951 2719 3229 3049 2836 3330 3373 3382 3310 3046 3317 3076 3227 3216 3036 2916 3369 3363 3095 3224 3335 3193 3194 3171 3213 3300 3000 3375 2925. 2951 3308. 3317 3423 29.59 3206 307S 3421 2099. 30SS 2942 3262 xlviii TABLE OF CASES. ^References are to Sections.'^ Martinez v. State ^^^^ 3082 Marts V. State 3038, 3041 Marvin v. Dutcher glj^ Alarv Tlie 3267, 3308, 3310, 3311 Mary Ann, The 3263, 6-^^.) Mary C, The %-^-l Mary C. Conery, The 33lj Mary E. Dana, The 33o4 Mary Ida, The g^'- Mary Jane, The g-';^ Mary I'atten, The ggJ* Mary Paulina. The 3310 Marv of Alexandria, The 32 < 8, 32 < 9 Mary v. State -»":^ Maryland, The ^-^"^'o^to:: Mascolo V Monteranto ''^'-5; mIsod, Ex parte 3398. 3419, 3426, 3480 Mason v. Bair %^^^ V. Martin 3-^^ v.- StTte 2720, 2917, 3071, 3^0r^ T. William Murtaugh 3372 Massey V. State 3|0ji Massie v. Commonwealth £!04-, di McCabe v. Old Dominion S. S. Co. 3.386 McCall V. State ^V,l\~ McCambell v. Gill 3197 McCandless v. State 3040 McCarney v. People 2(74 McCarthy v. Eggers 3266 McCartney v. Berlin 2951 V State 2954, 2957, 2994 McCarty v. State 2777, 2779, 3056. 31.S5 McCaughey v. State 2759, 2(6.3 McCauley v. State 3001 McCaw V. Blewit 3202 McCay v. State 2838 McClellan v. State 2998 l\rcClerkin v. State 3091 McCloskey v. People 3129 McCloughry v. Finney 3066 McClung V. Colwell 3213 McClure v. Commonwealth 2990 McClurg V. Commonwealth 3041a McComb V. Commonwealth 2915 McCombs V. State 3099, 3101 McConkey v. Commonwealth 3026 McConnell v. Hector 3323 V. McKillip 3005 V. State 3025 McConnochie v. Kerr 3355, 3356, 3359 McCook V. State 2729 McCord V. People 2982 McC(jrquodale v. Bell 3289 McCoy v. I'eople 3035 v. State 3017 McCrary v. State 2913, 3041a McCready v. Brother Jonathan, The 3264, 3272 V. Goldsmith 3386 McCue V. Commonwealth 3019 McCullar V. State 3148, 3152 McCulley v. State 2835 McCulIoch V. State 2708 MeCully v. Peel 3200 McCune v. State 2714 McDaniel v. Marygold 3177 V. State 3016, 3017, 3035, 3049. 3129 McDeed v. McDeed 2861 McDermott v. State 2847, 3016, 3101 McDonald v. Commonwealth 2721 V. Franchere 2835 V. Jacobs 3174 V. Thompson 3177 McDonnell v. State 2987, 2991, 2995, 2998 McDougald v. Dougherty 3223 McDowell V. State 3053 McElroy v. Ludlum 3206 V. People 2972 V. Swope 3234 McFadden v. State 3120 McGarr v. State 2988, 2991, 2995 Mcfiary v. McDarmott 3198 McGee v. State 2975 McGehee v. White 3199 McGinnis v. State 2993 McGintv V. State 3140 McOrat'h v. State 2910, 2912 McGregor v. State 2954, 2960 McGuff V. State 3107 McGuffle V. Planters' Bank 3199 McGuigan v. Gaines 3216 McGuire v. People 2707 McHenry v. Sneer 2920 Mcllugh V. Schuylkill Co. 2995 Mclntire v. State 3118, 3120 Mclntvre v. Ledyard 3178 Mclver v. State 3057 ;\IcJunkins v. State 3068 McKarsie v. Citizens' BIdg Asso. 3229 McKav V. State 2831 McKee v. State 2782, 2931, 2937, 2938 McKenna v. People 2717 v. State 3022 McKenzie v. State 2078 IMcKim V. Thompson 3-06 McKinlay v. Morrish 3259, 3260, 3272 McKinne'y v. Pierce 3226, 3236 McKissick v. Martin 3199 McUain v. Commonwealth 3044 McT.ane v. Johnson 3198 McLard v. Linnville 3199 McLean v. State 3035 McLeland v. State 2797 McMahon v. Burchell 3214 V. State 2808 McMannus v. Lee 2942 McMath V. State 3098, 3103 TABLE OF CASES. xlix [References are to Sections.'] McMillan v. McNeill 3236 Miller v. Cotten 3215 McMillen v. State 2877 V. Dayton 2934 McMullen v. State 3049 V. District of Columbia 3199 McxMullen Lumber Co. v. Strother 3195 V. Indianapolis 3175 McMurray v. McMurray 3215 V. Miller 3230 McMurriii v. Rigby 3098 V. People 3068 McMurry v. State 3082 V. People's Lumber Co. 3235 McXair v. Ragland 3208 V. State 2847, 2916, 2931, 2999, McXamara v. Home Land &c. Co. 3228 3020, 3029, 3041a , 3070 3166 V. People 2727 V. ToUison 3205 McNaughton v. Osgood 3177 V. United States 3271 McNeai v. Woods 2806 V. United States &c . Co. 3195 3211 McXeally v. State 2786 V. Wilkins 3176 McNutt V. Dare 3193 V. Wills 3177 Mcl'hail V. State 3119 Milligan, Ex parte 3398, 3400, 3423. McPlierson v. State 3024, 3170 3426 McQueen v. State 3057 Milligan v. Wissman 3211 McQuirli V. State 3096, 3101, 3108 Mills V. Commonwealth 2758, 2759, Mclioberts, Ex parte 3423 2766, 3141, 3142, 3143 3144 3152 McSein v. State 2863 V. Gore 3206 McSwean v. State 2720 V. Martin 3399, 3415 3423 3424 McSween v. McCown 3220 V. State 2969, 3001, 3093, 3109 McTyier v State 3143, 3144, 3148, 3150 V. T'nited States 3097 McVey, In re 2909 V. Wooters 2857 McWhorter v. McMalian 3213 Millsaps V. Pfeififer 3195 Mead v. Walker 3175 V. State 2997 Meader v. Stone 2819 Milne's Appeal 3195 Meadowcroft v. People 2964, 2971 Milton V. State 3019, 3035 Mechanics' Labor Sav. Bank, In re 3183 Miner v. People 2795, 2797, 2874 Mechanics' &c. Sav. Asso. v. Farm- Minerva. The 3292, 3293, 3298 ington Sav. Bank 3229 Minnehaha, The 3278 Medis V. State 3172a Minnie C. Taylor. The 3366 Medler v. Albuquerque Hotel &c. Co 3236 Mira A. Pratt, The 3355, 3365 Medrano v. State 2871 Mitchell V. Commonwea 1th 2766 Meek V. State 2979, 2981 V. McKinny 3233, 3235 Meeker v. Warren 3215 V. State 2703, 2785, 2848, 2910 Meeks v. State 3044 V. Walker 3226 Meister v. People 2774, 2806, 2812, 2813 Mixon V. State 2715, 2720 Mellor V. Thompson 3285 Mizell V. State 3049, 3051 Melton V. State 2784 Mobley v. Dubuque &c. Co. 3206 Memphis, The 3283 V. State 3109 Memphis v. Brown 3218 ^loffat V. McDowall 3211 Memphis &c. Co. v. H. C. Yaeger Moffit V. State 3068 &c. Co. 3372, 3394 Mogul &c. Co. V. McGregor 2920, 2951 Menken v. Atlanta 3171 Molihan v. State 3170 Mentor, The 3295, 3296, 3300 Monarch. The 3372 ISIercier v. Cotton 3274 Monnett v. Turpie 3175 Merrimac, The 3244 Monroe v. People 3171 Merritt v. Brown 3201 V. State 3102 Merritt &c. Co. V. North German ^lontag V. People 3030 Lloyd 3366 Montandon v. Doas 3216 Mersey, The 3341 Montesquieu v. Sandys 3213 Mescall v. Tully 3213 Montgomery v. Bevans 2867 Messer v. State 2899 V. Parker 3066 Messersmidt v. People 3067 V. State 2732, 2770, 2779, 3033. Messinger's Appeal 3225 3074 Methard v. State 2725, 2918 V. United States 272(! Methodist &c. Church v. Jaques 3229 Monticello, The 3359, 3360, 3372, 3380. Mettler v. People 3172 3388 Metz v. State 2725 2918 Montresser v. State 3102 Meux V. Bell 3227 Montross v. State 3068 Mexico, The 3371 Moody V. People 2739, 2741, 2751, 3092 Meyer v. State 3165 V. State 2771 Meyers v. State 3028 Moon V. State 3014 Mevers &c. Co. v. Emma Kate Ross, Moore v. Bruce 3222 The 3381 V. Copp 3177 Micheaux v. State 3055 V. Crawford 3213 Middaugh v. State 3000 V. Dick 3226 Middlesex &c. Co. v. Albert Mason, V. Houston 3419 The 3367 V. Hubbard 3206 Middleton v. State 2786 V. Huntington 3227 Mifflin v. Commonwealth 2931 V. Hylton 3200, 3205 Miles V. Miles 3198. 3206 V. People 2910, 3035 v. State 2727 V. Randolph 3231 V. United States 2863, 2874 V. Rawson 3231 Milk V. Moore 3176 V. Shields 2939, 2944 Miller v. Avery 3193, 3196, 3199 V. Simpson 3176 V. Commonwealth 2785, 3002, 3004. V. State 2723. 2731. 2767, 3006. 3057 3010, 3038, 3039, 3041, 3075 Vol. 4 Elliott Ev. — iv TABLE OF CASES. [References are to Sections.'\ ri8, 2929, 3292 Moore v. United States Moore's Case Moores v. Bricklayers' Union V. Moores Moorsley, Tlie Mora V. People Moran v. Liaudin More V. Bennett Morford v. Territory Morgan v. Field V. Monmouth &c. Road Co. V. Nagodish V. O'Daniel V. Sim V. State 2709, 2799, 2819. 2984. 3003, 3015, 3114, 3116, Moriarty v. State Morning Light. The Morning Star, The Morrell v. People Morrill v. State Morris v. Morris 3211 V. People V. State 2715. 2719, 2720. 3026, 3029, 3053, 3063 V. White 3198 Morris Run &c. Co. v. Barclay iVcc. Co. 292(>, Morrison v. Durr 3198, V. Hardin V. Hart V. Jones Morrow v. State V. Turney Morse v. Hill Morten v. Five Canal-Boats Morton, The 3259, 3260, Morton v. Shoppe V. White Moseley v. State Mosely v. Garrett V. State ^^^^ Moses Taylor, The 3239, Moses V. State Mosher v. Joyce V. State „„„„ Moslem. The 3296, Motsinger v. State 2881, Mott V. Harrington Moyers v. Kinnick Mrous V. State Muir V. State 30 < 5, Mulford V. People 2962, V. Williams Mulholland v. Ilendrick Mulhouse, The Mullaly V. People Mullan V. United States Mullen V. State MuUinix v. State Munkers v. State 3148, Muntz V. Raft of Timber Murdock v. State V. Walker Murillo. The Murio V. State Murphy v. Ramsey 2859 V. State ^863, 3016, 3093, V. Suliote, The V. People Murphy's Case Murray v. Ferry-Boat V. Johnson V. ^MoOarigle Musgrave v. State 3029 2924, 2946. ^Iiisgrove V. Lusk Mutual Life Ins. Co. v. Blair 2991 3U52 2951 3214 32G8 3032 3298 2951 3075 3175 30G6 3246 2821 3367 2981, 3166 3038 3369 3263 3075 2795 3214 2980 2807, , 3130 , 3204 2951 3201 3199 3174 3215 2780 3213 3199 3367 3264 2823 3196 2908 3197 3172 3249 3134 3234 2988 3299 2887 3226 3214 3153 3090 2972 3221 3214 3366 3052 3404 3020 3168 3152 3352 2840 2951 3274 3114 2870 3094. 3170 3360 3044 2702 3310 3205 2951 2977. , 2982 3231 3208 Mvers v. Commonwealth 3019 V State 2939, 2941, 3035, 3041, 3102, 3107 V. Steel Mach. Co. 3213 N 3375, 3386, 2791, 3346, Co. V. Boston &c. R. 3040, 3225, 3004, Xacoochee, The Names v. Names Nanty. 'I'he Naples (Jrant Nash V. Hunt Nashua &:c. R Co. National &c. Asso. v. Burr National Bank &c. v. Sprague National &c. Co. v. Dayton &;c. Co. National &c. Co. v. Interchangeable &c. Co. Naugher v. State Nayler's Case Neace v. Commonwealth Neal V. Briggs V. Commonwealth V. State Neall V. United States Near v. Lowe Nece V. Pruden Needham v. State Neeld v. State Neely v. Jones Nelms V. State Nelson v. Pinegar ^ ^ V. State 3042, 3071, 3072, V. Territory Nephi Irr. Co. v. Jenkins Neptune. The 3306, Neto and Cargo. The Neuman v. State Nevitt V. Clarke 3264, New Brunswick &c. Co. v. Eden New England. The New England Bank v. Lewis New England &c. Co. v. M. Vander- cook. The New Gloucester v. Bridgham New Haven &c. Co. v. Mayor New Jersey, The 3377, New Jersey &c. Co. v. Merchants Bank New Phoenix. The New York, The. v. Rea New York v. Walker New York &c. Co. v. Calderwood V. Philadelphia &c. Co. V. Rumball New York Cent. Trust Co. v. Mad- den New York Ferrv Co. v. Moore New York &c. R. Co. v. Wenger Newberry v. State Newcomb v. White Newell V. Norton V. West Newfoundland. The 3314, Newman v. Commonwealth V. People 2726, 2901, Newport, The Newsom v. State Newton v. State Newton Rubber Works v. Casas Nicholas v. Commonwealth v. State Nicholls V. State Nichols V. Commonwealth V. People De Las 3036, 3041, 3389 2794 3335 3347 3235 3221 3174 3227 3225 3195 3041 2891 3101 3232 2999 2843 2991 3236 3234 3170 3009 3221 2864 321 1 3079 3065 3218 3366 3360 3170 3308 3199 3260 3199 3355 3170 3266 3378 3244 3296 3380 3170 3378. 3379 3378 3378 3218 2969 2951 2975 3232 3263 3236 3332 2951 2908 3375 3049 3018 3221 3043 3093 3024 3035 3050 TABLE OF CASES. [References are to Sections.'] Nichols V. State Nick V. Rector Nicliels V. Kane Niece v. Territory Nightingale v. Dodd Nimrod, The Nims V. Nims Noddleburn, The Noel V. Fitzgerald Noftsinger v. State Noland v. State Noles V. State Nonpareil, The Noonan v. State Nordgren v. People Nordon v. Defries Nordstern Norris v. Island City, The 2859, 3296, 3299, 2723, 3041a 3349, 2984, V. State North Carolina v. Gosnell V. Vanderford Northfield v. I'lymouth Northrop v. Flaig North Star. The 3244, 3247 Norton v. State 2835, 3052, 3141, 3143 Norwich Co. v. Wright Nostra Signora de los Dolores Noyes v. State Nuckols V. State Nuckolls V. Commonwealth Nugent V. State 3101, 3104 Nulton's Appeal Nunn V. Nunn O O. C. Hanchett, The O'Blenis v. State O'Brian v. Fry O'Brien v. Commonwealth 3026, 2931, 2936, 2937, V. Elliot ni99, V. People 3063, Ocala Foundry &c. Works v. Lester Occidental, The Ochs V. People O'Connor. In re O'Connor v. State Octavia. The O'Day V. Conn Oder V. State Odin, The O'Donnell v. People Ofifutt V. Scott Ogden V. State Ogemaw. The Ogle V. State Ogletree v. State O'llare v. Downing Ohling V. Luitjens Old Dominion &c. Co Oleson V. State Olinde-Rodrigues. The Olive Chamberlain, The Olive V. State Oliver v. Commonwealth V. State V. WilhitP Olson V. T'nited States O'Malley v. O'Malley O'Mara v. Commonwealth O'Meara v. State Omer v. Commonwealth O'Neal V. State 2777, 2780, 3026, 3132, 3377, 2774, 2706, McKenna 3097, 2715 3142 3014. 3020. 3094 31<;6 3196 32:{2 28(!6 3210 3300 3227 3299 3212 2784 2779 3043 3293 3107 3032 32S9 3347 3351. 3352 3041a 3020 3172 2867 3195 3251 3142, 3145 32.54 3347 2931 3001 3002 310,S 3198 3234 3360 3101 3198 3044. 3036 3201 3065 3211. 3217 329t> 2038 3419 2984 3244 3175 3000 3346 2938 3213 3042. 3133 3379 2785 3013 3211 3213 2951 3099 3332 329(! 2721 3146 3041a 3225 2717 3224 3023. 302t , 3095 , 30:!9 3166 f)neale v. Commonwealth 2863 One Hundred and Eighteen Sticks of Timber 3252 O'Neill V. I'errymann 3227 v. State 3143, 3146, 3148, 3153 Ontario Bank v. Schermerhorn 3213 Orange v. State 3040 Oratava. The 3372 Orpgi.n, The 3371, 3376, 3381, 3;!N8 OUeilly v. People 3074 Orgain v. Kamsey 3177 Orleans. The 3257 Ormau v. Barnard 3201, 3211, 3216 Orme v. Commonwealth 3170 < )rmi)nd v. Hutchinson 3193 Ormsby v. People 2721, 2786, 2940, 2942 Ormsley v. I'eople 2941 Orne v. Townsend 3259, 3300, 3301. 3315, 3316 Orr V. People 2921, 294S Orrwein v. Commonwealth 2728 Osborn v. State 2745 V. United States Bank 3206 Osborne v. People 2917 Osceola, The 3292 Osgood V. State 3092, 3093, 3096 Osiris, The 3267 Osseo, The 3382 (^stenson v. Severson 3215 Ottawa. The 3380 Otter. The 3386 Overly v. State 2988 Ovprton V. State 2874 Owens V. State 2799, 2802. 2874, 2921. 2934, 2937, 2939, 2941. 3105, 3221 Oxley Stave Co. v. Coopers' &c. Union 2951 Pacific. The I'aciflc &c. Co. v. Padgett V. State Page V. Sheffield V. State Paine's Case Painter v. Ives V. People I'airo V. Bethell Palermo. The Palmer. The Palmer v. Lawrence V. People State 3296 Gentry 2941, 2944 2841, 3009 3292 3041a 3075 3419 2720, 3026, 3035, 3036 3175 3289 3267 3175 3043 3172 V. Van Doren 3210 Pal more v. State 3038 Palmyra. The 3269 Pankey v. People 3070 Pannell v. State 3170 Pardee v. De Cala 3196 Parisian Comb Co. v. Eschwege 3217 Park &c. Co. v. National &c. Asso. 2920 Parker v. Beavers 3213 V. Commonwealth 303,8 V. Concord 3200 V. Nickerson 3226 V. People 2990. 3063, 3065 V. Phetteplace 319S V. Safford 3211 V. Simpson 3227 V. State 2727. 2861. 2863. 2866. 2867. 2868. 2869. 3035. 3052, 3099, 3170 Parkinson v. People 3105 Parks V. State 2794. 2797. 31.53 Parrish v. Pensacola & A. R. Co. 3213 V. State 2732. 3014, 3024 Parsons v. Brown 2S52 v. State 2728, 2852, 2856, 3007 I'artain v. State 3082 m TABLE OF CASES. [References are to Hections.'] Paschal v. State Pat V. State Pate V. State Patterson v. Commonwealth V. Gaines V. Hayden V. State Pattison v. Hull I'atton V. State I'aulding v. Watson Paiilk V. State Pawashick, The Payne v. Danley V. State V. Western &c. Co. Payner v. Commonwealth Payson v. Everett 3023 3110 3026 2786 3190 3141, 3147 3059a, 3170 3225 2939, 2943, 2944 3199 3095 3258 3178 3037, 3059a, 3119 2929, 2951 2742. 2744, 2747 2959 Peacock Distillery Co. v. Common- wealth Pearce v. Foster V. Territory Pease v. State Pearson v. Darrington V. Yewdall Peak V. State Peaks V. McAvey Peck V. Hunter V. Metcalf V. State Peckham v. Armstrong V. Bnffam V. Van Bergen Peden v. Cavins Peerless. The Pefferling v. State Pegasus, The Peile V. Stoddart Peirce v. West Pelts V. State I'emberton v. State 3064 3289 2774 2848 3225 3431 3068 3211 8199, 3201, 3211 3234 2705 3177 3213 3175 3175 3253 3098 3373 3286 3200 3115 3007 Pence v. State 3055, 3056, 3172 Pendleton v. Commonwealth 2993 Penhallow v. Doane 3258, 3260, 3272 I'ennington v. Gittings 3199 Pennsylvania, The 3263, 3370, 3375, 3386, 3389 Pennsylvania v. Halderman 2995 Pennsylvania Co. v. Cole 3201 Pensoneau v. Pulliam 3206 3P1 e V. Abbott 2759, 3095, 3102 3101. 3104 V. Adams 2984 3004 v. Ah Chung 2707 V. Ah Fung 3026 V. Ah Sam 2956 2997. 3046 V. Ah Sing 3087 V. Ah Woo 2997 V. Aiken 2709 2713, 2766 V. Aleck 2944 V. Allender 2728 V. Altman 2994 V. Alviso 2708, 3046 V. Ames 2786 V. V. V. V. Ammon Anderson Ardell Armstrong 3121 3038 2786 2714 V. V. Arnold 2924, Aro 2925, 2931, 2948, 2946, 3041 3024 V. Ashe 2721 V. V. P.ahr Baird 3172a 2720 V. Baker 2717, 2757, 2873, 2981, 2975. 2998 V. Baldwin 3098, 3107 V. Barker 3027 V. Barondess 2951 People V. Barrett V. Barric V. Barry V. Barthleman 3026, V. Batherson V. Batting V. Bauman V. Bearss V. Becker 3130, V. Beckwith V. Behee V. Belencia V. Bell V. Bemis V. Bene V. Bendit V. Benham 3026, V. Bennett 2719, V. Benoit V. Benson V. Bentley 2936, V. Bernor V. Beverly V. Bibby v. Bidleman 2720, 2968, V. Bielfus 2910, V. Bird V. Bishop V. Bissert 2902, V. Blake V. Blanchard 2978, V. Block V. Bolanger 2785, V. Bosworth V. Bowen 2720, 3103, V. Braisted V. Braman 2883, V. Brandt V. Bransby V. Brewer 2753, 2755, 3143, V. Brigham V. Bristol V. Brotherton V. Broughton V. Brown V. Brunt V. Bryant V. Buchanan V. Buckland V. Buckley V. Burt V. Eurtleson V. Burton V. Burwell V. Bushton V. Butler 2934, 2864, 3026, 3063, 3096, 2786, 2924. V. Butts V. Call V. Callaghan V. Calder V. Caldwell V. Calvert V. Camp V. Campbell V. Cannon V. Caniff V. Carey V. Carrier 2741, 2742. V. Carroll V. Carter V. Cassidy V. Cease V. Chadwick 2785. 2787, V. Chase V. Chaves V. Chicago &c. Gas Co. 3104, 2925. 3049, 3022, 2735. 3041, 2744, 2750, 2999, 2814, 2956, 2920, 2730 2787 3080 , 3040 3102 3015 2964 2779 , 3140 2706 2980 3019 2728 3036 3107 2997 . 3036 2942 3168 3101 , 2939 3095 3032 2994 2969 2914 2994 2816 2906 2996 2984 2912 2787 2786 3105 3171 2885 2757 2828 3145. 3146 2997 2745 2995 2800 2995 3035 2982 30R5 2778 3046 2715 3064 2816 3168 3022 2938. 3107 2971 3050 3030 2862 3171 2914 2737 3056 2703 2912 2715 2749. 2756 3002 2970 2816 3168 2997 2873 3036 2951 TABLE OF CASES. liii [References are to Sectiona.1 People V. ChoynskI 2880, V. Chu (juong V. Cipperly V. Clark 2755, 2796, 2924, 3143, 3145, 3146, 3147, 3148, V. Clarke v. Clarkson V. Clausen V. demons V. Cleveland V. Cline V. ('lough V. Cobler V. Cole V. CoUetta V. Commonwealth v. Connor V. ("onroy V. Constantino V. Cook 2750, 2756, 3041a V. Cooper 3113 2978, 2979 2770 2829 3018 Corbin Cornelius Courier Courtney Cowgill Cox Craig Cramer Crego Cronk Crowley Croswell Cruger Cummins Cunningham Curley Curtis 2786, 2707 3097 2910, 3092 3050 2729 3064 2714. 2912 3029, 3035. 3085 Cutler D'Argencour Dailev Daniell 3398 Daniels 2934 Davis 2770, 2792, 2796. 2958 Dawell De Coursey De Fore 3141, 3143, 3148 De Kroyft De Lav De Leon 2737, 2738, 2741 De Winton Dean Decker Demousset Deschesseri Devine Dice Dickerson Dickie Diniick Dixon Dohring Dolan Dole Dorthy Doty Dousrherty Dowling Downs Doyle Driscoll Druse Dunn Duncan Durrant Dyer 3026 2745, 2750 3035 2939 2750, 2991, 2995, 2720. 3057. 3014, 3015, 2784, 3099, 2887 2735 3165 3141, 3151, 3153 3043 2854 3114 3100 2724 3059 2786 2965 3052 3098 2786 3117 3024 3041a 3120 2856 2720 3107 3092 3080 3039 , 3028 3101 2731 , 3104 2916 , 3093 3169 , 3054 , 2745 3066 , 2915 3041a, 3171 3000 2997 2720 3427 2947 2956. 2997 2873 2963 3153 2905 2971 2751 2806 3054 3035 2756 3172a 3037 3043 3095 2990 3057 2942 3007 2752 2097 2060 31 IS 2072 3059 3022 3055 30'^0 303S 30.-i3 3107 3028 2924 People V. Dyle V. Eaton V. Kastwood V. i;bel V. Edwards V. Eichler V. Ellen wood V. Elliott V. Elmer V. Etter V. Evans V. lOverhardt V. Faber v. Fagan V. Fairchlld V. Farrell V. Feilen V. Fellows V. Ferguson V. Fick V. Fish V. Fisher V. Fitch V. Fitzgerald V. Flack 2716, 3095, 2805, 2810, 2881, 2717, 2717, 2927, 3099: V. Flaherty V. Flanagan V. Fletcher V. Flock V. Flynn 2910, 2914. 3096, 3098, 3102, V. Foley V. Fong Chlng 2899, V. Foo V. Forbes V. Fournier V. Fowler 2720, 2739, V. Fox V. Frank V. Fultz V. Furtado V. Gage V. (iallagher V. Garbutt V. Gardner V. Garnett V. Garrahan V. Gastro V. Gates V. Geiger V. Genung V. German V. Getchell V. Gibbs 2863, 2882. 2990, 2786, 2786, 2787, 2866, 2744, 3027, 2709, 2921. 2938, 3101, 2916. 3103, 2720, 2902, 2752. 2792, 2954 2729 2795, 2797, 2939, 2977, 2940, 2975, 2978, 3070, 2981, Gibson Gillian Gillis Girdler Glassman G lea son (ilover 3033, 3095, 3096, Gold Run &c. Co. Gonzalez V. Gordon V. Gosset V. Gotshall V. Gould V. Goulette V. Griiney V. Grauer V. Gray V. Greenfield V. Greenwall V. Griffin V. Griffith 2717, 2877. 291.5, 3027. 2725, 2778. 2917. 2886. 2919. 2T«6 2815 2729 3005 3105 2888 2996 3011 2732 3105 3044 2994 2873 2918 2808 2958 2867 2729 3172 2746 3044 2951 2997 2719 2925. 2947 3103 2853 3115 2968 3093. 3104 3129 2908 2705 3000 2813 2756. 3105 3090 2994 3105 3029 3099 2963 3038 2885 2784 2976 3065 3068 2942 2982 3071 29. S 2 3141, 3151 2917 2881 .3049 ^'792 3169 2721 3009 3064 3044 2855 3002 2816 31 53 310.-, 2705 3101 2069 301 3 3043 2914. 30.55 2910 Uv TABLE OF CASES. 3101, 2975, 3426, P«ople V. Grimes V. Griner V. Gross V. GroHsman V. Guidici V. Haggerty v. Hall v.- Halliday V. Hainberg V. Hanaw V. Ilandley V. Ilannon V. Hanselman V. Harlan V. Harris' y^ Hartman V. Haver V. Hawes V. Hawlcins V. Hayes V. Haynes V. Hecker V. Hendrickson V. Henry V. Henssler V. Herrick V. Hess V. Hettick v. Hicks V. Hitclicock V. Hodgkin v. Hodnett V. Hoffman V. Holbrook V. Holmes V. Hong Ah Duck V. Hong Quin Moon V. Honshell V. Hooghkerk V. Hope V. Horton V. Howard V. Howell v. Hul)bard V. Hughes V. Hulbut V. Humphrey V. Hurley v. Hurst V. Husband v. Imes V. Irwin V. Tsham V. Ivey V. Jackman V. Jackson 2714, 2972, V. Jacobs V. Jaehne V. Jan John V. Jenness V. Johnson 2722. 2962, 3024, 3026, 3044, 3095, V. Johnston V. Jones V. Jordan V. Josselyn V. Kamaunu V. Kane V. Katz V. Kearney V. Keofer V. Keep V. Kehoe V. Keith V. Kelly V. Kennedy V. Kern {^References are to Sections.1 People V. Kerr 2902, 2939, 3141 2863, 2941, 3040 3041a 3035 3118 2707 2808 312i» 8041 2975, 29S(> 2971 2808 2918 3054 3093 3105, 3140 3108 2720 3030 2967, 2971 3089 2981, 2984 3036, 3041 2796, 3055 2917 2976 2981, 2984 3041 2728 3130. 3134 3079 3172a 3165 3427. 3431 2993 2938 3035 2980, 2981 2818 2785 2910, 2916 3066, 3067 3040 2989 3141 2806. 3132 3170 2S63 3059, 3116 2962, 2972 3055 2802, 2863 2944, 3024 2801 2732 3169 3062, 3066 2978 2899, 2907 3083 2756, 2796 2972. 2977. 3096, 3101 3041a 2995. 3036 2973, 2978 2760, 2769 2714 3148, 3172 2774 2757, 3152 2788 2715 , 3146, 3153 3107 2942. 3131. 3139 3020, 3043 3026 2901, 2902, 2904, 2905, 2943 V. Kibler 3165 V. Kief 2779 V. Kiley 3117 V. Kilvington 3024 V. King 2995 V. Kingsley 2992 V. Kirby 301 6 V. Knapp 2783. 2855 V. Knight 3101, 3104 V. Koller 3168 V. Kostka 2951 V. Kraker 2785, 3120 V. Kropp 3170 V. Krusick 3142 V. Kunz 3102 V. Lagrille 2960 V. Lamb 3038 V. Ivambert 2862, 3099, 3103 V. Lane 2719 V. Langton 3014 V. Larnc'd 2917 V. Larsen 2786 V. Larubia 3036 V. Lattimore 2733. 2813 V. Laurence 3056 V. Law 3034 V. Ledwon 2732 V. Lem You 3073, 3079 V. Lennox 2982 V. Lennon 3041a V. I>enon 3096, 3097, 3102 V. Leonard 2968 V. Levine 2816 V. T-evison 3114. 3120 V. Lewis 3041a V. LMley 2817. 2822, 2826 V. Liohardt 2726, 2906, 2908 V. To'a.iors 3029 V. Mai lory 3064 V. Maloney 3117 V. March 3023 V. Markham 2901 V. ?'arks 2915 V. I\farion 2723, 2991 V. Marshall 2750, 3023 V. >Tartin 2974 2980, 2982 V. Mnrtinez 3024 V. ^father 2046, 2948 V. Manch 3065 V. Maxwell 2706. 3087 V. Mayes 3097 , 3099, 3104 V. Mayne 3095 V. McKay 3036 V. McCarthy 2855 V. McClure 3115 , 3117, 311S V. McOord 2726 , 2910, 2912 V. McCurdy 3044 McDonald 3016, 3050, 3056. .SO'H McDonnell 2952. 2956 McDowell 2762, 2706, 3029, 3044, 3169 ISR-Padden 3024 McGarrv 2902, 2904. 2905 McGilver 2917 McGinty 3129 TABLE OF CASES. Iv [References are to Sections.] People V. McGonegal V. Mcfiuire V. McKane V. McKennan V. McKinney V. McKenzie V. ]\IcLean V. Mc.Makin V. McXiitt V. McWhorter V. Mead V. Melvane V. jNlendenhall V. ISIetliever V. Meyer V. Meyers V. Milgate V. Milk Exchange V. Miller 2729, 3054, V. Millspaugh V. Miner V. Minisci V. Mitchell V. Mize V. Medina V. Molineux V. Molins V. Montague V. Montarial V. Monteith V. Montgomery V. Mooney V. Moore V. Morales V. Moran V. Morehouse V. Morgan V. Jlorrigan V. Morse V. Morton V. Mosher V. Most V. Muller V. Munn V. Murphy V. Murray V. Naylor V. Nearv V. Nelson 3130, 2817 2818 2868 2841, 3056, 2997, 2952, 3013, 3137, v.. Neufeld V. Newberry V. Noeike V. Nolte V. Northey V. Neumann V. Nunley V. O'Loughlin 2951, V. O'Neil 2786, 2900, V. O'Neill V. OSullivan V. oicott V. Odell V. Ogle V. <»Idham V. oimstead V. OKsen V. Olson V. Orr V. Oscar V. Owens V. Oyer and Terminer V. Page 2757, 2954, 2972, 3093, V. Pallister V. Palmer V. Parker 2939, 2767, 2771 3035, 3036 2721, 2948 3120 2908, 2909 , 2X24, 2820 2722, 3101 , 2819, 2829 2917 3093 2721, 2917 2786 2804 2733 2872, 30.-. 1 2704 3014 2951 2935, 3048, 3102, 3172a 3147 3103 3029, 3044 3036, 3042 3015 3129 2720 2954, 295,S 2792 3050 2729 2724 3040 2817, 2S37 302.S 3032. 3040 2829 3020 3134 3056 2915 2860 3120 3068 3038 2714, 2810 3108 3090 3020, 3022 3141, 3145, 3153 3028 2779 3011 3091 2903 2732 3053 3122, 3127 2902, 2904. 2906 2723, 2816 3105 2935 3015 2786 3130, 3138 2770 3172 2929, 2931 3151 29,S2 2719 29T!» 2953. 3 ion 3137 27n,s 2942 29.5'^ 3102, 2941, People V. Parmelee V. Parshall V. I'atterson V. Payne V. Peacock V. I'eckens V. Pendh'ton V. Pcrriiiiaii V. Petlieram V. Phelan V. Phelps V. Phillips V. Phir)ps V. Pichctte V. Pierpont V. Pinckney V. Pitcher V. J'lafc V. I'larh V. Pollock V. Pool V. Porter V. Powell V. Pray V. Quanstrom V. Quick V. Radt V. Rae V. Randolph V. Raten V. Rathbun V. Ratz V. Rector V. Reed V. Reynolds V. Rice V. Richards V. Ritchie V. Roach V. Robertson V. Robles V. Rodawald V. Rodrigo V. Rogers V. Rolfe V. Romano V. Ross V. Rowel 1 V. Royal V. Royce V. Ruggles V. Rush V. Rushing V. Russell V. Ryan V. Ryland V. Sal rose V. Salsbury V. 8am Lung V. Samonset V. Sanchez V. Sands V. Sansome V. Saunders V. Sea la micro V. Schaeffer V. Schievi V. Schooley V. Scliryver V. Scott V. Sconten V. Seaman V. Soeley V. Sessions V. Shainwold V. Shanley V. Sharp 717 2744, 2924, 2889, 28n 2934, 2741, V. Shea 2906, 3036 2745 31 OS 2851 2.S53 2;in(; 2!»7X 3100 2.st;;{ 2924 2948 2!)51 3044 2763 2995 2997 271.3 2727 3120 2980 2939 3120 3026. 3043 2745, 2757, 27.S6 2907 2783 2894. 3087 2927, 3038, 3040 2979 2874 2717 2942 3050 3094 3023 2724. 2997 3095, 3108 3024 2984 2978 2979 2925, 2935, 2948 3169 3103 3105 3058 3038 2.K.-,5 2729, 3043 2715 3137 2841. 3070 2715. 2916 3107. 3141 2909. 2970 2890. 2892, 2,S96 3171 2996 3005 2822, 2829, 3148 2786 2903 29(15 3002. 3005 3145, 3148 3017 3069 3138 2938, 2946, 3005 3099, 3100, 31(»3 3165 3033 3114 3022 2814 3104 2720 2742, 2750, 2751 2759, 2767, 2768 2812 2S47, 2.*^ 5 5 2720. 2902, 2989, 2991, 2995 2721, 3043, 3101 Ivi TABLE OF CASES. [References are to Sections.'] jople V. Sheldon 292 0, 292( 5, 2947 , 2951 V. Shelters 2983 V. Shepardson 2784 V. Sheppard 3095 V. Shuler 2709 , 3170 V. Simpson 2808 , 3036 V. Slack 2729 , 2861 V. Slayton 3055 V. Sliney 3046 V. Smith 2786. 28.52, 2911, 2951. 2982, 3027 3043 3044 3172 V. Solomon 3114 V. Squires 3143 3147 V. Stanley 2715, 2722 2943 2944 V. Stark 3169 V. Stephens 2929 2931 V. Stephenson 2904 V. Sternberg 2786 V. Stetson 2982 V. Stevens 2942 3172 V. Stewart 2721, 3099, 3102 3103 V. St. Louis 3067 V. Stoddard 2995 V. Stokes 3169 V. Stone 2929, 2931 3053 V. Stott 2744 2752 V. Stout 2720 V. Strassman 3087 3091 V. Strybe 2786 V. Sully 2980 V. Summers 2976 V. Swalm 3055 V. Swetland 2989 2992 2993 V. Taggart 2910 V. Tamkin 3041 V. Taugher 3050 V. Taylor 2911, 3041 V. Terwilliger 3102 V. Thacker 2720 V. Thomas 2982 V. Thompson 2880, 2881 V. Thoms 2955 V. Thomson 3036 V. Tibbs 3149, 3151, 3153 V. Tidwell 3022 V. T'prney 3099 V. Tilley 3115 V. Titherington 2725 V. Tomlinson 2967, 3048, 3050 V. Tompkins 2978 V. Tonielli 2882 V. Townsey 2706 V. Travers 2729 V. Travis 3074 V. Tucker 3057 V. Turner 2874, 2990 V. Tweed 2931 V. Tyler 3247 V. Valencia 3024 V. Van Allen 3397. 3401. 3419, 3427, 3431 V. Van Alstyne 3148 V. Van Dam 2721 V. Vanderbilt 3067 V. Van Ewan 2967, 2969 V. Vann 3095 V. Vasalo 2807 V. Vedder 2767 V. Wade 3153 V. Wads worth 2972 V. Wah Lee Mon 2744 V. Wakely 2973, 2976, 2984 V. Walker 3140 V. Wallace 3142, 3148 V. Walsh 2951 V. Ward 2709 V. Warren 2964 V. Wasservogle 2976 V. Watson 2982 2871, 2705, 3018, 3021, People v. Webster V. Weed V. Weithoff V. Weldon V. Welsh V. West V. Westbrook V. Westlake V. White 2721, 2952, 2955, V. Whiteman V. Whitson V. Whittemore Wieger V. Wiley V. Willard V. Willett V. Willey V. Williams V. Willis V. Wilson V. Wilzig V. Wing V. Winslow V. Winters V. Wixon V. Wolcott V. Wolf V. Wong Chong Suey V. Wood V. Woodward V. Woody V. Worden V. Worthington V. Wright 3114. 2715, 2702, 2786, 2979, 2929, 2931, 2976. 2717, 2910, 2911, 2719, 2719, 2706, 2704. 3025. 3027, 3028, V. Wyman V. Yokum V. Young V. Yslas Perault v. Rand Perdue v. Brooks Peri V. People Perkins v. Nichols V. Pendleton V. People V. Rogg V. State V. Stein Perry v. Edwards V. State V. Sullivan &c. Co. Peter v. Wright Peterhoff, The Peters v. United States Peterson v. Grover V. State Pettibone v. United States Pettis V. State Pettit V. Grand Junction V. State Pewabie Min. Co. v. Mason Peyton v. Green V. State Pfefferling v. State Pfomer v. People Phantom. The Pharis v. Leachman Phelps V. Elliott V. People Philadelphia's Appeal Philip Minch. The Phillips's Appeal Phillips V. Edsall V. People V. Richardson V. State 2806. 2807, 3025, 3026. 3035. 3036, 3102, 3141, 3148, V. Tucker Phimpton v. Town of Somerset 2715. 2824, 2826. 3419, 2931. 3043. 2817, 2818, 2916, 2978, 3323, 3326, 29?1. 3038, 3036. 2972, 3050, 3218, 3042 2873 2999 3111 2722 3165 2874 2964 3126 2994 3139 2887 2980 3115 3119 2723 3070 3052 2948 2725 2951 3095 2978 3043 2774 2916 3014 2725 2918 293T 3132 2732 3042 3026. 3065 2968 3036 3044 2827 3426 3221 3016 3200 2951 2995 2951 3129 2836 3171 3038 3236 3199 3340 3073 321 5 30SS 2924 8066 3066 3044 3191 3216 30] 3 3099 30-24 3356 3204 3213 30.55 3200 3372 3226 3175 2720 3199 3027. 3150 2774 3175 TABLE OF CASES. Ivii [References are to Sections.'] 3307 2729 3151 3226 3378, 3380, Phlpps V. State Phoebe, The, v. Dignum 3307 Phoenix &c. Ins. Co. v. Ilinesley 3212, V. Moog 2939, 2940, Pickerel v. Commonwealth Picliering v. Day Piehl V. Balchen Pierce v. Indseth V. Prude Pler.son v. Meaux V. State Pigg V. State Pigman v. State Pilce V. State Pilkington v. Gotten Pilkinton v. State Pilot Boy, The Pinckord v. State Pinder v. State Pine Forest. The Pinneo v. Goodspeed Pinney v. Pinney 3198, 3211, 3213, Pinson v. Williams Pinter, In re Pioneer, The 3293, Pioneer Gold Min. Co. v. Baker Piper V. Brown Pitner v. State Pittenger v. Pittenger Pitts V. State Pizarro, The Place V. Minster Plake V. State Plant V. State V. Woods Planter, The Plasters v. State Platter v. Elkhart Pleasant v. State Pleasonton v. Raughley Plummer v. Ossipee V. State Plunkett V. State Plymouth Rock, The Poe, In re Polin V. State Poling V. Huffman Polinsky v. People Polk V. State 2708, 3332, 2706, 2920, 3243, 3099, 3356, 3359, 3028, 2728, 27 2785, 3145, 3151, Pollard V. People 3080, V. State 2727, 3093, Poison V. State 3098, 3099, Pomeroy v. State 3092, Pomona, The Pond V. Pond Ponder v. State Pooler V. State Pope Catlin. The Pope V. Allis V. Sapphire, The Popinaux v. State Porath V. State Port V. Port Porter v. Commonwealth V. Rutland Bank V. State 2975, 3000, 3020, V. Stone V. T'nited States Porterfield v. Commonwealth Portis V. State Portoues v. Holmes Post V. Jones V. Toledo &c. R. Co. Poston V. State 2777, Potomac. The Potorf V. Fishback Potsdamer v. State 3040 3317 , 3213 , 1^941 3131 3198 , 3311 3258 3190 3197 2938 3054 , 2961 3170 . 3227 2706 3381 3026 3041a 3306 3234 3217 3214 2980 3296 3215 3225 2720 3175 3033 3340 2934 2728 3034 2951 3257 3038 3175 3101 3206 3066 3166 3101 3360 3426 3117 3235 3165 2754, 3152 3089 3104 3107 3096 3320 2796 3043 3052 3259 3213 3360 2975 3168 2861 2786 3206 3050 271 S 3347 2918 2999 3235 3363 3195 2784 3378 3196 3017 Potter V. Allin V. Clapp V. Howe V. Potter Pound V. State Powe V. State Powell V. Kane V. Powell V. State 3059, 3141, Power V. People I'owers V. Commonwealth V. Large Powys V. Mansfield I'oyner v. State Pratt V. Adams V. Thomas V. State 2817, 2832, 2847, I'ray v. Brigham I'rehn v. State I'resser v. State I'reston v. Bowers V. Smith Pressler v. State I'reuit V. People I'rice V. Earl of Torrington V. People V. State 2791, V. United States Prichard v. People Pride of Canada, The I'rigg V. Pennsylvania Primus, The Prince Frederick, The I'rince v. Cutler 3226, V. State 2706, 2723, Princess Alice, The Princessa, The Prindle v. State Prindiville, The Pritchett v. State Prize Cases Progresso, The Propeller Genesee Chief, The Proper v. State. Prout V. Roberts Pugh V. Pugh Pursell V. Horn Pusey V. Wright Putnam v. State Pyland v. State 2913, Pyles V. State Q Quackenbush v. Leonard Quarles v. State Quartemas v. State Queen of the Pacific, The 3298 2865 3221 3193, 3216 3036 2760, 2761 3218 2791 3026, 3041, 3146, 3151 3023 2786, 2943 3177 3214 3168 3224 3272 , 2849,3108 3236 2984 2849 2939 3195 3166 3017, 3019 .3314 2919 3044, 3166 2726 2866 3352 2952 3343 3293 3229, 3234 3029, 3122 3359 3320 3172a 3265 3050 3323, 3502 3300 3240, 3244, 3247 3098, 3107 3204 3209 2836 3174, 3211 3145, 3148 3049, 3050 3079 JJOOO 3000 2795 3350. Queen v. Brewster Quickstep, The Quinn V. People Quintero, The 3354, 3360, 3361 3066 3262, 33S4 3053 3307 Rader v. Yeargin 3232 Radford v. State 3032 RafTerty v. State 2976, 2980 Radnorshire, The 3279 Raikes. The 3.356 Railing v. Commonwealth 2770 Rainforth v. People 2980 Rains v. State 3035, 3054, 3129 Raker v. State 3169 Raleigh &c. Bros. v. Cook 2937 Ramcy v. State 3007 Iviii TABLE OF CASES. IReferences are to Sections.l Randall v. State 3171 Reg. V. Ashton 2999 Kanney v. People 2978 V. Aspinall 2951 Ransbottom v. State 3093, 3096, 3097, V. Atkinson 3126 3106 V. Attwood 2957 Ransom v. State 3000, 3047 V. Austin 2731 Rash V. State 302V V. Baillie 2748 Rater v. State 3170, 3171 V. Banneu 2958 Rather v. Williams 3183 V. Barratt 3092 Rath V. State 2902, 2905, 2906 V. Bates 2978 Rawson v. Brown 3398 V. Bauld 2951 Ray V. State 2777, 2779, 2917, 3041a V. Bawm 2864 Raymond v. Flavel 3175 V. Beard 2996 Rayner v. Ritson 3287 V. Berts 3067 Razor v. Kinsey 2835 V. Bird 3091 Rea V. State 3035 V. Bishop 3074 Read v. Ooker 2822 V. Biswell 2750 V. Reynolds 3200 V. Brad laugh 2891 V. Winston 3224 V. Briggs 3137 Reading Ins. Co. v. EgelhofE 3234 V. Brittain 2936 Ready v. State 3010 V. Brown 2931 Reagan v. State 3108 V. Buckmaster 3056 Reavis v. State 3087, 3089 V. Bull 2978 Rebecca, The 3382 V. Bunn 2951 Recovery, The 3311 V. Burdett 2708 Redd V. State 2721 V. Burton 2981, 3058 Reddick v. State 3100 V. Bvrne 2952 Redding v. Godwin 2936 V. Carlile 3068 Redditt v. State 3001 V. Chappie 2784 Redford v. Birley 3124 V. Clarke 2913, 3096 Redmond v. Smith 3292 V. Clarkson 3127 V. State 2978, 3171 V. Clay 3101 Reed. In re 3421 V. ( 'obden 2917 Reed, Ex parte 3398 3419 3421, 3426 V. Coggins 3121 Reed v. Clarke 3174 V. Cooke 2994, 2995 V. Jones 3227 V. i^ooper 2975, 2978 V. State 2956, 2060 V. Cotesworth 2836 Reedy v. State 3172 V. (unninghame 3122 Reese v. Barker 3200 V. Curgenwen 2868 V. Reese 3206 V. Davitt 3156 V. State 2720 V. Dean 3101 V. Youtsey 3175 V. Dent 2978 Reeves v. State 2963, 2967. 2969 V. Dewar 2906 Reformes Club &c. v. Laborers' &c. V. Dossett 2718 Soc. 2951 V. Druitt 2951 Reich V. State 3171 V. Drury 2730 Reiche v. Smythe 3167 V. Kd wards 2770 Reid V. McCallister 3201 V. Ellis 2868 Reilley v. State 3113 V. Esdaile 2931 Reimer's Appeal 3066 V. Farrell 3068 Reitz V. State 3095 V. Flattery 3096 Reiall V. Greenhood 3212 V. Forster 2955 Relf V. Maria, The 3300 V. Foulkes 2966 Rema v. State 3054 V. Francis 2976 Remsen v. Remsen 3221, 3225 V. Frost 31.55 Rennell v. Kimball 3229 V. Gandfleld 3134 Reppert v. Robinson 3259 V. Garrett 2982 Rescue. The, v. George B. Roberts 3355 V. Gemnell 2981 Respublica v. Caldwell 3067 V. Gibbons 3080 V. Chapman 33 54 V. Giles 2979 V. De Longchamps 2836 V. Godfrey 2978 V. Mai in 3160, 3161 V. Gompartz 2931 V. McCarty 3156 3157, 3160, 3163 V. (ioodchild 2766 V. Roberts 3157, 3163 V. Gurney 2931 Resd'ution 83.30 y. Guttridges 3099 Resolution, The 3323 3326 3337 V. Hall 3058 Resultatet. The 3353 V. TTallett 3096 Reward. The 3359 V. Handley 2741 Reynolds v. Burgess Sulphite Fit re V. Harris 2951, 3068 Co. 3195 V. Hayes 3095 V. Everett 2951 V. Heaton 2868 V. Morris 3213 V. Hetherington 2891 V. People 3104 V. Hibhprt 2951 V. Pharr 3199, 3211 V. Hicklin 3068 V. State 2719, 2871. 2872, 2873. V. Hind 2770 3171 V. Hodgson 2990 V. United States 2717 V. Holmes 3068, 3101 Reg. V. Abraham 3059 V. Hopkins 2738 V. Adamson 2980 V. Hornby 3049 V. Alison 2726 V. Horton 2872 TABLE OF CASES. lis [References are to Sections.'] Reg. V. Howarth •. Hudson . Hughes . James . Jellyman . Jessop . Johnston . Jones . Justice of • King . Kipps . Langford . Langmead . Lavey . Lillyman . Lines . Lister . Lock . Lumley . Mailloux . INIanlctelow . Martin . Matthews , Mayers . McCarthy , Meany Mills Moore Murphy Nicholas Nicholls Oddy O'Donnell Olifier Ollis Osborne Overton Owen Oxford Parker Parnell Pea roe Peck Phillips Philpotts Polly Prince Randall Reeves, Rhodes Rice Richards Riendeau Roberts Robins Roden Rowlands Russett Selsby Shepherd Simmonsto Soley Stephens St. George Thallman Timmins Tissington Toison Townsend Train Turner Pulham Vrpones Warburton Watts Weaver Wei lard Williams Willshire 2984 Reg. V. Wilson 2763 2982 v. Woodman 2978 2779, 3075, 3088 V. Woodhurst 3092 2820, 2830, 2832 V. \^'oolley 2979 3172a V. Worley 307!> 2979 V. Yates 3079 2978 Rex V. Abbott 3033 2867, 2872, 29S1 V. Adams 2725 ashire 2891 V. Asterley 2978 2925 V. Aylett 3079 2750 V. Baker 3032 3127, 3172 V. Ball 2718 3120 V. Barnard "977 3079, 3080 V. Bear 2731 3099 V. Beare 3169 3092 V. Benson 3074 3069 V. Bird 2731 3172a V. Boyce 2714 2866, 2867 V. Burdett 3169 3128 V. Carr 2971, 3078 2750 V. Chadwick 2980 2978 V. Chappel 3037 3172 V. Clark 2731 3092 V. Clarke 2722, 3098 3426 V. Cohen 3074, 3090 3159 V. Cooper 2773 29S1 V. Cox 3128 2871, 2872 V. Cozins 3172a 2977 V. Cross 3064, 3066 2910, 3100 V. Crossley 3070 3095, 3109 V. Cruttenden ' T ' * 5 3058, 3111, 3118 V. Davis 2731, 3115 3115 V. Dean of St. Asaph 31(19 2750, 2752 V. De Beauvoir 3071 297(5 V. De Berenger 2931 3100 V. Deeley 2714 3079 V. Donellan 2712 3079 V. Donolly 3129 2820, 3162 V. Dowlin 3078 2955 V. Eccles 2929, 29.11 2921, 2929 V. Ellis 2720. 2967 3075 V. Emden 2730, 2731 2931 V. Fallon 2772 3127 V. Farrington 2807 3078, 3079, 3080 V. Ferguson 2951 2914 V. Fuller 2954 2752 V. Purser 2731 3067 V. Garland 2910 3054 V. Gascoigne 3140 2714, 3079 V. Gill 2925 3065 V. Gird wood 3169 2887 V. Gordon 3156, 3158 3099 V. Greenacre 2784 3072 V. Griep 3080 2752 V. Griepe 3079 2720 V. Grosvenor 3067 2951 V. Hailey 3079 2974 V. Harborne 2867 2951 V. Harrison 2715 2951 V. Hartley 2971 2863 V. Haworth 2993 3123 V. Hemings 3128 3064 V. Hensey 3422 2820, 2831 V. Hindniarsh 2708 3068 V. Hopes 3037 2748. 2750 V. Hunt 3128 3101 V. James 3074 2871. 2872 V. Jenks 2714 2964 V. Jones 2929, 3066, 3078. 3085. 3064 3091 2872 V. Journeyman Taylors 2920 2779 V. I.,apier 3129 3090 V. Lara 2977 2929, 2931 V. Leefp 3091 3066 V. Lloyd 2770 3095 V. Long 2718 .30 6 R V. Macdaniel 3054 3108 V. Martin 3101 2867 V. Mason 3129 Ix TABLE OF CASES. [References are to Sections.'] 2731 3062 3079 3062, 2931 3066, Rex V. Mawbey V. Mayhew V. Medley V. Mailing V. Millard V. Moore V. Morris V. Morrison V. Mott V. Munton V. Neil V. Oneby V. Ossulston V. Peace V. Pearce V. Pease V. Pedley V. Peat V. I'hillips V. Pitman V. Plestow V. Plympton V. Popplewell V. Prendergast V. Rearden V. Reepspear V. Richardson V. Roberts V. Rooney V. Ross V. Rowley V. Rowton T. Royce V. Russell V. Ryan V. Scott V. Sedley V. Seward V. Shepherd V. Smith V. Snowley v. Sparling V. St. Asaph V. Stone V. Story V. Sudbury V. Tavlor V. Tindall V. Turner V. Twyning V. Vandercomb V. Verelst V. Waddington V. Walker V. Ward V. Walsh V. Watts V. Wedge V. Wilkes V. Williams V. Wink V. Winkworth V. Woodfall V. Woolston Rhea v. Allison V. State Rhoades v. Selin Rhode Island v. Massachusetts Rhode Is'and. The 3259, 3264, Rice V. Commonwealth V. Polly and Kitty, The V. Rigley V. State Rich V. I>ambert V. United States Richard Winslow, The Richard Matt. The Richards v. Commonwealth V. State 2718, 2914, 2977, 2780, 3064, 3095, 2716, 2732. 2890, 3212, 3101, 3244, 3071, 2951 3088 3067 3090 2960 3129 3074 3023 2931 3078 3064 2732 2750 2714 3172 3064 3090 3140 2765 3049 2984 2897 2894 3079 3099 3172a 3115 3075 3134 3172 3078 2721 3126 3067 2722 3125 3068 2929 3172 3243 2972 2894 2732 3422 2978 3125 2731 3067 2931 2867 2731 3075 2891 2714 3067 2952 3067 3109 3068 29S2 3134 3134 3169 2891 3190 L720 3184 3208 ;;386 3152 3299 3216 3115 3260 3079 8240 3296 3050 3104 Richardson v. Buhl V. Duble V. Richardson 2792 V. State 2791, 2794, 2796, V. Wright Richels v. State 2830 Richie v. Levy 3232, 3235, V. State Rick V. Neitzy Ricks V. State Richmond v. New Bedford &c. Co. „. ^ 3250, Richter v. Journeymen Tailors' Union Ricord, Ex parte Riddle v. Keller Ridenour v. State 2717, Ridge V. State Ridgeway v. West Ridley v. Ridley Riggins V. State Riggs V. Commonwealth V. State 3018, Riley v. Commonwealth 3038, V. State 2731, 2964, 2965, 2995 Rindskopf v. Platto Ringer v. State Ringgold V. Bryan Ringwalt v. Ahl Riots of 1844. In re Rising Sun, The 3335, 3349, 3354, Risk V. State Rita, The Ritter v. State Rix V. State Roach V. Glos V. People V. Summers Roache v. Morgell Roanoke. The Robbins v. Budd V. Butler V. PeoDle 3004, V. State Roberson v. State 2917, 2919, Robert Holland. The Robert. The Roberts v. Barker V. Briscoe V. Commonwealth V. Kendall V. Miles V. People V. State 2725, Robertson v. Baker V. Parks V. State 2«32, Robson V. State 2714, 2964, 2969, Robinson v. Cathcart V. Cullom V. Hardin V. .lefferson V. Milner V. Navigation Co V. Philadelphia &c. R. Co. 3193. V. State 2719. 2919. 2962. 2994, 3007, 3009, 3047, 3055. 3066, 3080, Rocco V. State Rockaway Rockecharlie v. Rockecharlie Rockwell V. Graham Roden v. State Rodgers v. People Rodiquez v. State Rogers v. Amado, The V. Brooks V. Eberts 2951 3183 2794 2797 3225 2834 3236 3101 3198 3103 3263 2951 2965 3213 3166 2912 3005 3232 2774 3043 3046 3040 2991, 3170 3195 3041a 3198 3176 3126 3340 3095 3360 2969 2785 3200 2851 3199 3208 3363 2731 3193 3009 2763 3099 3247 3346 2941 3026 2941 3205 3140 3041 3227 3207 3052 2972 3199 3213 3198 3201 3233 33S1 3214 2964, 3059. 3113 2731 3367 3212 3194 3022 2913 3028 3343 3213 2951 TABLE OF CASES. Ixi iReferences are to Sections. 1 Bogers v. State 2814 3082 V. St. Charles. The 32.51 V. Traders' Ins. Co. 3216 Rohr V. State 2996 Rollins V. State 2932 2993 Roman, The 3372 Roman I'rince, The 3360 Romeo, The 3332, 3337 Roode V. State 2996 Roosa V. Davis 3231 Resales v. State 2984 Rosalie and Betty, The 3340 Rosenbaum v. State 2703 Rose V. Commonwealth 2911 V. Ilimely 3268 V. Innis 2971 Boss V. Bruce 2993 V. State 2717, 2724, 3166, 3171 Ross, In re 3246 Roten V. State 3038 3041, 3043 Rothschild v. State 297S Roundtree v. Gordon 3204 Roush V. State 2998 Routt V. State 3129 Rovena. The 331,5 Rover, The 3329 Rowe V. Brig, The 3357 V. (Jranite Bridge Co. 3067 Rowland v. Sturgis 3196 Rowley, Appeal of 3198, 3201 Royall V. McKenzie 3193 Rubber Co. v. (ioodyear 3213 Rudder v. Koopman 3069 Rufer V. State 20.39, 2943 Ruloflf V. People 2708, 3028, 3041a Rundle v. Beaumont 8812 Runkle v. United States 3402, 3425, 3442. 3457 Runyan v. State 2847, 3041a Rush V. State 2910, 2915, 3041 Rusling V. Bray 3224 Russell V. Dickeschied 3195 V. Russell 3204 V. State 2717, 2871, 2873 Rust V. ^Mansfield 3206 V. Mobile &c. Co. 3235 Rutherford v. State 2838, 2842 Rutledge v. State 3036 Ryan v. People 2724 V. Rockford Ins. Co. 2997 V. State 2714, 2724, 2918 Ryder v. State 2728 Byerson v. Adams 3213 s St. Colombe v. Ignited States St. Jago dp Cuba, The St. .Tuan Baptista, The 3320, St. John V. Paine 3380, St. Lawrence. The 3242, St. Louis V. Fitz V. Sullivan 3000, St. Paul, The St. Paul &c. R. Co. V. Gardner S. A. Rudolph, The Sabine. The 3348, Saffold V. Home Saflford v. Ensign Mfg. Co. V. Old Colony R. Co. V. People Sage V. Barnes V. State Sahlinger v. People Salisbury v. Salisbury Sallee v. Duncan Sallenger v. Perry Sally, The 3330, 3141, 3145, 2781, 3037, 3191 3244 3332 3395 3245 2946 3004 3360 3218 3355 3352 3205 3195 3226 3153 3066 3042 3111 3216 3199 3216 3335 Ryan 3270, 3356, 3259, Sally Magee, The 3323, 3327, 3332 Salmon v. Smith v. State Sam Rotan. The Sam v. State 2806, Samples v. I'eople Samuel, The 3244, 3267, Samuel 11. Crawford. The Samuel Marshall, The Samuel Ober, The San Antonio &c. R. Co Sanchez v. State Sanderlin v. State Sanders v. Dowell v. People V. State Sanderson v. Commonwealth Sandringham. The 3348, 3354 Sands v. Commonwealth San Jose Indiano, The 3323, 3335 San Marcos. The Santa Ana. The Santa Clara &c. Co. v. Hayes Santa Claus, The Santissima Trindad, The Sapp V. State Sapphire, The Sappington v. State SaragoRsa. The Sarah Ann, The Sarah K. Kennedy. The Sarah Jane. The 3292, 3293, 3307, Saratoga. The Sartorious v. State Sarah, The Sarah and Caroline, The Sasser v. State 2953, Sattler V. I'eople Sauls v. State Saunders' Case Saunders v. Hanover, The 3367, V. Jones Savage v. Carroll Savile v. Roberts Savings &c. Soc. v. Davidson Sawyer v. Campbell v. I'eople Sawyers v. Sawyers V. State Saylor v. Hicks Sayres v. Commonwealth S. C. Tryon, The Schaefer v. State Schafer v. Mayor Schleisinger v.' State Schlemmer v. State Schley's Case Schlict V. State Schmidt v. United States Schmisseur v. Beatrie Schneider v. Patton Schnicker v. People Schott v. State Schrimsher v. State Schulten v. Bavarian Brew. Co. Schurzer v. State Schwabacher v. I'eople 2719, 2910. Schwartz v. Commonwealth Schwarz v. Sears V. Wendell Scioto. The 3368, 3372, 3379, Scobel V. (Jiles Scoggins V. State 2859, 2864. Scotia, The 3244, Scotland, The 3244, Scott V. Clara E. Bergen, The V. Clarkson 3083, 2741, 2742, , 3335 3206 3011 3392 2815 2944 3352 3366 3263 3293 3235 3165 3171 3231 3080 2786 3049 3360 2937 3339 3293 3.351 2951 3271 3319 3054 3251 3091 3359 3269 3259 3316 3306 3111 3332 3329 2955 3172 3168 2783 3371. 3382 3214 3206 2920 3199 3174 2855 3207 3044 3177 3036 3378 2786 3066 2984 3042 3457 3170 3085 2865 323 3 2751 3172 3166 2951 3171 2911. 2919 3088 3224 3201 3391 3273 2866 3.378 3258 3351 3200 Ixii TABLE OF CASES. IReferences are to Sections.} 2761, 2762, 2942, 3166, 2854, 2754, 3271, 3018, 3101, 2792, 2797, Scott V. Donovan V. Livesey V. Miller V. People V. Rose V. Shepherd V. Slate 2721, 2729, 2997. 3009. 3100, 3102, Scribner v. Beach Scruggs V. State 2750, 2753, Seaborn v. Commonwealth Seacord v. People Sea Gull, The Seals V. State Searles v. State Searls v. People Sears v. Barnum Secor V. State Sedgwick, The Seeger v. Mueller Seibert v. State Seisler v. Smith Seitz V. Mitchell Selbv V. Geines Selden v. State ^„„^ Self V. State 2777, Sellers v. State ^^, „„^„ Selma. The 3344, 3345, 3346, Semon v. State Semple v. Murphy Seneca, The Senser v. Bower „„_„ Serapis, The 3251, 3277, 3279, Seringapatam. The Serviss v. Ferguson Seymore v. State 3049, Shackleford v. Elliott Shady Side. The Shaffer v. State Shafner v. State Sharkey v. State Sharmer v. Mcintosh Sharp V. Morrow ^„„ V. State 2706, 2943, 2973, 3049, 3051, V. Wilhite Shaw V. State „„^^ Shawnee, The 3296, Shea's Appeal Shears v. State Sheffield &c. Co. v. Gordon 3191, Shell V. State Shellhouse v. State Shenkenberger v. State Sheppard v. Taylor Shepherd v. People V. State Sherbon v. Colebach Sherlock v. Ailing Sherman v. People Sherrill v. State Sherry v. Perkins Sherwood v. Hall V. Mcintosh 3300 Shields v. State Shifflet V. Commonwealth Shinn v. State Shipman v. Fletcher Shirley v. Shields V. State Shirwin v. People Shivers v. Newton V. State Shoecraft v. State Shoemaker's Estate Shoemaker v. Xesbit Short Staple. The Shorter v. State 3101, 3103 3328 3095 3235 3278 2768 3307 2836 2944, 3170 2856 2756 3040 3064 3378 3217 2943 3068 3213 2963 3266 3066 3170 3175 3199 3216 3163 2780 3170 3347 3113 3195 3242 2867 3-281 3372 3366 3129 3215 3260 2977 2861 2999 3175 3221 2980. 3096 3074 3036 3299 3183 2720 3226. 3232 3090 3066 3032 3252 2806 2724 2999 3244 2980 2709 2951 3250 3301 3043 2816 3129 3236 3207 3172 3108 3165 2968 3134 3176 3423 3329 3166 Shotwell V. State Shouse V. Commonwealth Shover v. State Shriedley v. State 2718, 2720, Shultz V. Territory „^^„ Siberry v. State 2707, 2715, 3028, Sibert v. Kelly Sickles V. Gloucester Co. Sidney v. Sidney Siebert v. People Sigard v. Roberts Sigler V. State Silver Spray, The Silver v. State 3074, Silvus V. State Simco V. State Simmons Creek Coal Co. v. Doran Simmons v. Jacobs V. People V. State 2733, 2989, Simms v. Guthrie „„ ^ V. State 2777, 2780, 2784, Simons v. People ^9^5' V. State 3027, Simplot V. Simplot Simpson v. Morris V. State 2814, 2827, 2830. 3019, 3074. 2910, 2912, 3033, V. Yeend Sims V. State Simson v. Hart Singleton v. Scott V. State Sinks V. Reese Siren. The Sirius. The Sir William Peel, The Sisk V. State Skiff V. People Skinner v. Campbell V. State Slater v. Banwell Slattery v. People Slaughter v. Commonwealth V. Slaughter Slavers. The Slee V. Bloom Slessinger v. Buckingham Sloan V. State 3071, 3072, 3087, 3355, 3359, 3321, 2702, 2723, 2742. 2743 2745, 2748, Slocum V. People Slusser v. State Small V. Harrington Smallwood v. Lewin V. Mitchell Smart v. AVolff Smith. The Smith. Matter of Smith V. Althus V. Atwood V. Axtell V. Bouchier V. Brown V. Burnham V. Causey V. Clarke V. Commonwealth 2708. 2786. 3041. 3065, 3104, 3105, 3145 V. Davidson Ex parte V. Freeman 2940 V. Gaffard V. J. C. King. The V. Kincaid V. McDowell V. Newland V. Xippert V. People 2725. 2918, 2921, 2929. 2931. 2951, 2974, 2980 2910 3128 2717 3118 2727 3044 3226 3181 3214 2707 3297 3067 3363 3079 3022 2963 3216 3226 2984 3036 3213 3009 3044 3168 3213 2836 3015, 3095 2897 3040 3211 3213 3044 3419 3347 3363 3332 3111 2981 3217 3001 3195 2760 3058 3234 3329 3229 3198 3126 2744, 2754 2835 3174 3199 3312 3320 3244 3472 3223 3201 3213 3074 3231 3214 2825 3214 2841. 3169 3193 2716 2942 2764 3296 3199 3066 3178 2920 2924, , 3056 TABLE OF CASES. Ixiii IReferences are to Sections.} Smith V. Phelps 3199 V. I'ollock 3218 V. Riiwe ;^-'1« V. Shaw 3399, 3415, 342:5 V. SUicum 2.S4.S V. Swaia 3221 V. State 2703, 2708, 2709, 2714, 2717, 2726, 273.5, 2737, 2759, 2780, 2785, 27S(i, 27'.).-), 2806, 2818, 2918, 2931, 2!):!7, 2'.»::i», 2941, 2964, 2975, 2979, 2U.S1, 301 1. 3025, .3026, 3027, 3041a. 3044, 3066. 3082, 3091, 3095, 3102. 3105. 3108. 3113. 3121, 3129. 3142. 3145, 3153, 3166, 3168, 3172 V. St. Louis &c. Ins. Co. 3211 V. Treat 3300 V. Tnited States 3038, 3041, 3421 V. Whitney V. Williams Smith's Case Smoot V. Rea V. State V. Strauss Smurr v. State Snapp V. Commonwealth Snap V. People Snark. The Snell V. Deland V. Fewell Snelling v. State Snoddy v. State Snodgrass v. Commonwealth V. State Snow V. Wheeler V. Wope Snyder v. Commonwealth V. People Snyder, In re Soaps V. Eichberg Soeiedade Feliz, The Solander v. People Solcum V. People Son V. Territory Soule V. Rodocanachi South V. State Southard v. Curley South Carolina, The Southerland v. Jackson 3419, 3426 3172 2960 3201 2999 3213 2714 3057, 3137 3172 3067 3232 3199 3041a 2786, 3055 3035 3142 2951 3293 2720, 3129 2806 2981, 2984 3193 3314 2764 2753 3026 3259 2745, 2750, 2756 3216 3310 3066 Southern &c. R. Co. v. Rutherford 2951 Southwark &c. Co. v. Quick 3289, 3290 Sowles V. Sartwell 3234 Spalding v. People 2964, 2967, 2971 Sparf V. United States 2732 Sparhawk v. Union &c. R. Co. 2889 Sparks v. Commonwealth 2722, 2921 Spaulding v. State Spear v. Hiles Speculation, The Speers v. Commonwealth Speiden v. State Spencer v. Commonwealth 3063, 3065 3046 2774 3333 2915 3054 2953. 2997. 3 OS 6 V. State 3120 Spencer's Appeal 320.) Spies V. People 2718, 2732, 2774. 2779, 2782, 2921, 2937, 2938, 2943, 2944. 3122 Spittorfif V. State 3052 Spivey v. State 3029, 3038. 3050 Sprague v. State 3065. 3290. 3300 Spratt V. State 3007 Springbok. The 3335. 3341 Springer v. State 3120 Springhead &c. Co v. Riley 2951 Sprouse V. Commonwealth 2901, 2995 Squire v. State 2863, 2866, 2867. 2872. 3(n0 Stackpole v. Hancock 3206, 3211 Stafford v. State 3026, 3058, 3125, 3122 Staight V. State 3072, 3075, 3091 Stainback v. Rae 3369 Stalcup V. State 2705 Stalker v. State 2955 Stallings V. State 2965, 2972 Stangiein v. State 2863 Stanley v. State 2909, 2972 V. United States 3079 Starchman v. State 2910 Starck v. State 3051, 3056 Starke v. State 2792, 3U36 Starkweather v. Williams .•;i'.i5 State V Abbatto 3026 V. Abbey 2863 V. Abbott 3041 V. Abegglan 3153 V. Ackerman 2731 V. Ackles 3036 V. Acra 3128 V. Adams 2726. 2917, 2968, 2969, 3026, 3054, 3130, 3148 V. Adin 3020 V. Agnew 3042 V. Ahern 3170 V. Aiken 2771 V. Aikens 3071, 3072 V. Alcorn 2759, 2760, 2770, 2766 V. Aleck 2819 V. Alexander 2728, 3018, 3021. 3127 V. Alford 2843, 2844. 2846 V. Allen 2959. 2994 V. Alphin 29S() V. Ammons 3091 V. Anderson 2915. 2934. 2937, 2974, 2975, 3020. 3036. 3102 V. Andrews 2731, 3000, 3004, 3170 V. Angel 3024 V. Antonio 2954, 2955 V. Appling 3068 V. Araah 3152 V. Ariel 3018 V. Armington 2863, 2866. 2873 V. Armstrong 2732, 2863, 2874 V. Arnold 2943 V. Asbell 2709, 3027 V. Ashley 2862, 2866 V. Aslesen 3165 V. Atherton 3096 V. Atterberry 3146 V. Austin 2792, 3041, 3041a, 3109, 3171 V. Avery 2709, 3167 V. Babcock 2806, 3066 V. Baber 3022 V. Baden 2787 V. Baer 3171 V. Bailey 2792 3123 3125 V. Bain 2714 V. Baker 2724, 2817. 2819. '>S-'9 3028. 3036, 3098 3099 3100 3170 V. Balch 3136 3137 3138 V. Baldwin 2723, 2770, 2895, 2972. 3025 V. Ballard 3052 V. Ballon 3022 V. Bancroft 2914 V. Banks 2705 V. Barefoot 2S66 V. Barfield 3044 V. Barham 2724 2S94 V. Barker 2771 V. Barnes 3064 3169 V. Barrett 3043 V. Barrow 2866 2869 2873 V. Bartlett 2715, 2728, 2924, 3041a V. Baskett 3108 V. Bates V. Battle 2720 2810 Ixiv TABLE OF CASES. [References are to Sections.'] State V. Bauerkemoer 3152 State V. Bresland 3065 Baumon 2995 V. Brewington 2895 Beabout 3093 V. Bridgman 2791, 2792, 2796, 2955 Beach 2703 V. Briggs 2792 Bean 3065 V. Brigman 3172 Beasley 2727, 2997 V. Brin 2786 Beaty 2722 V. Brinkhaus 2757, 3146, 3148 Beaucleigh 2976 V. Britt 2986, 2997 Bebb 3099 V. Britton 2863 Beck 3042 V. Broadbent 2839 Bedard 3102 V. Brock 3153 Bee 2912 V. Brodcrick 3129 Beebe 2774 V. Brodnax 3166 Beeler 2953 V. Brocker 3167 Behan 2802, 3002, 3004 V. Broughton 2723 Beird 3040 V. Brooks 2724, 2794, 2968, 2969, Bell 2728, 2757, 2911, 2919, 3015, 3016, 3029, 3041, 3127 3035, 3062, 3144, 3150, 3152 V. Brow 2745 Benedict 2720 V. Brown 2731, 2895, 2953, 2954, Benham 3041a 2 959, 2966, 3014, 3016, 3017, 3019, Bennett 3128 p 020, 3023, 3024, 3041, 3042, 3043, Benson 2714 3052, 3079, 3080, 3090, 3099, 3101, Berdetta 2703, 3066 3122, 3129. 3142, 3148, 3152, 3153, Berger 2720 3170 Bertrand 3017, 3022 V. Bruce 2880, 2885 Bess 2757, 3149 V. Brunell 3063, 3065 Bethel 3059, 3119 V. Bruner 3167 Bias 3166 V. Bryan 2970, 3145, 3146 Bierce 3148, 3153 V. Bryant 3055 Bige 3153 V. Buchanan 2924, 2928, 2930, 2931, Binkbaua 3144 2944 Birdwell 3035 V. Buckles 2714 Bishel 3000 V. Buckley 3088 Bishop 2723, 3053 V. Buckman 3165 Bitman 2843 V. Bugg 2910 Black 28r)6 V. Bulla 3111 Blackley 2965, 2970 V. Bullinger 3168 Blackwell 2827 V. Bunker 3080 Blair 3122, 3128 V. Burdon 3115 Blaisdell 3091 V. Burgdorf 3096 Blize 3089 V. Burgess 3053 Bloodsworth 2981 V. Burk 2720 Blue 2918 V. Burnham 2921, 2924, 2929, 2930, Boardman 2722, 3063, 3065 2931 2932, 2933, 2951 Bobbst 2745, 2750, 2756 V. Burns 2714, 2806 Bodie 3023 V. Burpee 27.32 Bogue 2777, 2779 V. Burton 2719 2822 2844, 3002 Boies 3122 V. Bush 3169 Bokien 2976 V. Busse 3034 Bollis 3166 V. Bussey 2741, 2742, 2744, 2745. Bonds 3023, 3035 2750 Boneil 3011 V. Butler 2898 2964, 3172 Bonney 3170 V. Buxton 3149 Bonsor 3105 V. Byrd 3023 Book 3000 V. Byrne 2806 2807, 2816, 3099 Booker 3020 V. Caddie 2915 Borchert 3105 V. Cain 3171 Bordeaux 3091 V. Calder 3127 Bordelon 3032 V. Calhoun 3129 Bowker 2705 V. Calkins 2995 Bowles 3020, 3032 V. Call 2975, 2984 Bowman 3143 V. Callohon 3133 Bowser 3036, 3095 V. Campbell 2715, 3084, 3099. 3101, Boyce 3024 3133, 3165 Boyer 3000, 3004, 3009 V. Cardelli 2708 Boyland 2720 V. Cardoza 2931 Brabnam 3043 V. Carnagy 3092, 3104. 3102 Bradley 2723. 2980, 3024. 3026. V. Carpenter 2838 2910 3070, 3107 3027 3035, 3036. 3044 V. Carr 2785 2952 29,-.9, 3024 Brady 2725, 2910, 2918, 3103. V. Carrick 2969 2972 3169 V. Carroll 2910, 2945, 3100 Brame 2972 V. Carron 3143 314.5. 3147 Brandenburg 3145 V. Carter 2986, 3041a Brant 3172 V. Carver 3019 Brassfleld 3145, 3146, 3147. 3148. V. Cassady 2774 2775, 2779 3151, 3152, 3153 V. Cass'dy 3101 Brazil 3126, 3127 V. Castor 2725, 3059, 3136 Brecht 2800 2801 2S03 V. Cather 30.39 Breckenridge 2960 2992 V. Caveness 3115 TABLE OF CASES. Ixv [References are to Sections.'\ State V. Caywood 3073, 3090, 3091 V. Chaffln 3041 V. Chamberlin 2995, 3071, 3072 V. Chambers 3051, 31G8 V. Chandler 2795, 2889, 2891, 2894, 2896, 3038 V. Chandonette 3172a V. Charleston &c. Co. 3007 V. Chase 3026 V. Chee Gong 2727, 2733, 3024 V. Cherr.v 2820, 2831. 2834 V. Chevallier 3027, 3040 V. Child 2727 V. Chisenhall 2740, 2741, 2742, 2750 V. Chitteni 2778 V. Chrisp 2805 V. Christlanbury 2925, 2935 V. Christmas 2912 V. Church 2970 V. Churchill 3175 V. Clark 2838, 2862, 2863, 2935, 2937, 2973, 3027, 3046, 3041a, 3058, 3099 V. Claude 3041 V. Clawson 2792 V. Clayborne 2838 V. Clements 2728, 2760, 2771, 2786 V. Clemons 3145, 3151, 3153 V. Cleveland 3024 V. Clifford 3056 V. Clough 3073 V. Clyne 3169 V. Cochran 3148 V. Codv 2822, 2835 V. Coffee 2792. 2795, 2798, 2790 V. Coffman 3151 V. Cohen 2713, 2810 V. Colby 2792, 2800 V. Cole 2931, 2954, 2960, 2993. .3035, 3123 V. Coleman 3016, 310S V. Collens 2972 V. Collins 2968, 3038 V. Colston 3171 V. Conable 3169 V. Cone 2861, 3104 V. Connell 3170 V. Conway 2725, 2727. 2918, 3056 V. Cook 3027. 3101, 3105 V. Coombs 3056 V. Cooper 2726, 2759, 2766, 2863, 2943, 2965, 3027, 3036 3009 V. Cooster V. Copeland V. Coppenburg V. Corrivau V. Council V. Covert V. Covington V. Cowan V. Cowdin V. Cowell V. Cox V. Crab V. Crabtree V. Craige V. Crane V. Crank V. Craton 3050 3120 3023 3167 2962 2995 2969 2981 2910 2937 2937 3n.S5 3051. 3052 2707. 2981 3059 3024, 3046 V. Crawford 2720. 2811, 2816. 3040. 3148. 3152 V. Creson 2721, 2761, 2763, 2765 V. Croflford 2720 V. Crogan 3009 V. Cronin 3043 V. Cross 2725, 2855. .3018. 3059. 3104 V. Crow 2706 V. Crowell 2733 Vol. 4 Elliott Ev.— v State V. Crowner V. Crowley 2792, 2921, V. Cruikshank V. Cunningham 3043, V. Curran 2754, 2755, V. Curtis 2972, 3016, 2924. 2982 3066, 3144. 3151 3017, V. Cushing Cutshall Czarnikow Da lev Dalton liana lianforth I)"Angelo Daniel Danbert Daugherty Davenport David Davidson Davis 2704, •822. 2823, 2827, i897, 2983, 2993, 3055, Day Dayton Deal Dp Berry DeBoy Decklotts Dee Deitrick Delaney De Lay Dengel Dennin Dennis Deputy DeRance Desforges Desroches Dettmer De Witt De Wolf De Wolfe Dexter Deyoe Dickinson Dickson Dierberger Dietz Di Guglielmo Dill Dillard Dillon Dimick Dineen Ditton Dixon Dockstader Dodson Doepke Doherty Doig Dolan Dole Dollison Dona hoe Donahoo Donaldson 705, 3028, 3038 3055, 3099, 2783, 2836. 2998. 3120. 3026, 2784. 2854, 3016. 3129. 3091, 3129, 2723, 2753, 2924, 2931, 3102, 27.59, 2708, 3044, 2969, 2855 V. Donnelly V. Donovan v. Dooley V. Dorr ' V. Douglass 2920. 2729. 2729 3007 2855, 2921. 2932 2719 3104 ;7S4, 2797 2925. 3026 3070 3086 3149. 3152 3092. 3170 3041 2860 3004 3059 3092 3168 3095 3036 2978 2934 3100 2709 3027 2708 2818, 2861. 3035. 3427 3170 3074 3132 2895 2999 3017 3041 3145 2816 2978 3140 2806 2975 3095 2728 2903 2720 3036 3103 3099 2703 2982 2725 2770 3046 3041a 2786 2822 3014 3122 3059 3419 2708 3058 2977 2721 3041 3052 3043 3172 3015 3009 3170 3022 2721 2931. 2951 3026 3108 2856 2714 3017 Ixvi TABLE OF CASES. {References are to Sections.'] State V. Dowe V. Downs V. Doyle V. Drake V. Driscoll V. Ducker V. Duffey V. Duffield V. Dukes V. Duncan V. Dunlap V. Dunn V. Durnam V. Duzan V. Dyer V. Ean V. Earnest V. Eastman V. Eberline V. Eckler V. Eddon V. Edens V. Edwards V. Egan V. Eisenhour V. Elder V. Eliason V. Ellar V. Elliott 2977, 2726, 2722, 3094, 3095, 2929, 2753, 2931, 3142, 2726, 2847, 2848, V. Ellis V. Ellwood V. Emerich V. Emery V. Empey V. England V. Enslow V. Epperson V. Erickson V. Estes V. Eubank V. Euzebe V. Evans V. Ezzard V. Fair V. Fairclough V. Fallon V. Fannon V. Farley V. Farr V. Farrar V. Farrington V. Faulk V. Faulkner V. Feasel V. Felker V. Eenlason V. F'enn V. Ferguson V. Fertig V. Fetterly V. Feuerhaken V. Field V. Fields V. Findley V. Fink V. Fish V. Fisher V. Fiske V. Fitzgerald 3035, 3040, 3141 V. Fitzhugh V. Fitzpatriek V. Fitzporter V. Fitzsimon 2917, V. Flanagan V. Flanagin V. Flander 2777, 2981, 3024, 2933, 3013, 3096, 3148, 3033, 3014, 3149, 2806, 2791, 2850, 3038 2816, 3016, 3039, 3041, 3071, 2774 2934, 2939 3041, 2727 2910, 3127 2759, 3144. 3096, 2760, 3148. 3153 3053 2759 3098 2978 3041 3014 2700 3134 3054 3101 2997 2813 2908 2984 3145 2904 316(5 2951 2792 3018 2902 3101 3151 3038 3066 3026 2935 3152 2814 2792 2895 2854. 2857 3040 2721 2759 3170 2784 3050 3172 2829 3109 2979 3059 3030 3107 2969 3140 3050 3139 , 3089 2714 , 2781 2739 2991 3077 , 3073 2745 3041a , 2811 3049 3152 2704 3105 3118 3038 2975 2969 3113 2806 3142 2729 2761, 3150. 3169 3032 3055 2771 3101 3043 2723 2993 State V. Flanders V. Flynn V. Foley V. Folwell V. Fontenot V. Fooks V. Foote V. Ford V. Forshner V. Foster V. Fourohy V. Fournier V. Fowler V. Fox V. Frahm V. Franke V. Franks V. Freedman V. Freels V. Freeman V. Freeport V. Fritfhler V. Fritz V. P"'ry V. Furlong V. Furney V. (Jadberry V. Oainor V. Gallagher V. Gannon V. Gardner V. Garing V. Garris V. Gartrell V. Garvey V. Gassert V. Gates V. fJaul V. Gay V. Gedicke V. George V. Geyer V. Gianfala V. Gibbs V. Gibson V. Gilbert V. Giles V. Glahn V. (ilaze V. Gleim V. Glidden V. Glovery V. Godfrey V. Goetz V. Goldblat V. Golden V. Goldman V. Gonce V. Gooch V. Goodrich V. Goodwin V. Gordon V. Gorham V. Gosey V. Goss V. Graham V. Grant V. Graves V. Gray V. Grebe V. Greenleaf V. Green 2970, 2979, 2957, 2724, 2934, 2972, 3063, 2981, 2983, 2960, 2993, 2965, 2969, 3041a, 2725, 2727, 2894, 2964, 2732, 2740, 2744, 2920, 2818, 2805, 2714, 2714, 2941 3172- 3065 2720' 3036. 2984 3172 3116. 3101 3019, 3170' 2972: 3025- 2855. 2915. 2910- 2917 2916. 2725 3129 3099' 3067 2965- 2991 2784 3090- 2713 3024 2720' 2863. 2931, 2938 2908. 3065 . 2982 . 2797 2729 3014 , 3075 3109- 3043 , 2765 , 2941 2899 3033 3084, 3085, 3089. 2745, 2750, 2756, 2923, 2927, 2902, 2906 2975 2795 3074 2761, 2763 2750, 2930 3051 2713 2929, 2943 3132 2822, 2831", 3028 2718 2873 2861, 2863, 2747, 2978 2819 2895, 2898 2934, 2977, 3014, 3024 3024, 3033, 2732, 2810, 2910, 3036, 3051 2848 3166 3167 3035 2797 2778 2951 3134 2832, 3060' 3057 3116. 3041a 3114 3041 3036 2866. 2871 2745 , 2980 , 2820 3042 2964 . 3041 2978. , 3035 2918 3172a 3111 3018 3013, , 3074 TABLE OF CASES. Ixvii' [References are to Sections.'] State V. Greenburg V. Greer V. Griffin V. Grimes V. Groning V. Grooms V. Groves V. Grubb V. Gruss V. Gryder V. Guest V. Guild V. Gunagy V. Gushenberry V. Habib V. Hahn V. Haines V. Hale V. Hall V. Hallock V. Halstead V. Ham V. Hamilton V. Hammond V. Hampton V. Hand V. Handy V. Haney V. Hanley V. Hann V. Hanna V. Hannett V. Harden V. Hargrave V. Harlan V. Harmon V. Harness V. Harper V. Harrod V. Harrold V. Harrigan V. Harris 2845, V. Harrison 2838, V. Harvey V. Hascall 3072, V. Haskins V. Hasledahl V. Hastings V. Hatch V. Hathaway V. Hawkins V. Ilavden V. Hayes 2726, 2953 2912 2792 3111 3114 299; 2975 2808, 3000 2877, 3009, 2770, 3024, 3033 2n,S7 2705 3075 2774 2886 3034 2835, .3035 2963 3024. 3035 3027, 3041 2998 2727 3078 271.3 2859, 3079 3074 2787 2912, Haynes Hays Hay ward Hazard Hazle Heath Heatherton Hecox Heldenbrand Helm Helvin Hemm 3141, 3142, Henderson 2995, 2997 Henn Hendrick Hendricks Herbert Herrell Herron Hertzog Hice 2785, 2999, 3110 3144 3036 3144, 3148 2792, 3030 2722, 3063 2832 3120 3075 . 3067 2999 , 2916 2977 3165 3092 3172a 2998 , 2796 3114 3153 2715 , 3120 , 2996 , 298(1 2917 3042 2812 2968 3128 2776 3096 2824 3065 3094 3172 2963 2784 3117 2806 3066 3092 3170 3005 3099 3041a 3041 2718 2817 3030, 3136 3166 , 3095 , 3091 3169 2972 2998 3041a , 309() , 3172 , 3037 3151. 3170 2917 2847 2720 , 3115 3068 3172 , 3148 3052 2716 . 3041 313.". 3145, , 3151 2989. 3048 2977 2720 3065 2910 3020 2834 3019 2721 State V. Hickam V. Hickling V. Hi7'>2 2786, 2754, 2755, 3051, 3101, 2848, 2849. , 2984, 31.50, 2802, 2714, 2725, 2798. 2801, 2760, 3062 2721 2972, 2986 3035 3095, 3141, 3142, 2723, 3070 2752, 3093 2759. 3130. 3134 2863 3013, 3041a 2933 2716 2866, 2871, Hulder Hull Hullen Hunnicut Hunt 2829 Hunter Hurd Hurley Hurst Huston Hutchinson Hutto Ilyer Ilynier Hynes Icenbice Ingram Ireland Ives Jackson 726, 3054, 3065 2972, 3049, 3040 2978 2980 2910, 2913, 3026 3053, 3058 2714. 2934. 2935. 3026, 3051, 3052, 3109 2782 2931 3020 3144, 3151 , 3070 • 3105 ■ 2913. 3152 2863 2944 30r.5 3169 2771 301J) 3130 3016 2918 2994 2863 3052 3068 3104 3132 3064 2967 2981> 2999 2991 .3073 3074 29H4 , 3044 3148, 3151 2971 301.? 3041a 2984 , 3114 , 3094 3132. . 3137 3039- 312!> 3170 303."y 2822. 2731 2784 , 304:i . 2951 . 3104 2874. 3148 29SO 3107 2916 2964 3070. 3079 30S9 2806 3170 29S2 3169 309S, 3100 3022 2763 3035 3170 3103 3036 30.-.9 3113 2976. 3127 Ixviii TABLE OF CASES. [References are to i^ecUons.'l State V. Jacob ^m V. Jamison 2741, 2(4J, -lou. 2786 280 3041 V. Jarvis V. Jaynes V. Jean T. Jeandell V. Jefferson V. Jeffries V. Jennings V. Jerome V. Jeter V. Joaquin ^- T°?° „ 97nq 27'>'> ''726. Y. Jolinson -XOy, ^i-'T' ^i7e 07QQ 2741, 2742, 2744, 2<48, ~>lP -859 2860 2864, 2869, ">939 ^'943 2944 2962, 3022, Soli; 3057 3058 3101, 3123, 3118 2975. 3170 ,, 3168 ', 2814 3089 3169 , 3101 2720 2727 3098 2808 3090 3026 2732, 27 50'. 2917. 3030. 3128. 3166 V. Jolly V. Jones 2<20, 2843. 2844, 2846, 3022, 3023, 3024, 2779, 2786, 2895. 2924, 3027, 3028, 3041a, 3051, V. Judge V. Judy V. Julian V. Kabrich V. Kaler V. Kansas &c. Co. V. Kantler V. Kasper V. Raster V. Kavanaugh V. Kean V. Keeler V. Keene V. Keesler V. Keggon V. Keith 2741, V. Kellar V. Kelley V. Kelly V. Kemp V. Kempf V. Kendall V. Keneston V. Kennade V. Kennedy 2921, 2942, V. Kent V. Kenyon V. Kepper V. Kinder V. Kimble V. Kimbrough V. Kimmerling V King 2716. 2972, 3058 V. Kingsley 2978 V. Kinney V. Kirkpatrick V. Kittele V. Knapp 3034, 2742, 2750, 3165 2934. 2936. 2945, 3041a 2992, 2717, 2937, 3059, 3105 3141, 3144 2705, 2792 3097, 3099, V. Knight V. Knighten V. Knoll V. Knott V. Knutson V. Koontz y Ko?t|aard 2965. 2969. v.- Kriechbaum 2706. 2968.;2972 I: Kuhlman 2785, 2787, 3120. V. Kyer V. Kyle 279 2826, 3018. 3037. 3077 2731 3166 3166 2721 3171 3011 3170 2969 3064 3151 2862 I 2708 3074 3168 2706 , 2757 3168 2720 3419 2792 3123 3060 2990 3038 2941. 3043 2786 3041 2715 3112 3059 2993 2736 2938. 3141 3152 3099 2797 3170 3101, 3104 3016 3102 3033 3170 3147 2991 2786 29 7 -J 3170 2972 3125 3001 2703 State V. Lackland V. Lambert V. Lancaster V. Lane V. Langford V. La Page V. Larkin V. Larkins V. Latham V. Lattin V. Lauderbeck V. Laughlin V. Lautenschlager V. Lavalley V. Lawler V. Lax V. Leabo V. Leaden V. Leaver V. Ledford V. Lee 2759. V. Lehre V. Leicht V. Lenihan V. Lentz V. Leppere V. Letourneau V. Levan V. Levelle V. Levy V. Lewis V. Libby V. Lichliter V. Light V. Lightsey V. Lilly V. Lincoln V. Linde V. Linhoff V. Linkhaw V. Linthicum V. IJpscomb V. Lipsey V. Little V. IJvesay V. Lockerby V. Lockwood V. Lodge V. Long 2975, V. Ix)uisville &c. R V. Lowry 2727, 2781 V- Lucas V. Luce V. Lucey V. I.udwick V. Ludwig V. Lurch V. Luxton V. Lymus V. Lyon V. Lyons V. Lytle V. McAllister V. McAndrews V. McBride V. McBryde V. McCaffrey V. McCann V. McCartey V. McCarthy V. McCarty V. McCaskey 3142, V. McClellan V. McClintic 3142, V. McCone V. McCoy 2725 3016, 3052 3105 2998, 3020. 3115 3052. 3099 2720, 2976 3026 2728. 2772, 2943 3172 3102 2757, 3152 2972 2717, 3019, 3046 3080 3129. 3130 3058 3044 2911, 2914 3066 3049 2770. 2771. 2821. 3035, 3065 3169 3000 3149 3019, 3036, 3040 2721 2976 2822, 2823 2716 2709 2966. 2984. 3141 2714, 2802, 2863 2975 2785, 3006 2829 2765, 3166 3046 3172 3013 3064 2881 3046 3039 2731 3166 3142, 3152 2822 2770 2976, 2980. 2983, 3101, 3170 Co 3064 2988, 2990, 2992, 2993, 2994 2783, 3024, 3066 3062 3026 2779 3040 2980, 2991 2975 3052 2972, 3065, 3169 3041 2715, 2807 2721. 2994 3055 3123, 3126 ''915 2706, 3104 3043 3050 2913, 3038 3052 3143, 3146. 3152 2727 3143, 3150, 3152 3075 2728, 3041. 3053 TABLE OF CASES, Ixix: [References are to Sections.'] State V. McCune 3108 V. McDaniel 2715, 3017, 3023, V. . McDavid . McDevitt . McDonald 2802, . McDonnell . McDonough . McDowell . McGahan . McGarry , Mc(;ee , Mcfxinn , McOinniss , McGlynn McGregor McGuire Mclntire Mclver McKee McKinney McKinzie McKnight McLain Mcl^eod McMahon McManus McXair McNeil McPherson McKae Mace 3070. Mack JIaddox Madigan Magee Magers Magone Magoon Mahan Maher Mahoney Main Mallon Manluff Manns Marcks Markham Markins Marquardsen Marshall Martin Marvin 2792, 2863, 2899 297:^ 3063 2939, 2941 3151 2964, 3063 3068 2953 3071, 3072 3074 2965 2910 V. Mason V. Masteller V. Matthews V. Matthis V. Maxent V. Maxwell V. May V. Mayberry V. Mayer V. ^layor &c. V. Mazon V. Mead's Liquors v. Meche V. Medbury V. !Meek V. Meerchouse v. Melick V. Melrose V. Melville V. Merriman V. Messimer V. Metsch V. Meyer V. Meyers 2724, 2984 2715, 3050. 2795, 2797. 2970, 3023, 2978, 3035, 2921, 2925, 2719, 2915, 2802, 2934, 2943, 3027, 2706, 2732, 2770, , 3129 3039, 3040 2874 3108 2965. 3156 .^018 3101 3065 3065 30L'li 294;! 3152 2714 3171 3()t!5 2705 31(i!t 30.'^{8 3172 3035 3015 2914 27S6 2762 2813 3166 3095 3037 2954 3056 3075 3065 3166 , 3075 2978 3044 2944 2723 , 2972 2727 3170 3005 2724 2916 3022 3099 3009 3168 3059 3142 3166 2801. 3068 316<» 3105 3059 3062 2774 2915 2783 2948 3111 3060 3023 3171 2919 2863 2771 2910 2916 2944 3037 3044 3043 2i>75 3019 3099 State V. Meysenburg V. Middleham V. Miles V. Miller 2632. 2f»75. 2991, 2999 V. Millner V. .Mills V. Mims V. Minard V. Minck V. Minor V. Minot V. Minton V. Mitchell V. Mix V. Moats V. Moberly V. Moelchen V. Molier V. Momborg V. Moncia V. Monds V. Montgomery 2976, 2979 V. Moody V. Moi)k V. Moon V. Mooney V. Moore 2810, 2941 3074, 313.3 V. Moothart 2760 V. Moran r. Morey V. Morgan V. Morfedge V. Morris V. Morrow V. Morton V. Mosby V. Mosley V. Mowry V. Moxley V. Mulkern V. Mum ford T. Munco V. Munzenmaier V. Murphy 2720 2761. 2763. 2855. 3093. 3096 V. Afurray T. Mush rush V. Musick V. Myerfield V. Myers 2709, 3019 2806, 3046 2717, 2983 2724. 2981, 2714, 2898, 2902, 2905 2718 28'.)7 2851. 2905. 3089. 3111 2!tH7 2822. 2'.t7!> 2969. 2972. .•}()40 27<»5 3059a 3(158 3138 2991. 2994 3099, 3100 2718 2975 2720 3044 3089 3170 2724 3093 2762. 2838. 3102. 3130 3033. 3045 2969. 2972 3054 3079 2731. 2806. 3058, 3059. 3147. 3170 2725, 3053. 3136 2761 2707, 2986, 2715. 2759. 2953, 2777. 3020. 2763 3024 3054 3063 3130 2910. 2914 763 276: 3038. 2997. 2721. 2924. 3098. 2948, 2826, 2975. V. Xadal V. Xappcr V. Xash V. Neal V. Xeel 3095, 3098, 3099. V. Xeimeier V. X'elson V. Xoll V. Xettleton V. Xew V. Xewby V. Xewcomer V. Xewport V. Xiles 3099 V. Xoland 2816. 2964! V. Xorman V. Xorris 2917 V. Xorton 2933^ V. X'oyes V. Xuttles V. Oakley V. O'Brien 2739 291'' V. Odel 2761, 2961. 2990 3009 2778. 2779 2729. 3043 3025. 3044 3099 3059a 3020 3171 2729, 2759, 3052. 3058. 3106. 3108 3101. 3166 2934 3014. 3015 2824, 2830 2976. 3042. 3170 2859. 2863 2834 2783. 3038 3106 3100. 3105 2975 2705, 3121 2934 2991 2964, 2970 3172 3108 2943 3100. 3102 2968, 2972 2866 3079. 2951. 2924. 3080 2975 2948 2716 2975 2971 2955 Ixx TABLE OF CASES. [References are to Sections.'] State V. Odell V. O'Donald V. Ogden V. O'Hare V. O'Neil V. Orsborn V. Orwig V. Osborne V. Otis V. Overstreet V. Owen V. Owens V. Owsley V. Paggett V. Pain V. Palmer V. Pardee V. Park V. Parker V. Parks V. Parrott V. Patch V. Patillo v. Patrick V. Patterson 2777, V. Payne V. Payson V. Patza V. Pearce 2769, V. Pendergrass V. Penley V. Pennington v. Penny V. Peo ]■ V. Pepper V. Peres j T. Perioux ' V. Perley V. Perry V. Peterson 2702, V. Pettit V. Petty V. Phelps V. Phifer V. Philpot V. Philley V. Phillips V. Phippen V. Phipps T. Picker v. Pierce 2721, 3026, !759. 2924, 2925. 3098. 2779. 3141, 2770, 2844. 2894, 2725, 3099 3101. 3036, 2742, 2761, 2765. 2725, 2828, 2860, 3073, 2931, 3099, 2864. 3145, 2744. 2779. 2845, 2980, 2895, 3129. 2720. 3036. 3106. 2807, 2809, 2724. 3041a, V. Pine T. Pippin V. Pittam V. Place V. Plant V. Plnnkett V. Plym V. Poindexter V. Pomeroy V. Porter V. Poteet V. Potter V. Potts V. Powell V. Poynier V. Prater V. Pratt V. Price V. Prins V. Pritchard V. Pritchett V. Prizer V. Pucca V. Punshon 2729, 2965, 2970, 3064. 2732. 2879. 3022 2862, 2863. 2866 2855, 2969, 2724, 2895, 2774, 3005 2970 2791 2791 2960 2918 3022 2897 3145 2721 2785 2935 3107 3148 3043 2950 3218 3054 3153 2745 3074 2769 2919 3069 3035 3035 3115 3079 2937 2728 3067 2990 2977 3101 2874. 3146 3019 3145 3026 2998, 3038 2846 2982 3168 2983 3023 2958 3099 2732 3135 3026 3041, 3227 3038 3030 2957 2977 3104 2835 3152 3075 3172 3092 2956, 3035 2987 2792 2967 3172a 3003 3171 2867 2997 3111 3054 2792 2795 2993 , 3035 2774 , 3042 297'-* 3002 2994 , 2901 3027 , 3146 , 3107 3040 State V. Pyscher V. Quaid 2999, V. Quick V. Quinlan 2785, V. Rainsbarger V. Rand 2777, V. Rash V. Ratliff V. Ravenscraft V. Raymond 2813, 2918, 3078, V. Redemeier V. Redstrake V. Reed 2707, 2715, 2759, 3041a, v! Reeves 3141, 3151, 3152, V. Reid 2910, 3099, V. Reinhart 2969, V. Reinheimer V. Reitz V. Renton V. Repp V. Reynolds V. Rhoads V. Rhodes V. Richards V. Richart V. Richmond V. Ricker V. Riddle V. Rider V. Ridgely V. Rigg V. Riggs V. Ring V. Ripley V. Rivers V. Roach V. Roan V. Robbins V. Roberts 2707, 2785, 2809. 2816, 2924. 3028, 3041. 3041a. V. Robertson 2916, 3041a. 3098, 3100, 3102, V. Robinson 2729, 2917, 2994, 3018, 3038, 3042, 3053. 3058, V. Rodman 2721, V. Rogers 2934, 2936, V. Rohfrischt ^ Rolia 2735, 2739, 3038, 2801, 2744, 2745, 2715, 3127, 2720, 3111, 3038 2964, 2924, 2941, V. Rollins V. Rood V. Rorebeck V. Rorie V. Rose V. Rosenberg V. Ross V. Roswell V. Roten V. Rothschild V. Round V. Rounds V. Row V. Rowley V. Rucker V. Ruhl V. Runyan V. Rushing V. Russell V. Ruth V. Ryan V. Sanders V. Sanford V. Sargent V. Sasse V. Saunders V. Savage V. Schafifer 2934, 2943. 2944 2941, 2942, 2943 2920 274.- >750 3115 3035, 3122 3093 2798 3098 2726 2993 3057, 3059 2986 3000 3053 2787 3026 2780 3036 2894 3055 3089, 3171 2728 2997 3026, 3101 3050 3158 3102 2972 3145 2916 3128 3053 2970 3041 2844 8099 3059 3114 2773 3038 3043 3030 3024 2718 2968 2937 2982 2942 8024 3005 2813. 3166 3065, 3105 2996, 3172 2724 2944 2812 3041a 3093 2803 2750 2999 2994 2976 3045 2863 3166 3011 2750 2707 , 3037 2931 2997 , 2752 3' 70 , 3121 . 3128 , 3096 2874 , 2802 , 3107 3099 , 3171 , 2994 3036 , 3065 TABLE OF CASES. Ixxi [References are to Sections.^ State V. Sohilb V. Schingen V. Sohlagel V. Schlcagol V Schuorman V S56, 2957, 3024, ;!041. 3043. 3077, 3094, 3095. V. Smvth V. Snell V. Snover V. Snow V. Snyder V. Somervllle V. Sommers V. Soper V. Sorter V. South V. Southern R. Co. V. Spalding V. Speaks V. Speller V. Spencer V. Spendlove V. Spray 2964, 2720, 2826, 2761 2721, 2874 2731, 2964 2903 2729, 2731, 2832, 2899, 2987, 2999. 3046, 3065. 3115, 3120, 3144 2774, 2921 2791. 2792 3123, 3126 2723, 3013 3036 2725, 3041 2964 2965 2786 3039 2771 2799 3105, 3107 2912 3051 2863 3172 3002 3172 3036 3036 3026 2984 303,S 3139 , 3147 , 3171 2855 3145 , 3170 , 3014 . 310S 3165 3103 2991 3066 2820 3010 2963 3097. 3138 3115 2931 2919 2720 3050 2969 2069 2970 3127 3133 3054 3052 , 3046 3168 , 3035 2921 , 3170 , 2004 2917 2864 2732. 2902. 3014, 3070, 3134, 3152 3165 3042 2706 3165 2714 3053 304 S 3044 3041 3047 2716 2954 3024 31 6(! 3073 3038 3137 State V. Spiegel V. Springer V. Stackhouse V. Stafford V. Stair V. Stalcup V. Stank V. Stanley V. Staton V. Stebbins V. Steele V. Stephens V. Stevens V. Stevenson V. Stewart V. Stice V. Stickney V. Stockton V. Stoeckli V. Stone V. Storkey V. Storts V. Stoyell V. Strat V. Straw V. Streeter V. Stroud V. Stubbs V. Sudduth V. Suggs V. Sullivan V. Summers V. Sumner V. Sutton V. Swaflford V. Swails V. Swayze V. Sweeten V. Swift V. Symes V. Symmes V. Tabener V. Tabler V. Tabor V. Talbert V. Tally V. Tartar V. Tate V. Taylor 3035, 2844, 2722 :766, 2920. 2941, 2921. 2950 2750. 2964 2921, 2926. 2927 2739, 28 3099, OOO-) 3038. 2735 3073 2792, 3103 .3035. 3094 3041a , 2755 . 307 271 3000 2706, 2914-, 2996, 3015, 2724. 3032, V. Teeters V. Teipner V. Temple V. Terrell V. Terrio V. Tessier V. Testerman V. Tettaton V. Thaden V. Thatcher V. Thawloy V. Theriot V. Thiboau V. Thomas V. Thompson 2810 2938. 2939. 2941 V. Thornton 2727 V Thurtell ^• Tibbetts V Ti CO V Tilly V Timmens V Tindal V Tippet 2829, 3051. 3093 3032 2720 3026 2939 2813, 2942, 303S. , 3142 ■^972 2"934", 2072. 30-tO. , 3151 314 2808 2761 3044 2846 3028 3123 2872 2784 3109 2715 2895 2795 3105 2786 2933, , 2951 3068 2726 3041a 3020 . 2081 3109 3054 2745 3079 2931. 2046 3168 .3049 . 2796 3107 2723 3036, 3136 3041 3128 . 3145 , 3087 2834 . 3018 XI 20 2".ns :^o43 3028 2063 , 3062 3015 3030 2774 3041 3037 2.>*54. 30()7, 3105 .■{066 3107 2962 3045 2709 2981 3017 3036 2944 2981 303!> 3075 2943 . 3017 2036, 2991. .S041a , 3153 2721 3170 2944 3017 . 3140 2954 3028 Ixxii TABLE OF CASES. [References are to Sections.'] state V. Tommy 3023 State V. Wheeler 2796, 3067. 3102, V. Tompkins 2965 2970 3142 3146 V. Toney 3172 V. Whidbee 2978 V. Toombs 9700 3065 V. Whit 2911 V. Townsend 3127 3128 V. Whitcomb 2805 V. Tramniell 2931 V. White 3163 3171 V. Trolsou 2906 2972 V. Whitesell 3101 V. Trout 2706 2728 V. Whitson 2707 3021 V. Trove 2732 3066 V. \\hitteniore 3079 3090 V. Tucker 3170 V. Wideman 3172 V. Tull 2971 2989 . 2995 2996 V. Wilbourne 2973 V. Tumey 2971 V. Wilcox 3102 3172 V. Turley 2978 V. Wilkerson 2983 2993 V. Turner 2707, 2914. 3037. 3052 3038. 3101 V. Wilkins V. Wilkinson 2724 3099 2745 V. Turpin 3038 3041 V. Williams 2703, 2708, 2720, 2723. V. Tutt 2959 2726, 2732, 2897, 2918, 2'.>54, 2;t7!», V. Twitty 2954 2955 2981, 2988. 2990. 2995, 2'.)'.»7, .■!0."i5. V. Twogood 2835 3073, 3090, 3091, 3093, 3165, 3166. V. Tyrrell 2913 3170 V. ririch 2874 V. Williamson 2720, 2786, 2911, V. T'mble 2785 2787 3101 V. I'pham 2721 V. Willis 3011 V. Valwell 2720 2917 V. Wilson 2732, 2909, 2923, 2946, V. Vance 2720 2970, 2982, 2983. 3032, 3051. 3059, V. Vanderbilt 2977 2984 3080 3128 3170 V. Van Houten 2765 V. Wiltsey 2792 V. Van Winkle 2786 V. Winchester 2732 V. Van Wye 3068 V. Windahl 3044 V. Vatter 2816 V. Wingo .3049 3051 V. Vaughan 3018 3041 V. Winkley 2792, 2799, 2800. 2803, V. Vawter 2765 2861 V. Verry 3169 V. Winner 2708 2934 V. Vicknair 3172a V. Winningham 3168 V. Vincent 3023 3030 V. Winstandley 3080 V. Vinson 3057 V. Winter 3028 V. Vorback 2984 V. Wintzingerode 3026 V. Voshall 3122 V. Wisdom 3160 V. Wade 3000 V. Wister 2731 V. Wagner 3030 V. Witham 2792 V. Wahl 3067 V. Witt 3046 V. Wait 3169 V. Wolf 3060. 3099 V. Walke 3108 V. Wolfe 3062 V. \A'alker 2934, 2936, 2940, 2941. V. Wood 2848 3033, 3045 ^ 942, 2995. 3014, 3015, 3017, 3020. V. Woodfln 3166 3021, 3030. 3041a V. Woodrow 2998 T. Wallace 2790. 2S00 V. Wiiodruff 3095 V. Waller 2792. 2895 V. Woodward 2854, 2898, 2905, 2969. V. Wallick 2972 3017 V. Walters \ 3066 V. Woodword 3132 V. Walton 2975. 2976 V. Woolvprton 3090 V. Ward 2723, 2727. 2810, 2812, V. Worden 3109 815, 2816, 2914, 3017, 3092. 3096. 3093. 3118 V. \\'orkaan V. Worth 3166 3065 V. Wardlaw 3166 V. Worthen 2915, 3034 V. Warford 2910. 2912 V. Wrand 2917 V. Warner 2732, 3041a V. Wright 2728. 3023, 3035, 3042. V. Warren 3041. 3041a 3044 V. Waterman 2731 V. Wvatt 2828, 3136 V. Waters 3007 V. Wvckoff 2772 V. Watkins 2912 V. Wylde 2863 V. Watson 2771, 2804, 3100, 3102, 3107 V. Wynne V. Wyse 2899 3030 V. Watts 3172 V. Yeargan 2726 V. Way 2791, 2792, 2795 2796, 2797 V. Yee Wee 3032 V. Wayatt 3139 V. Yocum 3103 V. Weaver 2942 3057. 3058 V. Yokum 3040 V. Webb 2978 V. York 3122 V. Weber 3172 V. Younger 2806, 2920. 2931. 2933, V. Welch 3000, 3024. 3026. 3027, 2979, 3013. 3014. 3065 3042, 3044. 3093. 3104 V. Zeigler 3041a V. Weldon 2917 V. Zellers 3041 V. Wellman 3052 V, Zichfeld 2716, 2866. 2871 V. Wells 3065, 3145 V. Zimmerman 2732. 2991 V. Welsh 3022, 3023 V. Zorn 2729 V. Wenz 2757. 3143 V. Zumbunson 3049 V. West 3026. 3046. 3065 Stead V. Course 3208, 3211 V. Westfall 2939, 3032, 3043 Steadman v. State 2915, 2972, 3213 V. Whaley 2735. 2863 Stearns v. Reidy 3213 TABLE OF CASES. Ixxiii [References are to Sections.'] Stebbina v. Five Mud-Scows 3360 Steber v. State 3070 Steele v. I'eople 2954, 299U V. State 3041 V. Tliacher 3244 Stefani v. State 3009, 3091 Steiner v. I'eople 284S Steinke v. State 3101 Stephen Hart, The 3341 Stephen Morgan, The 3251 Stephen v. Myers 2823 V. State 3100 Stephens v. Gardner Creamery Co. 3064 V. orniaa 3198 V. State 2703, 2783, 3045, 307.-.. 3080, 31 OS Stephenson v. Stephenson 3i;o7 Sterling, The 3251 Sterling v. Warden l!S.-.7 Stern v. State 2726, 3010 Sterne v. Woods 3216 Steuart v. (Jladstone 3193, 3214 Stevens v. Cooper 3174 V. I'eople 3099, 3100 V. Post 3199 3202, 3204, 3205 V. State 2937 Stevenson v. Gregory 3230 Stewart v. State 2792, 2937. 2984, 3035, 3041, 3050 3206, 3232, 3236 Stiewell v. State 3166 Stiles v. Stiles 2792 Still well v. Badgett 3201 Stitz V. State 2719, 2810 Stoltz V. People 3009 Stone V. Clay 2999 V. Jewell, The 3352 V. Langworthy 3066 V. Mississippi 2011 V. State 2720, 2956, 3036, 3065. 3170 V. Welling 3216 Stonington Sav. Bank V. Davis 3221 Stoops V. Commonwealth 2777 Story V. Gammell 3215 V. Livingston 3189, 3223, 3228. 3229. 3232 V. State 2847, 2849 Stouffer V. Maehen 3199 Stoughton V. State 3064 Stouteuburgh v. Tompkins 3215 Stover V. I'eople 2721 Stow v. Converse 2725 Stockdale v. State 3166 Stocken v. Dawson 3233 Stocking V. State 3046 Stockton V. State 2848 Stoffer V. State 2849 Stoflfregan v. Mexican Prince , The 3273, 3277 Stokely v. State 3050 Stokes V. I'eople 3019 V. State 2915, 3044 V. TTnited States 29!)1 Strahan v. State 3H;6 Strang v. People 3093, 3101, 3105 Strange v. Commonwealth 2942 V. State 3035 Strathnevis, The 3352 Street v. State 27S4 Stringfellow v. State 3046 Stripland v. State 2778 Strode v. Magowan 2862 Strong V. State 2965, 2975, 2976. 3057 Strother v. State 3106 Strout V. Foster 3379 Stuart V. People 2727, 2918, 3049 Stucky V. Stiicky 3213 Studdard v. Linville 3079 Studstill v. State 2778 Success. The 3323, Sudduth V. State Sullivan V. McLenans V. State 3033. 3045, Summit, The, 3367, Summons v. State Sumner v. Jones V. State 2709, 2713, 2719, Sunbeam, The Sunset Tel. Co. v. Kureka Suiiney v. llolt Sunnyside, The Superior, The Surget V. Byers Susan, The 3296, Sutlier V. State 3142, Sutlierland v. State Sutterfield v. Magowan Sutton V. I'eople v. State V. Wilson Suydam v. Dequindre Swaim v. T'nited States Swain v. State Swallow, The, Swan V. Commonwealth Swanston v. Lishman 3353 3143 3092 3402 State Sweat V. State Sweeden v. State Sweet V. Parker Swigart v. State Swindle v. State Swinton v. Molloy Sydsorff v. Keg. Sykes v. People v. State Sylph. The, Sylvester v. State Synon v. People Synnott v. Shaughnessy Syracuse, The 3262, T 2792, 2797 3014 3272 T. F. Oakes, The Taft V. Taft Taggart v. Roldin Talbfi-t V. State 3049, Talbot V. Jansen Talbott V. Wakeman Taliaferro v. Commonwealth Taney v. State 2894, Tanner v. Commonwealth V. State Tarlton v. McGawley Tarver v. State Tate v. I'ensacola Gulf &c. Co. v. State Taunton v. Taylor Taylor v. Batten V. Cawthorne V. Commonwealth 2967, 2984, V. Kilgore V. Morton V. People V. Robertson V. State 3091. V. T'nited States V. Young Taylor's Case Telegraph. The Ten Hogsheads of Ru Tennasscrim. The Teoli V. Xardolillo Terrell v. State .3041, 3043, 3221, 3010. 3032. 3035, 3092, 3093, 3104, 2890, 3328. 3.342 3166 3215 3065 3368 2702 .•^175 3010 3324 3195 3393 3251 3300 3214 3.360 3152 30:53 3226 3098 2955 3217 3230 3404 3041a 3260 2917 3287 2804 2714 2835 3199 3010 3109 3427 2925 2714 3105 3392 3024 3042 3212 3384 3300 3213 3199 3055 3320 3262 2918 289G 3050 2938 2951 2830 3213 3007 3200 3286 3223 3042. 3043 3224 3201 3066 3234 3085, 3108 2957 3223 2891 3379 .3329 3364 3228 2856 Ixxiv TABLE OF CASES. IBeferences are to SectionsJ] Territory v. Bowen V. Burns V. Chartrand V- flark ____ V. Dwenger ^m, V. Egan V. Ely V. Gutierez V. Hall V. Keyes V. Mahaffey V. Lucero V. Meyer V. Neligh V. Romine V. Stone Terry v. Commonwealtn V. Robbins V. State Tervin v. State Tesney v. State Teter v. Teter Teutonia, The Texas &c. Co. v. Adoue Thalheim v. State 2968, Thames, The Tharpe v. Gisburne Thayer v. Davis V. State V. Thaver Theodor Korner, The Therasson v. People Theta, The Thexton v. Edmonston Thiede v. Territory Thirty Hogsheads of Sugar v Thomas, In re Thomas v. Cincinnati &c. R. V. Commonwealth V. Dawson V. Gray V. People 2979 V. State 2724, 2808. 3041, .3042, 3044, 3058, V. United States Thomas Jefferson, The Thomas Watson, The Thomas Worthington, The Thompson v. Clark V. Commonwealth V. Paterson &c. R. Co. V. Philadelphia, The V. Stacey Clarke, The V. State 2873, 2897, 3000, 3052, 3074, 3076, 3102, 3104, 3138, V. Thompson V. Tolmie Thonley, The Thorington v. Carson Thorne v. Hilliker V. White Thornell v. People Thornley, The 2993, 33oo Thornton v. Ogden V. State Thorpe v. Thorpe Thrawley v. State Thurmond v. State Thweatt v. State Tice V. Reeves Tilghman v. Proctor Tilley v. Commonwealth Tilly V. State Tim'mons v. State Tinney v. State Tios V. Radovich 3065 3166 3065 3059a 2780, 2784 3044 2980, 2982 3018 3041 3102 3172a 3023 2969, 2971 2786 3046 3065 2996 3221 3025, 3046 3053 3024, 3042 2865 3251 2920, 2951 2969, 2971, 2972 3382 2959 2796 3122, 3127 2792, 2796 3290 2981 3348. 3366 3212 3026, 3027 Boyle 3318, 3320 3421 Co. 2951 3036 3234 3271 3011, 3015 2816. 2978, , 3070, 3172 3270 3240, 3257 3326 3302 3198, 3205 2937 3067 3312 3499 2946, 2993, 3099. 3100. 3170, 3172 3194, 3211 3419 3362 3197 3231 3298, 3300 2714 2976, Pennsylvania Cook Tipton v. State Tittle V. State Titus V. State Tobin V. Wilson Todd V. State V. Sterrett Toledo &c. R. Co. Co. Toler V. State Toll V. State Tolliver v. State Tolomeo, The, To! tec Ranch &c. ' Tomlinson v. Lindley Tompkins v. Tompkins Toney v. State Tonge's Trial Topliff V. Jackson V. Topliflf Totten V. Pluto Toulme V. Clark Town V. Needham Townley v. State Townsend v. Mcintosh Townshend v. Stangroom Tracy v. State Trail v. State Train v. Bennett Traverse v. State Traylor v. State Trecartin v. Rochambeau, The, Tread well v. Joseph V. Lennig Trenchard v. Warner _ Trials of Twenty-Nine Regicides Trimble v. Territory Trimmier v. Liles Trinidad, Island of Tripp V. Flanigan Trogdon v. Commonwealth 3081, 2797, 3363, 3364 3213 3028 3236 3038 2997 2750 2873 3236 2706, 3029 3059 2997 2714 3300 Troy &c. Factory v. Corning True Blue, The Truro, The Truslow V. State Tuck V. Downing Tucker v. Hyatt 2936, 2938, V. People ^_,„ V. State 2732, 274o Tullay V. Reed TuUy V. Commonwealth Turley v. People Turnbull v. Crick Turner v. Black Warrior v. Knell V. Owen V StaTe' 2720, 2723, '3028, 3036, 3042, 3046, Turpin v. State Tuttle V. People Twav V. State Twichell v. Commonwealth Two Brothers. The Two Fannys. The Two Friends. The Twyford v. Trail Tyler v. Pomeroy 3419, 3420, v. Simmons V. Todd V. United States Tyrrell v. State Udderzook v. Commonwealth Umphrey v. State 2975. 2980 3228 2942 2863 2750 2775, 3259. 3299 3092 2845. 3120 2924 3426 3225 3026 3052 3101 3197 2984 3211 2951 2727 3004 3121 3352 3175 3199 3207 3065 3164 3227 3228 3271 3199 3199 3086 3206 3215 3139 3111 3296 3026 2708 3293 3259 3199 3197 3159. 3164 3099 3176 3347 2726 2976, 2981 3229 3363 3251 3055 3213 , 2991 , 2873 , 2798 2854 2777, 2784 3138 3195 3260 3198 3305 3093 3026, 3129 3125 3086 3102 3431 3340 3293 3320 3233 3427 3230 2991 2968 2720 3025 3056 TABLE OF CASES. Ixxv [References are to Sections.] Undaunted. The Underwood v. Commonwealtn Unger v. State Union, The Union &e. Refinery v. Mathiesson Union Bank v. Geary Union I'ass. K. Co. v. Baltimore i:nited Shirt &c. Co. v. Pitzile United Slates Bank v. Beverly United States &c. Co. v. Iron Mola- ei-s' Union United States v. Abram V. Adams 2904, V. Addyston &c. Co. V. Armstrong V. Arjona V. Ashton V. Aucarola V. Babcock V. Baldridge V. Ball V. Barnaby V. Barrett V. Battiste V. Benson V. Betsey, The V. Bevans V. Bogart V. Borden V. Breese V. Brouks V. Burns 2739, 2937, 29i 29.53, V. Burr 3155, 3156, 3157, 3158 California &c. ^^'^^- 2707. 2920, 2921, 2935, 2937, 2938, V. Cassidy V. Clark V. Cole V. Coombs V. Coons V. Craig V. Crane V. Crow Dog V. Cruikshank T. Curtis V. De Amador V. Doebler V. Doyle V. Dunbar V. Dunn V. Eaton V. Elliott V. Erskine V. Farragut V. Fenwick V. Fitzgerald V. Fletcher V. Forbes V. Fries V. Frisbie V. Furlong V. Garcelon V. Gilbert V. Gideon V. Gilbert V. Givings V. Grace Lothrop V. Gray V. Greathouse V. Greiner V. Groesbeck V. Grush V. Guiteau V. Ilaiues V. Hair Pencils V. Hall V. Hamilton y. Hand 2955, 29 3075, 2922, 3128 3071, 3083, 3457, 3155, 3156, 3161, 3170, 3314, 3315, 3154 3361 3028 2774 3308 3224 3199 3195 3230 3198 2951 2952 2970 2920 3018 2952 3299 2750 3074 3464 3028 2822 2947 2732 2922 3244 3246 3421 3499 2972 2995 2955 3163 3211 2909 2922, 2947 2870 2936 3246 3089 2957 2779 3022 2952 3090 3088 2993 2938 2935 3399 2702 2951 3085 3347 3123 2953 3484 3484 3162 2938 3246 307.") 3317 3172 2730 3299 3292 30(!3 3158 3150 2870 3246 3419 3499 321 7 3080 3246 2831 United States v. Hanway V. Harmon V. Harper V. Hartwell V. Hayward V. Hemmer V. Hiuman V. Hirsch V. Hodges V. Hopkins V. Hoxie V. Hunter V. Jackson V. Jernegan V. Johnson V. Jones V. Jourdine V. Kane V. Kelly V. Kenneally V. Kershaw V. King V. Kuhl V. Lancaster V. Landers V. Landsberg V. Lantry V. La Vengeance V. Lee V. Long V. Lowenstein V. Mackenzie V. Males V. Mallard V. Marcus V. Matilda V. Matthews V. McBosley V. McFarland V. Meagher V. Miller V. Mitchell V. Morel V. Morrow V. Moses V. Moulton V. Munroe V. Nailor V. New Bedford Bridge V. Noble V. Nunnemacher V. Nye V. olney V. One Hundred Casks &e. V. Open Boat V. Ortega V. Ortiz V. Page V. Patterson V. Paul Shearman V. Peay V. Peters V. Peterson V. Kader V. Kindskopf V. Rodgers V. Ross V. Roudenbush V. Route V. Russell V. Sacia V. Sally. The V. Sander V. Schneider V. Scott V. Seagrlst 3154, 3155, 3158, 3160 3t.i68 2964, 2972 2772, 2774, 2778 3328, 3329 3499 2954, 2955 2935, 2947 3158, 3163 2952 3158 3259 3053 2860 2921, 2929, 2937 2991, 3129, 3498 3063 2951 3499 2957, 2961 2786 2952, 2953, 2955, 3292 2952, 2953 2921, 2927 3490 3080 2912 3244. 32.^)7 3156. 3157 298.'i 3111. 3115 3398, 3419, 3426 3068 3071 2957 3270, 3338 2714 2897 3123 3044 3065 3155, 3156, 3158, 3159. 3161, 3313 3246 2952 2953 3052 3216 3065 3241, 3246 2954 2938 3299 3011 Twenty-three 3266 3326 2836 2993 3457 2951 3323, 3324, 3328 2S70 3320 3247. 3499 2709, 2726 29:'.8 3246. 3247 2759. 2783. 3246 2953. 2961 3498 2718, 2952, 3439, 3498 293S 3244 2970 3023. 3030 3200 3246 Ixxvi ifABLE OF CASES. IReferences are to Sections.'] United States v. Searcey V. Shapleigh V. Sharp V. Shellmire V. Singleton V. Smith 3314, 2922, 2952, 2732, 2863, 2870, 2947, 3009, 8246, V. Snow V. Staly V. Stevens V. Stockwell V. Taranto V. Taylor V. Tenney V. Ten Thousand Cigars V. Thompson 2947, V. Trans-Missouri &c. Asso. V. Turner V. Volz V. Walsh V. Watson V. Weber 2920 V. Williams 2708, V. Wiltberger V. Wood 3087, 3088. V. Workingmen's &c. Council V. Zes Cloya TTodegranh v. Commonwealth 2889, 2892, 2898, 2894, TTpstone v. People Upthegrove v. State tlrquhart v. State TTsher v. Commonwealth ITsom V. State Usselton v. People 2774 Utica Ins. Co. v. Lynch TTtterback v. State Utzman v. State 3463 3498 3499 2953 3073 3068, 3499 2870 3299 3063 3123 2954 3024 2866 3253 3499 2920, 2951 2996 3090 3083 2946 2950 2953 3246 30S9 2951. 3199 2745 2891, 2896 2729 3038 3090 2819 3133 , 2781 3235 2884 3042 Vaughan's Case Vaux's Case Vallance 7. Everts Vallandigham, Kx parte 3419, Van Buren v. People 2981. Vanderzer v. McMillan 2795, 8199, Van Epps v. Van Epps 2792, 2794, Van Fossen v. State Van Horn v. Van Horn Van Houten v. State Vann v. State Van Namee v. Oroot Van Ness v. Van Ness 3228, 3233, Vansciver v. Bryan Van Slvke v. Hyatt Van Straaten v. People Vanvactor v. State 2838, Van Vranken, Ex parte Varuna, The Varner v. State Vasser v. State Vaughan's Trial Vaughan v. State 2777, 2804, 2831, VawteP V. Bacon Vpendam, The Vegelahn v. Guntner Veile V. Blodgett Venezuela, The 3267, Venice. The Venters v. State Versailles, The Vibilia, The Vickers v. Buck Stove &c. Co Vidal v. Girard 2844 3294. 27SO. 3226, 3351, 2920, 3198, 3268 3296 3161 2730 3170 3426 2982 3200, 3234 2971 2873 2951 3068 3041 3217 3234 3213 3227 3059 2845 3421 3298 3054 3109 3154 2786, 3236 3212 3352 2951 3199 , 3271 3502 3028 3363 3300 3177 2891 3323, 3295, 3244, Sundberg Vigel V. Hopp Vigilantia, The Villa V. Herman Ville de Varsovie Vincent v. Stinehour Virgil, The Virgin. The Virginia Ehrman, The Virginia «&c. Ins. Co. ■> Vives V. United States Vivid, The Voght V. State 3003, 3004, 3009, Vollmer v. State 3018, Von Tobel v. Ostrander Vosburg v. Putney Vowells V. Commonwealth Vrouw Hermina. The Vrow Anna Catharina Vrow Elizabeth, The Vrvheid. The 3345, Vulcan &c. Co. v. Hercules &c. Co. W Wabash R. Co., In re Wade V. State 2707, Wadsworth v. Duncan Waggoner v. State Wagner v. State 30.59, Wagoner v. State 2977, Waidley v. State Wait V. State Wakeman v. Grover Wales V. Whitney Walker v. Cronin V. Kinnare 3218, V. Eogan V. Sauvinet V. State 2724. 2797. 2916. 3000, 3014, 3039, 3044. 3059. 3090, 3091, 3166, 3167, V. Walker Wall V. State Wallace v. State 2706, V. United States Waller v. State Wallis V. State 2964, Walls V. State 2722, 2860, Walrath v. State Walsby v. Aniey Walsh V. Agnew V. Association Master Plumbers V. People 2897. 3036, Walters v. State 2720, 2724, 2727, Walton V. Canon City v. State 2894, 2910, 3000 Wanderer. The 3251 Wantland v. State Ward V. Abbeville V. Fashion, The 3271, V. Paducah &c. R. Co. V. Peck V. People V. State V. Wa rd Warden v. State Wardlaw v. Erskine Ware v. Richardson V. State 2720. 2727. 2838. Waring v. Clarke 3240. 3244, 8246 Warmoth v. Commonwealth Warner v. Commonwealth V. State Warrace v. State Warren v. Bunch V. Kelley V. Lawson V. Moody 3198 3332 3300 3347 2838 3369 3250 3251 3263 2971 8253 3014 3021 3231 2818 2731 3335 3328 3343 3346 2951 2951 2713 3193 3020 3116 3094 3055 2910 3199 3419 2951 8221 2991 3431 2972. 3077, 3172 3216 2847 2749 3041 3092 2970 3166 2772 2951 3197 2951 3043 2731 3171 3201 , 3393 2709 3236 3369 3221 3244 3065 3000 3226 2774 3222 3200 3059a , 3375 3050 2863 3006 2714 3183 3240 8226 3263 TABLE OF CASES. Ixxvii [References are to Sections.l Warrick, Ex parte Warrior, The Warwick v. State Wash V. Commonwealth Washburn v. I'hillips Washington, The Washington v. State Washington Irving, The Wasp. The Waterbury v. Sturtevant Waterhouse v. Comer Waterman v. Buck V. Curtis Waters v. State Watkins, Ex parte 3401, 3415, 3425. 3431 Watkins v. United States 3041a Watson, In re 2860 Watson V. Commonwealth 3017 3 2 it 4 3075 2953 3424 3251, 3372, 3395 2910, 2912, 3024. 3079, 3106 3259, 32(;o 3355 2939 2951 3234, 3236 3221 2910, 2914 2959 3312 3199 2979 2759, 2897, 2905, 2979 2706 V. Cresap V. King V. Palmer V. People V. State Watt V. People V. Starke 3175 Watts V. Eufaula Nat. Bank 3199 V. State 2783 Wax V. State 2981 Way V. State 3059 Wavbright v. State 2724 Weathered v. Bray 3066 Weatherpen v. Laidler 3296 Weaver v. Hush 2852 V. People 3014 V. State 2792, 3022 Webb V. Pell 3206 V. State 2709, 2719, 2965. 3017. 3024, 3036 Weber v. Weitling 3231 Webster v. State 31 70 Wedgwood's Case 2800, 2801 Weed V. People 2760, 2767 V. State 3095 Weed. In re 3218 Weideman v. State 3065 Weightnovel v. State 2724 Weinberg v. State 2861, 2863 Weinecke v. State 2714 Weitzel v. State 2714 Welborn v. Dixon 3215 Welcome v. Yosemlte, The 3307 Wellcome, In re 2906, 2908 Welling V. LaBau 3224 Wellington, The 3360, 3363 Wells V. Armstrong 3377 V. Houston 3199 V. New England &c. Ins. Co. 2758 Welsh V. People 3054 v. State 3170 Welvaart, The 3341, 3335 Wenham v. Switzer 31 S3 Wenning v. Teeple 2865 Wescott V. Arbuckle 2S.'!5 Wesley v. State 3038, 3039, 3059a, 3198 West V. Flaunagan 3198 V. State 2702, 2727, 2778. 2785, 2991, 3041, 3141, 3142, 3143 V. T^ncle Sara 3261 Westbrook v. Ilarbeson 3216 v. State 2998 Western Elec. Co. v. Capital &c. Co. 3183 Western Metropolis, The 3267, 3389 Westminster. The 3356 Westmorland. The 3298 Weston V. Empire Assu. Co. 3214 West of England. The 3285 West of England Bank v. Canton Ins. Co. 328G 3201, 3233, 2784, 2717. 2718, 2725, 2903. 2908, 2910, 3036, 3039, 3040, Wexford, The Weymouth v. Boyer Whalen v. Commonwealth v. Stephens 3224, Whaley v. Norton V. Wilson Wharton v. State 3023, Wheat v. Moss Wheeler v. Alderman v. State v. Wadleigh v. West Whelen v. Osgoodby Whitaker v. State White, In re White v. Buloid V. Commonwealth V. Crew v. Hampton V. People V. Ranier. The v. Reviere V. State 2898, 2901 3035, V. Territory V. White 2795, Whitehead & Iloag Co. v. O'Calla- han Whitehead v. Perie V. State Whitehead &c. Co. v. O'Callahan Whitehurst v. Commonwealth Whiteside v. Pullian \\hiting V. Beebe Whitlev V. Martin Whitlock V. State Whitney v. Empire State 3271, V. State 2964. Whittaker v. Amwell Nat. Bank V. State Whitted V. Fuquay Whittemore v. Patten Whittock V. State Whitton V. Commerce, The V. State Whitworth v. Lowell Wick China Co. v. Brown Wiedeman v. Walpole Wier's Appeal Wiggins V. People Wilbur V. Territory Wilburn v. Territory Wilcox v. State Wildee v. McKee Wilder v. Commonwealth Wilders S. S. Co. v. Low Wilev V. State 2714. 3040, 3052, Wilhelm Frederick, The Wilhelmsberg. The V. State 2731. Wilkerson v. Commonwealth Wilkerson v. State 3026, 3029, Wilkes v. Rogers Wilkins v. Ma.v Wilkinson v. Bauerle Willard v. State ^\■ilIenborg v. Murphy William, The William Bagaley. The William Cox. The William and Marv. The William Harris. The 3259, William Lnshington, The Williams' Case Williams v. Benton v. Clark V. Commonwealth 3028, 3041. 3129, 3001, 3007 3364 3210 3052 3229 3214 3066 3043 3204 3236 3037 3195 3193 3216 3088 3419 3209 3092 3198 3335 2916 3260 3221 2729, 2975. 3108 3035 2867 3223 3235 3052 3217 30:! 7 3225 3206 3214 3065 3377 3011 3214 :!ii96 .•{175 3193 3(t(;5 3316 3171 8232 2951 8286 3069 3041 2972 3059 30. -.7 2951 2747 3381 3166 3297 3332 2953 3013 3044 3231 3199 3211 2708 3199 3319 3343 8372 3333 3299 3363 2S91 3218 3234 3070. 3166 Ixxviii TABLE OF CASES. [References are to Sections.'] Williams v. Fambro V. liindblom V. Llewellyn V. Maitland V. Philpot V. Spitzer V. Starr V. State 2863, 2874, 2722, 3038 323G 3214 3217 3198 3231 3213 2718, 2723, 2765, 2860, 938, 2941, 2991. 2993, 2996, 3001, 3007, 3019, 3026, 3027, 3034, 3036, 3041, 3053, 3054, 3080, 3082, 3093, 3094, 3099, 3108, 3111, 3126, 3131, 3138, 3139, 3147, 3168, 3171, 3172a V. Ttiomas 3217, 3224 V. T'nited States 2714 V. Vreeland 3217 V. Wager 3226 V. Williams 2867 Williamson v. Johnson 3217 V. McConnell 3199 Willis V. Commonwealth 3042 V. Henderson 3199 V. People 2982 V. State 2731, 2965, 2967, 2969, 3049 Willmett V. Harmer 2863 Wills V. McKinney 3193 Wilson V. Cobb 3213 V. Commonwealth 3041a V. Delarack 3216 V. Graham 3272 V. John 3401 V. Kinney 2197 V. People 2939, 2941, 2943, 3023 V. Phoenix Powder Co. 3069 V. Riddle 3175 V. State 2714, 2755, 2766, 2966, 2972, 2987, 3001, 3014, 3025, 3033, 3035, 3046, 3054, 3091, 3096, 3141, 3147, 3148, 3166 V. Towle 3199 V. Union Distilling Co. 3218 V. United States 2723, 2725, 3034, 3044 V. Ward 3177 V. Wilson 3177 Wlnans v. State 3007 Windon v. Stewart 3231 Windsor v. Commonwealth 3001 V. State 3172 Wlnemiller v. State 3009 Wineteer v. Simonson 3194 Wininger v. State 3128 Winn V. Albert 3206, 3221 Winnebago County v. Dodge County 3218 Winship v. Waterman 3229 Winslow V. State 2708, 2722, 2808, 2810 Winston v. Beeson Winter v. Innes V. Wheeler Wisdom V. State Wise V. Withers Wistrand v. People Witt V. State Witters v. Sowles Wisson V. People Wolfe V. Pugh Wolflngton V. State Wolfstein v. People Wolton V. Gavin Wolverton v. State Womack v. State Womack v. Tankersley Wong Hane, In re Wood V. Barrow V. Hudson V. Mann V. Nimrod, The 3011 3227 3223 2912 3415, 3425 3103 3019, 3046 323.-> 3049 2939, 2940 3056 3054 3399 2802. 2863 3059a 2S63 2703, 3011 2951 3195 3183, 3196, 3212 3307 2931, 3099, 3148. 2978, 2806, 3373, 3101, 3037, 3075. 3166, 2822, Wood V. People 2984, 3071, 3079, V. Stane V. State 2729, 2802, 3041a, 3043, 3055, 3145. 3146, 3147, Woodbury v. State Woodford v. People Woodin V. People Wooding V. Bradley Woodman v. Howell Woodrfip-Sims, The Woodruff V. State 2916, 2969 Woods V. Cottrell V. People V. State V. Woods Woodson V. State Woodward v. State 2971, Woodworth v. State Woolsey v. State Wooster v. <^"!ark V. Gumbirnner V. State Wooten V. State V. Wilkins Wope V. Hemenway Word V. State Work V. Leathers V. McCoy Workman v. Wright World V. State Wormeley v. Commonwealth Wormly v. State Worth V. Mumford 3316, Wortham v. State Worth ington and Davis, The 3367, Worthington v. Hiss V. State Wren v. State Wright. In re V. Hicks V. Lindsay T. Miller V. People V. State 2709, 2786. 2937, 3006, 3038, 3049, V. United States Wroe V. State Wrottesley v. Blendish Wyatt V. Thompson Wynegar v. State Wynne v. State 2795, 3051, 3141 2921 2955 3080- 3212 3030. 3140. 3149 2981 2816- 3107 3231 2848 3382 310.5 3005 3101 3054 3168 3101 3172 2935- 28(»8 3183 3224 3065 3003 2770- 3293 3092 3299 2934 2995 3063: 3037 3058 3317 2999 3368 3234 2770 3009 3424 3095 305(>- 3207 2970' 2797. 3052. , 3172- , 2924 3032 3206 3231 , 3049' 3028 Yates V. Houston V. State Yarbouch v. State Yarborough v. State 3058, 3059. Yee fJee. In re Yellowstone Kit v. State Yeoman v. State Yoe V. People Yolo County v. Sacramento York V. State Yost V. Hudiburg Yother v. State Young V. Grundy V. Hopkins V. People 3073, 3082, V. Rothrock V. State 2817. 2820. 2893, V. T'nited States V. Wright Yourri, The 2895. 2942. 2865 3046 2715 3118 2898 3011 3168 2772 3067 3059 3204 3168 3197 3199 3107 3066 2894. 3044 3154 3194 339^: TABLE OF CASES. Ixxix [References are to Sections.l Zabriskie v. State Zeininger v. Schnitzler ZeisweiFS v. James Zimmerman v. State 3142, 3146, 3152 3213 2880 3066 Zink V. I'eople Zipperian v. People Zodiac, The Zoldoske v. State Zollicoffer v. State 2726, 2974, 3048 3032 3266 2708, 3046 2785- EVIDENCE IN PROSECUTIONS FOR CRIMES. THE LAW OF EVIDENCE, CHAPTEE CXXVII. GENERAL riJINCIPLES AND RULES. Sec. 2702. Crime — Definition and general principles. 2703. Statutory crimes — Statutes af- fecting evidence. 2704. Criminal capacity. 2705. Constitutional safeguards and privileges. 2706. Burden of proof — Reasonable doubt. 2707. Reasonable doubt. 2708. Corpus delicti — Circumstantial evidence. 2709. Circumstantial evidence — Must exclude every reason- able hypothesis other than that of guilt. 2710. Circumstantial evidence — Ele- ments and classification. 2711. Circumstantial evidence — Physical or external objects and appearances. 2712. Circumstantial evidence — Con- duct and relations of ac- cused. 2713. Circumstantial evidence — Proof of every link beyond reasonable doubt. 2714. Substance of the charge — Venue — Variance. Sec. 2715. 2716. 2717. 2718. 2719. 2720. 2721. 2722. 2723. 2724. 2725. 2726. 2727. 2728. 2729. 2730. 2731. 2732. 2733. Identity. Criminal intent. Criminal intent — Direct evi- dence. Criminal intent — Circumstan- tial and presumptive evi- dence. • Motive. Evidence of other crimes. Character of accused. Character of others. Conduct indicating conscious- ness of guilt. Conduct indicating conscious- ness of guilt — Flight — Con- cealment. Conduct indicating conscious- ness of guilt — Recent posses- sion of stolen goods. Defenses. Alibi. Insanity. Intoxication. Former jeopardy. Former jeopardy — Burden and evidence to sustain. Provinces of court and jury. Cautionary instructions. § 2702. Crimes — Definition and general principles. — A crime has been defined, in substance, and in general terms, as an act committed 3 § 2702.] GENERAL PRINCIPLES AND RULES. 4 or omitted in violation of a public law either forbidding or command- ing it, as the case may be.^ It is an offense or wrong, directly or in- directly affecting the public, for which the law has prescribed punish- ment and which is prosecuted by the sovereignty in its own name in a criminal proceeding.- The term usually includes misdemeanors as well as treason and felonies, and an attempt to commit a crime may itself be a criminal misdemeanor, although the crime attempted is only a misdemeanor. Generally speaking, it may be said that the rules of evidence, or at least the tests for its admission, are the same in criminal as in civil cases,^ and, for this reason, many of the rules that have been treated in the first and second volumes of this work are applicable to the subject of this volume and need not be repeated. But there is a fundamental difference in regard to the burden of proof or weight of evidence, as to criminal capacity and liability for an act in certain cases and as to various other matters. So, too, it is evident that what is relevant in the one case may not always be rele- vant in the other, and the rules are not altogether the same in regard to evidence of character and the like. So, there are certain defenses and certain constitutional safeguards and other privileges usually adopted for the protection of one accused of crime or to secure him a fair trial. These and similar matters will be treated in this chapter, with a general survey of the subject. Some matters, however, that relate particularly, or even exclusively, to criminal proceedings, such as confessions, dying declarations, and the like, have been already treated and will be considered in this volume only in connection with specific crimes. M Blackstone Comm. 15; Butt v. Burke Works (Bohn's Edition), Conant, 1 B. & B. 548; Greely v. 489. Hamman, 12 Colo. 95; Slattery v. ^Roscoe begins Ms work on "Crim- People, 76 111. 220; State v. Peterson, inal Evidence" with the statement 41 Vt. 511; United States v. Eaton, that, "the general rules of evidence 144 U. S. 677, 12 Sup. Ct. 764. are the same in criminal and in civil - Mann v. Owen, 9 B. & C. 595, 17 proceedings," and quotes from Wat- E. C. L. 456; People v. Williams, 24 son's Case, 2 Starkie N. P. 155, and Mich. 163; 1 Bishop Cr. Law, § 32; Murphy's Case, 8 Car. & P. 306, to "Crimes," says Edmund Burke, in the same effect; see also, Lord Mel- the report of the committee appoint- ville's Trial, 29 How. St. Tr. 746; ed to inspect the Lords' Journals, Summons v. State, 5 Ohio St. 325. "are the actions of physical beings, 352; Crawford v. State, 112 Ala. 1, with an evil intention abusing their 21 So. 214; West v. State, 22 N. J. L. physical powers against justice, and 212. to the detriment of society." 6 5 STATUTORY CRIMES — CRIMINAL CAPACITY, [§§ 2703, 2704. § 2703. statutory crimes — Statutes affecting evidence. — In every state there are doubtless many statutory crimes tliat were unknown to the connuon law, and, in some states, it has been held that there are no common-law ojffenses in such states not dehned or declared to be crimes or misdemeanors by statute,* but where the statute uses com- mon-law terms or does not particularly define the crime, the courts W'ill usually look to the common-law definition.^ A discussion of the power of the legislature over the subject of crimes, and of numerous statutory offenses, will be found in the note referred to below." The evidence necessary to prove a statutory offense is, of course, largely determined by the elements of the offense as defined or made essential by the statute. As elsewhere shown, the legislature cannot arbitrarily create a conclusive presumption of guilt where none could reasonably be inferred,'^ but law^s which prescribe the evidential force of certain facts by enacting that upon proof of such facts a given presumption shall arise, or which determine what facts shall constitute a prima facie case against the accused, casting the burden of proof upon him of disproving or rebutting the presumption, are not generally re- garded as unconstitutional, and such statutes, within the constitu- tional limits, are not necessarily invalid.^ § 2704. Criminal capacity. — In order that a person should be punished as the perpetrator of a crime he must have criminal capacity. There are two principal classes of those who may lack criminal capacity, namely, infants and persons of unsound mind, and there are certain cases in which duress, coercion or constraint have been held to amount practically to want of criminal capacity.'' So, too, while volun- ^See, State v. DeWolfe, (Neb.) 93 v. State, 25 Ind. App. 278, 59 N. E. N. W. 746; Estes v. Carter, 10 Iowa 489. 400; Smith v. State, 12 Ohio St. 466, "Booth v. People, 186 111. 43, 78 80 Am. Dec 355; Allen v. State, 10 Am. St. 235-274, note. Ohio St. 287; Stephens v. State, 107 'See, Vol. I. § 87. Ind. 185, 8 N. E. 94; Rosenbaum v. «Vol. I, § 86; see also. State v. State, 4 Ind. 599; State v. Williams, Kyle, 14 Wash. 550, 45 Pac. 147; 7 Rob. (La.) 252. Commonwealth v. Smith, 166 Mass. =* State V. Berdetta, 73 Ind. 185, 38 370, 44 N. E. 503; State v. Beach, Am. R. 117; Hedderich v. State, 101 147 Ind. 74, 46 N. E. 145, 36 L. R. A. Ind. 564; State v. De Wolfe, (Neb.) 179; Wong Hane, In re, 108 Cal. 680, 93 N. W. 746; Mitchell v. State, 42 41 Pac. 693; People v. Cannon, 139 Ohio St. 385. But the statute must N. Y. 32, 34 N. E. 759, 36 Am. St. not be so indefinite that the court 668, and note, cannot tell what was intended. Cook " See, State v. Baker, 110 Mo. 7, 19 § 2705.] GENERAL PRINCIPLES AND RULES. 6 tary drunkenness is no excuse, or at least no justification, for many acts, yet intoxication may operate or tend to operate to take away criminal capacity, especially where a deliberate intent is required in the mind of the party at the time of his act as an essential element of the crime. But one may be an infant over a certain age, or of un- sound mind in some respect, or more or less intoxicated or the like, and still have criminal capacity. \Vliether he has or not will de- pend largely upon the character or degree of his infirmity, or the like, and upon the nature of the alleged crime. The presumptions that have been adopted in the case of infants, as to criminal capacity, have been considered elsewhere,^*' and insanity and drunkenness will be considered when we come to treat defenses. § 2705. Constitutional safeguards and privileges. — It is an old maxim of the law that no one is bound to criminate himself, and while this may have been originally "a mere rule of evidence," it is now embodied in tlie constitutions of the different states and in the constitution of the United States as well. Other safeguards and privileges are also provided, among which are security against un- lawful and unreasonable searches and seizures, the right to trial by jury, security against being put twice in jeopardy for the same offense, and the right of an accused to be confronted by the witnesses against him. These matters, however, have nearly all been fully treat- ed,^ ^ except the provision as to jeopardy, which will be considered in another section. Under most, if not all, of the modern statutes the ac- cused may become a witness if he so desires, but he is not oljliged to, and if he does he is, in general, subject to cross-examination and im- peachment the same as any other witness, so long as his constitutional rights or privileges, not in some way expressly waived by him, are not invaded. ^^ Many of the statutes also provide that the accused may S. W. 222, 224, 225, and cases cited; '"See, Vol. I, §§ 80, 125, also chap- Commonwealth v. Flaherty, 140 ter on Infancy, Vol. Ill, ch. 108. Mass. 454, 5 N. E. 258; State v. "That a witness cannot be com- Davis, 15 Ohio 72; Goldstein v. Peo- pelled to criminate himself, see, Vol. pie, 82 N. Y. 231, as to the presump- II. §§ 1001-1012; as to unlawful tion in case of husband and wife; searches and seizures, criminating see also. Commonwealth v. Daley, 148 documents and corporal inspection, Mass. 12, 18 N. E. 579; State v. Per- see, Vol. II, §§ 1013, 1014; as to the tig, 98 Iowa 139, 67 N. W. 87; 1 Hale right to confront the witness, see, P. C. 50, 51; 1 Russell Crimes 18, 22; Vol. II, § 1195. as to hypnotism, see. People v. Wor- '= Vol. II, § 988; also, Hanoff v. thington, 105 Cal. 166, 38 Pac. 689. State, 37 Ohio St. 178; Stalcup v. BURDEX OF PROOF. [§ 270G. take and read depositions of witnesses residing out of the state, or the Hke, if he waived his right to he confronted by the witnesses and consents in the manner provided by the statute to the taking and reading of depositions of witnesses by the state upon the same matter. Such statutes are not unconstitutional, and, if he so consents and waives his privilege, depositions may he so taken and read, in a proper case, by the prosecution.^^ § 2706. Burden of proof — Reasonable doubt. — The presumption is in favor of innocence,'* and lor this reason, even if there were no other, the burden of proof would ordinarily be upon the prosecution. But, for other good reasons, it is settled by the criminal law that the burden is upon the prosecution to prove the guilt of the accused, not merely by a preponderance of the evidence, but beyond a reasonable doubt.^^ As stated in another volume, and as will be shown here- after in considering particular defenses and classes of crimes, the better rule is that the burden remains tliroughout the trial upon the State, 146 Ind. 270, 45 N. E. 334; State v. Harvey, 131 Mo. 339, 32 S. W. 1110; People v. Foo. 112 Cal. 17, 44 Pac. 453; State v. Kirkpatrick, 63 Iowa 554, 19 N. W. 660; State v. Mc- Guire, 15 It. I. 23; Peck v. State, 86 Tenn. 259, 6 S. W. 389. "Butler V. State, 97 Ind. 373; Vol. II, § 1195; see also, as to the use of evidence taken at a preliminary hearing, and also as to waiver of the constitutional privilege. State v. Nelson, 68 Kans. 566, 75 Pac. 505; Davis V. Commonwealth, (Ky.) 77 S. W. 1101; State v. Banks, 111 La. Ann. 22, 35 So. 370; People v. Welsh, 88 App. Div. (N. Y.) 65, 84 N. Y. S. 703; State v. Gushing, 17 Wash. 544, 50 Pac. 512 ; Mattox v. United States, 156 U. S. 237, 15 Sup. Ct. 337; State V. Minard, 96 Iowa 267, 65 N. W. 147; State v. Bowker, 26 Ore. 309, 38 Pac. 124; see also, Cooley Const. Lim. (6th ed.) 387. "Vol. I, §§; 94, 95; Ogletree v. State, 28 Ala. 693 ; People v. Graney, 91 Mich. 646, 52 N. W. 66; Farley v. State, 127 Ind. 419, 26 N. E. 898; Williams v. State. 35 Tex. Cr. App. 606, 34 S. W. 943; State v. Krug, 12 Wash. 288, 41 Pac. 126. " Prince v. State, 100 Ala. 144, 14 So. 409, 46 Am. St. 28; Green v. State, 38 Ark. 304; People v. Woody. 45 Cal. 289; Boykin v. People, 22 Colo. 496, 45 Pac. 419; Wallace v. State, 41 Fla. 547, 26 So. 713; Watt V. People, 126 111. 9, 18 N. E. 340; Guetig V. State, 63 Ind. 278; State v. Trout, 74 Iowa 546, 38 N. W. 405, 7 Am. St. 499; People v. Beckwith, 108 N. Y. 67, 15 N. E. 53; State v. Taylor, 57 S. Car. 483, 35 S. E. 729, 76 Am. St. 575; Pilkinton v. State, 19 Tex. 214; State v. Meyer, 58 Vt. 457, 3 Atl. 195; Tilley v. Common- wealth, 90 Va. 99, 17 S. E. 895; 1 Starkie Ev. 478; 1 Hale P. C. 300; Plake V. State, 121 Ind. 433, 23 N. E. 273, 16 Am. St. 410, note; 23 Am. St. 688, note; 25 Am. St. 21, note, and numerous authorities herein- after cited. § 2706.] GENERAL PRINCIPLES AND RULES. 8 prosecution to satisfy the jury of the guilt of the accused beyond a reasonable doubt/'' But when the defendant pleads any substantive, distinct and independent matter as a defense, which upon its face does not necessarily constitute an element of the transaction with which he is charged, it has been said that the burden of prov- ing such defense devolves upon him.^^ The accused, to make such matter available as a defense, must usually introduce evi- dence to prove the independent exculpatory facts upon which he relies, and in this respect and to this extent it is, perhaps, correct to say, in one sense at least, that the burden is on him. But, notwithstanding this, if, after all the evidence is in, it is found that upon the whole case the prosecution has not sustained the burden of proof of satisfying or convincing the jury of his guilt beyond a rea- sonable doubt, he should be acquitted. It has also been said that if the non-existence of some fact, or the non-performance of some duty, is a constituent and essential element in the crime with which he is charged, the burden of proving this negative allegation of non-exist- ence or non-performance is upon the state. But if a fact is peculiarly within the knowledge of the accused, as, for example, his own age when he pleads non-age as a defense, or the fact that he has a license to carry on a prohibited business or to do a forbidden act, the burden of proof is said to be on him, as he has much better means of proving the fact alleged than the prosecution has of proving the contrary. Tlie matter is peculiarly within his knowledge, and to require the state to prove the lack of a license is to require proof of a negative allega- tion.^* But even where this is true the jury should still acquit if there is a reasonable doubt, upon the whole evidence, of the defendant's guilt. ^^ See, Vol. I, §§ 95, 126; for a pres- Ellis v. State, 30 Tex. App. 601, 18 entatlon of the opposite view, see, S. W. 139; State v. McCaffrey, 69 Wnarton Cr. Ev., § 322; "The onus Vt. 85, 37 Atl. 234; Sharp v. State, of proving every thing essential to 17 Ga. 290; Commonwealth v. Zelt, the establishment of the charge 138 Pa. St. 615, 21 Atl. 7; State v. against the accused," says Mr. Bur- Crow, 53 Kans. 662, 37 Pac. 170; rill, "lies on the prosecutor." Bur- State v. Keggon, 55 N. H. 19; Peo- rill Circ. Ev. 728. pie v. Townsey, 5 Denio (N. Y.) 70; "See, Commonwealth v. McKee, 1 People v. Maxwell, 83 Hun (N. Y.) Gray (Mass.) 61; Underhill Cr. Ev., 157, 31 N. Y. S. 564; State v. Kriech- § 23. baum, 81 Iowa 633, 47 N. W. 872; "Underhill Cr. Ev., § 24; see also, Black Intox. Liq., § 507. 9 REASONABLE DOUBT. [§ 2707, ^ 2707. Reasonable doubt. — The term "reasonable doubt" is well understood, but not easily defined, and it has been suggested that the words themselves probable convey their meaning to tlie mind of the ordinary juror as well as any definition that could be given. ^'^ In a number of cases it has been defined as a doubt that "the jury are able to give a reason for" or "for wliich a good reason can be given," but this adds little to tlie understanding of the sul)ject and lias been criticised as calculated to mislead.-'' It is generally agreed that such a doubt must be an actual and substantial doubt growing out of the evidence, and not a mere vague apprehension or merely possible, captious, speculative or imaginary doubt,- ^ but the two phrases 'Tae- yond a reasonable doubt" and "to a moral certainty" are usually re- garded as practically synonymous.^^ The question as to whether each fact, especially where the evidence is circumstantial, must be proved beyond a reasonable doubt, and the distinction between links in the chain and mere subsidiary facts or items will be considered in a sub- sequent section. ^^ "Wall V. State, 51 Ind. 453, 465; Siberry v. State, 133 Ind. 677, 33 N. E. 681; State v. Reed, 62 Me. 129, 142; see also, Dunbar v. United States, 156 U. S. 185, 15 Sup. Ct. 325; State v. Morey, 25 Ore. 241, 35 Pac. 655, 36 Pac. 573; 48 Am. St. 566, note. -"Conflicting authorities as to whether such an instruction should be given to the jury are reviewed in the note in 48 Am. St. 566, 574, 575. " Fowler v. State, 100 Ala. 96, 14 So. 860; Hornsby v. State, 94 Ala. 55, 10 So. 522; McGuire v. People, 44 Mich. 286, 6 N. W. 669, 38 Am. R. 265, and note; People v. Cox, 70 Mich. 247, 38 N. W. 235; Earll v. People, 73 111. 329; State v. Rounds. 76 Me. 123; State v. Turner, 110 Mo. 196, 19 S. W. 645; Lovett v. State, 30 Pla. 142, 11 So. 550; United States v. Cassidy, 67 Fed. 698; State V. Roberts, 15 Ore. 187. 13 Pac. 896; People v. Guidici, 100 N. Y. 503, 3 N. E. 493; many examples of instructions held proper and of others held improper are given in the note to Burt v. State, 72 Miss. 408, 16 So. 342, 48 Am. St. 563, 566, 570-578; see also, for a review of many cases and statements therein as to what is or is not a reasonable doubt, Lovett v. State, 30 Fla. 142, 11 So. 550, 17 L. R. A. 705-711. "Jones v. State, 100 Ala. 88, 14 So. 772; Commonwealth v. Costley, 118 Mass. 1; Carlton v. People, 150 111. 181, 37 N. E. 244, 41 Am. St. 346; State v. Whitson, 111 N. Car. 693, 16 S. E. 332. " See, however, upon that subject, Wade v. State, 71 Ind. 535; Carlton v. People, 150 111. 181, 37 N. E. 244, 41 Am. St. 346; Siebert v. People, 143 111. 571, 32 N. E. 431; Fowler v. State, 100 Ala. 96, 14 So. 860, with which compare. Graves v. People, 18 Colo. 170, 32 Pac. 63; People v. Ah Chung, 54 Cal. 398; State v. Crane, 110 N. Car. 530, 15 S. E. 231. § 2?0S.] GENERAL TRINCIPLES AXD RULES. 10 § 2708. Corpus delicti — Circumstantial evidence. — The proof of the charge in prosecutions for crimes involves the proof of two dis- tinct matters: First, that the act itself was done; and, secondly, that it was done by the person charged, in other words, proof of the corpus delicti, or body of the crime, and proof of the identity of the accused.-* It is seldom that either of these can be proved by direct testimony, and either may be established in a proper case, by cir- cumstantial evidence. Even in the case of homicide, though ordi- narily there ought to be the testimony of persons who have seen and ivlentified the body, yet this is not absolutely necessary in cases where tlie proof of the death is so strong as to produce tlie full assurance of ]noral certainty,-^ or, in other words, to satisfy the jury beyond a rea- sonable doubt. ^*' The corpus delicti of homicide must, however, be proved, as a rule, either by showing that the party alleged to have l)een killed is actually dead, by finding and identifying his corpse, or by showing that the murder was accomplished or accompanied by the employment of violence; or the like, in such a manner as to suf- ficiently account for the disappearance of the body and render direct evidence of its whereabouts or appearance impossible to be obtained.-^ In regular order, evidence of the corpus delicti should properly precede evidence tending to implicate the defendant in its commission, and =*Winslow V. State, 76 Ala. 47; =" State v. Williams, 7 Jones L. Smith v. State, 133 Ala. 145, 31 So. (N. Car.) 446; McCulloch v. State, 806, 91 Am. St. 21, and note; Wil- 48 Ind. 109; United States v. Wil- lard V. State, 27 Tex. App. 386, 11 liams, 1 Cliff. (U. S.) 5, 21; see S. W. 453, 11 Am. St. 197. "A cor- also, Zoldoske v. State, 82 Wis. 580, pus delicti may be considered as al- 52 N. W. 778; Anderson v. State, ways made up of two constituent 20 Fla. 381; Johnson v. Common- parts; first, certain general facts, wealth, 81 Ky. 325; State v. Keeler, forming its basis, exclusive of crimi- 28 Iowa 551; State v. Dineen, 10 native indications of any kind; as, Minn. 407. in a case of alleged homicide, the -" Underbill Cr. Ev., § 7, citing, fact of death (involving the physi- Smith v. Commonwealth, 21 Graft, eal fact of the existence of a dead (Va.) 809, 820; Pitts v. State, 43 body, and its identification, when Miss. 472, 481; State v. Keeler, 28 possible); and secondly, certain Iowa 551, 553; Lancaster v. State, other facts showing the existence 91 Tenn. 267, 18 S. W. 777; Ruloff of a criminal agency as the cause v. People, 18 N. Y. 179; State v. of the former." Burrill Circ. Ev. Winner, 17 Kans. 298; State v. Dick- 677. son, 78 Mo. 438; State v. Davidson, == Wills Circ. Ev. 157, 162; Rex 30 Vt. 377, 386. V. Hindmarsh, 2 Leach C. C. 651; People v. Alviso, 55 Cal. 230. 11 CIRCUMSTAXTIAL EVIDENCE. [§ 2 709. while the court may, in its discretion, vary the order in which the evi- dence is introduced, evidence must be given establishing the corpus delicti beyond a reasonable doubt, or a judgment of conviction will not be sustained by the evidence.^^ It seems to have been held at one time that the corpus delicti, at least in cases of homicide, must be proved by direct evidence;^" but the modern rule, as already stated, is that in any proper case it, as well as other facts, may be proved by circumstantial evidence satisfying the jury beyond a reasonable doubt.30 ^ 2709. Circumstantial evidence — Must exclude every reasonable hypothesis other than that of guilt. — It is laid down as a general rule by Mr. Burrill that "the hypothesis of delinquency or guilt should flow naturally from the facts proved, and be consistent with them all."^^ It certainly cannot be, however, that the hypothesis of guilt must be consistent with each and every minor fact of which there is some evidence, and the statement quoted was certainly not intended to have any such meaning. But the established rule may, in other respects, be stated in even stronger terms. There is some difference in the phrasing of the rule by the various courts, but it is settled in substance, with little dissent, that, in order to justify a conviction on circumstantial evidence it should not only be consistent with tlie in- ference of guilt, but also be incompatible or inconsistent witli any other reasonable hypothesis.^- Indeed, it is sometimes said that the -' Traylor V. State, 101 Ind. 65. Houst. (Del.) 564, 571; Echols v. ^'See, Hale P. C. 290; Reg. v. State, 81 Ga. 696, 699, 8 S. E. 443; Burdett, 4 B. & Aid. 95. Green v. State, 51 Ark. 189, 10 S. •"Willard v. State, 27 Tex. App. W. 266; James v. State, 45 Miss. 386, 11 S. W. 453, 11 Am. St. 197, 572, 575; State v. Asbell, 57 Kans. and note; People v. Palmer, 109 N. 398, 46 Pac. 770; People v. Ward, Y. 110, 16 N. E. 529, 4 Am. St. 423, 105 Cal. 335, 38 Pac. 945; People v. and note; State v. Cardelli, 19 Nev. Shuler, 28 Cal. 490, 496; Wright v. 319, 10 Pac. 433; Smith v. State, State, 21 Neb. 496, 32 N. W. 576; 133 Ala. 145, 31 So. 806, 91 Am. St. People v. Aiken, 66 Mich. 460, 33 21, and note; Campbell v. People, N. W. 821; Wantland v. State, 145 159 111. 9, 42 N. E. 123, 50 Am. St. Ind. 38. 43 N. E. 931; Cavender v. 134; 78 Am. Dec. 252-259, note. State, 126 Ind. 47, 48. 25 N. E. 875; ^'Burrill Circ. Ev. 735. Sumner v. State, 5 Blackf. (Ind.) "State V. Levy, (Idaho) 75 Pac. 579, 36 Am. Dec. 561; United States 227; Sherrill v. State, 138 Ala. 3, v. Reder, 69 Fed. 965; Hamilton v. 35 So. 129; State v. Terrio. 98 Me. State. 96 Ga. 301. 22 S. E. 528; 17, 56 Atl. 217; State v. .Tohnson, Smith v. State, 35 Tex. Cr. App. 61S, 19 Iowa 230; State v. Miller, 9 33 S. W. 339, 34 S. W. 960; Webb § 2710.] GENERAL PIUNCIPLES AXD RULES. 12 evidence must show the defendant's guilt, or exclude every other rea- sonable hypothesis to a moral certainty/^ but it seems to us that this form of statement is apt to mislead, and it is not, of course, required that it should be shown that it was absolutely impossible that another might have been the perpetrator of the crime. ^* The general rule upon the subject is thus stated in a recent case : "In attempting to prove a fact by circumstantial evidence there are certain rules to be observed that reason and experience have found essential to the discovery of truth and the protection of innocence. The circum- stances themselves must be established by direct proof and not left to rest upon inferences. The inference which is to be based upon the facts and circumstances so proved must be a clear and strong logical inference, an open and visible connection between the facts found and the proposition to be proved. When a criminal charge is sought to be sustained wholly by circumstantial evidence, the hypothesis of guilt or delinquency should flow naturally from the facts and cir- cumstances proved and be consistent with them all. The evidence of facts and circumstances must be such as to exclude, to a moral cer- tainty, every hypothesis but that of guilt of the offense imputed, or, in other words, the facts and circumstances must not only all be con- sistent with and point to the guilt of the accused, but they must be inconsistent with his innocence."^^ § 2710. Circumstantial evidence — Elements and classification. — It is almost impossible to enumerate or classify all the elements of cir- cumstantial evidence, or the facts and circumstances that may be re- V. State, 73 Miss. 456, 19 So. 238; State, 26 Fla. 61, 7 So. 367; Lan- Baldez v. State, 37 Tex. Cr. App. caster v. State, 91 Tenn. 267, 18 S. 413, 35 S. W. 664; Morgan v. State, W. 777. Or as it is sometimes said, 51 Neb. 672, 71 N. W. 788; State v. it must exclude every other reason- Avery, 113 Mo. 475, 495, 21 S. W. able hypothesis than that of the de- 193; State v. Miller, 100 Mo. 606, fendant's guilt. 626, 13 S. W. 832, 1051; Common- ^^ See, Burrill Circ. Ev. 737; Jones wealth v. Goodwin, 14 Gray (Mass.) v. State, 100 Ala. 88, 14 So. 772; 55; Chitister v. State, 33 Tex. Cr. see also, Commonwealth v. Webster, App. 635, 638, 28 S. W. 683; Ken- 5 Cush. (Mass.) 295, 52 Am. Dec. nedy v. State, 31 Fla. 428, 12 So. 711, and note. 858; State v. Davenport, 38 S. Car. =*Findley v. State, 5 Blackf. 348, 352, 17 S. E. 37; Carlton v. (Ind.) 576, 36 Am. Dec. 557; Sum- People, 150 111. 181, 37 N. E. 244; ner v. State, 5 Blackf. (Ind.) 579, Gannon v. People, 127 111. 507, 521, 36 Am. Dec. 561. 21 N. E. 525; Commonwealth v. =^ People v. Fitzgerald, 156 N. Y. Costley, 118 Mass. 1; Coleman v. 253, 258, 50 N. E. 846. 13 CIRCUMSTANTIAL EVIDENCE. [§ 2711. ceived as evidence of guilt or in exculpation. "In truth," says Burke, "it seems a wild attempt to lay down any rule for the proof of inten- tion by circumstantial evidence; all the acts of the party; all things that explain or throw light on these acts; all the acts of others relative to the affair that come to his knowledge and may influence him; his friendships and enmities; his promises; his threats; the truth of his discourses ; the falsehood of his apologies, pretenses and explanations ; his books ; his speech ; his silence where he was called to speak ; every- thing which tends to establish the connection between all these par- ticulars; every circumstance, precedent, concomitant and subsequent, become parts of circumstantial evidence. These are in their nature infinite, and cannot be comprehended within any rule, or brought under any classification."^" Mr. Burrill, however, has classified them as follows: "I. Criminative or exculpatory evidence, as derived: (1) From physical or external objects or appearances; (2) from the conduct or position of the accused himself; (a) before the commission of the supposed crime; (b) at or about the time of its commission; (c) afterwards. II. Exculpatory evidence or considerations, as derived: (1) from the exculpatory evidence adduced; (2) from new and dis- tinct evidence."^' A brief explanation of these matters will be given in the sections immediately following and the most important will be more fully treated in subsequent sections. § 2711. Circumstantial evidence — Physical or external objects and appearances. — The physical or external objects and appearances are such as the person killed, the building burned or other subject of the offense, its appearances and various marks, the instruments of the of- fense and their appearances, the place and its appearances, sounds, smells and the like, symptoms of poison, objects of dress, and the like found at the place, of the crime, fruits of the offense, and the like, (a) Some of these physical facts and appearances go merely to show the corpus delicti , or to show whether a crime has been committed, (b) Others go to indicate the particular perpetrator, or to prove that the accused was concerned in the crime, as principal or accessory. "A corpus delicti is shown by such facts as indicate a distinct criminal liuman agency ; or, in other words, by those facts which go to negative the supposition or hypothesis that the appearances observed could have been the result of natural causes, or of accident, or of the act of the '■'6 Burke Work (Bohn's ed.). "Burrill Circ. Ev. 251. 489. § 2712.] GENERAL PRINCIPLES AND RULES. 14 party injured or slain, or of any irresponsible agency. In cases of alleged murder, the most important facts for this purpose are the ap- pearances presented by the body, when found — its condition, whether buried or otherwise concealed, stripped of clothing, or otherwise — its position and attitude — the marks of violence upon it ; if wounds, their nature, number and direction — tlie particular appearance of bodies r found in the water, or suspended by the neck, and the like. In many cases the opinions of medical men, based upon actual inspection and examination, are necessarily sought for and relied on. In cases of alleged poisoning, these professional examinations become of peculiar importance, involving the dissection of the body, to a greater or less extent, and the application of chemical or other tests, for the purpose- of detecting the presence of poison in it. Other facts which go to show that a crime has been committed, are, in cases of murder, rape and robbery, the presence of footmarks, other than those of the de- ceased or assaulted person, at the scene of the crime ; marks of strug- gles or resistance to violence ; stains of blood in the vicinity ; cries of distress ; sounds as of falling bodies ; the clothing of the deceased or assaulted person, disordered, torn, stripped off or scattered about ; pockets rifled of their contents, and the like. The participation of the accused in the crime proved to have been committed is shown by those physical facts or appearances which connect him with it; affording so many natural coincidences, harmonizing with the sup- position of his guilt. They are, in other words, the traces, marks or indications, more or less distinct and impressive, of the presence of a particular criminal agent ; and they may be considered under two principal divisions ; first, traces or indications at the scene of the crime, derived or supposed to be derived from his person; and secondly, traces or indications upon or near his person, derived or supposed to be derived from participation in the crime."^® ^ 2712. Circumstantial evidence — Conduct and relations of ac- cused. — The criminative or exculpatory circumstantial evidence de- rived from the relations, position and conduct of the accused party himself may be, as suggested by Burke, either precedent, concomitant or subsequent.^'^ "In tracing the connection between a crime and the person suspected or accused of it, as indicated by his previous conduct and position," says Burrill, "the circumstances to be inquired into ='Burrill Circ. Ev. 262. '"See also, Rex v. Donnellan. Wills Cr. Ev., 30, 85, 241. 15 CIRCUMSTANTIAL EVIDEXCE, [§ 2713. naturally occur in the following order: First, his character, as gen- erally disposing or inclining liim to the offense. Secondly, the par- ticulars of liis external situation and relation, as more immediately instigating him to its commission; or, in other words, as presenting motives to the offense, including also the contemplating of the necessary means of committing it. Thirdly, language indicative of existing disposition, or design; comprising remote allusions to the act in contemplation ; expressions of animosity against the subject of it ; and actual declarations of intention, or utterance of threats to commit it ; all showing tlie impression of a motive, and the existence of a purpose, more or less distinctly formed or entertained. Fourthly, preparations for committing the offense; showing the motive in its fullest o})eration, and a purpose fixed and matured. Fifthly, oppor- tunities and facilities, including the actual possession of the means for committing the crime; serving often to impart additional strength to motives. Lastly, actual attempts, stopping short only of full and effect- ual perpetration. But, as the law does not allow general character to be adduced, in the first instance, in evidence, as a criminative circum- stance, judicial investigation must commence from a lower point in the series above indicated, and cannot go farther back than those circumstances which tend to show a motive on the part of the ac- cused."^" The concomitant circumstances are such, in the main, as are part of the res gestae, but under this head may also be included not only such as are precisely contemporaneous with the transaction, but also such as immediately precede or follow it. The presence of the accused at the scene of the crime or his proximity thereto about the time of its commission, is an example of such a circumstance, and evidence of footprints, preparation and other conduct and movements of the accused about the time is often admissible. Subsequent con- duct, such as the fabrication or suppression of evidence, flight, posses- sion of stolen goods or fruits of the crime, demeanor and conduct of the accused when arrested or charged with the crime, and the like, may also be shown in a proper case. § 2713. Circumstantial evidence — Proof of every link beyond rea- sonable doubt. — It has often been said that "no chain is stronger than its weakest link" and that each necessary link in the chain of evidence must be proved beyond a reasonable doubt in order to sus- '"Burrill Circ. Ev. 280, 281; see also, Bulloch v. State, 10 Ga. 47. 54 Am. Dec. 369. § 2713.] GENERAL PRINCIPLES AND RULES, 16 tain a verdict of guilty in a criminal case resting upon circumstantial evidence.*^ Rightly understood, this is doubtless true. But it has also been said that the doctrine of reasonable doubt does not, as a rule, ap- ply to mere matters of subsidiary evidence, taken item by item, which may aid in proving the essential facts, but only to the essential facts which establish the defendant's guilt; and if such facts are fully proved so that the jury is convinced of defendant's guilt beyond a reasonable doubt, he may properly be convicted."*- We do not under- stand, however, that there is necessarily any conflict between these two statements, and the subject is thus explained in a recent case : "It is not necessary that each essential fact in the chain of evidence solely relied on to connect the accused with the commission of the ojffense, when separately considered, be found beyond reasonable doubt. Such a fact, though having little to sustain it when standing alone, may de- rive such support from others immediately connected therewith as to exclude all doubt of its existence. Nevertheless, if conviction de- pends entirely on different circumstances, arranged linkwise, connect- ing the defendant with the crime charged, then each and every one of these must be established beyond a reasonable doubt, for no chain can be stronger than its weakest link. Not so, however, with the minor circumstances relied on by the state to establish the ultimate and essential facts upon which conviction depends. Some of these may fail of proof, and yet those essential to conviction be found from other evidence beyond a reasonable doubt."*^ "People V. Aiken, 66 Mich. 460, 78 Am. Dec. 253, note; 62 Am. Dec. 33 N. W. 821, 11 Am. St. 512; Sum- 182, note. ner v. State, 5 Blackf. (Ind.) 579, *= Hauk v. State. 148 Ind. 238, 254, 36 Am. Dec. 561; Home v. State, 1 46 N. E. 127, 47 N. E. 465; Goodwin Kans. 42, 81 Am. Dec. 499, and note; v. State. 96 Ind. 550; Wade v. State, Commonwealth v. Webster, 5 Cush. 71 Ind. 535; Hinshaw v. State, 147 (Mass.) 295, 52 Am. Dec. 711, and Ind. 334, 47 N. E. 157; see also, note; Kollock v. State, 88 Wis. 663, Dressier v. People, 117 111. 422, 8 60 N. W. 817; Marion v. State, 20 N. E. 62; Horn v. State, (Wyo.) 73 Neb. 233, 29 N. W. 911, 57 Am. R. Pac. 705. 724. 825; State v. Furney, 41 Kans. 115, "^ State v. Cohen, 108 Iowa 208, 21 Pac. 213. 13 Am. St. 262; State 78 N. W. 857. 75 Am. St. 213, 215; V. Gleim, 17 Mont. 17, 41 Pac. 998, see also. Leonard v. Territory, 2 52 Am. St. 655; Clara v. People, 9 Wash. Ter. 881, 7 Pac. 872; Carlton Colo. 122, 10 Pac. 799; People v. v. People, 150 111. 181, 37 N. E. 244, Phipps, 39 Cal. 333; Crow v. State, 41 Am. St. 346; State v. Hayden, 33 Tex. Cr. App. 264, 26 S. W. 209; 45 Iowa 17. 17 SUBSTANCE OF CHARGE. [§ 2714. § 2714. Substance of the charge — Venue — Variance. — In crim- inal as well as civil cases it is the rule that the substance of the charge or issue must be proved, and that if it is not proved, tlie variance will usually be fatal. Indeed, in some jurisdictions, the courts incline to require greater strictness of proof on the trial of a prosecution for crime than in a civil action.'*^ But proof of the sub- stance or essence of the crime in a manner which substantially con- forms to the description in the indictment is usually sufficient. The names of the persons injured and of others whose existence is essential to the charge must, ordinarily, be proved as laid,*^ but if there is suf- ficient evidence of identification a mistake in spelling or the like, will not necessarily be fatal, at least where the names are idem sonans.^^ So, while time and place are not always material in such a sense that they must be proved precisely as alleged,*'^ yet in some in- stances they are material and even essential ingredients of the crime and must be proved as alleged,*'' and in other instances, by the man- ner of pleading, matters of description or detail may be made es- sential to be proved.*® It is also necessary, as a general rule, no mat- ter whether the exact time and place are material or not, to prove that the crime was committed before the time of the indictment and within the jurisdiction of the court.^° But the venue mav be in- *^See, Vol. I, § 200; as to proving So. 306; Johnson v. State, 13 Ind. intent as alleged, see, Rex v. Jenks, App. 299, 41 N. E. 550; Common- 2 Leach C. C. 896, 2 East P. C. 514; wealth v. Harrington. 3 Pick. Rex v. Boyce, 1 Moody C. C. 29. (Mass.) 26; Hans v. State, 50 Neb. "Vol. I, § 200; Rex v. Jenks, 2 150, 69 N. W. 838; People v. Jack- East P. C. 514, 2 Leach C. C. 896; son. 111 N. Y. 362, 19 N. E. 54; Rex v. Walker, 3 Campb. 264; Rex Crass v. State, 30 Tex. App. 480, 17 v. Deeley, 4 Car. & P. 579, 1 Moody S. W. 1096; United States v. Mat- C. C. 303; Johnson v. State, 111 thews, 68 Fed. 880. Ala. 66, 20 So. 590; People v. Arm- "Commonwealth v. Purdy, 146 strong, 114 Cal. 570, 46 Pac. 611; Mass. 138, 15 N. E. 364; State v. Sykes v. People, 132 111. 32, 23 N. Libby, 84 Me. 461, 24 Atl. 940. E. 391; King v. State, 44 Ind. 285. '^ See, Wiley v. State, 74 Ga. 840; "Vol. I, § 200; see also. Rex v. State v. Buckles, 26 Kans. 237; Peace, 3 B. & Aid. 579, 1 Lead. Cr. State v. Jackson, 30 Me. 29; Sweat Cas. 226; State v. Grant, 22 Me. v. State, 4 Tex. App. 617; Coleman 171; Williams v. United States, 3 v. State, 21 Tex. App. 520, 2 S. W. App. (D. C.) 335; State v. Gordon, 859. 56 Kans. 64, 42 Pac. 346; Smurr v. »» State v. Bain, 43 Kans. 638, 23 State. 88 Ind. 504; Weitzel v. State, Pac. 1070; State v. Dorr. 82 Me. 212, 28 Tex. App. 523, 13 S. W. 864. 19 Atl. 171; Areia v. State. 28 Tex. *' Smith V. State, 108 Ala. 1, 19 App. 198, 12 S. W. 599; see further Vol. 4 Elliott Ev.— 2 § 2714.] GENEILVL PRINCIPLES AND RULES. 18 ferred from circumstantial evidence^^ as well as proved by direct evi- dence. The strictness of the old rule as to variance between the proof and the indictment has been much relaxed in modern times, and it is said that variances are regarded as material because they may mislead the prisoner and because they may expose him to the danger of being again put in jeopardy "for the same offense, and if they are not of a nature or extent to have any such effect they should not be regarded as fatal."'- "The general rule is that all averments necessary to constitute the substantive offense must be proved. If there is any exception, it is from necessity, or great difficulty amount- ing to such necessity, as where one could not show the negative and where the other with perfect ease can show the affirmative."^^ But mere surplusage which might have been omitted without affecting the indictment and which is not in any way essential to mark or dis- tinguish the crime need not, as a rule, be proved as alleged.^* And it is held that "where an offense may be committed by doing one of sev- eral things, the inciictment may, in a single count, group them to- gether, and charge the defendant with having committed them all, and a conviction may be had on proof of the commission of any one of these things without proof of the commission of the others."^^ as to proving venue, Luck v. State, man v. State, 12 Tex. App. 406, 407; 96 Ind. 16; Harlan V. State. 134 Ind. Dumas v. State, 62 Ga. 58, 65; 339, 33 N. E. 1102; Berry v. State, Weinecke v. State, 34 Neb. 14. 51 92 Ga. 47, 17 S. E. 1006; Leslie v. N. W. 307; Robson v. State, 83 Ga. State, 35 Fla. 184, 17 So. 559; State 166, 9 S. E. 610; State v. Small, 26 V. Farley, 87 Iowa 22, 53 N. W. Kans. 209; Brooke v. People, 23 1089; People v. Curley, 99 Mich. Colo. 375, 48 Pac. 502. It has also 238, 58 N. W. 68; Ryan v. State, 22 been held that it need not be proved Tex. App. 699, 3 S. W. 547; State v. beyond a reasonable doubt. Wilson Hobbs, 37 W. Va. 812, 17 S. E. 380. v. State, 62 Ark. 497, 36 S. W. 842, "McCune v. State, 42 Fla. 192, 27 54 Am. St. 303; State v. Burns, 48 So. 867, 89 Am. St. 227; Johnson v. Mo. 438, 440; Boggs v. State, (Tex.) State, 35 Ala. 370; State v. Morgan. 25 S. W. 770; State v. Benson, 22 35 La. Ann. 293; Tinney v. State, Kans. 471; Warrace v. State. 27 111 Ala. 74, 20 So. 597; Bloom v. Fla. 362, 8 So. 748; Hoffman v. State, 68 Ark. 336, 58 S. W. 41; State, 12 Tex. App. 406, 407; Ach- People V. Kamaunu, 110 Cal. 609, terberg v. State, 8 Tex. App. 463. 42 Pac. 1090; Thornell v. People, 11 ^^ Harris v. People, 64 N. Y. 148, Colo. 305, 17 Pac. 904; Common- 154. wealth V. Costley, 118 Mass. 1, 9, 26; "Commonwealth v. Thurlow, 24 Bland v. People, 4 111. 364; State v. Pick. (Mass.) 374, 381. Snyder, 44 Mo. App. 429, 430; State "See, Commonwealth v. Rowell, V. McGinniss, 74 Mo. 245, 246; Beav- 146 Mass. 128, 15 N. E. 154. ers v. State, 58 Ind. 530, 537; Hoff- ^ Bork v. People, 91 N. Y. 5, 13; 19 IDENTITY. [§ § 2715. Identity. — After the corpus delicti is proved the next thing, ordinarily, is to connect the accused with the crime, and for this purpose direct evidence of his identity as the perpetrator of the crime is, of course, admissible, and it is held that the identifying wit- ness need not be positive, but may speak according to his best impres- sion and belief.^" The evidence may be either direct or circumstan- tial and is often permitted to take a wide range, both upon examina- tion in chief and cross-examination.'^ A witness may identify the accused by his voice, without seeing him,'« at least where the voice is peculiar, although such evidence is not always regarded as very satisfactory.^" So, evidence of footprints at the scene of the crime and a comparison of them with those of the accused is relevant and admissible in a proper case for the same purpose ;"'' and weapons, burglarious tools, clothing, and the like, belonging to the accused or found in his possession at or near the scene of the crime may usually see also, Harris v. People, 64 N. Y. 148, 153; Reg. v. Rhodes, 2 Ld. Raym. 886; Roscoe Cr. Ev. (6th Am. ed.) 763; 3 Russell Crimes (4th ed.) 105; 3 Starkie Ev. 860. °« People V. Young, 102 Cal. 411, 36 Pac. 770; People v. Rolfe, 61 Cal. 540; People v. Stanley, 101 Mich. 93, 59 N. W. 498; State v. Cushen- berry, 157 Mo. 168, 56 S. W. 737; People v. Burt, 170 N. Y. 560, 62 N. E. 1099; State v. Lytle, 117 N. Car. 799, 23 S. E. 476; for many inter- esting instances of mistaken identi- ty, see. Ram Facts, 462; Harris Be- fore Tr. (Am. ed.) 372; Sergeant Ballantine Experiences, Chap. XLI, XLH; Legal Puzzles, 183; 1 South. Law J. 392; Burrill Circ. Ev. 631- 651. '" See, Yarbough v. State, 105 Ala. 43, 16 So. 758; State v. Stebbins, 29 Conn. 463, 79 Am. Dec. 223; State V. Bartlett, 55 Me. 200; Common- wealth v. Campbell, 155 Mass. 537, 30 N. E. 72; People v. Carey, 125 Mich. 535. 84 N. W. 1087; Davis v. State, 51 Neb. 301, 70 N. W. 984; State V. McDaniel, 39 Ore. 161, 65 Pac. 520; State v. Martin, 47 S. Car. 67, 25 S. E. 113; Olive v. State, 11 Neb. 1, 7 N. W. 444 (cross-examina- tion); Mixon V. State, 55 Miss. 525. '^'Fussell V. State, 93 Ga. 450, 21 S. E. 97; State v. Kepper, 65 Iowa 745, 23 N. W. 304; Commonwealth V. Hayes, 138 Mass. 185; Common- wealth V. Williams, 105 Mass. 62; People V. Willett, 92 N. Y. 29; Brown v. Commonwealth, 76 Pa. St. 319; Davis v. State, 15 Tex. App. 594; Givens v. State, 35 Tex. Cr. App. 563, 34 S. W. 626; Rex v. Har- rison, 12 St. Tr. 850. "'■' See, 1 Elliott Gen. Pr., § 38. "o Morris v. State, 124 Ala. 44, 27 So. 336; People v. Rowell. 133 Cal. 39, 65 Pac. 127; People v. Keep. 123 Mich. 231, 81 N. W. 1097; State v. Reed, 89 Mo. 168, 1 S. W. 225; Gray v. State, 42 Fla. 174, 28 So. 53; Com- monwealth V. Pope, 103 Mass. 440; State V. Morris, 84 N. Car. 756; State V. Reitz, 83 N. Car. 634: Lipes V. State, 15 Lea (Tenn.) 125, 54 Am. R. 402; Goldsmith v. State, 32 Tex. Cr. App. 112, 22 S. W. 405. § 2716.] GENERAL TRINCIPLES AND RULES. 20 be shown.^^ The use of evidence of tracking by bloodhounds/* and the subject of physical inspection^' haye already been considered, and so has the use of photographs. § 2716. Criminal intent. — It has been said that a cardinal doc- trine of criminal law, founded in natural justice, is that it is the in- tention with which an act was done that constitutes its criminality. The intent and the act must both concur, to constitute the crime.^* But it is not always true that there must be any specific intent, other, at least, than the intent to do the act which the law forbids and de- nounces as a crime, even though the accused did not know that it was a crime.*'^ "The proof," it has been said, "may be either by evidence, direct or indirect, tending to establish the fact; or by inference of law from other facts proved." While it is a maxim of law that every person is to be presumed innocent until he is proved to be guilty ; yet it is also said that every sane person must be supposed to intend that which is the ordinary and natural consequence of his own volun- tary act, and when he voluntarily does an act which the law denounces as a crime and the intention to do the act is the only criminal intent required, he will not be heard to say that he had no criminal intent. It follows that, as a general rule, "where an act, in itself indifferent, be- comes criminal if done with a particular intent, there the intent must be proved and found ; but where the act is in itself unlawful, the law usually implies a criminal intent."®' « Commonwealth v. Hagan. 170 Neb. 136, 87 N. W. 25, 89 Am. St. Mass. 571, 49 N. E. 922; State v. 743; Commonwealth v. Murphy, 165 Campbell,'? N. Dak. 58, 72 N. W. Mass. 66, 42 N. B. 504, 52 Am. St. 935; Sibe'rry v. State, 133 Ind. 677, 496; Haggerty v. St. Louis &c. Co.. 33 N. E. 681; and see, sections on, 143 Mo. 238, 44 S. W. 1114, 65 Am. "Conduct indicating consciousness St. 647; State v. Zichfeld, 23 Nev. of guilt," and "Recent possession 304, 46 Pac. 802, 62 Am. St. 800. of stolen property." «'Rex v. Woodfall, 5 Burr. 2667; " See, Vol. II, § 1253. State v. Levelle, 34 S. Car. 120, 27 «'See', Vol. Il', §§ 1014, 1232. Am. St. 799; State v. Huff, 89 Me. «*3 Greenleaf Ev., § 13, citing, 521, 36 Atl. 1000; Commonwealth v. Mackmurdo v. Smith, 7 Term R. York, 9 Mete. (Mass.) 93; State v. 514, per Ld. Kenyon; see also, Peo- Zichfeld, 23 Nev. 304, 46 Pac. 802. pie V. Flack, 125 N. Y. 324, 26 N. B. 62 Am. St. 800; Commonwealth v. 267; State v. Nuttles. 7 Ohio Dec. Murphy, 165 Mass. 66, 42 N. E. 504. 686; State v. King, 86 N. Car. 603; 52 Am. St. 496; State v. Southern Smith, Ex parte. 135 Mo. 223, 36 S. R. Co., 122 N. Car. 1052, 30 S. E. W. 628, 58 Am. St. 576; 20 Am. St. 133; State v. King, 86 N. Car. 603; 741, note. see. Vol. I, § 97. ^=See. State v. Heldenbrand, 62 21 CRIMINAL INTENT. [§§ 2718. § 2717. Crimmal intent — Direct evidence. — As already stated, the criminal intent may be shown by direct as well as indirect evidence, although it is often impossible to do so because direct evidence cannot be obtained. In a recent case it is said : "Wlienever the motive, be- lief, or intention of the person is a material fact to be proved under the issue, it is competent to prove that such motive, belief or intention was by the direct testimony of such person, whether he happens to be a party to the action or not.""^ Under or in accordance with this rule it is held in many jurisdictions that the defendant may himself testify as to his intent/^ and that it is a question of fact for the jury,*'" except where the law conclusively presumes a certain intent from the doing of a certain act.'"* § 2718. Criminal intent — Circumstantial and presumptive evi- dence. — It is often impossible to know the real intent of a person ex- cept by its outward or visible manifestations through his conduct or acts, and these, so far as relevant, may usually be shown for that pur- pose, the presumption or inference ordinarily being that the natural consequences were intended. This, it has been said, "is founded upon experience gained by a study of human nature, whereby it is found that all men are largely influenced by the same motives, and that »^ Olson V. United States, 133 Fed. 849, 856, citing, Berkey v. Judd, 22 Minn. 287; Garrett v. Mannheimer, 24 Minn. 193; Gardom v. Woodward, 44 Kans. 758, 25 Pac. 199, 21 Am. St. 310; Frost v. Rosecrans, 66 Iowa 405, 23 N. W. 895. •^ Kerrains v. People, 60 N. Y. 221; People V. Baker, 96 N. Y. 340; Ross v. State, 116 Ind. 495, 19 N. E. 451; Hamilton v. State, 22 Ind. App. 479, 486, 52 N. E. 419; Greer v. State, 53 Ind. 420; White v. State, 53 Ind. 595; Smith v. State, 13 Tex. App. 507; People v. Farrell, 31 Cal. 576; People V. Quick, 51 Mich. 547, 18 N. W. 375; State v. Montgomery, 65 Iowa 483, 22 N. W. 639; State v. King, 86 N. Car. 603; "Evidence of Intent," 22 Cent. L. J. 271. "'People V. Flack, 125 N. Y. 334, 26 N. E. 267, 11 L. R. A. 307; Mc- Kenna v. People, 81 N. Y. 360; Peo- ple V. Winters, 93 Cal. 277, 28 Pac. 946; People v. Griffin, 77 Mich. 585, 43 N. W. 1061; Burke v. State, 71 Ala. 377; Carter v. State, 22 Fla. 553; Russell v. State, 68 Ga. 785; State V. Swayze, 30 La. Ann. 1325; Buckner v. Commonwealth, 14 Bush (Ky.) 603; see also. Berry v. State, 31 Ohio St. 219. "• See, 1 Bishop Cr. Law 314; Ride- nour V. State, 38 Ohio St. 272; Shover v. State, 10 Ark. 259; Achey V. State, 64 Ind. 56, 59; Flinn v. State 24 Ind. 286; Commonwealth v. York, 9 Mete. (Mass.) 93, 43 Am. Dec. 373; Commonwealth v. Web- ster, 5 Gush. (Mass.) 295; State v. Smith, 93 N. Car. 516; State v. Lau- tenschlager, 22 Minn. 514; People v. Petheram, 64 Mich. 252, 31 N. W. 188; Reynolds v. United States, 98 U. S. 145. § 2718.] GENERAL PRINCIPLES AND RULES. 23 certain acts indicate certain intentions. Therefore, proof of such acts is circumstantially, at least, proof of the intention which usually accompanies them. The inference to be drawn from the acts and circumstances is usually one of fact for the jury to determine; but there are some instances where, as experience has shown, there can be but one reasonable inference, which of necessity arises from the facts as they stand otherwise unexplained."^^ But, in most cases the intention is not so clearly or conclusively shown that the law itself can draw the inference, and it is then necessary to prove acts and cir- cumstances from which the court or jury may draw the inference as a fact. As said in one case, "intention is an inferential fact to be drawn by the jury from proven attendant facts and circumstances."^^ "The force of the inference," says Starkie, "results from the con- sideration that the intention of a rational agent corresponds with the means which he employs, and that he intends that consequence to which his conduct naturally and immediately tends."'^^ It may be stated generally that all the attendant and surrounding facts and cir- cumstances tending directly or indirectly to throw light on the in- tention, may usually be given in evidence, unless excluded by some other rule of evidence applicable to the particular case. "So, in crimi- nal prosecutions, evidence of other acts contemporaneous with the principal transaction may often be admitted to show criminal intent.'^* And it has been held that tlie manner of one accused of passing coun- terfeit money, at the time of passing it, may be shown, as tending to prove guilty knowledge and intent."'^^ So, too, other acts of a similar character, or done by the accused with a similar intent, although committed before or after the doing of the principal act, may often be given in evidence/*' even though the evidence of such other facts offered to prove intent, at the same time proves the commission of " 22 Cent. L. J. 272. '^^ Butler v. State, 22 Ala. 43; '= Burke v. State, 71 Ala. 377. 5 State v. Middleham, 62 Iowa 150, Cr. L. Mag. 912; see also. Spies v. 17 N. W. 446, 18 Cent. L. J. 56. People, 122 111. 1, 12 N. E. 865, 3 '"Goersen v. State, 99 Pa. St. 388; Am. St. 320, 398. Rex v. Ball, 1 Campb, 324; Rex v. '-2 Starkie Ev. *739. Smith, 4 Car. & P. 411; State v. Mix, '*Rex v. Long, 6 Car. & P. 179; 15 Mo. 153; Williams v. State, 8 "White v. State, 11 Tex. 769, 773; Humph. (Tenn.) 585; Common- Dibble v. People, 4 Park. Cr. Cas. wealth v. McCarthy, 119 Mass. 254; (N. Y.) 199; People V. Lopez, 59 Cal. United States v. Russell, 19 Fed. 362; Commonwealth v. Stone, 4 591, 18 Cent. L. J. 318; Porter v. Mete. (Mass.) 43; 3 Greenleaf Ev., Stone, 62 Iowa 442, 17 N. W. 654. § 19. 33 MOTIVE, [§ 2719, another crime." The general rule, however, as will hereafter be shown, is that evidence of entirely distinct and independent crimes is incompetent and inadmissible to show that the accused committed the crime in question, § 2719. Motive.— The terms "motive" and "intention" are some- times used without distinction, but motive generally precedes inten- tion and is that which causes or induces the act, and there may be an intention without any motive, at least so far as can be ascertained, so that it is noi> always necessary to show a motive for the alleged crime,' ^ but it is usually relevant, and the presence or absence of a motive is sometimes controlling."^ Thus, in a recent case it is said: "In the investigation of all charges of crime it is competent to prove a motive on the part of the accused for the commission of the crimi- nal act. Motive is an inducement, or that which leads or tempts the mind to indulge the criminal act. It is resorted to as a means of arriving at an ultimate fact, not for the purpose of explaining the reason of a criminal act, which has been clearly proved, but for the important aid it may render in completing the proof of the com- mission of the act when it might otherwise remain in doubt. With motives, in any speculative sense, neither the law nor the tribunal which administers it has any concern. It is in cases of proof by cir- cumstantial evidence that the motive often becomes not only ma- " Moore v. United States, 150 U. pal heads:— The desire of unlawful S. 57, 14 Sup. Ct. 26; Dunn v. State, gain, and the gratification of un- 2 Ark. 229, 35 Am. Dec. 54; Shried- lawful passion." Burrill Circ. Ev. ley V. State, 23 Ohio St. 130; Bersh 285. V. State, 13 Ind. 434; Reg. v. Dos- ""People v. Fitzgerald, 156 N. Y. sett, 2 Car. & Kir. 306; Common- 253, 258, 50 N. E. 846; Kennedy v. wealth V. Bradford, 126 Mass. 42; People, 39 N. Y. 245; Jones v. State v. Riggs, 39 Conn. 498; Roscoe State, 64 Ind. 473; Davidson v. Cr. Ev. *95; 1 Bishop Cr. Pro., § 493; State, 135 Ind. 254, 34 N. E. 972; but compare, State v. Goetz, 34 Mo. Bonner v. State, 107 Ala. 97, 18 So. 85; State v. Harrold, 38 Mo. 496. 226; Bulloch v. State, 10 Ga. 47, 54 ^* See, People V. Lane, 100 Cal. 379, Am. Dec. 369; Hunter v. State, 43 34 Pac. 856; Commonwealth v. Jef- Ga. 483; People v. Wolf, 95 Mich, fries, 7 Allen (Mass.) 548; Goodwin 625, 55 N. W. 357; State v. Donnelly, V. State, 96 Ind. 550; Reynolds v. 130 Mo. 642. 32 S. W. 1124; Com- State, 147 Ind. 3, 46 N. E. 31; Hin- monwealth v. Ferrigan, 44 Pa. St. Shaw V. State, 147 Ind. 334, 47 N. E. 386; Webb v. State, 73 Miss. 456, 19 157. "The motives to the commis- So. 238; State v. Burton. 63 Kans. sion of the crime," says Burrill, 602, 66 Pac. 633; Vol. I, § 163, and "may be reduced under two prinri- other authorities there cited. § 2720.] GENERAL PRINCIPLES AND RULES. 24 terial but controlling, and in such cases the facts from which it may be inferred must be proved. It cannot be imagined any more than any other circumstance in the case."^*' But even where circumstan- tial evidence alone is relied on it is not always essential that a mo- tive for the crime be established nor that the evidence should show it was impossible for any one else to have committed the crime ;'^^ and the motive itself may be established by circumstantial evidence.**^ So, on the other hand, motive, it has been said, is only a circumstance which is never of itself sufficient to establish defendant's guilt, and the defendant has a right, if he can, to explain the act which is of- fered as evidence of a wicked motive,^^ and the jury may, if they choose, accept his explanation. So, evidence showing that there was no apparent motive, or, in some cases, that there was no such intent as that alleged, is admissible in his favor in a proper case.^* § 2720. Evidence of other crimes. — As a general rule, evidence is not admissible to show that the accused has committed a crime wholly distinct from and independent of that for which he is on trial.^'* «" People v. Fitzgerald, 156 N. Y. 253, 50 N. E. 846; People v. Bennett, 49 N. Y. 137; People v. Owens, 148 N. Y. 648. 43 N. E. 71. " Sumner v. State, 5 Blackf . (Ind.) 579. 36 Am. Dec. 561; Hin- shaw V. State. 147 Ind. 334, 47 N. E. 157. «= People v. Wood, 3 Park. Cr. Cas. (N. Y.) 681; see also, Stitz v. State, 104 Ind. 359, 4 N. E. 145; Hlnshaw v. State, 147 Ind. 334, 47 N. E. 157; Morris v. State, 30 Tex. App. 95, 16 S. W. 757; Chalk v. State, 35 Tex. Cr. App. 116, 32 S. W. 534; IVIarable v. State, 89 Ga. 425, 15 S. E. 453. «' Stitz v. State, 104 Ind. 359, 4 N. E. 145; see also. State v. Meche, 42 La. Ann. 273, 7 So. 573. "* Robinson v. State, 53 Md. 151, 36 Am. R. 399; State v. Meche, 42 La. Ann. 273, 7 So. 573; Schwabach- er V. People, 165 111. 618, 46 N. E. 809; that he may testify to it as a fact, see also, Fenwick v. State, 63 Md. 239; Commonwealth v. Wood- ward, 102 Mass. 155; Cummings v. State, 50 Neb. 274, 69 N. W. 756; also see. Vol. I, § 163. ^= Bullock v. State. 65 N. J. L. 557. 47 Atl. 62, 86 Am. St. 568; People V. Corbin, 56 N. Y. 363; People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. 851; Coleman v. People, 55 N. Y. 81; State v. Shuford, 69 N. Car. 486, 493; State v. Jeffries, 117 N. Car. 727, 23 S. E. 163; State V. Murphy, 84 N. Car. 742; Snyder v. Commonwealth, 85 Pa. St. 519, 521; Mason v. State, 42 Ala. 532, 537; Coble v. State. 31 Ohio St. 100, 102; State v. Boyland, 24 Kans. 186, 187; Clapp v. State, 94 Tenn. 186, 202, 203, 30 S. W. 214; People v. Fowler, 104 Mich. 449, 62 N. W. 572; People V. Baird, 104 Cal. 462, 464, 38 Pac. 310; People v. Bowen, 49 Cal. 654; State v. Moberly, 121 Mo. 604, 26 S. W. 364; Farris v. People, 129 111. 521, 21 N. E. 821, 16 Am. St. 283; Painter v. People, 147 111. 444, EVIDENCE OF OTHER CRIMES. [§2720. But there are cases in which evidence of other like offenses com- mitted by the defendant is relevant and admissible. If several crimes are so intermingled, blended or connected, that they form an indivi- sible criminal transaction and a complete account of the transaction for which the accused is being tried cannot be given, without show- ing the others, any or all of them may usually be shown, at least where the offense for whicli he is being tried is, itself, a detail of the whole criminal scheme."*' Generally speaking, it may be said that cvi- 447, 463, 35 N. E. 64; Garrison v. People, 87 111. 96; State v. Burk, 88 Iowa 661, 667, 56 N. W. 180; State V. Crawford, 39 S. Car. 343; Cotton V. State, (Miss.) 17 So. 372; State V. Bates, 46 La. Ann. 849, 851, 15 So. 204; Commonwealth v. Jackson, 132 Mass. 16-21; Holder v. State, 58 Ark. 473, 25 S. W. 279; State v. La Page, 57 N. H. 245; Stone v. State, 4 Humph. (Tenn.) 27; People V. Stout, 4 Park. Cr. Cas. (N. Y.) 71, 127; People v. Bowling, 84 N. Y. 478; State v. Kelley, 65 Vt. 531, 27 Atl. 203; Turner v. State, 102 Ind. 425, 427, 1 N. E. 869; People v. Thacker, 108 Mich. 652, 66 N. W. 562; State v. Reynolds, (Kans.) 47 Pac. 573; Ware v. State, 36 Tex. Cr. App. 597, 38 S. W. 198; Tyrrell v. State, (Tex.) 38 S. W. 1011; Rhea v. State, 37 Tex. Cr. App. 138, 38 S. W. 1012; see also, State v. Crof- ford, 121 Iowa 395, 96 N. W. 889; State V. Berger, 121 Iowa 581, 96 N. W. 1094; State v. Williams, 111 La. Ann. 179, 35 So. 505; State v. Hendrick, (N. J.) 56 Atl. 247; in. Shears v. State, 147 Ind. 51, 46 N. E. 331, it is said: "Wherever the intent with which an alleged offense was committed is equivocal, and such intent becomes an issue at the trial, proof of other similar offenses, within certain reasonable limits, is admissible as tending to throw light upon the intentions of the ac- cused in doing the act complained of; but where, from the nature of the offense under investigation, proof of its commission as charged, as in the case before us, carries with it the evident implication of a criminal intent, evidence of the perpetration of other like olfenses, ought not to be admitted." But see. State v. Jones, 171 Mo. 401, 71 S. W. 680, 94 Am. St. 786; many authorities are reviewed in the note in 62 L. R. A. 193; but admissions made by the accused before a crime, as to the commission of other inde- pendent crimes, to induce a third person to take part in the crime have been held competent; State v. Hayward, 62 Minn. 474, 65 N. W. 63; McSwean v. State, 113 Ala. 661, 21 So. 211. ^oRex V. Ellis, 6 B. & Cr. 139, 145; Reg. V. Roden, 10 Moak 511; Com- monwealth V. Call, 21 Pick. (Mass.) 515, 522; Commonwealth v. Sturti- vant, 117 Mass. 122, 132; Common- wealth V. Corkin, 136 Mass. 429; State V. Valwell, 66 Vt. 558, 562, 29 Atl. 1018; People v. Bidleman, 104 Cal. 608, 38 Pac. 502; People v. Dai- ley, 143 N. Y. 638, 73 Hun (N. Y.) 16, 37 N. E. 823, 25 N. Y. S. 1050; Mixon V. State, (Tex.) 31 S. W. 408; Turner v. State, 102 Ind. 425, 427, 1 N. E. 869; Frazier v. State, 135 Ind. 38, 41, 34 N. E. 817; Bottomley v United States, 1 Story (U. S.) 135; State V. Folwell, 14 Kans. 105; Wal- ters v. People, 6 Park. Cr. Cas. (N. § 2721.] GENERAL PRINCIPLES AND RULES. 26 dence of other crimes is admissible for the purpose of showing — when it fairly tends to do so — motive, intent, the absence of mistake or accident, common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, or the identit}^ of the person charged with the commission of the crime on trial. ^' But the particulars of a collateral crime should not ordinarily be gone into further than they are rele- vant to the purpose for which the evidence is competent.'*'^ § 2721. Character of accused. — The subject of character evidence in its general aspect was fully considered in another volume.®'' For that reason and for the further reason that character evidence in particular cases will be considered in treating of specific crimes, it is unnecessary to go into the subject very fully in this place. It is a general rule that the accused may introduce evidence of his good character at least so far as it relates to traits of character relevant to the issue,°" but even in the absence of any evidence on the subject Y.) 15, 22; Reese v. State, 7 Ga. 373; People v. Haver, 4 N. Y. Cr. 171; Phillips v. People, 57 Barb. (N. Y.) 353, 42 N. Y. 200; State v. Desroches, 48 La. Ann. 428, 19 So. 250; State v. Williamfion, 106 Mo. 162, 170, 17 S. W. 172; Hickam v. People, 137 111. 75, 27 N. E. 88, 89; State V. Testerman, 68 Mo. 408, 415; State V. Perry, 136 Mo. 126, 37 S. W. 804; Killins v. State, 28 Fla. 313, 334, 9 So. 711; State v. Gainor, 84 Iowa 209, 50 N. W. 947; Pitner v. State, 37 Tex. Cr. App. 268, 39 S. W. 662; People v. Foley, 64 Mich. 148, 157, 31 N. W. 94; Heath v. Common- wealth, 1 Rob. fVa.) 735, 743; Brown v. Commonwealth, 76 Pa. St. 319, 337; Commonwealth v. Robin- son, 146 Mass. 571, 578, 16 N. E. 452; Crews v. State, 34 Tex. Cr. App. 533, 31 S. W. 373; Morris v. State, 30 Tex. App. 95, 16 S. W. 757; Daw- son V. State, 32 Tex. Cr. App. 535, 25 S. W. 21, 40 Am. St. 791; see also, Commonwealth v. Major. 198 Pa. St. 290. 47 Atl. 741. 82 Am. St. 803; Glover v. People, 204 111. 170. 68 N. E. 464. "People V. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193, and elaborate note; State v. Vance, 119 Iowa 685. 94 N. W. 204; note in. 44 Am. R. 299-308; see also. People v. Seaman, 107 Mich. 348, 65 N. W. 203, 61 Am. St. 326, and numerous authorities cited and reviewed; note in, 42 Am. St. 333, and 48 Am. St. 961; Knights v. State, 58 Neb. 225, 78 N .W. 508. 76 Am. St. 78; Shried- ley V. State, 23 Ohio St. 130; Bain- bridge V. State, 30 Ohio St. 264; Lindsey v. State, 38 Ohio St. 507. «'Vol. I, § 175, note 216. '^'See, Vol. I, §§ 167-171. ""State V. Hice, 117 N. Car. 782, 23 S. E. 357; Hall v. State, 132 Ind. 317, 31 N. E. 536; Griffin v. State, 14 Ohio St. 55; State v. Schleagel, 50 Kans. 325, 31 Pac. 1105; People V. Ashe, 44 Cal. 288; State v. Dona- hoo, 22 W. Va. 761; Stover v. Peo- ple, 56 N. Y. 315; Cancemi v. People, 16 N. Y. 506, and numerous authori- 27 CHARACTER OF ACCUSED. [§ 2721. there is no presumption that his character is bad and no unfavorable presumption is indulged from his failure to offer evidence of good character, nor can it be commented on, in most jurisdictions, by the prosecutor.®^ The prosecution cannot give evidence of his bad char- acter unless he has introduced evidence of good character,"- except where he is a witness, in which case such evidence is admissible to im- peach him, as in the case of other witnesses."^ It is now well settled in most jurisdictions, contrary to some of the older decisions, that evidence of good character is admissible and entitled to consideration on the question of guilt along with the other evidence, not only in doubtful cases, or cases in which the other evidence is of itself contra- dictory or unconvincing, but also in all proper cases, no matter whether the other evidence in and of itself is apparently conclusive or incon- clusive.®* ties cited in last note to this sec- tion. «» Ormsby v. People, 53 N. Y. 472 ; Ackley v. People, 9 Barb. (N. Y.) 609; State v. Dockstader, 42 Iowa 436; State v. Upham. 38 Me. 261; State V. O'Neal, 7 Ired. L. (N. Car.) 251; see also. Vol. I, § 227; People V. Gleason, 122 Cal. 370, 55 Pac. 123; Olive V. State. 11 Neb. 1, 7 N. W. 444; but see. State v. Kabrich, 39 Iowa 277; State v. McAllister, 24 Me. 139. "= People v. Shea, 147 N. Y. 78, 41 N. E. 508; People v. White, 24 Wend. (N. Y.) 524; Rex v. Rowton, Leigh & C. 520; Felsenthal v. State, 30 Tex. App. 675, 18 S. W. 644; State v. Ellwood, 17 R. I. 763, 24 Atl. 782; State v. Creson, 38 Mo. 372; Carter v. State, 36 Neb. 481, 54 N. W. 853; State v. Thurtell, 29 Kans. 148; Maxwell v. State, (Tex. Cr. App.) 78 S. W. 516; Fletcher v. State, 49 Ind. 124; Drew v. State, 124 Ind. 9, 23 N. E. 1098; Under- bill Cr. Ev., § 78; Wharton Cr. Bv., § 64, et seq. "Vol. II, §§ 972, 978, 981-988; Mc- Donald V. Commonwealth, 86 Ky. 10, 4 S. W. 687; People v. McKane, 143 N. Y. 455. 38 N. E. 950; Cluck v. State, 40 Ind. 263; Felsenthal v. State, 30 Tex. App. 675, 18 S. W. 644; Commonwealth v. Hardy, 2 Mass. 303. Or where character is in issue under the substantive law. Vol. I, § 168, and especially note 143. '^ Kee V. State, 28 Ark. 155 ; Scott V. State, 105 Ala. 57, 16 So. 925, 53 Am. St. 100; People v. Stewart, 28 Cal. 395; People v. Mead, 50 Mich. 233, 15 N. W\ 95; People v. Van Dam, 107 Mich. 425, 65 N. W. 277; State V. Sloan. 22 Mont. 283, 56 Pac. 364; Edgington v. United States, 164 U. S. 361, 17 Sup. Ct. 72; Hol- land V. State, 131 Ind. 568, 31 N. E. 359; Kistler v. State, 54 Ind. 400; State V. Murphy, 118 Mo. 7, 25 S. W. 95; State v. Holmes. 65 Minn. 230, 68 N. W. 11; Harrington v. State, 19 Ohio St. 264; State v. Rod- man, 62 Iowa 456, 17 N. W. 663; Hanney v. Commonwealth, 116 Pa. St. 322, 9 Atl. 339; State v. Lep- pere, 66 Wis. 355, 28 N. W. 202; Bacon v. State, 22 Fla. 51; Redd v. State, 99 Ga. 210. 25 S. E. 268; Com- monwealth v. Leonard, 140 Mass. 473, 4 N. E. 96; Lee v. State. 2 Tex. §§ 2722, 2723.] general principles and rules. 28 § 2722. Character of others. — In some instances the accused may not only introduce evidence of his own good character but also of the bad character in certain respects of the prosecuting witness or party upon whom the crime is charged to have been committed."^ As a general rule, however, the character of the prosecutor or of others is not in issue and evidence thereof is ordinarily incompetent except where it is used to impeach a witness. So, evidence of the bad char- acter of the associates of the accused, or of other third persons is, ordi- narily, irrelevant and inadmissible.'"' But there are exceptional cases in which the character or bad repute of third persons may be shown." This subject, however, has already been sufficiently treated.^^ § 2723. Conduct indicating consciousness of guilt. — It has been laid down as a general rule that evidence of circumstances, which are part of a person's behavior subsequent to an event which it is alleged or suspected he is connected with or implicated in, are rele- vant if the circumstances are such as would be natural and usual, assuming the connection or implication to exist. And sometimes, but not universally, evidence of actions and circumstances, incon- sistent with such an assumption, is relevant as a basis for an infer- ence that the person accused or suspected did not participate in the event. Under these rules evidence will be received to prove or dis- App. 338; State v. Pucca, (Del.) 55 400, 25 N. E. 457; State v. Staton, AtL 831. 114 N. Car. 813, 19 S. E. 96; Omer ""* See, Vol. I, § 170; also, People v. Commonwealth, 95 Ky. 353, 25 S V. Johnson. 106 Cal. 289, 39 Pac. W. 594; State v. Rose, 47 Minn. 47, 622 (character of complainant in 49 N. W. 404. rape case) ; State v. Johnson, 28 Vt. °' See, Commonwealth v. Gray, 129 514 (game); Rex v. Ryan, 2 Cox Cr. Mass. 474; Commonwealth v. Gan- Cas. 115; Rex v. Clarke, 2 Starkie nett, 1 Allen (Mass.) 7; State v. 214; Brown v. State, 72 Miss. 95, Boardman, 64 Me. 523; Winslow v. 16 So. 202; Commonwealth v. Har- State, 5 Ind. App. 306, 317, 32 N. ris, 131 Mass. 336; State v. Duffey, E. 98 (in dissenting opinion); 128 Mo. 549. 31 S. W. 98; People v. Sparks v. State, 59 Ala. 82; Clem- McLean, 71 Mich. 310, 38 N. W. entine v. State. 14 Mo. 112; John- 917; Brown v. State, 72 Md. 468, 20 son v. State, 28 Tex. App. 562, 13 Atl.' 186; Williams v. Fambro, 30 S. W. 1005; State v. Toombs, 79 Ga. 233 (quarrelsome character of Iowa 741, 45 N. W. 300; State v. deceased in homicide case) ; Com- Hendricks, 15 Mont. 194, 39 Pac. 93, monwealth v. Hoskins, 18 Ky. L. R. 48 Am. St. 666. 59, 35 S. W. 284 (same). " See, Vol. I, §§ 168. 169. 170. 171, «" See, State v. Beaty, 62 Kans. 266, 176. 62 Pac. 658; Walls v. State, 125 Ind. 29 CONDUCT SHOWIXG CONSCIOUSNESS OF GUILT. [§ 2723. prove facts or circumstances which indicate a consciousness of guilt on the part of the accused, existing after the crime with which he is charged was committed. His conduct and general demeanor, his language, oral or written, and his mental and physical attitude and relations toward the crime, or his actions in the presence of those who discovered it, or who are engaged in detecting its perpetrator, are relevant.""" But, while such evidence is not required to relate to facts contemporaneous with the commission of the alleged crime, or strictly part of the res gestae, the time and circumstances must not be so remote as to furnish no fair inference of consciousness of guilt.^°° False testimony or information concerning himself or his v/hereabouts and actions about the time of the commission of the crime,^"^ and the fabrication or suppression of evidence,^"- are ex- amples of matters that may usually l)c shown under the general rule. So, evidence of nervousness, excitement and fear exhibited by the accused,^"^ or of his conduct and demeanor in any respect tending to show consciousness of guilt,^°* is admissible within proper limits. And even silence under accusation of guilt under such circumstances that an innocent man would usually speak, may be shown in evi- " Underbill Cr. Ev., § 115, citing, McAdory v. State, 62 Ala. 154; Peo- ple V. Stanley, 47 Cal. 113; People T. Welsh. 63 Cal. 167; State v. Hill, 134 Mo. 663, 36 S. W. 223. i°» State V. Baldwin, 36 Kans. 1, 12 Pac. 318. ^" Hays v. State. 40 Md. 633; State T. Bishop, 98 N. Car. 773, 4 S. E. 357; State v. Broiighton, 7 Ired. L. (N. Car.) 96; Lovett v. State, 60 Ga. 257; State v. Williams, 66 Iowa 573, 24 N. W. 52; State v. Bradley, 64 Vt. 466. 24 Atl. 1053; Cathcart T. Commonwealth. 37 Pa. St. 108; Hicks v. State, 99 Ala. 169, 13 So. 375; Hamilton v. State, 62 Ark. 543. 36 S. W. 1054; see also. Com- monwealth v. Trefethen, 157 Mass. 180. 31 N. E. 961; Wilson v. United States, 162 U. S. 613, 16 Sup. Ct. 895. '"See, Vol. I, §§ 94. 226; see also. People v. Marion. 29 Mich. 31; Col. lins V. Commonwealth, 12 Bush (Ky.) 271; Conway v. State, 118 Ind. 482, 21 N. E. 285; Turner v. State. 102 Ind. 425, 1 N. E. 869; Keesier v. State, 154 Ind. 242, 56 N. E. 232; Williams v. State. 22 Tex. App. 497, 4 S. W. 64. '"^Gilford V. State. (Tex. Cr. App.) 78 S. W. 692; Prince v. State, 100 Ala. 144, 14 So. 409; State v. Ward. 61 Vt. 153, 17 Atl. 483; Lind- sey V. People, 63 N. Y. 143; State V. Baldwin. 36 Kans. 1, 12 Pac. 318; Williams v. State. (Ark.) 16 S. W. 816. "" See, People v. O'Neill, 112 N. Y. 355, 19 N. E. 796: Greenfield v. Peo- ple. 85 N. Y. 75; Noftsinger v. State, 7 Tex. App. 301; see also. State v. De Berry, 92 N. Car. 800; State v. Soper. 16 Me. 293. 2724.] GENERAL PRINCIPLES AND RULES. 30 dence.^°^ But the accused may, of course, explain his silence by proper evidence.^"® § 2724. Conduct indicating consciousness of guilt — Flight — Con- cealment. — Evidence that the accused fled or concealed himself to avoid arrest is admissible as a circumstance to be considered in de- termining his guilt or innocence.^"^ So, also, is the fact that he re- sisted arrest"^ or attacked the officers with deadly weapons,"" or attempted to escape after he was arrested, and was recaptured.^" But such acts are not, of course, conclusive evidence that defendant is guilty of the crime for which he is on trial,"^ and the defendant has a right to offer an explanation of his conduct,^^^ as, for instance, that he fled to escape a mob which threatened his life,"^ or that his friends advised him to leave,"* or the like."^ Indeed, the better ^"^Vol. I, §§ 221, 230; see also, Commonwealth v. Brailey, 134 Mass. 527; State v. Suggs, 89 N. Car. 527; State V. Howard, 102 Mo. 142, 14 S. W. 937; Moore v. State, 96 Tenn. 209, 33 S. W. 1046; State v. Magoon, 68 Vt. 289, 35 Atl. 310; Joiner v. State, 119 Ga. 315, 46 S. E. 412. ^»« State V. Flanagin, 25 Ark. 92; Commonwealth v. Kenney, 12 Mete. (Mass.) 235; People v. Willett, 92 N. Y. 29; Kelley v. People, 55 N. Y. 565; Bell v. State, 93 Ga. 557, 19 S. E. 244; Slattery v. People, 76 111. 217; Loggins v. State, 8 Tex. App. 434. «' Allen V. United States, 164 U. S. 492, 17 Sup. Ct. 154; Waybright V. State, 56 Ind. 122; Batten v. State, 80 Ind. 394; State v. Moore, 101 Mo. 316, 14 S. W. 182; State v. Foster, 136 Mo. 653, 38 S. W. 721; Commonwealth v. Brigham, 147 Mass. 414, 18 N. E. 167; Common- wealth V. McMahon, 145 Pa. St. 413, 22 Atl. 971; Ryan v. State, 83 Wis. 486, 53 N. W. 836; Vol. I, §§ 156, 165. ^"'Shepherd v. State, 64 Ind. 43; Anderson v. State, 147 Ind. 445, 46 N. E. 901; State v. Taylor, 118 Mo. 153, 24 S. W. 449. So, that he threatened to kill any one who at- tempted to arrest him, or would die before he would be taken. Horn V. State, 102 Ala. 144, 15 So. 278; Ross V. State, 74 Ala. 532. "» Anderson v. State, 147 Ind. 445, 46 N. E. 901. ""Hittner v. State, 19 Ind. 48; Anderson v. State, 147 Ind. 445, 46 N. E. 901. "1 State V. Mallon, 75 Mo. 355; Waybright v. State, 56 Ind. 122; Hickory v. United States, 160 U. S. 408, 16 Sup. Ct. 327. "= Evans v. State, (Tex. Cr. App.) 76 S. W. 467; State v. Potter, 108 Mo. 424, 22 S. W. 89; State r. Bar- ham, 82 Mo. 67. "^Batten v. State, 80 Ind. 394; Evans v. State, (Tex. Cr. App.) 76 S. W. 467; State v. Brooks, 92 Mo. 542, 5 S. W. 257. "* State V. Moncla, 39 La. Ann. 868, 2 So. 814; Waybright v. State, 56 Ind. 122; Walters v. State, 17 Tex. App. 226. "^See, State v. Phillips, 24 Mo. 475; State v. Baker, (Mo.) 19 S. 31 POSSESSION OF STOLEX I'KOPERTY. [§ 2725. rule is that mere flight or the like, does not of itself, apart from the motive, necessarily raise any presumption of guilt, but the motive may be inferred from circumstances, and flight to avoid arrest or im- prisonment is a circumstance to be considered by the jury along with the reason that prompted it and together with the other evidence in the case and may lead to the inference of guilt."" And evidence tending to show that subsequent to the commission of the offense the defendant evinced a desire to conceal the crime or shield the crimi- nal has been held incompetent in the absence of any affirmative evi- dence tending to show that the defendant participated in the of- fense."^ But, in general, evidence of a disposition to conceal the crime and stop public inquiry is admissible.^^^ On the other hand, the fact that the defendant did not flee,^^'' or that he voluntarily sur- rendered himself, ^2" is usually inadmissible and cannot be considered as showing innocence. So, it is inadmissible for him to show for that purpose that, after being put in jail, he had an opportunity to escape and declined to do so.^^^ § 2725. Conduct indicating consciousness of guilt — Recent pos- session of stolen property. — There is some conflict among the author- ities upon the subject of the admissibility and effect of evidence of the possession of stolen goods. ^^^ The true rule, however, is that evidence of the recent unexplained possession of stolen goods by the accused is admissible and may justify the inference of guilt ;^-^ but W. 222; Lewallen v. State, 33 Tex. '=" State v. Marshall, 115 Mo. 383, Cr. App. 412, 26 S. W. 832; Elmore 22 S. W. 452; Walker v. State, 13 V. State, 98 Ala. 12, 13 So. 427. Tex. App. 618; People v. Cleveland, "'Ryan v. People, 79 N. Y. 593, 19 107 Mich. 367, 65 N. W. 216. Hun (N. Y.) 188; Hickory v. United "^ State v. Bickle, 53 W. Va. 597, States, 160 U. S. 408, 16 Sup. Ct. 45 S. E. 917; State v. Wilkins, 66 327; Alberty v. United States, 162 Vt. 1. 28 Atl. 323; Johnston v. State, U. S. 499, 16 Sup. Ct. 864; see also, 94 Ala. 35, 10 So. 667; People v. Thomas v. State, 109 Ala. 25, 19 So. Montgomery, 53 Cal. 576; People v. 403; State v. Rodman, 62 Iowa 456, Rathbun, 21 Wend. (N. Y.) 509. 17 N. W. 663; State v. Brooks, 92 "= Compare, for instance. People Mo. 542, 5 S. W. 257; Fox v. People, v. Gordon, 40 Mich. 716; Knicker- 95 111. 71. bocker v. People, 43 N. Y. 177, at "^ Harper v. State, 83 Miss. 402, opposite extremes. 35 So. 572. 1" Considine v. United States, 50 "« Weightnovel v. State, (Fla.) 35 C. C. A. 272, 112 Fed. 342; Wilson So. 856. V. United States, 162 U. S. 613. 16 *" Walker v. State. 139 Ala. 56, Sup. Ct. 895; People v. Wong Chong 35 So. 1011. Suey, 110 Cal. 117, 42 Pac. 420; 2725.] GENERAL PRINCIPLES AND RULES. 32 it does not necessarily raise a presumption of guilt in the true sense, and the rule, stated as a presumption at least, does not apply where the circumstances under which the possession was acquired are proved. ^^* As said in a recent case: "The law does not attach a 'presumption of guilt' to any given circumstance, nor does it require the accused to 'overcome the presumption thereby raised,' in order to be entitled to an acquittal. What the law does say is that the fact of possession is evidence of guilt upon which a conviction may properly be returned, unless the other facts or circumstances developed be such that, notwithstanding the recent possession, the jury still entertains a reasonable doubt of the defendant's participation in the crime. It is in this sense that the words 'presumption' and 'prima facie evi- dence' must be understood when employed in this connection."^-^ The possession should not be too remote,^-*' although if it has any probative value it is generally for the jury to say what weight it shall be given in the particular case, and it must be personal and ex- clusive rather than merely constructive.^-^ So, the defendant may Branson v. Commonwealth, 92 Ky. 330, 17 S. W. 1019; Blaker v. State, 130 Ind. 203, 29 N. E. 1077; Gravitt V. State, 114 Ga. 841, 40 S. E. 1003. 88 Am. St. 63; King v. State, 99 Ga. 686, 26 S. E. 480; State v. Conway, 56 Kans. 682, 44 Pac. 627, State v. Frahm, 73 Iowa 355, 35 N. W. 451; Methard v. State, 19 Ohio St. 363; Graveley v. Commonwealth, 86 Va. 396, 10 S. E. 431; Metz v. State, 46 Neb. 547, 65 N. W. 190; Dobson v. State, 46 Neb. 250, 64 N. W. 956; Smith V. People, 103 111. 82; Magee V. People, 139 111. 138, 28 N. E. 1077; Vol. I, § 156. ^=* State V. Spencer, (Del.) 53 Atl. 337; State v. Freedman, 3 Pen. (Del.) 403, 53 Atl. 356; Roberts v. State, 11 Wyo. 66, 70 Pac. 803; see also, State v. Hodge, 50 N. H. 510; Wilson V. United States, 162 U. S. 613, 16 Sup. Ct. 895; Smith v. State, 133 Ala. 145, 31 So. 806, 91 Am. St. 21, and note; Hunt v. Common- wealth, 13 Gratt. (Va.) 757, 70 Am. Dec. 443, and notes; Gravitt v. State, 114 Ga. 841. 40 S. E. 1003, S8 Am. St. 63. "=> State V. Brady, 121 Iowa 561, 97 N. W. 62, 64, citing, Smith v. State,' 58 Ind. 340; Ingalls v. State, 48 Wis. 647, 4 N. W. 785; Common- wealth v. Randall, 119 Mass. 107; Smith V. People, 103 111. 82; Bran- son V. Commonwealth, 92 Ky. 330, 17 S. W. 1019; People v. Tithering- ton, 59 Cal. 598; see also, Gravitt V. State, 114 Ga. 841. 40 S. E. 1003, 88 Am. St. 63. explaining prior Georgia cases in which the term "presumption" had been used. "<= See, Goldstein v. People, 82 N. Y. 231; State v. Castor, 93 Mo. 242, 5 S. W. 906; Davis v. State. 50 Miss. 86; Jones v. State, 26 Miss. 247; White V. State. 72 Ala. 195; Rex v. Adams, 3 Car. & P. 600; Rex v. Cruttenden, 6 Jur. 267. '-'State V. Castor, 93 Mo. 242, 5 S. W. 906; State v. Lackland, 136 Mo. 26, 37 S. W. 812; People v. Wil- son, 151 N. Y. 403, 45 N. E. 862; State V. Deyoe, 97 Iowa 744, 66 N. 33 DEFENSES. [§ 2726. explain it.^^^ Thus, he may show that he hought the property/^^ or otherwise give such an explanation as to create a reasonable doubt of his guilt."" Further consideration of this subject in this connec- tion, however, is unnecessary, as it will be treated in connection with particular crimes, such as burglary and larceny. § 2726. Defenses. — Some of the most common defenses, such as insanity, drunkenness and the like, have been referred to in this chapter in connection with criminal capacity. But, they as well as others, such as alibi, and former conviction or acquittal, for instance, will be treated in subsequent sections. Self-defense, and similar de- fenses will be treated in chapters on crimes in prosecutions for which they are most often presented.^^^ It is the purpose in this section to refer only to a few instances of the admissibility of evidence in de- fense. As a general rule, the defendant may introduce any proper evidence to rebut that introduced by the prosecution and tending to show that no crime was committed or that he is not guilty of the crime charged. For this purpose he may even show, in connection with other evidence, at least where the evidence tending to connect him with the crime is wholly circumstantial, that another person was capable and had a motive and was in a situation to have committed it.^^^ So, he may generally show absence of motive on his part, or absence of the requisite criminal intent and all other relevant mat- ters admissible in defense under the issues, and may introduce char- acter and impeaching evidence under rules elsewhere stated. But ignorance of the law or even of a state of facts which the accused W. 733; Funderburg V. State, (Tex.) 22 Tex. App. 563, 3 S. W. 741; Clark 34 S. W. 613. V. State. 30 Tex. App. 402, 17 S. W. *=' Harris v. State. 17 Tex. App. 942. 177; Lewis v. State. 29 Tex. App. "^ See also, elaborate note in 74 201, 14 S. W. 1008; Hall v. State, 34 Am. St. 707-717. Ga. 208; Chambers v. State, 62 Miss. '== Leonard v. Territory, 2 Wash. 108; State v. Owsley, 111 Mo. 450, Ter. 381, 7 Pac. 872; Carlton v. Peo- 20 S. W. 194. pie, 150 111. 181, 37 N. E. 244, 41 Am. ^-^ Jones V. People, 12 111. 259. St. 346 (but he cannot do it by ad- "" State V. Cross, 95 Iowa 629, 64 missions or confessions of a third N. W. 614; State v. Peterson, 67 person not under oath) ; Dubose v. Iowa 564, 25 N. W. 780; Crawford State, 10 Tex. App. 230, 246; State V. State. 113 Ala. 661, 21 So. 64; v. Johnson, 31 La. Ann. 368; State State V. Moore, 101 Mo. 316, 14 S. v. Edwards, 71 Mo. 312; Dean v. W. 182; Blaker v. State, 130 Ind. Commonwealth, 32 Gratt. (Va.) 912. 203, 29 N. E. 1077; Hart v. State, Vol. 4 Elliott Ev. — 3 § 2727.] GENERAL PRINCIPLES AND RULES. 34 is bound to know under the law, as a rule, constitutes no defense or justification for a criminal offense. ^^^ A private individual cannot license the commission of a crime, and consent of the person injured is therefore no defense, as a general rule, to a crime against the pub- lic,^^* nor, if the offense is voluntarily committed by the accused, is the mere fact that decoy letters or the like were used a good de- fense ;^^° but there are some cases as, for instance, in the case of larceny, in which an essential element of the crime is that the act should be committed without the consent of the injured party.^^° § 2727. Alibi. — Some courts hold that the burden of proving an alibi is upon the defendant, in accordance with the rule that the burden of proof is always upon the party asserting an affirmative fact, or one peculiarly within his own knowledge.^^^ Even where this "= State V. Downs. 116 N. Car. 1064, 21 S. E. 689; Commonwealth V. Weiss. 139 Pa. St. 247, 21 Atl. 10, 23 Am. St. 182, in both of which cases it was so held even though the act was under the advise of coun- sel; see also, Atkins v. State, 95 Tenn. 474. 32 S. W. 391; Stow v. Converse, 3 Conn. 325, 8 Am. Dec. 189; State v. Williams. 36 S. Car. 493, 15 S. B. 554; State v. Sasse, 6 S. Dak. 212, 60 N. W. 853, 55 Am. St. 834; United States v. Reder, 69 Fed. 965; but compare, State v. Yeargan, 117 N. Car. 706, 23 S. E. 153; Stern v. State, 53 Ga. 229, 21 Am. R. 266; Farrell v. State, 32 Ohio St. 456, 30 Am. R. 614; Lee v. Lacey, 1 Cranch (U. S.) 263. 13* Commonwealth v. Snow, 116 Mass. 47; Newman v. People, 23 Colo. 300, 47 Pac. 278; People v. Lip- hardt, 105 Mich. 80, 62 N. W. 1022; Reg. V. Alison. 8 Car. & P. 418. 1=^ Grimm v. United States, 156 U. S. 604, 15 Sup. Ct. 470; Price v. United States. 165 U. S. 311, 17 Sup. Ct. 366; Montgomery v. United States, 162 U. S. 410, 16 Sup. Ct. 797; Tripp v. Flanigan, 10 R. I. 128; State v. Stickney, 53 Kans. 308, 36 Pac. 714, 42 Am. St. 285; State V. Hayes, 105 Mo. 76, 16 S. W. 514. 24 Am. St. 360. "» State V. Hull, 33 Ore. 56, 54 Pac. 159. 72 Am. St. 694, and note; Zink V. People, 77 N. Y. 114, 33 Am. R. 589; State v. Adams, 115 N. Car. 775, 20 S. E. 722; Thompson v. State, 18 Ind. 386, 81 Am. Dec. 364-367. and notes; Allen v. State, 40 Ala. 334, 91 Am. Dec. 482, 483; State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248; State v. Beck. 1 Hill L. (S. Car.) 363, 26 Am. Dec. 190 (no as- sault and battery where consent) ; Smith v. State. 12 Ohio St. 466, 80 Am. Dec. 355 (same) ; Love v. Peo- ple, 160 111. 501. 43 N. E. 710; Peo- ple v. McCord, 76 Mich. 200. 42 N. W. 1106. '" Holley v. State. 105 Ala. 100, 17 So. 102; State v. Thornton. 10 S. Dak. 349, 73 N. W. 196, 41 L. R. A. 530; Carlton v. People, 150 111. 181, 37 N. E. 244, 41 Am. St. 346; Miles V. State, 93 Ga. 117, 19 S. E. 805. 44 Am. St. 140; State v. Beasley, 84 Iowa 83, 50 N. W. 570; State v. Jennings, 81 Mo. 185, 51 Am. R. 236; State v. Fenlason, 78 Me. 495, 7 Atl. 385. 36 ALIBI. [§ 272^ is the rule, however, it is generally held to be only a qualified burden to make such proof as will create or raise a reasonable doubt. The jury may and should consider defendant's evidence of an alibi in con- nection with all the evidence in the case; and the better rule seems to be, no matter what view is taken as to the burden of producing evidence, that the state is required to convince them of his guilty participation in the crime, time and place being essential ingredients in this participation, beyond a reasonable doubt upon all the evi- dence."® And there are many cases in which it is said that the bur- den does not shift from the prosecution even where an alibi is re- lied on as a defense.^^® The authorities are conflictinsr as to whether ''^ State V. Maher, 74 Iowa 77, 37 N. W. 2; see also, State v. Conway, 56 Kans. 682, 44 Pac. 627; State v. Harvey, 131 Mo. 339, 32 S. W. 1110; State V. Lowry, 42 W. Va. 205, 24 S. E. 561; People v. Pichette, 111 Mich. 461, 69 N. W. 739; Borrego v. Territory, 8 N. Mex. 446, 46 Pac. 349; Ackerson v. People, 124 111. 563, 16 N. E. 847. 849; Hauser v. People, 210 111. 253, 71 N. E. 416; Ware v. State. 59 Ark. 379, 392, 27 S. W. 485; Walters v. State, 39 Ohio St. 215, 217; Chappel v. State, 7 Coldw. (Tenn.) 92; State v. Ward, 61 Vt. 153, 192, 17 Atl. 483; Ben- nett V. State, 30 Tex. App. 341, 17 S. W. 545; State v. Chee Gong, 16 Ore. 534, 538, 19 Pac. 607; in Watson V. Commonwealth, 95 Pa. St. 418, 422, it is said : "An alibi is as much a traverse of the crime charged as any other defense, and proof tend- ing to establish it, though not clear, may, with other facts of the case, raise a reasonable doubt of the guilt of the accused. When the evi- dence is so imperfect as not to sat- isfy the minds of the jury they will not find the fact. Where the com- monwealth rests upon positive and undoubted proof of the prisoner's gnilt, it should not be overcome by less than full, clear and satisfac- tory evidence of the alleged alibi. But the evidence tending to estab- lish an alibi, though not sufficient to work an acquittal, should not be excluded from the case, for the bur- den of proof never shifts, but rests upon the commonwealth through- out, upon all the evidence given in the cause, taken together to con- vince the jury, beyond a reasonable doubt, of the prisoner's guilt." The whole subject is considered and the authorities are reviewed in the elaborate note to State v. Thorn- ton, 41 L. R. A. 530-543. ^See, State v. Freeman, 100 N. Car. 429, 5 S. E. 921; McNamara v. People, 24 Colo. 61, 48 Pac. 541; Shultz V. Territory, (Ariz.) 52 Pac. 352; State v. Child, 40 Kans. 482. 20 Pac. 275; Parker v. State, 136 Ind. 284, 292, 35 N. E. 1105; Walters V. State, 39 Ohio St. 215; State v. Chee Gong, 16 Ore. 534, 19 Pac. 607; State V. McClellan, 23 Mont. 532, 59 Pac. 924, 75 Am. St. 558, and note. The attempt and failure to prove an alibi is not an admission of the crime, and raises no presump- tion that the accused was at the place when and where it was com- mitted. Toler V. State, 16 Ohio St. 583. § 2728.] GENERAL PRINCIPLES AND RULES. 36 it is necessary in order to establish an alibi, that the entire time dur- ing which the offense was committed should be covered so as to ex- clude the possibility of the defendant's presence, but it is believed that it is not absolutely essential in all cases, at least to the admissi- bility of the evidence, that it should cover the entire time during which the crime may have been committed, and show that it was ab- solutely impossible that he could have been present.^*" § 2728. Insanity. — The views of the authors as to the effect of the presumption of innocence, on the one hand, and that of sanity on the other, and as to the burden of proof where insanity is relied on as a defense, have already been presented."^ The following in- telligent treatment of the subject by another writer may serve to throw additional light upon it. "The authorities are in conflict on the question upon whom lies the burden of proving the sanity or in- sanity of the defendant. The decisions range all the way from the statement that the prosecution must prove the sanity of the accused beyond a reasonable doubt to the proposition that the defendant must establish his insanity in an equally positive manner. That the bur- den is upon the defendant of proving his insanity beyond a reason- able doubt is probably not the law anywhere at the present day, with the exception of Louisiana."" There are, however, three statements of the rule concerning the burden of proof which are found in the reported cases. One is that the burden of proof is on the state to establish the sanity of the accused beyond a reasonable doubt."^ The legal presumption that every man is sane, however, ob^dates the neces- sity of introducing any evidence at all until this presumption is overthrown. When this occurs, the state must, in some Jurisdictions, prove sanity beyond a reasonable doubt. The conflict in the cases, as we shall see, relates to when this legal presumption of sanity is sufficiently overthrown or weakened as to render it not conclusive. ""See, West v. State, 48 Ind. 483; thorities, see, 41 L, R. A. C41-543, Beavers v. State, 103 Ala. 36, 15 So. note. 616; Pollard v. State, 53 Miss. 410. "'Vol. I, §§ 126, 139. 24 Am. R. 703; Henry v. State, 51 "= State v. DeRance, 34 La. Ann. Neb. 149, 70 N. W. 924; Stuart v. 186. 44 Am. R. 426; State v. Clem- People, 42 Mich. 255, 3 N. W. 863; ents, 47 La. Ann. 1088, 17 So. 502. but see. Briceland v. Common- '« Ford v. State, 73 Miss. 734, 19 wealth. 74 Pa. St. 463; Klein v. Peo- So. 665; Davis v. United States, 160 pie, 113 111. 596; Johnson v. State. U. S. 469, 16 Sup. Ct. 353; Hopps v. 59 Ga. 142; Barr v. People, 30 Colo. People. 31 111. 385, 83 Am. Dec. 231. 522 71 Pac. 392; for review of au- 37 INSANITY. [§ 2728. Another and perhaps the largest line of authorities states the rule to be that the burden is on the defendant to prove his insanity by a preponderance of the evidence.^*'' Still a third line of cases hold that if the jury have a reasonable doubt as to whether the accused is sane or not they must acquit, and while the burden rests upon the defendant of introducing evidence to raise this doubt, such evidence need not preponderate, but is ample if it is sufficient to produce a reasonable doubt in the minds of the jury.^*^ All the authorities start with two fundamental propositions upon which they are in complete harmony: (1) That the burden is on the prosecution to prove be- yond a reasonable doubt that the defendant committed the crime ; and (2) the law presumes every man to be sane. The conflict in the de- cision arises by reason of the fact that the courts differ in their opinion as to how much evidence is necessary to overthrow this origi- nal presumption of sanity, and as to what quantum of evidence is sufficient to enable the court to say to the jury that the burden of proving the crime beyond a reasonable doubt has been successfully borne. The burden is upon the state to establish the guilt of the de- fendant beyond a reasonable doubt. To constitute a crime there must coexist a criminal act with a criminal intent. To prove the intent without the act is as equally futile to establish criminal liability as to prove the act without the intent. Both are essential. And if the defendant was so insane as to be incapable of having any intent to '"Graves v. State, 45 N. J. L. 347, Bell, 49 Cal. 485; People v. Allendsr, 46 Am. R. 778; State v. Redemeier, 117 Cal. 81, 48 Pac. 1014; People 71 Mo. 173, 36 Am. R. 462; Ortwein v. Hettlck, 126 Cal. 425, 58 Pac. 918; V. Commonwealth, 76 Pa. St. 414, 18 State v. Parks, 93 Me. 208, 44 Atl. Am. R. 420; Parsons v. State, 81 899; Carlisle v. State, (Tex.) 56 S. Ala. 577, 2 So. 854, 60 Am. R. 193; W. 365; State v. Larkins, 5 Idaho Commonwealth v. Rogers, 7 Mete. 200, 47 Pac. 945. (Mass.) 500, 41 Am. Dec. 458; State "= Hopps v. People, 31 111. 385, 83 V. McCoy, 34 Mo. 531, 86 Am. Dec. Am. Dec. 231; State v. Bartlett, 43 121; Kelch v. State, 55 Ohio St. N. H. 224, 80 Am. Dec. 154; Polk 146, 45 N. E. 6, 60 Am. St. 680; v. State. 19 Ind. 170, 81 Am. Dec. Ryder v. State, 100 Ga. 528, 28 S. 382; Chase v. People, 40 111. 352; E. 246, 62 Am. St. 334; State v. Guetig v. State, 66 Ind. 94, 32 Am. Trout, 74 Iowa 545. 38 N. W. 405, R. 99; Plake v. State, 121 Ind. 433, 7 Am. St. 499; State v. Alexander, 23 N. E. 273. 16 Am. St. 408; Dacey 30 S. Car. 74, 8 S. E. 440, 14 Am. St. v. People, 116 111. 555, 6 N. E. 165; 879; Keener v. State, 97 Ga. 388, 24 Brotherton v. People, 75 N. Y. 159; S. E. 28; State v. Wright, 134 Mo. Dove v. State, 3 Heisk. (Tenn.) 404, 35 S. W. 1145; State v. Bell. 136 348. Mo. 120, 37 S. W. 823: People v. § 2729.] GENERAL PRINCIPLES AND RULES. 38 commit the crime, he has not, in contemplation of law, committed any offense for which he can be held responsible. The burden, then, is on the state to establish both of these conditions of guilt beyond a reasonable doubt. From this there seems to us but one logical con- clusion, which is, that, after the evidence is all in, and the case is submitted to the jury, if the jury have any reasonable doubt as to the sanity of the accused they must acquit. The question is not open to dispute that if the jury had a reasonable doubt as to whether the de- fendant committed the act or not they must acquit, since in such a case the state has not proved beyond a reasonable doubt that the de- fendant has committed the act with which he is charged. In reason, then, why should not the jury acquit if they have a reasonable doubt as to the existence of the other question of guilt, viz., a mind sane enough to be capable of entertaining a criminal intent? Both con- ditions are essential to constitute the crime, and the proof requisite to conviction should in like manner be tlie same in both cases.""* § 2729. Intoxication. — It is often said that intoxication is no ex- cuse for crime, and, as a general rule, it is true that voluntary drunk- enness is not a good defense."^ But the intoxication or use of liquor may have been so long continued as to have affected the mind and to have rendered the accused insane. In such a case, evidence thereof is usually relevant, but it is the insanity rather than its cause that constitutes the defense.^ *^ So, where a specific intent or premedita- tion is essential to constitute the crime charged, evidence of intoxi- cation is often relevant and admissible to show that the accused could not have entertained such intent"' or formed such premeditated ^"Knights V. State, 58 Neb. 225. Comm. 25, 26; note in 31 Cent. L. 78 N. W. 508, 76 Am. St. 78, and J. 113. note. "'People v. Travers, 88 Cal. 233, '"Goodwin v. State, 96 Ind. 550; 26 Pac. 88; People v. Fellows, 122 Garner v. State, 28 Fla. 113, 9 So. Cal. 233, 54 Pac. 830; Beasley t. 835; People v. Miller, 114 Cal. 10, State, 50 Ala. 149; People v. Rogers, 45 Pac. 986; Conly v. Common- 18 N. Y. 9, 72 Am. Dec. 484; Macon- wealth, 17 Ky. L. R. 678, 32 S. W. nehey v. State, 5 Ohio St. 77; Evers 285; McCook v. State, 91 Ga. 740, v. State, 31 Tex. Cr. App. 318. 20 17 S. E. 1019; State v. Murphy, 118 S. W. 744, 37 Am. St. 811; State v. Mo. 7, 25 S. W. 95; People v. Rogers, Robinson, 20 W. Va. 713, 43 Am. R. 18 N.' Y. 9, 72 Am. Dec. 484; Up- 799; French v. State, 93 Wis. 325, stone V. People, 109 111. 169; People 67 N. W. 706. V. Garbutt, 17 Mich. 9, 97 Am. Dec. i^" Chrisman v. State, 54 Ark. 283. 162; 1 Hale P. C. 32; 4 Blackstone 15 S. W. 889; Wood v. State, 34 Ark. 39 INTOXICATION rOiniEU JEOPARDY. [§ 2730. design.^^" Evidence of intoxication to such an extent that the ac- cused must have been physically unable to do the act charged may also be received in a proper case.^^^ A witness, although not an ex- pert, may testify as to the fact of intoxication.^^- And it has been held that evidence of the conduct of the accused on previous occa- sions when intoxicated may be received as tending to illustrate or show his condition at the time in question. ^^^ But the witness can- not give his opinion or conclusion as to whether the accused was so intoxicated as to be incapable of forming or entertaining a crimi- nal intent,^^* or so drunk as not to know what he was doing.^^^ § 2730. Former jeopardy. — It is provided in nearly every consti- tution, at least in this country, that no person shall be twice put in jeopardy for the same offense, but it has been said that this principle is imbedded in the very elements of the common law and that even in the absence of positive enactment the pleas of autrefois acquit and of autrefois convict are allowed in all criminal cases. ^^® It is not within the scope of this work to treat at length of the vexed question as to what constitutes former jeopardy and when it attaches, but important contributions to the subject will be found in the refer- ence given below.^^^ "If the formal acquittal," says Professor Grcen- 341; State v. Fiske, 63 Conn. 388, "= People v. Monteith, 73 Cal. 7, 28 Atl. 572; Commonwealth v. Ha- 14 Pac. 373; State v. Dolan, 17 genlock, 140 Mass. 125. 3 N. E. 36; Wash. 499, 50 Pac. 472; People v. State V. Garvey, 11 Minn. 154; Scott Eastwood, 14 N. Y. 562; State v. V. State, 12 Tex. App. 31; Aszman Pierce, 65 Iowa 85, 21 N. W. 195; V. State, 123 Ind. 347, 24 N. E. 123; Vol. I, § 678, note 46. State v. Donovan, 61 Iowa 369, 16 ^^^ Upstone v. People, 109 111. 169; N. W. 206; State v. Zorn, 22 Ore. but see. Commonwealth v. Cloonen, 591, 30 Pac. 317; Cline v. State, 43 151 Pa. St. 605. 25 Atl. 145. Ohio St. 332, 1 N. E. 22; see also, ^" Armor v. State. 63 Ala. 173; Pigman v. State, 14 Ohio 555; Lytle see also. State v. Smith, 49 Conn. V. State. 31 Ohio St. 196. 376; People v. Slack, 90 Mich. 448, ^^^ Garner v. State, 28 Fla. 113, 9 51 N. W. 533. So. 835; People v. Cummins, 47 '"White v. State, 103 Ala. 72, 16 Mich. 334, 11 N. W. 184; Common- So. 63. wealth V. Dorsey, 103 Mass. 412; ^^^ United States v. Gilbert, 2 State V. Mowry, 37 Kans. 369, 15 Sumn. (U. S.) 42; 3 Greenleaf Ev.. Pac. 282; Cluck v. State, 40 Ind. § 35. 263; Bernhardt v. State. 82 Wis. '"See, 11 Am. St. 228, 229, note: 23, 51 N. W. 1009; Hopt v. People, 1 L. R. A. 451, note; 4 L. R. A. 453, 104 U. S. 631. note; 44 L. R. A. 694, note; Re '"Ingalls v. State, 48 Wis. 647, 4 Ascher, (Mich.) 57 L. R. A. 806; N. W. 785. State v. Howard, (S. Car.) 58 JL. R. § 2731.] GENERAL PRINCIPLES AND RULES. 40 leaf/^® "was for want of substance in setting forth the offense, or for want of jurisdiction in the court, so that for either of these causes no valid judgment could have been rendered, it is no bar to a second prosecution; but though there be error, yet if it be in the process only, the acquittal of the party is nevertheless a good bar. The suffi- ciency of the bar is tested by ascertaining whether he could legally have been convicted upon the previous indictment; for if he could not, his life or liberty was not in jeopardy ."^^^ But, in a recent case, in the Supreme Court of the United States, this doctrine, while ad- mitted to have the support of many authorities, was denied, the court saying: "After the full consideration which the importance of the question demands, that doctrine appears to us to be unsatisfactory in the grounds on which it proceeds, as well as unjust in its opera- tions upon those accused of crime; and, the question being now for the first time presented to this court, we are unable to resist the con- clusion that a general verdict of acquittal upon the issue of not guilty to an indictment undertaking to charge murder, and not objected to before the verdict as insufficient in that respect, is a bar to a second indictment for the same killing."^''*' § 2731. Former jeopardy — Burden and evidence to sustain. — To sustain the plea of former acquittal, conviction or jeopardy, the bur- den is generally held to be upon the defendant^" to prove by a pre- A. 685, 870; 59 L. R. A. 578, note; precision, and tlie verdict of the 18 Cent. L. J. 43. 63, 392, note; 60 jury was received on Sunday, yet Cent. L. J. 184. the former acquittal was held a bar. ^=« 3 Greenleaf Ev., § 35. "' Faulk v. State, 52 Ala. 415; Em- "»2 Hawkins P. C, chap. 35; erson v. State, 43 Ark. 372; Jenkins chap. 36, §§ 1, 10, 15; 2 Hale v. State, 78 Ind. 133; Cooper v. P. C. 246-248; Commonwealth v. State, 47 Ind. 61; Marshall v. State, Goddard, 13 Mass. 455; Wharton 8 Ind. 498; Duncan v. Common- Am. Cr. Law 190-204; People v. Bar- wealth, 6 Dana (Ky.) 295; Vowells rett, 1 Johns. (N. Y.) 66; Rex v. v. Commonwealth, 83 Ky. 193, 7 Ky. Emden, 9 East 437; Commonwealth L. R. 176; Commonwealth v. Wer- v. Peters, 12 Mete. (Mass.) 387; mouth, 174 Mass. 74, 54 N. E. 352; Reg. v. Drury, 3 Cox Cr. Cas. 544, 3 Commonwealth v. Daley, 4 Gray Car. & Kir. 193, 18 L. J. (M. C.) 189; (Mass.) 209; Brown v. State, 72 see also. 1 Bishop Cr. Law 1021; Miss. 95, 16 So. 202; Rocco v. State, Vaux's Case, 4 Coke 44. 37 Miss. 357; State v. Wister, 62 ""Ball V. United States, 163 U. S. Mo. 592; State v. Small, 31 Mo. 197; 662, 16 Sup. Ct. 1192. The former State v. Andrews, 27 Mo. 267; State indictment charged murder, hut v. Ackerman, 64 N. J. L. 99, 45 Atl. lacked the requisite fullness and 27; People v. Cramer, 5 Park. Cr. 41 FORMER JEOPARDY. [§ 2?31. ponderance of the evidence/"- both the former conviction, acquittal or jeopardy and the identity of the person and of the offense. The identity of the offense rnay generally be shown by producing the rec- ord, and showing that the same evidence, which is necessary to sup- port the second indictment, would have been admissible and suffi- cient to procure a legal conviction upon the first.^*'^ A prima facie case on this point being made out by the prisoner, it has been said that it is then incumibent on the prosecutor to meet it by proof that the offense charged in the second indictment was not the same as that charged in the first.^®* It is not necessary that the two charges should be precisely alike in form, or should correspond in things which are not essential and not material to be proved ; the variance, to be fatal must be in matter of substance. The former conviction or acquittal must usually be proved by the record, unless a proper foundation is laid for secondary evidence,^®^ but parol evidence is admissible, in a proper case, to show the identity of the offense^®" as well as the person,^**^ and, perhaps, on other matters when re- quired by circumstances.^''^ 'Though the general rule," says Green- leaf, "is thus strongly held against a second trial in criminal cases, yet it has always been held, that, to the plea of autrefois acquit, or Cas. (N. Y.) 171; Bainbridge v. monwealth v. Daley, 4 Gray (Mass.) State, 30 Ohio St. 264; Davidson v. 209. State, 40 Tex. Cr. App. 285, 49 S. "'^ Brown v. State, 72 Miss. 95, 16 W. 372, 50 S. W. 365. So. 202; Walter v. State, 105 Ind. "= State v. Scott, 1 Kans. App. 589, 5 N. E. 735; Bailey v. State, 26 748, 42 Pac. 264; State v. Acker- Ga. 579; Robbins v. Budd, 2 Ohio man, 64 N. J. L. 99, 45 Atl. 27; Da- 16; State v. Hudkins, 35 W. Va. vidson v. State, 40 Tex. Cr. App. 247, 13 S. E. 367. 285, 49 S. W. 372, 50 S. W. 365; ^^ State v. Waterman, 87 Iowa Willis v. State, 24 Tex. App. 586, 255, 54 N. W. 359; Bainbridge v. 6 S. W. 857. State. 30 Ohio St. 364; Brown y. »"' Archibold Cr. PI. 87; Rex v. State. 72 Miss. 95, 16 So. 202; Wil- Emden, 9 East 437; Rex v. Clark, kinson v. State, 59 Ind. 416, 26 Am. 1 B. & B. 473; Rex v. Taylor, 3 R. 84; Durland v. United States, 161 B. & C. 502; 1 Russell Crimes 832; U. S. 306, 16 Sup. Ct. 508. Commonwealth v. Roby, 12 Pick. '"'Reg. v. Austin, 2 Cox Cr. Cas. (Mass.) 496; Rex v. Vandercomb, 2 59. Leach C. C. (4th ed.) 316; see also, ^»^' See, Riley v. State, 43 Miss. 397; Dunn V. State. 70 Ind. 47; Moore Bainbridge v. State, 30 Ohio St. 264; V. State, 51 Ark. 130, 10 S. W. 22. State v. Smith, 33 N. Car. 33; Com- '°*Rex V. Bird, 5 Cox Cr. Cas. 11, monwealth v. Dascom. Ill Mass. 2 Bng. L. & Eq. 439; but see, Com- 404; State v. Judge, 42 La. Ann. 414, 7 So. 678. 2732.] GENERAL PRINCIPLES AND RULES. 42 autrefois convict, in prosecutions for misdemeanors, it is a sufficient answer that the formal acquittal or conviction was procured by the fraud or evil practice of the prisoner himself."^*''' And it is held that the prisoner is entitled to a trial by jury upon such an issue."" § 2732. Provinces of court and jury. — As a general rule in crimi- nal cases as well as in civil cases it is the province of the court to de- termine the law and of the jury to determine the facts.^''^ But in some states the constitution provides that the jurors shall be judges of the law as well as the facts.^'^^ Even under such constitutional provisions, however, it is generally held that while they may have the power to disregard the instructions of the court, it is their duty to accept such instructions as to the law and the court has the right to so charge,^^^ at least where the jurors are also informed of their ^^'S Greenleaf Ev.. § 38; Chitty Cr. Law 657; Rex v. Bear, 2 Salk. 646; Rex v. Furser, Sayer 90; Rex v. Davis, 1 Show. 336; Anonymous, 1 Lev. 9; Rex v. Mawbey, 6 Term R. 619; State v. Brown. 16 Conn. 54; State V. Little, 1 N. H. 257; Com- monwealth v. Kinney, 2 Va. Cas. 139; Halloran v. State, 80 Ind. 586; State v. Moore, 136 N. Car. 581, 48 S. E. 573. ""See. Caldwell v. State, 69 Ark. 322, 63 S. W. 59; Funderburk v. State, (Tex. Cr. App.) 64 S. W. 1059; see also. State v. Ackerman, 64 N. J. L. 99, 45 Atl. 27. "'Sparf v. United States, 156 U. S. 51, 15 Sup. Ct. 273; Common- wealth V. Porter, 10 Mete. (Mass.) 263; Hamilton v. People, 29 Mich. 173; State v. Burpee, 65 Vt. 1, 25 Atl. 964, 19 L. R. A. 145, 36 Am. St. 775; State v. Smith, 6 R. I. 33; Duffy V. People. 26 N. Y. 588; Erskine's famous contest over this question in libel cases is familiar to all. See, Rex v. St. Asaph, 3 Term R. 428; Rex v. Woodfall, 5 Burr. 2661; Rex v. Oneby, 2 Str. 766. Of course questions as to the admissi- bility of evidence are ordinarily for the court. People v. Ivey, 49 Cal. 56; Berry v. State, 31 Ohio St. 219, 27 Am. R. 506; State v. Perioux, 107 La. Ann. 601, 31 So. 1061; State v. Williams, 67 N. Car. 12; Dugan v. Commonwealth, 102 Ky. 241, 43 S. W. 418. '■^See, Blaker v. State, 130 Ind. 203, 29 N. E. 1077; Hudelson v. State, 94 Ind. 426; State v. Gannon, 75 Conn. 206, 52 Atl. 727; State v. Armstrong, 106 Mo. 395, 16 S. W. 604; Goldman v. State, 75 Md. 621, 23 Atl. 1097; see also, Thompson Tr., §§ 2132-2148. "^ State V. Gannon. 75 Conn. 206, 52 Atl. 727; Blaker v. State, 130 Ind. 203, 29 N. E. 1077; Common- wealth V. McManus, 143 Pa. St. 64, 21 Atl. 1018, 14 L. R. A. 89; Ford V. State, 101 Tenn. 454, 47 S. W. 403; but see, Hudelson v. State, 94 Ind. 426, Elliott and Hammond, JJ., however, dissenting. See general- ly. Commonwealth v. Anthes, 5 Gray (Mass.) 185; United States v. Bat- tiste, 2 Sumn. (U. S.) 240; Mont- gomery V. State, 11 Ohio 424; 1 Coke Litt. 155b, note 5; 3 Cr. L. Mag. 484; 5 South. L. Rev. (N. S.) 352; Cooley Const. Lim. C4th ed ) 43 PROVINCE OF COURT AND JURY. [§ 2732. constitutional power. The subject is treated as follows in a recent case: "Whenever a question of law is presented, whether it concern the sufficiency of the complaint, the impaneling of the jury, the ad- mission or rejection of testimony, or the conclusion of law from the facts admitted or found, the court alone answers; whenever the pleadings terminate in an issue of pure fact, the jury alone answers. It happens, however, that there are questions — owing mainly to tlie form of procedure, but in part to the inherent nature of some ques- tions — where the law and the fact are complicate, where the pure question of fact cannot be fairly determined except in relation to the law, and the pure question of law cannot be determined until the facts are found. It is impossible for the court alone to answer such complicate question without infringing on the province of the jury, or for the jury alone to answer without infringing on the province of the court. In such a case it may be practical for the jury to sep- arate the fact from the law and to find the facts, leaving the court to then declare the law; if so, the jury returns a special verdict, finding the facts involved in the complicate question, and the court declares the law on the facts so found. Here court and jury still exercise their respective powers separately. But if such separation is imprac- ticable, the respective powers of court and jury are preserved by the judge's stating his determination of the law hypothetically — if the facts are so and so, this is the law — leaving the jury to find the fact in view of the law so determined by the judge, by the return of a general verdict. Wlien the plea of not guilty presents, as the issue, a question in which fact and law are blended, the jury must still answer to the fact, and the court to the law; but whether that answer shall be given separately, by means of a special verdict, whereby the court determines the law directly upon facts already found by the jury, or shall be given, as it were, jointly, by means of a general ver- dict, whereby the court determines the law hypothetically in respect to the facts as the jury may properly find them, is at the option of the jury. And this opposition, i. e., the right to return a general 397, et seq.; People v. Worden, 113 pare, Fisher v. People, 23 111. 218; Cal. 569, 45 Pac. 844; Parrish v. Spies v. People, 122 111. 1, 12 N. E. State, 14 Neb. 60; Adams v. State, 865, 3 Am. St. 320; Fowler v. State, 29 Ohio St. 412; State v. Miller, 53 85 Ind. 538; State v. Zimmerman, Iowa 154, 4 N. W. 438; Edwards v. 31 Kans. 85, 1 Pac. 257; Beard v. State. 53 Ga. 428; Berry v. State, State, 71 Md. 275, 17 Atl. 1044, 4 L. 105 Ga. 683, 31 S. E. 592; State v. R. A. 675, 17 Am. St. 536. Johnson, 30 La. Ann. 904; but com- § 2733.] GENERAL PRINCIPLES AND RULES. 44 verdict upon the issue joined to the jury, is another essential feature in trial of criminal causes by jury. It is evident that, as a general verdict involves an application of law as declared by the -^.ourt to the facts as found from the evidence, the jury must consider the law in connection with the evidence in reaching their ultimate conclusion; and in this limited sense they may with doubtful accuracy be called ( judges of the law ; but, as the law determined by the courts is the law they must consider, it is clear that, in no sense which involves any independent determination of what the law of the state is, are they the judges of the law."^'^'* The court may direct a verdict of ac- quittal in a proper case,-'^^ but the accused has a constitutional right to a trial by a jury of his peers. For this reason it can seldom happen that a verdict of guilty can properly be directed by the court."^ This is especially true where the constitution also makes the jurors judges of the law as well as the facts even though they are not the sole and exclusive judges of the law. § 2733, Cautionary instructions. — Certain defenses, such as alibi and insanity, are often resorted to by prisoners who are in reality guilty and these defenses are therefore sometimes looked upon with disfavor or suspicion by courts as well as juries. It is in regard to such matters as well as in regard to the credibility of certain wit- nesses or classes of witnesses, or the weight to be given to their testi- mony, that error is most often committed by invading the province of the jury. Different courts have taken somewhat different views as to the extent to which cautionary instructions may be given without error, but, while attention may doubtless be called to the general na- ture of the defense and the jury may be instructed as to what they may take into consideration, in certain respects, in regard to such "* State V. Gannon. 75 Conn. 206, Pa. St. 591, 29 Atl. 272; State v. 52 Atl. 727, 732, 733. Winchester, 113 N. Car. 641. 18 S. '"Commonwealth v. Merrill, 14 E. 657; State v. Picker, 64 Mo. App. Gray (Mass.) 415; Commonwealth 127; Tucker v. State, 57 Ga. 503; v. Lowrey, 158 Mass. 18, 32 N. E. State v. Wilson, 62 Kans. 621, 64 940; State v. Trove, 1 Ind. App. Pac. 23, 52 L. R. A. 679; Perkins v. 553, 27 N. E. 878; State v. Green, State, 50 Ala. 154; Duffy v. People, 117 N. Car. 695, 23 S. E. 98; State 26 N. Y. 588; United States v. Tay- V. Warner, 74 Mo. 83; People v. Led- lor, 11 Fed. 470; but see, People v. won, 153 N. Y. 10, 46 N. E. 1046; Nuemann, 85 Mich. 98, 48 N. W. State V. Meyer, 69 Iowa 148, 28 N. 290; People v. Elmer, 109 Mich. 493, W. 484. 67 N. W. 550. "" Commonwealth v. Werntz. 161 45 CAUTIONARY INSTRUCTIONS. [§ 2733. defenses as well as in determining the credibility of witnesses, it is generally conceded that the court should be careful not to cast dis- credit upon the defense to the prejudice of the accused, and that the law does not necessarily discredit such defenses, but leaves the mat- ter to the jury to determine as one of fact within their own province,"' and so where a witness has wilfully testified falsely as to some other material fact, while the court may instruct the jury that they may take this into consideration in weighing his testimony and disre- gard it all, still the law does not say that they must disregard it, and they should not be so instructed.^'^^ '"31 Cent. L. J. 113, note; 14 Am. 534, 19 Pac. 607; as to insanity: St. 41-44, note; 72 Am. Dec. 539- People v. Methever, 132 Cal. 326, 64 549, note; as to alibi: Albin v. State, Pac. 481; Aszman v. State, 123 Ind. 63 Ind. 598; People v. Lattimore, 86 347, 24 N. E. 123, 8 L. R. A. 33. Cal. 403, 24 Pac. 1091; Simmons v. ™ Vol. II, § 956; note in 14 Am. State, 61 Miss. 243; State v. Crowell, St. 45; see also, Vol. I, § 296; Vol. 149 Mo. 391. 50 S. W. 893, 73 Am. II, §§ 961, 965, 966, 1047. St. 402; State v. Chee Gong. 16 Ore. CHAPTER CXXVIII. ABDUCTION. Sec. 2734. Scope and purpose. Kidnapping. 2735. Definition and meaning. 2736. Kidnapping — Proof. 2737. Kidnapping — C o m m o n-law rule changed. 2738. Kidnapping — Proof of intent. 2739. Kidnapping — Age and consent. Abduction. 2740. Definition and meaning. 2741. Proof of physical force not re- quired. 2742. Taliing away or detention — Proof sufficient. 2743. Proof of taking away — Suffi- ciency. 2744. Proof of intent — Sufficient. 2745. Abduction for prostitution or concubinage. Sec. 2746. Purpose of prostitution — Prima facie proof. 2747. Proof of detention against the will. 2748. Taking from the house with- out consent of parent or guardian. 2749. Taking from residence or cus- tody — Proof. 2750. Taking from parents without consent. 2751. Taking against the will of the person abducted. 2752. Age of female abducted. 2753. Previous chaste character. 2754. Previous chaste character — Burden of proof. 2755. Presumption of previous chaste character. 2756. Proof of previous unchastity as a defense. 2757. Corroborative proof. § 2734. Scope and purpose. — Abduction is a crime defined and governed by statute in perhaps every state in the United States. These various statutes fully cover the common law definition and meaning of abduction, and usually include additional matter. In some cases and states the statutes include: (1) The unlawful taking of persons against their will, usually termed kidnapping; (2) the taking of females for the purpose of prostitution or concubinage; (3) the tak- ing of females for the purpose of forcible marriage or defilement; (4) criminal seduction. It is not within the scope of this chapter to treat these several statutory crimes. But, disregarding the statu- tory variations, there are many rules and principles of evidence that are common even to these statutory offenses. It is the purpose of 46*^ 47 KIDNAPPING. [§§ 2735, 2736. this chapter to give the general rules and principles of evidence re- lating more especially, if not exclusively, to the crime of abduction as generally known and understood by the term kidnapping and as applied to the taking of females. Kidnapping. § 2735. Definition and meaning. — As defined by Blackstone, kid- napping is the forcible abduction or stealing away of a man, woman or child from their own country and sending them into another.^ It has been said to be a false imprisonment aggravated by convey- ing the imprisoned person to some other place.^ As defined by some courts it is said to be an aggravated species of false imprisonment.^ As defined by some statutes and followed by decisions of some courts, it is a forcible or fraudulent carrying away from his place of resi- dence; or the arresting or imprisonment of any person with intent to have such person carried away from his residence; or secret con- finement within the state; or detention against the will, all wilfully and without authority of law.* It is now very generally conceded that the offense is complete without the sending the person away to another country. But it is held that the offense is greatly aggravated by sending the abducted person away from his own country into another." § 2736. Kidnapping^ — Proof. — To constitute the crime of kidnap- ping the proof must show two essential elements : ( 1 ) The conveying away against the will and without the consent of the injured person ; (2) the absence of any legal warrant or lawful authority.® The of- M Blackstone Comm. 219; Black's People v. Chu Quong, 15 Cal. 332; Law Diet.— Kidnapping, 678; 2 Bou- State v. Sutton, 116 Ind. 527, 19 N. vier 91; 1 Russell Crimes (3rd ed.) E. 602; Boes v. State, 125 Ind. 205, 716; State v. Whaley, 2 Harr. (Del.) 25 N. E. 218; Eberling v. State. 136 538; Click v. State, 3 Tex. 282; Peo- Ind. 117, 35 N. E. 1023; Com- ple T. Camp, 139 N. Y. 87, 34 N. E. monwealth v. Blodgett, 12 Mete. 755. (Mass.) 56; Dehn v. Mandeville, 68 ^2 Bishop Cr. Law 750; Click v. Hun (N. Y.) 335, 22 N. Y. S. 984; State. 3 Tex. 282; Eberling v. State, Smith v. State, 63 Wis. 453, 23 N. 136 Ind. 117, 35 N. E. 1023. W. 879. ^ Click V. State, 3 Tex. 282; Cas- 'East PI. Crown 430; Roscoe Cr. tillo V. State, 29 Tex. App. 127, 14 Ev. 465; State v. Rollins. 8 N. H. S. W. 1011; Smith v. State, 63 Wis. 550; Click v. State, 3 Tex. 282. 453, 23 N. W. 879. 'Click v. State, 3 Tex. 282; Cas- *Gravett v. State, 74 Ga. 191; tillo v. State, 29 Tex. App. 127, 14 §§ 2737, 2738.] abduction. 48 fense may be established in either of two ways : (1) By proof show- ing that the person was forcibly or fraudulently carried off or de- coyed from his place of residence without lawful authority; (2) by proof of an arrest or imprisonment of a person with the intention of carrying him, or having him carried away, in the absence of any lawful authority.'' § 2737. Kidnapping — Common law rule changed. — Under the common law definition of kidnapping in order to establish the crime the proof must show that the person charged either did remove or intended to remove the injured person beyond the state or country. But this common law crime has been generally modified by the stat- utes of the several states of this country by making the offense con- sist of either, (1) causing the person to be secretly confined or im- prisoned in the state against his will; or (2) causing him to be sent out of the state against his will. To establish the crime under the first division of such a statute the proof must show that the confine- ment was secret within the state or that the intention existed of such secret confinement. Under such a statute where a person is seized and removed in broad daylight over public highways and railroads in the presence and view of many persons, and taken to an insane asylum and placed in the custody of public officials and in the presence of numerous physicians and other persons, it was held that there was no such secrecy about the transaction or imprisonment as to constitute the crime of kidnapping.* g 2738. Kidnapping— Proof of intent. — The charge of sending a person out of the state against his will may be sustained by proof of the intention to do so and the seizure and transportation for that purpose, although the person is not actually conveyed out of the state. Nor is it absolutely necessary to prove directly that it was against tlie will of the person alleged to have been kidnapped. It is sufficient if the proof shows that fraud or deception was practiced upon the person in order to obtain such consent. If it is made to appear that the consent could not have been obtained in the absence of the fraud or deception the statutory requirement of being against the will is fully complied with. On this subject the Supreme Court of New S. W. 1011; Maner v. State, 8 Tex. N. E. 755; People v. De Leon, 109 Cr. App. 361. N. Y. 226, 16 N. E. 46, 4 Am. St. 447. 'State V. Kimmerling, 124 Ind. note; Smith v. State, 63 Wis. 453, 382, 24 N. E. 722. 23 N. W. 879. « People V. Camp, 139 N. Y. 87, 34 49 KIDXAPPIXG. [§ 2739. York say : "The consent of the prosecutrix having been procured by fraud, was as if no consent had been given, and the fraud being a part of the original scheme, the intent of the defendant was to cause the prosecutrix to be sent out of the state against her wilL"" And a person may be guilty of kidnapping under such a statute where it is made to appear that he intended to take or send by a boat to a certain foreign country the person alleged to have been kidnapped, although it subsequently appeared that the vessel was not bound for that country at all. Thus, where a person procured the intoxication of a sailor and caused him to be taken on board a vessel without his consent, and with the intention that he should be taken out of the state, it was held that the ofEense was complete although the vessel was not in fact intended to leave the state." But in case of stealing a child with the intent unlawfully to detain or conceal it from its parents or other proper person, the proof must show the existence of the intent." § 2739. Kidnapping — Age and consent. — Under most statutory definitions it becomes essential to prove the age of the injured person. The distinction made by these statutes is that under a certain age the offense is complete regardless of the consent of the person abducted. But over the stated age it is essential to prove that the abduction was against the will of the person. So, too, the question of age is essen- tial in the use of force. Under many of these statutes if the person is under a stated age, it is not necessary to prove the use of either force or violence. But over such age the offense is not complete without proving that force was used.^^ The evidence must bring the defendant within all the material words of the statute, as nothing can be taken by intendment; accordingly the proof must show that the person abducted was within the statutory age and that she was a maid or woman-child, as a description by name is not sufficient. ^^ "People V. De Leon, 109 N. Y. 226, (Mass.) 518; State v. Sullivan, 85 16 N. E. 46, 4 Am. St. 447; Beyer N. Car. 507; Castillo v. State, 29 V. People, 86 N. Y. 369; Reg. v. Hop- Tex. App. 127, 14 S. W. 1011; An- kins. Car. & M. 254. derson v. Commonwealth. 5 Rand. "Hadden v. People, 25 N. Y. 373. (Va.) 627; United States v. Au- "Mayo V. State, 43 Ohio St. 567, carola, 17 Blatch. (U. S.) 423; Com- 3 N. E. 712. monwealth v. Robinson, Thatcher >= State V. Rollins, 8 N. H. 550; Cr. Cas. (Mass.) 488; 2 Bishop Cr. State V. Farrar, 41 N. H. 53; Moody Law 751. V. People, 20 111. 315; Common- ''State v. O'Bannon, 1 Bail. (S. wealth v. Nickerson, 5 Allen Car.) 144. Vol. 4 Elliott Ev. — 4 §§ 2740, 2741.] ABDUCTION. 50 Where a person within the prohibited age has been abducted it is no defense to show that the defendant believed or had reason to believe that the person was over the statutory age.^* Abduction. § 2740. Definition and meaning. — Abduction as distinct from kid- napping has been defined as: "The unlawful taking or detention of any female for the purpose of marriage, concubinage or prostitu- tion.''^^ The Supreme Court of North Carolina approved Webster's definition as follows: "The crime is defined in the statute by the term abduction, which is a term of well-known signification and means in law 'the taking and carrying away of a child, a ward, a wife, etc., either by fraud, persuasion or open violence.' "^^ Under the English statute on this subject, from which most of the American statutes were framed, the ofi^ense consisted of the taking: (1) of any woman having certain property or expectancies, to be married or defiled ; (2) of such a woman being under the age of twenty-one years out of the possession of the person having the lawful custody of her; (3) of any woman of any age by force, with intent to cause her to be married or defiled; (4) of any unmarried girl under the age of sixteen years out of possession of the person having lawful custody of her; (5) of any child under the age of fourteen years with intent to deprive its lawful guardian of its custody. § 2741. Proof of physical force not required. — Many of the stat- utes defining abduction provide that the act must be forcible. But the decisions are practically unanimous in holding that it is not neces- sary to prove actual physical violence in order to establish the forci- ble taking contemplated by such statutes. The Supreme Court of Illinois approved an instruction on this subject as follows : "To con- stitute the forcible abduction or stealing of a person within the meaning of the statute, it is not necessary that actual physical force or violence be used upon the person kidnapped. But it will be suffi- cient, if, to accomplish the removal, the mind of the person was oper- ated upon by the defendants, by falsely exciting the fears, by threats, "People v. Fowler, 88 Cal. 136, 25 Carpenter v. People, 8 Barb. (N. Y.) Pac. 1110; State v. Johnson, 115 Mo. 603; State v. Chisenhall, 106 N. Car. 480, 22 S. W. 463. 676, 11 S. E. 518; Humphrey v. " Black's Law Diet. 6. Pope, 122 Cal. 253. 54 Pac. 847. ^« State v. George, 93 N. Car. 567; 51 TAKIXG AWAY. [§ 2742. fraud or other unlawful or undue influence, amounting substantially to a coercion of the will, so that, if such means had not been resorted to or employed, it would have required force to efl^ect the removal." In commenting on tliis instruction the court further said : "The statute defines kidnapping to be the forcible abduction or stealing away of a man, woman or child from his or her own country, and sending or taking him or her into another. While the letter of the statute requires the employment of force to complete his crime, it will undoubtedly be admitted by all that physical force and violence are not necessary to its completion. Such a literal construction would render this statutory provision entirely useless. The crime is more frequently committed by threats and menaces than by the employ- ment of actual physical force and violence. If the crime may be committed without actual violence, by menace, it would seem that any threats, fraud or appeal to the fears of the individual, which subject the will of the person abducted and places such person as fully under the control of the other as if actual force were employed, would make the offense as complete as by the use of force and vio- lence."^ ^ § 2742. Taking away or detention — Proof sufficient. — The prime essential of the crime is the taking away from the residence or other proper place with an unlawful purpose. What constitutes the taking away is usually not defined by statute; however the statutes some- times use such words as persuade, entice, inveigle or induce. As previ- ously seen it is not necessary that the proof show the use of actual physical force. It has been held that a defendant may be guilty of such a charge even when he was not present at the time of the tak- ing. And if it is shown that it was by his inducement or persuasion, or that it was through the influence exerted or the inducement held out and the means for leaving provided by the defendant, it is gener- " Moody V. People, 20 111. 315; 106 N. Car. 676, 11 S. E. 518; Beyer State V. Bussey, 58 Kans. 679, 50 v. People, 86 N. Y. 369; Schnicker Pac. 891; People V. Carrier, 46 Mich. v. People, 88 N. Y. 192; Eberling 442, 9 N. W. 487; State v. Keith, 47 v. State, 136 Ind. 117, 35 N. E. 1023; Minn. 559, 50 N. W. 691; State v. People v. Seeley, 37 Hun (N. Y.) Jamison, 38 Minn. 21, 35 N. W. 712; 190; People v. De Leon, 109 N. Y. Lampton v. State, (Miss.) 11 So. 226, 16 N. E. 46, 4 Am. St. 447, note: 656; State v. Johnson, 115 Mo. 480, Reg. v. Handley, 1 Fos. & Fin. 648. 22 S. W. 463; State v. Chisenhall, § 2743.] ABDUCTION. 52 ally sufficient. As stated by one court: "It is immaterial whether he took her by the hand and led her away, sent a special conveyance to carry her from her parents, or planned and provided that she should go in a public conveyance. It matters not what agency he provided or employed to take her away ; it is enough that he caused or procured her to be taken against the wish of her parents, and that it was done for the illicit purpose." ^^ The holdings in some jurisdictions indicate that the statutory taking or detention may be purely j&ctitious.^^ § 2743. Proof of taking away — Sufficiency. — To establish the crime of abduction there must be proof of a taking away or out of the custody or possession of another. However, very slight evi- dence may be sufficient to establish this fact, but it is necessary that there be some positive act to get the female away from the person having the legal charge of her. It is not necessary to establish a fixed distance, nor is it necessary to show that she was kept per- manently away from her home or place of residence. Nor is the proof of an intention to keep her permanently away from home es- sential to the existence of the crime. The rule on this subject is stated by the Supreme Court of Illinois thus: "So we hold in this case, that when the heartless libertine, by his seductive arts, or other means, induces his confiding or intimidated victim, as the case may be, to abandon home and the wholesome restraints of parental author- it}^, to accompany him whithersoever he may see proper to take her, without limit as to time or place, for the purpose of submitting to his licentious embraces and ministering to his unbridled lust, he clearly brings himself within the provisions of the section of the statute we are now considering, and subjects himself to the punish- ment therein enounced."^'' " State V. Bussey, 58 Kans. 679, 50 " Malone v. Commonwealth, 91 Pac. 891; State v. Overstreet, 43 Ky. 307, 15 S. W, 856; Higgins v. Kans. 299, 23 Pac. 572; Slocum v. Commonwealth, 94 Ky. 54, 21 S. W. People, 90 111. 274; People v. Car- 231; Couch v. Commonwealth, 16 rier, 46 Mich. 442, 9 N. W. 487 Beyer v. People, 86 N. Y. 369 Schnicker v. People, 88 N. Y. 192 Ky. L. R. 477, 29 S. W. 29; Howell V. Commonwealth, 5 Ky. L. R. 174; State V. Jamison, 38 Minn. 21, 35 People V. Seeley, 37 Hun (N. Y.) N. W. 712; State v. Keith, 47 Minn. 190; State v. Chisenhall, 106 N. Car. 559, 50 N. W. 691; State v. Johnson. 676, 11 S. E. 518; Payner v. Com- 115 Mo. 480. 22 S. W. 463. monwealth, (Ky.) 19 S. W. 927; "" Henderson v. People, 124 111. 607. Humphrey v. Pope, 122 Cal. 253, 54 17 N. E. 68; Slocum v. People, 90 Pac. 847. 111. 274. 53 INTENT. [§•§ 2744, 2745. § 2744. Proof of intent — Sufficient. — The offense may be suffi- ciently established by proof of two essential elements : ( 1 ) The un- lawful taking of the person; (2) the intent with which it is done. The gravamen of the offense is the purpose or intent with which the enticing and abduction is done; hence it is not necessary in order to sustain a conviction to make proof of any subsequent acts. The only purpose for whicli tlic subsequent acts are proved, or are permitted to be proved, is to establish the intent with which the taking or en- ticing was done ; but if the intent is sufficiently proved without these, the crime is established. This rule is stated as follows: "The of- fense, if committed at all, is complete the moment the subject of the crime is removed beyond the power and control of her parents, or of others having lawful charge of her, whether any illicit intercourse ever takes place or not. Subsequent acts are only important as affording the most reliable means of forming a correct conclusion with respect to the original purpose and intention of the accused."-^ And it has been held that the unlawful intent of a defendant might fairly be inferred from the end attained and the circumstances surround- ing the case.^^ But it is said to be an elementary principle that when a specific intent is required to make an act an offense, that the mere proof of doing the act raises no presumption that it was done with the specific intent.-^ § 2745. Abduction for prostitution or concubinage. — The offense is not established until the proof shows that the defendant took away the female with tlie intent of using her for the purpose of prostitu- tion or concubinage, or some other prohibited use. It is not suffi- cient under such statutes to prove that the taking away was simply for the purpose of having illicit sexual intercourse with the defend- ant alone. Some statutes, however, make this the crime. But gener- =» Henderson v. People, 124 111. People v. Stott, 4 N. Y. Cr. 306; 607, 17 N. E. 68; Slocum v. People, Commonwealth v. Kaniper, 3 Pa. Co. 90 111. 274; People v. Fick, 89 Cal. Ct. 276. 144, 26 Pac. 759; Gravett v. State, 74 -People v. Fick, 89 Cal. 144, 26 Ga. 194; State v. Bussey, 58 Kans. Pac. 759; Beyer v. People, 86 N. Y. 679, 50 Pac. 891; Payner v. Com- 369; People v. Wah Lee Mon, 37 N. monwealth, (Ky.) 19 S. W. 927; Y. St. 283, 13 N. Y. S. 767. People V. Carrier, 46 Mich. 442, 9 =» State v. Gibson, 111 Mo. 92. 19 N. W. 487; State v. Gibson, 111 Mo. S. W. 980; People v. Plath, 100 N. 92, 19 S. W. 980; State v. Johnson, Y. 590, 3 N. E. 790: State v. Payne, 115 Mo. 480, 22 S. W. 463; State v. 10 Wash. 545, 39 Pac. 157; Lawson Rorebeck, 158 Mo. 130, 59 S. W. 67; Pres. Ev. 553. §§ 2746, 2747.] abduction. 54 ally the proof must show that it was for the purpose of prostitution, the meretricious illicit intercourse, an indiscriminate, common inter- course with men.-* But where the charge was the taking away for the purpose of concubinage, the charge was held to be sustained where the proof showed a cohabitation, though but one act of intercourse was proved.^^ § 2746. Purpose of prostitution — Prima facie proof. — It must be made to appear that the taking away of the female was for the un- lawful purposes named in the statute, or some one of them. And the intent is the gravamen of the offense, and must be proved as an es- sential element of the crime. So it has been held that the taking of the abducted person to a house of prostitution or of ill-fame is prima facie proof of the taking for the purpose of prostitution.^® § 2747. Proof of detention against the will. — Some statutes make the offense to consist of detaining a women against her will with in- tent to have carnal knowledge with her. To sustain a conviction under such a statute it is only necessary to prove that the defendant detained the complaining witness against her will with the inten- tion to carnally know her. And it is no defense to show that there "People v. Demousset 71 Cal. 611, Pac. 899; State v. Overstreet, 43 12 Pac. 788; Slocum v. People, 90 Kans. 299, 23 Pac. 572; Osborn v. 111. 274; Henderson v. People, 124 State, 52 Ind. 526; Henderson v. 111. 607, 17 N. E. 68; Bunfill v. Peo- People, 124 111. 607, 17 N. E. 68; pie, 154 111. 640, 39 N. E. 565; Os- Slocum v. People, 90 111. 274; State born V. State, 52 Ind. 526; State v. v. Bussey, 58 Kans. 679, 50 Pac. 891; Ruhl, 8 Iowa 447; Commonwealth People v. Commons, 56 Mich. 544, 23 V. Cook, 12 Mete. (Mass.) 93; State N. W. 215; People v. Bristol, 23 V. Stoyell, 54 Me. 24; State v. Wil- Mich. 118; State v. Gibson, 111 Mo. kinson, 121 Mo. 485, 26 S. W. 366; 92, 19 S. W. 980; State v. Rorebeck, State V. Bobbst, 131 Mo. 328, 32 S. 158 Mo. 130, 59 S. W. 67; State v. W. 1149; State v. Rorebeck, 158 Mo. Wilkinson, 121 Mo. 485, 26 S. W. 130, 59 S. W. 67; State v. Gibson, 366; Commonwealth v. Kaniper, 3 111 Mo. 92, 19 S. W. 980; State v. Pa. Co. Ct. 276; Tucker v. State. 8 Brow, 64 N. H. 577; Carpenter v. Lea (Tenn.) 633; South v. State, 97 People, 8 Barb. (N. Y.) 603; People Tenn. 496, 37 S. W. 210; United v. Plath, 100 N. Y. 590, 3 N. E. 790; States v. Zes Cloya, 35 Fed. 493. People V. Parshall, 6 Park. Cr. Cas. -" Brown v. State, 72 Md. 468, 20 (N. Y.) 129; United States v. Zes Atl. 186; Estrado, ex parte, 88 Cal. Cloya. 35 Fed. 493. 316, 26 Pac. 209; People v. Fick 89 ^ State v. Feasel, 74 Mo. 524; Cal. 144, 26 Pac. 759. State V. Goodwin, 33 Kans. 538, 6 55 THE TAKING. [§§ 2748, 2749. was no intention of having the illicit intercourse against her will; the offense under such a statute consists in the detention against the will for the purpose of the sexual intercourse; the crime is complete if the detention is against the will, even though it is to obtain consent to the illicit act.-" § 2748. Taking- from the house without consent of parent or g'uardian. — These statutes usually prohibit the taking of the female for the purpose of prostitution or concubinage without the consent of the parents, or from the parent's house or wherever she may be found. In order to convict a defendant on such a charge the proof must establish three elements : ( 1 ) There must be a taking away within the meaning of the law;^* (2) the existence of the intent;-^ (3) it must be without the consent of the parents, or taking from their house. Under such a statute, where it appeared that a girl living with her parents was induced or persuaded to go to some con- venient place, away from her father's house but in the immediate neighborhood, for the purpose of prostitution, continuing, however, to dwell with her parents as usual, it was held to be sufficient. The proof need not show that the taking or enticing was to a distant place or for any particular lengih of time, nor that there was any intention to keep her permanently from her parent's residence. ^° § 2749. Taking from residence or custody — Proof. — The statutes against kidnapping or abduction usually provide in a general way against the taking or carrying of a person from his place of resi- dence, or the taking of a female under a certain age from the resi- dence or custody of her parents or guardian, or those having legal charge of her. To establish the ofPense under such a statute, the proof must show that there was a carrying or taking of the person either forcibly or fraudulently from his place of residence. ^^ But it " Payner v. Commonwealth, (Ky.) N. J. L. 432; see Bunfill v. People, 19 S. W. 927; Huff v. Common- 154 111. 640, 39 N. E. 565. wealth, 18 Ky. L. R. 752, 37 S. W. "' See § 2743. 1046; Beaven v. Commonwealth, =" See § 2744. (Ky.) 30 S. W. 968; Wilder v. Com- ^° Slocum v. People, 90 111. 274; monwealth, 81 Ky. 591; Krambiel State v. Johnson, 115 Mo. 480, 22 S. V. Commonwealth, 8 Ky. L. R. 605, W. 463; Reg. v. Baillie, 8 Cox Cr. 2 S. W. 555: Cargill v. Common- Cas. 238; Reg. v. Timmins, 8 Cox wealth, (Ky.) 13 S. W. 916; Hig- Cr. Cas. 401. gins V. Commonwealth, 94 Ky. 54, =^ Boes v. State. 125 Ind. 205, 25 21 S. W. 231; State v. Gordon, 46 N. E. 218. § 2750.] ABDUCTION. 56 is not necessary in such case to prove that the person alleged to have been kidnapped had acquired a permanent residence at the place from which he was so taken. It is sufficient if the proof shows that the person was at a place where he had a right to be.^^ The statute con- templates an actual state of things and not the existence of a legal relation, and an orphan living in a family without legal guardian- ship, or a girl abandoned by her parents and given a home by a chari- table person is within the meaning of the statute. It is presumed that every female within the prohibited age, who is not already de- praved, is in the legal charge of some one.^^ § 2750. Taking from parents without consent. — The prohibition of the statutes usually applies to the taking of the females under cer- tain age without consent or against the will of the parents or guardian, or other persons in whose charge they are. Under the rules for- merly given the taking must be for the illicit purpose. The agencies employed are immaterial, if it is sufficient to induce the female to leave against the wish of her parents.^* But it is not always necessary to allege or prove that such taking was without the consent of parent or guardian ; it has been held to be proper to allege and prove from whose custody the female was taken ;=^^ but not necessary.^*^ The father and mother or other person may testify that the daughter was taken without their consent, and it is proper for them to state any and all efforts made to find her." Proof of declarations of a parent of an abducted child is competent and material for the purpose of showing the want of consent to the taking, where the statute pro- vides that the taking must be without the consent or against the will of the parent. But the consent of the parent or guardian is a matter of defense, and must be established by the defendant.^^ Nor ie the '= Wallace v. State, 147 Ind. 621, =» State v. Jamison. 38 Minn. 21, 47 N. E. 13. 35 N. W. 712; Tucker v. State, 8 =^ People V. Carrier, 46 Mich. 442, Lea (Tenn.) 633; Scruggs v. State, 9 N. W. 487. 90 Tenn. 81, 15 S. W. 1074; South ^* State V. Bussey, 58 Kans. 679, v. State, 97 Tenn. 496, 37 S. W. 210. 50 Pac. 891; State v. Rorebeck, 158 ^^ State v. Keith, 47 Minn. 559, 50 Mo. 130, 59 S. W. 67; People v. See- N. W. 691. ley, 37 Hun (N. Y.) 190; State v. =' State v. Stone, 106 Mo. 1. 16 S- Ruhl, 8 Iowa 447; People v. Mar- W. 890; State v. Bobbst, 131 Mo. shall, 59 Cal. 386; People v. Carrier, 328, 32 S. W. 1149. 46 Mich. 442, 9 N. W. 487; Reg. v. =' State v. Chisenhall, 106 N. Car. Manktelow, 6 Cox Cr. Cas. 143; Reg. 676, 11 S. E. 518. v. Timmins, 8 Cox Cr. Cas. 401; Reg. V. Olifier, 10 Cox Cr. Cas. 403. 57 TAKING AGAINST WILL. [§ 2751. parent required to inform the person who attempts, or who intends to abduct his daughter that it is against his consent; it is not es- sential to the guilt of the defendant, that he should be notified of the father's unwillingness to relinquish his authority over his child; the father is under no obligation to remonstrate with one who attempts or seeks to abduct his daughter; such a course might precipitate the event he wished to prevent.^'' Some statutes do not include the tak- ing away against the will or without the consent of the parent or guardian. In such cases no proof is required on the question of the taking against the will or without parental consent.*" A\liere the female abducted is within the prohibited age, it is no defense to show that the taking, or the acts of illicit intercourse, was with her con- sent; it is sufficient if it is without the consent or against the will of the parents.*^ And where the charge is that of taking of a girl within the prohibited age from the custody of her parents or guardian it is not necessary to prove that the female was taken from the actual custody of the parents or guardian, but proof of legal custody at the time the child is taken is sufficient although it is shown that such female was actually taken from some other person.*- § 2751. Taking against the will of the person abducted. — The statute against the abduction of females above a certain age for the purpose of prostitution or concubinage not only provides that the act shall be forcible but also that it must be against the will of the per- son abducted. The instances are very rare where a woman of mature years is forcibly and bodily seized and carried away for such illegal and immoral purposes against her will. Almost all of the reported cases are those where the consent has been obtained by fraud or the =°Gravett v. State. 74 Ga. 191. 1149; Tucker v. State, 8 Lea (Tenn.) '"State V. George, 93 N. Car. 567. 633; Scruggs v. State, 90 Tenn. 81, "People V. Cook, 61 Cal. 478; Peo- 15 S. W. 1074; South v. State, 97 pie V. Demousset, 71 Cal. 611, 12 Tenn. 496, 37 S. W. 210; United Pac. 788; People v. Dolan, 96 Cal. States v. Aucarola, 17 Blatch. (U. 315, 31 Pac. 107; Gravett v. State, S.) 423; Reg. v. Manktelow, 6 Cox 74 Ga. 191; Thweatt v. State, 74 Cr. Cas. 143; Reg. v. Kipps, 4 Cox Ga. 821; State v. Bussey, 58 Kans. Cr. Cas. 167; Reg. v. Biswell, 2 Cox 679, 50 Pac. 891; State v. Round, 82 Cr. Cas. 279; Rex v. Ossulston, 2 Mo. 679; State v. Stone, 106 Mo. 1, Str. 1107. 16 S. W. 890; State v. Gibson, 111 "Estrado, Ex Parte, 88 Cal. 316, Mo. 92, 19 S. W. 980; State v. John- 26 Pac. 209; Gandy v. State, 81 Ala, son, 115 Mo. 480, 22 S. W. 463; State 68, 1 So. 35. V. Bobbst, 131 Mo. 328, 32 S. W. § 2752.] ABDUCTION. 58 will overcome in some other improper manner.'*^ Thus where it ap- peared that the defendant falsely represented to the person abducted that he had procured a situation for her as a servant in a respectable family, and that without any suspicion of his object, and relying upon his statements she was induced to proceed with him to a disreputa- ble house where the crime was consummated. In speaking of this the court said : "It cannot, therefore, be said that she went there volun- tarily for the purpose of being defiled, and it is manifest that it was contrary to her will to become the inmate of such a house, and that she neither expected nor contemplated such a result. She was an unwilling victim of misrepresentation, fraud and falsehood, and as the prisoner intended to accomplish her defilement, and she did not go willingly to be defiled, or in any way assent to the act, it is a logical and rational inference that she was taken unlawfully against her will within the meaning of the statute."** The rule is that where the consent is procured by fraud and deception it is the same as if no consent had been given; this applies to both kidnapping and ab- duction.*^ In another case the court held that "it was not necessary for the prosecution to show that actual physical violence had been used by the person, to constitute a taking of the prosecutrix against her will within the meaning of the section, but that it was sufficient if she had been induced by deceit or false pretense of the prisoner to go to the place." It is sufficient if the evidence shows a taking with- out consent, though it may not establish that the taking was against the will.*'' Where the proof shows that the attempted defilement was made while the female was asleep, it was held to be without her con- sent and against her will.*'^ § 2752. Age of female abducted. — All the statutes on the subject of abduction fix an age within which the taking of the female for the unlawful purposes enumerated, without the consent of the parent or other person, constitutes the crime. In other cases the enticing away of women over a stated age without their consent, for the pro- hibited purposes, constitutes a crime. In either case the proof of the age of the person alleged to have been abducted is an essential in- "Gravett v. State, 74 Ga. 191; « People v. De Leon, 109 N. Y. Moody V. People, 20 111. 315, 316. 226, 16 N. E. 46, 4 Am. St. 447. "Beyer v. People, 86 N. Y. 369; ^« People v. Seeley, 37 Hun (N. Schnlcker v. People, 88 N. Y. 192; Y.) 190. People V. De Leon, 109 N. Y. 226, " Couch v. Commonwealth, 16 Ky. 16 N. E. 46. 4 Am. St. 447. L. R. 479, 29 S. W. 29. 59 PREVIOUS CHASTE CHARACTER, [§ 2753, gredient to constitute the offense. If tlie female is within the pro- hibited age, and the prohibited acts are done without the consent of the parent, the crime is complete although the alleged abduction might have been with the consent of the female. In the other case the proof of age is necessary in order to avoid the necessity of proving that it was without the consent or against the will of the parent or guardian. Wliere the abduction is alleged to be that of a female within the prohibited age, it is no defense to the action that the acts consti- tuting the offense, or any or all of them, were done with the consent of the person alleged to have been abducted.** Xor is it any defense that the person alleged to have been abducted informed the defendant that she was over the age fixed by the statute.*^ ^N'or is it any defense that the defendant believed, or had good reasons to believe, that the person alleged to have been abducted was over the prohibited age. In all such cases he acts at his peril, and the fact that he was honestly mistaken in the age of his victim affords no excuse for the commission of the crime,^*^ § 2753. Previous chaste character. — Many of the statutes describ- ing the act of abduction apply the term of "previous chaste char- acter" or an equivalent expression to the person alleged to have been abducted. Under such a statute the question is, what proof must be made as to the alleged previous chaste character? In some jurisdic- tions it is expressly held that it is not necessary, in the first in- stance, for the prosecution to offer any evidence on that subject. "The presumption of law is that her previous life and conversation were chaste and the onus was upon the defendant to show otherwise," But it is not improper to introduce evidence fortifying this legal presump- tion, and such chastity may be reasonably inferred from evidence of the girl's previous associations.^^ The proof relating to such previous chaste character must be limited in point of time to that immediately « People V. Fowler, 88 Cal. 136, 25 v. Stott, 4 N. Y. Cr. 306; Hermann Pac. 1110; People v. Stott, 4 N. Y. v. State, 73 Wis. 248, 41 N. W. 171; Cr. 306. Reg. v. Robins, 1 Car. & Kir. 456; « State v. Ruhl, 8 Iowa 447; Reg. Reg. v. Prince, 13 Cox Cr. Cas. 138, V. Olifier, 10 Cox Cr. Cas. 402. " Slociim v. Slocum, 90 111. 274; =" People V. Dolan, 96 Cal. 315. 31 Bradshaw v. People. 153 111. 156, 38 Pac. 107; People v. Fowler. 88 Cal. N. E. 652; Andre v. State, 5 Iowa 136, 25 Pac. 1110; State v. Ruhl. 8 389; State v. Higdon. 82 Iowa 262; Iowa 447; State v. Houx, 109 Mo. People v. Brewer, 27 Mich. 134, 138; 654, 19 S. W. 35; State v. Johnson, Carpenter v. People, 8 Barb. (N. Y.) lis' Mo. 480, 22 S. W. 463; People 603. §§ 2754, 2755.] abduction. 60 preceding the alleged abduction. "The word 'previous/ in this con- nection, must be understood to mean immediately previous, or to re- fer to a period terminating immediately previous, to the commence- ment of the guilty conduct of the defendant. If the female had previously fallen from virtue, but had subsequently reformed and be- come chaste, there is no doubt that she may be the subject of the offense declared in the statute.'"'- But proof of any acts on the part of the female, subsequent to the time of the alleged abduction by the defendant, is incompetent on his behalf.^^ § 2754. Previous chaste character — Burden of proof. — In a prose- cution under a statute that provides that the person abducted must possess a previous chaste character, the burden of proof is generally held to be upon the defendant to show that the person alleged to have been abducted was not of previous chaste character. The presumption of law is that her previous life and conversation were chaste, and this presumption must be overcome by proof on the part of the defendant, and no evidence need be offered by the prosecution in the first instance. Proof of lewd life and conversation after the time of the alleged abduction is not admissible to prove prior unchastity. A defendant will not be permitted to show the result of his nefarious acts as an excuse for having committed them.^* But it is held by one court, at least, that under a statute making it a crime for enticing an unmar- ried woman of chaste life to a house of ill-fame for the purpose of prostitution the burden of proof was on the commonwealth to show that the woman was of chaste life. The reason of this was that the crime consisted in enticing a woman of chaste life to such a place and that the chastity of the woman was an essential ingredient of the crime. ^^ § 2755. Presumption of previous chaste character. — The previous chaste character meant by the statutes generally on the subject of the abduction of females is not required to be substantiated by proof on "Carpenter v. People, 8 Barb. (N. N. E. 652; State v. Curran, 51 Iowa Y.) 603; State v. Deitrick, 51 Iowa 112, 49 N. W. 1006; State v. Higdon, 467, 1 N. W. 732; State v. Dunn, 53 32 Iowa 262; Polk v. State. 40 Ark. Iowa 526, 5 N. W. 707. 482; Scruggs v. State, 90 Tenn. 81, '^ Scruggs v. State. 90 Tenn. 81, 15 15 S. W. 1074. S. W. 1074. "^^ Commonwealth v. Whittaker, "Slocum y. People, 90 111. 274; 131 Mass. 224. Bradshaw v. People, 153 111. 156, 38 61 PREVIOUS UXCHASTITY. [§ 2756. the part of the prosecution in the first instance. The law presumes such previous chaste character, and this presumption is said to be of probative force. While it is a presumption of law, yet it may be dis- puted or rebutted. In speaking of an instruction which treated it so, Judge Cooley said : "The presumptions of law should be in accordance with the general fact; and whenever it shall be true of any country, that the women, as a general fact, are not chaste, the foundations of civil society will be wholly broken up. Fortunately, in our own coun- try an unchaste female is comparatively a rare exception to the gen- eral rule; and whoever relies upon the existence of the exception in a particular case should be required to prove it."^® § 2756. Proof of previous unchastity as a defense. — It has been held in some jurisdictions that on a charge of abducting a female under the prohibited age it is a sufficient defense to prove her generally bad reputation for chastity, and that she had in fact pre- viously been unchaste.^^ In one case it was held proper to permit evidence of previous character for chastity as having a material bear- ing upon the question whether the girl was enticed or persuaded from the control of her parents or whether she went of her own accord, and with the knowledge and consent of her parents. ^^ But the weight of authority as well as reason and good sense are opposed to this view. Such a view could only be upheld where the statute ex- pressly provided that such person was of previous chaste character; 1)ut it is clear that such an idea cannot be read into the statute where it is an absolute prohibition within a specified age. The purpose of such a statute is not only to protect the chaste, but to reclaim the erring; it is intended as a guarantee to the parents and guardians of the safe custody and care of girls within the prohibited age witliout regard to their reputation for chastity. To permit a wretch who has induced or enticed a young girl from her parents for the un- lawful purpose contemplated by the statute to Justify his nefarious =« People v. Brewer, 27 Mich. 134; "Jenkins v. State, 15 Lea (Tenn.) Polk V. State, 40 Ark. 482; Wilson 674; Scruggs v. State, 90 Tenn. 81, V. State, 73 Ala. 527; Bradshaw v. 15 S. W. 1074. People, 153 111. 156, 38 N. B. 652; ^^ Brown v. State. 72 Md. 468. 20 Andre v. State, 5 Iowa 389; State v. Atl. 186; People v. Jenness. 5 Mich. Sutherland, 30 Iowa 570; State v. 305; People v. Carrier, 46 Mich. 442, Higdon, 32 Iowa 262; State v. Cur- 9 N. W. 487. ran, 51 Iowa 112, 49 N. W. 1006; People v. Clark, 33 Mich. 112. I 2757.] ABDUCTION. 62 conduct by some proof that she had previously been unchaste, not only shocks the moral sensibilities, but robs the statute of its real purpose and effectiveness.^® § 2757. CorroboratiV'e proof. — In prosecutions for abduction, as in some other crimes, many of the statutes provide that there can be no conviction in the absence of proof corroborating the testimony of the prosecuting witness, the injured person. Under such a statute the question naturally arises as to what is meant by corroborative proof. The general rule is that it should tend to show the material facts necessary to establish the commission of the crime, and the identity of the person committing it. In other words, the corrobora- tion must extend to every material fact essential to constitute the crime. The Court of Appeals of New York stated the rule as fol- lows: "The policy of the statute under consideration would seem to forbid the conviction of a person of the crime of abduction, upon the unsupported evidence of the subject of the crime, and a conviction founded upon the evidence of the abducted female alone as to one of the elements constituting the crime, would be contrary to its implied prohibition. Such evidence must, therefore, tend to prove each of the facts constituting the crime, for otherwise a person might be con- victed of an offense as to one of whose elements there existed no proof except that of the alleged abducted female. If the corroborative evi- dence goes to the support of the alleged purpose alone it is ap- parent that there is no legal proof of the commission of a crime, and it would be the same if the corroboration was confined to a support of the taking alone, and the proof as to the purpose was uncor- roborated. It is indispensable that such corroboration should be fur- nished by positive and direct evidence, but proof of circumstances legitimately tending to show the existence of the material facts will be sufficient to authorize a conviction. In one form or the other, however, proof must be given, aside from that of the female, tending to establish the commission of a crime, and that it was perpetrated by the person accused before a conviction can be lawfully had »60 =' People v. Cook. 61 Cal. 478; Peo- 328, 32 S. W. 1149; Scruggs v. State, pie V. Demousset, 71 Cal. 611, 12 90 Tenn. 81, 15 S. W. 1074; South Pac. 788; People v. Fowler, 88 Cal. v. State, 97 Tenn. 496, 37 S. W. 210; 136, 25 Pac. 1110; People v. Car- Griffin v. State, 109 Tenn. 17, 70 S. rier, 46 Mich. 442, 9 N. W. 487; W. 61. State V. Gibson, 111 Mo. 92, 19 S. ^ People v. Plath, 100 N. Y. 5S0. W. 980; State v. Bobbst, 131 Mo. 3 N. E. 790; People v. Kearney, 110 63 CORROBORATION. [§ 2757. The corroborativG testimony required may be supplied by proof of cir- cumstances which are sufficient to raise a presumption of the exist- ence of the essential elements of a crime.® ^ It is not essential, how- ever, that the corroborative evidence in itself be sufficient to estab- lish the guilt of the accused.''- The rule does not require that the corroboration extend to the testimony of the female on the ques- tion of her previous chastity or to the fact that she was unmarried.®^ N. Y. 188, 17 N. E. 736; People v. Page, 162 N. Y. 272, 56 N. E. 750; People v. Brandt, 14 N. Y. St. 419; People v. Brown, 71 Hun (N. Y.) 601, 24 N. Y. S. 1111; State v. Tim- mens, 4 Minn. 325; State v. Brink- haus, 34 Minn. 285, 25 N. W. 642; State V. Wenz, 41 Minn. 196, 42 N. W. 933; State v. Keith, 47 Minn. 559, 50 N. W. 691; 1 Greenleaf Ev., § 381; Russell Crimes 962; Under- bill Cr. Ev., § 74. *^ Andre v. State, 5 Iowa 389; State V. Bell, 79 Iowa 117, 44 N. W. 244; State v. Lauderbeck, 96 Iowa 258, 65 N. W. 158; State v. Bess, 109 Iowa 675, 81 N. W. 152. «= State V. Keith, 47 Minn. 559, 50 N. W. 691. •^Kenyon v. People, 26 N. Y. 203; People V. Kearney, 110 N. Y. 188, 17 N. E. 736. CHAPTEK CXXIX. ABORTIOX. Sec. Sec. 2758. Definition and meaning. 2765. Proof of nature of means 2759. Common-law and statutory used. offense— Distinction. 2766. Proof of pregnancy. 2760. Proof of intent. 2767. Proof of opportunities and fa- 2761. Attempt to produce — Intent. cilities. 2762. Proof of motive. 2768. Proof of similar acts. 2763. Advising or administering— 2769. Corroborative proof. Proof sufficient. 2770. Dying declarations. 2764. Effect on woman— Consent, 2771. Necessity for producing abor- etc. tion — Burden of proving negative averment. §2758. Definition and meaning.— The crime usually designated by the term abortion in this country is wholly statutory and it is seldom, if ever, designated or described by the use of the word or term "abortion." The term is simply used as a substitute for the particular or statutory description of a well-known offense. The Supreme Court of Iowa thus speak of it: "By abortion we under- stand the act of miscarrying or producing young before the natural time, or before the foetus is perfectly formed. And to cause or pro- duce an abortion, is to cause or produce the premature bringing forth of this fcetus."^ And the Supreme Court of Oregon gives it sub- stantially the same meaning: "The term itself does not import a crime. It simply means, according to Webster, the act of miscarry- ing, the expulsion of an immature product of conception, miscar- riage ; the immature product of an untimely birth. And an eminent law writer defines it to be the act of bringing forth what is yet im- perfect; and particularly the delivery or expulsion of the human foetus prematurely, or before it is yet capable of sustaining life."^ ^Abrams v. Foshee, 3 Iowa 274; &c. Ins. Co., 191 Pa. St. 207, 43 Atl. Mills v. Commonwealth, 13 Pa. St. 126. 627, 633; Wells v. New England, ^ Belt v. Spaulding, 17 Ore. 130, 20 Pac. 827. 64 65 COMMON LAW AND STATUTORY OFFENSE. [§ 2759. § 2759. Common law and statutory offense — Distinction. — There is a very clear distinction between the common law and the statutory crime in this country. Under the common law in order to establish the offense the proof must show that the woman was quick or great with child; that is, it must be established that there was foetal life before there could be an indictable offense. Following the common law doctrine and in the absence of statute in some jurisdictions in this country it has been held that an attempt made to cause or pro- duce an abortion, if made with the consent of the woman and where she is not quick with child, was not indictable; as the woman's con- sent was held to take away the criminal character of the assault.^ The same distinction was recognized in the earlier legislation of this country upon this subject, and is still recognized by the laws of some countries in that the punishment is more severe if committed after the quickening than before. But the statutes generally through- out the United States now provide in substance that : "If any person shall administer to any woman pregnant with a child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall be necessary to preserve the life of such mother, such person shall, in case the death of such child or mother be thereby produced, be deemed guilty of manslaughter."* And under such statutes it is now the general, if not the universal, rule that it is neither necessary to aver nor to prove that the woman had become quick with child. ^ Nor is it necessary to show that the child was alive, or that it was born 2 State v. Cooper, 22 N. J. L. 52; How. Pr. (N. Y.) 222; Eggart v. State v. Reed, 45 Ark. 333; Com- State, 40 Fla. 527, 25 So. 144; Com- monwealth V. Bangs, 9 Mass. 387, monwealth v. Taylor, 132 Mass. 388; Commonwealth v. Parker, 9 261; State v. Owen, 22 Minn. 238; Mete. (Mass) 263; Smith v. State, State v. Morrow, 40 S. Car. 221, 18 33 Me. 48; State v. Howard, 32 Vt. S. B. 853; Watson v. State, 9 Tex. 380; United States v. Ross, 1 Gal. Cr. App. 237; State v. Reed, 45 Ark. (U. S.) 624; State v. Alcorn, 7 Ida- 333; State v. Lee, 69 Conn. 186, 37 ho 599, 64 Pac. 1014; People v. Ses- Atl. 75; McCaughey v. State, 156 sions, 58 Mich. 594. 26 N. W. 291; Ind. 41, 59 N. E. 169; People v. Ab- State V. Fitzporter, 93 Mo. 390, 6 bott, 116 Mich. 263, 74 N. W. 529; S. W. 223; State v. Emerich, 13 Mo. State v. Dickinson, 41 Wis. 299. App. 492; State v. Murphy, 27 N. "Mills v. Commonwealth, 13 Pa. J. L. 112; Evans v. People, 49 N. St. 627, 631; State v. Fitzgerald, 49 Y. 85; State v. Dickinson, 41 Wis. Iowa 260; Commonwealth v. Wood, 299. 11 Gray (Mass.) 85; Smith v. State, *Belt V. Spaulding, 17 Ore. 130, 33 Me. 48. 20 Pac. 827; Butler v. Wood, 10 Vol. 4 Elliott Ev. — 5 § 2760.] ABORTION. 66 alive, or dead ; nor whether the woman died as a result of the opera- tion.*^ The distinction in this country has been carried to the extent of holding in a slander suit that no crime was imputed by a charge of abortion.' § 2760. Proof of intent. — As in most crimes the intent constitutes the gist of the action, and to establish a conviction it is essential to prove the intent ; or where poison or other substances are administered or means used it must be with the intent to produce miscarriage, and this the proof must clearly establish. A person indicted for ad- ministering a drug or doing any other like act with intent to procure an abortion may be convicted where the proof shows either that the attempt was unsuccessful or successful, as the attempt with the intent completes the offense regardless of the result.^ On this subject the Supreme Court of Illinois say : "A felonious and malicious intent to cause a miscarriage being charged in the indictment, circum- stances sufficient to satisfy the jury of the intent should be shown. A criminal offense consists in a violation of a public law, in the commission of which there must be a union or joint operation of act and intention, or criminal negligence, and the intention is manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused."^ The intent may be established by proof of the directions for the means or instrument.^" Any declarations or acts either prior or subsequent to the alleged abortion, tending to show the defendant's purpose or inten- tion to produce the abortion, are generally admissible in evidence. And proof of a subsequent attempt by the accused to accomplish the same purpose by different means is admissible to show the intent with which he attempted the first act, as well as to corroborate the evidence of the first attempt." So it is competent to prove possession and use of business cards, circulars or advertisements which fairly indicate or ^Commonwealth v. Wood, 11 Pac. 410; Commonwealth v. W., 3 Gray (Mass.) 85. Pitts. (Pa.) 462; State v. Moot- 'Abram v. Foshee, 3 Iowa 274; hart, 109 Iowa 130, 80 N. W. 301; Belt V. Spaulding, 17 Ore. 130, 20 State v. Hollenbeck, 36 Iowa 112; Pac. 827. State v. Fitzgerald, 49 Iowa 260. « People V. Josselyn, 39 Cal. 393; « Slattery v. People, 76 111. 217. Dougherty v. People, 1 Colo. 514; " State v. Moothart, 109 Iowa 130, Slattery v. People, 76 111. 217; State 80 N. W. 301; Jones v. State, 70 Md. V. Drake, 30 N. J. L. 422; Powe v. 326, 17 Atl. 89; Commonwealth v. State, 48 N. J. L. 34, 6 Atl. 662; Holmes, 103 Mass. 440. State V. Clements, 15 Ore. 237, 14 "Dougherty v. People, 1 Colo. 67 ATTEMPT — INTENT. [§ 2761. from which it might be understood that the defendant held himself out and was ready to perform the acts of the kind charged. ^- § 2761. Attempt to produce — Intent. — The statutes are generally designed to punish any attempt to procure the miscarriage of females with an unlawful intent as much as if the result was actually ac- complished. And proof of an attempt to do so with such unlawful intent establishes the crime. This rule has been carried to the ex- tent of holding that where an attempt has been made with such un- lawful intent, it is not necessary even that the woman should be pregnant with child; this is wholly immaterial and it is not neces- sary that any proof be offered on the subject, and the result is the same if the proof wholly fail to establish the fact of pregnancy. ^'"^ If there exists in the mind a fully formed belief that the woman was pregnant it is sufficient; or if there is a suspicion of preg- nancy and the attempt is made the statute is satisfied.^* It is held in some cases that an attempt to produce an abortion by the use of in- struments, when it is not necessary to preserve the life of the woman, is such an unlawful act that the law will infer the criminal intent from the act.^^ The offense is sufficiently established if the proof shows that the attempt was made any time during pregnancy.^^ Where the proof establishes the criminal intent the fact that the sub- stance used would not produce a miscarriage was held to be no de- fense.^'' Neither is it necessary to show that the attempt had the intended result; nor, it seems, that the thing administered or the in- 514; Lamb v. State, 66 Md. 285, 7 319; Reg. v. Goodchild, 2 Car. & Kir. Atl. 399. See also, State v. Alcorn, 293; Smith v. State, 33 Me. 48; for 7 Idaho 599, 64 Pac. 1014; Reg. v. a valuable note on the question of Dale, 16 Cox Cr. Cas. 703; Reg. v. "attempt to commit crime," see, Calder, 1 Cox Cr. Cas. 348; post, People v. Moran, 123 N. Y. 254, 25 § 2768. N. E. 412, 20 Am. St. 741; see. State *^ Commonwealth v. Bishop, 165 v. Springer, 3 Ohio N. P. 120. Mass. 148, 42 N. E. 560; Common- " Powe v. State, 48 N. J. L. 34, 6 wealth V. Barrows, 176 Mass. 17, 56 Atl. 662. N. E. 830; Weed v. People, 56 N. '^^ Scott v. People, 141 111. 195, 30 Y. 628. N. E. 329; State v. Slagle, 83 N. " Eggart V. State, 40 Fla. 527, 25 Car. 630. So. 144; Commonwealth v. Taylor, "State v. Fitzgerald, 49 Iowa 132 Mass. 261; Scott v. People, 141 260. 111. 195, 30 N. E. 329; State v. "State v. Fitzgerald, 49 Iowa Crews, 128 N. Car. 581, 38 S. E. 260; State v. Moothart, 109 Iowa 293; Wilson v. State, 2 Ohio St. 130, 80 N. W. 301. §§ 2763, 2763.] abortion. 68 strument used should be of such a character as is likely to produce such results.^ ^ "The guilt of the defendant is not graded by the suc- cess or failure of the attempt. It is immaterial whether the foetus is destroyed, or whether it has quickened or not."^® So an attempt may be proved by showing the administration of drugs.^* § 2762. Proof of motive. — As crimes are seldom committed with- out some motive on the part of the accused, it is always regarded as proper and germane to make proof of facts which obviously supply a motive. So on a trial on a charge of either attempting or pro- curing an abortion it is proper and relevant as tending to show a motive for the crime to prove prior illicit intercourse and that the accused was the father of the child.^^ § 2763. Advising or administering — Proof sufficient. — Some of the statutes expressly provide that "whoever unlawfully administers or advises or prescribes for any woman any drug, medicine or other noxious thing with intent to procure her miscarriage will be guilty," etc. Under such a statute it has been held siifficient where the proof showed that the party accused simply advised or prescribed the taking of some medicine or noxious drug unlawfully and with the intent and purpose of producing the miscarriage. It is not necessary to prove that the medicine was taken or the noxious drug or instrument used, as it is immaterial whether the advice was followed or the prescription taken or not." Concerning the meaning and use of the word "administered" it has been held that it was "clearly intended to cover the whole ground named, making it an offense to give, furnish, supply, provide with, or cause to be given, supplied, or provided with, or taken, any such "State V. Owen, 22 Minn. 238; 85; State v. Montgomery, 71 Iowa State V. Gedicke, 43 N. J. L. 86. 630, 33 N. W. 143; State v. Moothart, ^» State v. Murphy, 27 N. J. L. 109 Iowa 130, 80 N. W. 301; People 112. v. McDowell, 63 Mich. 229, 30 N. W. ^ State V. Morrow, 40 S. Car. 221, 68. 18 S. E. 853. " Eggart v. State, 40 Fla. 527, 25 ^Commonwealth v. W.. 3 Pitts. So. 144; State v. Murphy, 27 N. J. (Pa.) 462; Dunn v. People, 29 N. Y. L. 112; State v. Hyer, 39 N. J. L. 523; Crichton v. People, 1 Abb. Dec. 598; State v. Crews, 128 N. Car. (N. Y.) 467; Scott v. People, 141 581, 38 S. E. 293; Robbins v. State, 111. 195, 30 N. E. 329; State v. Mc- 8 Ohio St. 131; State v. Gedicke, 43 Leod, 136 Mo. 109, 37 S. W. 828; N. J. L. 86; State v. Morrow, 40 S. Commonwealth v. Wood, 77 Mass. Car. 221, 18 S. E. 853. 69 EFFECT — CONSENT. [§ 2764. drug, medicine or substance witli tlie intent of either result named in said section. And such word embraced and was intended to em- brace every mode of giving, furnishing, supplying, providing with, or causing to be taken any such drug, medicine, or substance."''^ The rule as declared is, that if the accused knew or supposed that the woman was pregnant, and knew the purpose for which she de- sired the drug, or the noxious substance, and furnished it to her, and thereafter at a time and place when the accused was not pres- ent she took such drug or noxious substance, it was administered by the accused, within the meaning of such statute.^* So when the proof showed that advice and directions were sent by mail, for the taking of certain drugs or preparations either prescribed or also sent by mail, it was held sufficient under a charge for administer- ing with the unlawful intent of producing a miscarriage.'^ But where the accused is charged with having procured the miscarriage by means of advising certain drugs, it has been held necessary to prove that the advice of the accused was followed and the drug or noxious substance actually taken. This rule, however, does not apply on a charge of an attempt to commit the crime.^® § 2764. Effect on the woman — Consent, etc. — The offense under the statutes of the several states does not necessarily include an as- sault. The act is made criminal without regard to the consent of the person upon whom it is performed; a defendant may be convicted though the act was performed with the consent of the woman.^^ But under the common law it was not indictable where the woman consented if she was not quick with child. -^ While the consent of the woman does not affect the criminality of the accused, a woman may be guilty of a conspiracy with others to procure a miscarriage on her own person.-^ But a statute prohibiting any person from administer- ^ McCaughey v. State, 156 Ind. " Commonwealth v. Snow, 116 41, 59 N. E. 169. Mass. 47; Commonwealth v. Wood, ^* McCaughey v. State, 156 Ind. 41, 11 Gray (Mass.) 85, see, Hatchard 59 N. E. 169; Jones v. State, 70 Md. v. State, 79 Wis. 357, 48 N. W. 380. 326, 17 Atl. 89; Reg. v. Wilson, ^'^ Commonwealth v. Parker, 9 Dears & B. 127. Mete. (Mass.) 263. == State v. Moothart, 109 Iowa 130, =* Solan der v. People, 2 Colo. 48; 80 N. W. 301; Jones v. State, 70 Frazer v. People, 54 Barb. (N. Y.) Md, 326, 17 Atl. 89. 306; People v. Meyers, 5 N. Y. Cr. ■" People V. Phelps, 133 N. Y. 267, 120. 30 N. E. 1012; Lamb v. State, 67 Md. 524, 10 Atl. 208. §§ 2765, 3766.] abortion. 70 ing drugs to a pregnant woman was held not to apply to the woman herself. ^° And under some statutes a woman is not indictable for procuring an abortion upon herself.^^ § 2765. Proof of nature of means used. — The proof should show something of the nature or kind of the instruments, drugs or other things or articles used for the purpose of producing the abortion. It has also been held that the proof should show that the means or instru- ments implied were calculated to or would produce the intended re- sult.^^ Some cases hold that it is not necessary to show the char- acter of the instrument used.^^ But under rules given in another section it is immaterial whether or not the intended effect resulted. And it has been held that instructing, directing, soliciting or inducing the woman to take violent physical exercise, where a motive was shown to exist, for the purpose and with the intention of thereby producing the abortion, was sufficient.^* It is not necessary to prove that the drug or liquid administered was poisonous ; or even that it should be capable of producing the miscarriage charged. ^^ It is suf- ficient if the proof shows that the liquid or substance administered was noxious or unwholesome and that it might probably occasion in- jury or derangement to the system of a woman who was pregnant with child ; and this may be inferred from the efEects.^® § 2766. Proof of pregnancy. — The rule established by one class of cases is that in prosecutions under such sections of the statute where the charge is an attempt to produce a miscarriage or abortion that it is not necessary either to aver in the indictment or prove on the trial of the case that the woman was in fact pregnant. Such cases evidently proceed on the theory that the crime consists in the attempt to do the act, and that the act itself is complete, regardless of the actual condition of the woman or the result of the effort.^'^ Another ^ Smith V. Gaffard, 31 Ala. 45. ^^ State v. Owens, 22 Minn. 238. ^'^ Hatfield v. Gano, 15 Iowa 177. '"Dougherty v. People, 1 Colo. '2 Williams v. State, (Tex.) 19 S. 514; State v. Vawter, 7 Blackf. W. 897; Hunter v. State, 38 Tex. (Ind.) 592; State v. Gedicke, 43 N. Or. App. 61, 41 S. W. 602. J. L. 86; Eggart v. State. 40 Fla. =" Commonwealth v. Snow, 116 527, 25 So. 144; State v. Crews, 128 Mass. 47; State v. Lilly, 47 W. Va. N. Car. 581, 38 S. E. 293; State v. 496, 30 S. E. 837. Van Houten, 37 Mo. 357; Watson =* Commonwealth v. W., 3 Pitts, v. State, 9 Tex. App. 237; Rex v. (Pa.) 462; Lamb v. State, 67 Md. Phillips, 3 Campb. 73. 524, 10 Atl. 208. " Commonwealth v. Taylor, 132 71 PROOF OF OPPOETUNITY SIMILAR ACTS. [§§ 27G7, 27G8. class of cases establishes the rule that under certain peculiar charges in the indictment or under the peculiar language of the statute, it is not only necessary to prove that the woman was pregnant but that she was quick with child ; that is, that the child was alive. And this rule has been carried to the extent of holding that under certain aver- ments in the indictment the pregnancy of the woman must be es- tablished beyond a reasonable doubt.^* § 2767. Proof of opportunities and facilities. — As tending to establish both the crime and the intent with which it was committed, it is proper to introduce any proper evidence which will prove or tend to prove either the opportunity to commit the crime or the facilities with which it might have been committed. Thus, it has been held compe- tent and proper to introduce in evidence or to exhibit to the jury surgical instruments adapted to use in producing abortion, found in the possession of the accused. So it has been held competent for medical experts to testify that in their opinion the instruments found and exhibited were adapted to producing abortion.^^ And it has been held competent to introduce letters or written statements or arrange- ments by which the accused and the person upon whom the abortion was alleged to have been produced were to meet at a certain place; or evidence that they did meet and were known to be at a place pe- culiarly adapted to the commission of such crime; such evidence being admissible on the theory of affording an opportunity to com- mit the crime charged.**^ § 2768. Proof of similar acts. — The general rule as to proof of similar acts for the purpose of showing guilt or guilty knowledge Mass. 261; Commonwealth v. Fol- Mills v. Commonwealth, 13 Pa. St. lansbee, 155 Mass. 274, 29 N. E. 471; 627, 631. Commonwealth v. Tibbetts, 157 ^Commonwealth v. Brown, 121 Mass. 519, 32 N. E. 910; Reg. v. Mass. 69; Commonwealth v. Drake, Goodchild, 2 Car. & Kir. 293. 124 Mass. 21; Commonwealth v. ^ State V. Stewart, 52 Iowa 284, Blair, 126 Mass. 40; Commonwealth 3 N. W. 99; State v. Alcorn, 7 Ida- v. Tibbetts, 157 Mass. 519, 32 N. E. ho 599, 64 Pac. 1014; Mitchell v. 910; People v. Vedder, 34 Hun (N. Commonwealth, 78 Ky. 204; State Y.) 280; People v. McGonegal, 136 V. Smith, 32 Me. 369; People v. Mc- N. Y. 62, 32 N. E. 616; Weed v. Dowell, 63 Mich. 229, 30 N. W. 68; People, 3 Thomp. & C. (N. Y.) 50; People v. Aiken, 66 Mich. 460, 33 Moore v. State. 37 Tex. Cr. App. 552, N. W. 821; State v. Cooper, 22 N. 40 S. W. 287; People v. Sessions, J. L. 52; Evans v. People. 49 N. Y. 58 Mich. 594, 26 N. W. 291. 86; Wilson v. State, 2 Ohio St. 319; « Hays v. State, 40 Md. 633. §§ 2769, 2770.] abortion. 72 applies in this class of cases, and where the charge was that the accused had unlawfully used certain instruments with intent to cause the miscarriage of the woman, it was held proper to show that in addition to using the instruments described, the accused had also administered other unlawful treatment for the same purpose; it was also held proper and competent to prove that he had used the same treatment on the same woman on other occasions than that named in the indictment and recently prior to the same time charged, for the purpose of showing both his intent and his knowledge or belief of the pregnant condition of the woman.*^ § 2769. Corroborative proof. — Under some statutes there can be no conviction unless the woman on whom the operation was alleged to have been produced is corroborated by other testimony or circum- stances. The rule in this, as in other such cases, is that she must be corroborated on every essential element of the crime. And as the in- tent is not only an essential element but the gist of the offense, she must be corroborated in this particular. As stated by one court, "she must also have been corroborated by circumstances, or otherwise, in at least some portion of her testimony which imputes to the de- fendant the commission of the crime alleged, to wit, in the use of an instrument with intent to produce abortion."*^ Under a statute which provided that a conviction should not be had on the evidence of an accomplice in the absence of corroborative proof, it was held in a case where the husband occupied the position as accomplice in causing the death of his wife by consenting to an abortion, that the dying declarations of the wife supporting the statements of the hus- band were sufficient corroborative proof to sustain a conviction.*^ But where the record does not affirmatively show that there was no corroborative evidence, and where it does not purport to contain all the evidence upon that point, the presumption of law is that there was sufficient competent evidence to support the verdict.** § 2770. Dying declarations. — The general rule as to the admissi- bility of dying declarations does not apply wholly in cases of abor- « Commonwealth v. Corkin, 136 King v. State, (Tex.) 34 S. W. 282; Mass. 429; People v. Sessions, 58 see, § 2760. Mich. 594, 26 N. W. 291; Scott v. « People v. Josselyn, 39 Cal. 393. People, 141 111. 195, 30 N. E. 329; ^^ State v. Pearce, 56 Minn. 226, Maine v. People, 9 Hun (N. Y.) 113; 57 N. W. 652. ** State V. Owens, 22 Minn. 238. 73 DYING DECLARATIONS. [§ 2771. tion. Generally speaking and according to many cases, in this class, such evidence is not admissible.'*^ Tlie rule excluding such declara- tions is based on the fact that death is not an essential ingredient of the crime. And where the death of the woman is not such essential ingredient of the crime such declarations are not admissible. The statutory crime of abortion in many states, as at common law, is com- plete without the death of the woman. In such cases the proof of death where it ensues is not so much to determine the character of the crime as to determine the penalty to be inflicted on the criminal.*" But where the death of the woman is an essential element in the of- fense as charged, her dying declarations may be introduced in evi- dence.*'^ So, it may be given as a general rule that in prosecution for homicide produced or caused by an abortion, the dying declarations of the deceased are admissible in evidence.*^ § 2771. Necessity for producing abortion — ^Burden of proving negative averment. — The statutes creating this offense generally con- tain an exception that it is not a crime if done in order to save hu- man life. It has been held that this exception in the statute must be negatived in the indictment and it must be proved on the trial and that the burden of proving such a negative averment is upon the state. But it has been held that this rule does not require proof beyond a rea- sonable doubt, but it is sufficient if such, negative averment is made out by a prima facie case. The rule on this subject was stated by the Con- necticut court as follows : "The want of necessity was an element of the crime as charged in the information, as much so as the act or « Montgomery v. State, 80 Ind. 542, 33 Atl. 312; State v. Alcorn, 338; Wooten v. Wilkins, 39 Ga. 223; 7 Idaho 599, 64 Pac. 1014; State v. Rex V. Lloyd, 4 Car. & P. 233; Reg. Leeper, 70 Iowa 748, 30 N. W. 501; V. Hind, 8 Cox Cr. Cas. 300; Reg. v. State v. Baldwin, 79 Iowa 714, 45 Edwards, 12 Cox Cr. Cas. 230. N. W. 297; People v. Common- *" Montgomery v. State, 80 Ind. wealth, 87 Ky. 488, 9 S. W. 509; 338; Worthington v. State, 92 Md. Worthington v. State, 92 Md. 222, 222, 48 Atl. 355; Commonwealth v. 48 Atl. 355; Commonwealth v. Homer, 153 Mass. 343, 26 N. E. 872; Thompson, 159 Mass. 56, 33 N. E. People V. Davis, 56 N. Y. 95; State 1111; People v. Olmstead, 30 Mich. V. Harper, 35 Ohio St. 78; Railing 431; State v. Pearce, 56 Minn. 226, V. Commonwealth, 110 Pa. St. 100, 57 N. W. 652; Donnelly v. State, 26 1 Atl. 314; State v. Pearce, 56 Minn. N. J. L. 601; State v. Meyer, 65 N. 226, 57 N. W. 652. J. L. 237, 47 Atl. 486; Maine v. "Montgomery v. State, 80 Ind. People, 9 Hun (N. Y.) 113; State 338; ante. Vol. I, § 353. v. Dickinson, 41 Wis. 299. « State V. Lodge, 9 Houst. (Del.) g 2T71.] ABORTION. '^■^ intent charged ; and the burden of proving the former as well as the latter elements rests upon the state for the same reason, namely, be- cause under our law it is the duty of the state to prove guilt and not that of the accused to prove innocence. . . . The truth of this neg- ative averment as part of the state's case must in some way be made prima facie to appear at the trial ; but it need not necessarily be so made to appear by evidence. For instance, where there is a pre- sumption of law in favor of the truth and averment of this kind, the state may in the first instance, and until evidence to the contrary is introduced by the defendant, rest upon the presumption, just as it might upon evidence sufficient to make out a prima facie case. In such a case the burden of proving the averment still rests upon the state, but by the presumption it is relieved for the time being from intro- ducing evidence in support of the averment, because the presumption under such circumstances stands in the place of evidence."*^ Where the exception in the statute further provides that the act must be done on the advice of a physician, the rule is established in some cases that while it is necessary for the state to produce some evidence that the abortion was unnecessary to save the life of the mother, the burden of showing that it was advised by a physician to be necessary for that purpose, is upon the defendant.^'' So, it is held that this absence of necessity may be proved by circumstantial evidence sufficient to dem- onstrate that the instrument or means was not employed because of necessity. ^^ "State V. Lee, 69 Conn. 186, 37 17 Ohio St. 110; State v. Barker, Atl. 75; Beasley v. People, 89 111. 18 Vt. 195; Hatchard v. State, 79 571; State v. Aiken, 109 Iowa 643, Wis. 357, 48 N. W. 380; but see, 80 N. W. 1073; State v. Watson, 30 State v. Clements, 15 Ore. 237, 14 Kans. 281; Commonwealth v. Hart, Pac. 410. 11 Cush. (Mass.) 130; State v. ™ State v. Meek, 70 Mo. 355; Hirsch, 45 Mo. 429; State v. Meek, Moody v. State, 17 Ohio St. 110. 70 Mo.' 355; State v. Fitzporter, 93 =' Bradford v. People, 20 Hun Mo. 390, 6 S. W. 223; State v. (N. Y.) 309; People v. McGonegal, Schuerman, 70 Mo. App. 518; Brad- 10 N. Y. Cr. 141, 17 N. Y. S. 147; ford v. People, 20 Hun (N. Y.) 309; Hatchard v. State, 79 Wis. 357, 48 People V. McGonegal, 10 N. Y. Cr. N. W. 380. 141, 17 N. Y. S. 147; Moody v. State, CHAPTER CXXX. ACCESSORIES. Sec. 2772. Definition. 2773. Principals and accessories. 2774. Accessory before the fact. 2775. Accessory after the fact. 2776. Accessory during the fact. 2777. Proof of principal's guilt. 2778. Proof of principal's guilt- Record of conviction. 2779. Effect of acquittal. 2780. Proof of principal's guilt- Confession. 2781. Accessory before the fact- Proof of guilt. Sec. 2782. 2783. 2784. 2785. 2786. 2787. Proof of advising or partici- pating. Crime by principal must be in purview of accessory's advice. Accessory after the fact — Proof sufficient to consti- tute. Accessory and accomplice — • Distinction. Evidence of accomplice — Corroboration. Evidence of accessory — Cor- roboration. § 2772. Definition. — The definition of an accessory as given by Mr. Blackstone is generally conceded to be correct and is almost uni- versally followed. In defining it he says: "An accessory is he who is not the chief actor in the offense nor present at its performance, but is in some way concerned therein, either before or after the af- fair."^ On this subject Mr. Wharton says: "To constitute such an accessory, it is necessary that he should have been absent at the time when the felony was committed; if he was either actually or con- structively present, he is, as has been seen, a principal."- 'Wliatever the resemblance between principal and accessories, it is the well es- tablished rule, where not changed by statute, that a person cannot be indicted as a principal and convicted on proof showing him to be only an accessory.^ '4 Blackstone Comm. 35; United States V. Hartwell, 3 Cliff. (U. S.) 221. -1 Wharton Cr. Law, § 225; 3 Greenleaf Ev. 42. '1 Wharton Cr. Law, § 114, 208; Hughes V. State, 12 Ala. 458; Able V. Commonwealth, 5 Bush (Ky.) 698; Josephine v. State, 39 Miss. 613; Walrath v. State, 8 Neb. 80; State V. Larkin, 49 N. H. 39; State V. Wyckoff, 31 N. J. L. 65; Rex v. Fallon, 9 Cox Cr. Cas. 242; but un- der some statutes this is not the rule; Yoe v. People, 49 111. 410. 75 §§ 2773, 2774.] accessories. 76 § 2773. Principals and accessories. — Some writers make practi- cally no distinction between principals in the second degree and ac- cessories. If any distinction is made it seems to be in the cases where the principal in the second degree was physically present; whereas it is sufficient if an accessory is only constructively present. Mr. Wharton says: "Principals in the second degree are those who are present, aiding and abetting at the commission of the fact. To con- stitute principals in the second degree, there must be, in the first place, a participation in the act committed; and in the second place, presence either actual or constructive, at the time of its commission."* The rule has been extended to the point of holding that it is not necessary that the evidence should show any direct communication be- tween the accessory and the principal.^ § 2774. Accessory before the fact. — Accessories in crime are di- vided into two classes: (1) Accessory before the fact; (2) acces- sory after the fact. An accessory before the fact is one "who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime. Herein absence is neces- sary to make him an accessory."® Another distinction is made thus : "To be a principal in either degree, there must be an actual or con- structive presence at the commission of the offense. Advising its perpetration makes the advisor an accessory before the fact; receiving the stolen property, knowing it to be stolen makes the receiver ac- cessory after the f act."'^ Mr. Wharton says : "An accessory before the fact is one who, though absent at the time of the commission of the felony, doth yet procure, counsel, command or abet another to com- mit such felony."* As defined by Mr. Bishop: "An accessory be- fore the fact is a person whose will contributed to a felony committed by another as principal, while himself too far away to aid in the felonious act." Mr. Bishop concedes that the distinction between n Wharton Cr. Law, §116; 1 ' 1 Wharton Cr. Law, § 134; 1 Hale Wharton Cr. Law, § 211; 3 Green- P. C. 615; Able v. Commonwealth, leaf Ev., § 40; but see. State v. 5 Bush (Ky.) 698; United States v. Ricker, 29 Me. 84. Hartwell, 3 Cliff. (U. S.) 221; ^Commonwealth v. Smith, 11 Komrs v. People, 31 Colo. 212, 73 Allen (Mass.) 243; Rex v. Cooper, Pac. 25; Albritton v. State, 32 Fla. 5 Car. & P. 535. 358, 13 So. 955; State v. Beebe, 17 ^4 Blackstone Comm. 35. Minn. 241; Pearce v. Territory, 11 'Able V. Commonwealth, 5 Bush Okla. 438, 68 Pac. 504; State v. Max- (Ky.) 698; Connaughty v. State, 1 ent, 10 La. Ann. 743, Wis, 159, 77 AFTER THE FACT. [§ 2775, the principal and an accessory before the fact is purely technical, and has no existence in natural reason or the ordinary doctrines of the law.® By statute in many of the states all distinctions between prin- cipals and accessories have been abolished, and all persons partici- pating in the commission of a felony, whether they are present, ac- tively engaged in the act, or though absent, aid and abet its commis- sion; and they may be indicted, tried and punished as principals.^^ § 2775. Accessory after the fact. — There is a clear distinction between an accessory before the fact and an accessory after the fact. So the distinction between an accessory after the fact and a prin- cipal is clear. And an accessory after the fact is not to be charged simply as one receiving stolen goods. As defined in some statutes and by some courts an accessory after the fact "is a person who after full knowledge that a crime has been committed, conceals it from the magistrate and harbors, assists, or protects the person charged with or convicted of the crime." And as further stated by the same court: "In this classification of the offense, both at com- mon law and under our statutes, the law contemplates some assist- ance or act done to the felon himself, and is distinct from receiving stolen goods from the felon, except such taking is for the purpose of facilitating his escape from justice, or attended with some benefit." The difference, therefore, between an accessory after the fact and a person receiving stolen goods is that the former renders some aid, assistance or protection to the principal while the latter does not.^^ »1 Bishop Cr. Law (New), § 673; 36 La. Ann. 572; State v. Hamilton, Hately v. State, 15 Ga. 346; Kinne- 13 Nev. 386; Warden v. State, 24 brew V. State, 80 Ga. 232, 5 S. E. 56; Ohio St. 143; Cook v. State, 14 Tex. Riggins v. State, 116 Ga. 592, 42 S. App. 96; Ogle v. State, 16 Tex. App. E. 707; Pearce v. Territory, 11 Okla. 361; State v. Prater, 52 W. Va. 132, 438, 68 Pac. 504; State v. Snell, 46 43 S. E. 230; Hicks v. United States, Wis. 524, 1 N. W. 225; Spear v. 150 U. S. 442. 14 Sup. Ct. 144. Hiles, 67 Wis. 361, 30 N. W. 511; ^"Griffith v. State, 90 Ala. 583. 8 Meister v. People, 31 Mich. 99; Un- So. 670; State v. Tally, 102 Ala. 25, ger v. State, 42 Miss. 642; People 15 So. 722; State v. Cassady, 12 v. Katz, 23 How. Pr. (N. Y.) 93; Kans. 550; Spies v. People, 122 111. People v. Wixon, 5 Park. Cr. Cas. 1, 12 N. E. 865. (N. Y.) 119; McCarney v. People, "4 Blackstone Comm. 37; 1 Hale 83 N. Y. 408; Phillips v. Tucker, 14 P. C. 618; 1 Chitty 264; Loyd v. N. Y. St. 120; Usselton v. People, State, 42 Ga. 221; State v. Cassady, 149 111. 612, 36 N. E. 952; State v. 12 Kans. 550; Able v. Common- Farr, 33 Iowa 553; State v. Poynier, wealth, 5 Bush (Ky.) 698; Tully v. §§ 2776, 2777.] accessories. 78 § 2776. Accessory during the fact. — Some statutes define what is called an accessory during the fact. This is defined to be "a person who stands by without interfering or giving such help as may be in his power to prevent a criminal offense from being committed." Under such a statute the indictment must state and the proof must show that the accused had power to prevent the commission of the particular crime; they should show what it was in his power to do without placing himself in peril; or what act he failed to do which he might have safely done. Under such circumstances the law does not require a person to hazard his personal safety to prevent the commission of a crime. He is not required to expose himself to danger.^^ § 2777. Proof of principal's guilt. — It is a primary and funda- mental rule that under the common law or the statutes for punish- ing accessories, it is necessary that the guilt of the principal felon should be shown before an accused could be convicted as an acces- sory. For the same reason it was therefore necessary that the in- dictment against an accessory should be sufficient as to make it a good indictment against the principal.^ ^ The rule as stated by some courts is that the conviction of the principal is essential to the guilt of an accessory at common law.^* Some statutes permit the in- dictment and conviction of the accessory where it appears that the principals could not be captured or prosecuted and convicted. In such cases before an accessory can be convicted the statute must show that a crime had been committed and that the principal could not be arrested. Before an accessory can be convicted under such stat- Commonwealth, 11 Bush (Ky.) ritory v. Dwenger, 2 N. Mex. 73; 154; Harris v. State, 7 Lea (Tenn.) Levy v. People, 80 N. Y. 327; State 124; 3 Greenleaf Ev., §§ 47-50. v. Duncan, 6 Ired. L. (N. Car.) 98; '^Farrell v. People, 8 Colo. App. Self v. State, 6 Baxt. (Tenn.) 244; 524, 46 Pac. 841; State v. Hamilton, McCarty v. State, 44 Ind. 214; 13 Nev. 386. Simms v. State, 10 Tex. App. 131; " Tully V. Commonwealth, 11 Armstrong v. State, 33 Tex. Cr. Bush (Ky.) 154; Stoops v. Com- App. 417, 26 S. W. 829; but see con- mon wealth, 7 S. & R. (Pa.) 491; tra: State v. Mosley, 31 Kans. 355, Buck v. Commonwealth, 107 Pa. St. 2 Pac. 782; State v. Bogue, 52 Kans. 486; Armstrong v. State, 33 Tex. 79, 34 Pac. 410; State v. Patterson, Cr. App. 417, 26 S. W. 829; Hatchett 52 Kans. 335, 34 Pac. 784. V. Commonwealth, 75 Va. 925; Og- " Bowen, Ex parte, 25 Fla. 214, den v. State, 12 Wis. 532, 592; 6 So. 65; Bowen v. State, 25 Fla. Baxter v. People, 7 111. 578; Ray v. 645, 6 So. 459. State, 13 Neb. 55, 13 N. W. 2; Ter- 79 principal's guilt. [§ 2778. utes it must be shown generally that the principal, whether taken or not or whether known or unknown, was guilty. ^^ But some statutes permit the arrest, prosecution and conviction of the accessory with- out reference to the question of the conviction of the principal; j^et such statutes adhere to the rule of requiring the guilt of the prin- cipal to be proved.^*' But the rule is that "any acts and conduct of the principal tending to show his own guilt is evidence of such guilt as against the accessory."^^ The accessory may be tried before the conviction of a principal, but as above stated the proof must estab- lish the guilt of the principal, and any evidence competent to show the guilt of the principal is admissible for that purpose on the trial of the accessory.^^ And it has been held that the proof must es- tablish the guilt of the principal as well as that of the accessory be- yond a reasonable doubt. ^'* The rule seems to be well established that the accessory may on his own behalf controvert the propriety or the correctness of the principal's conviction by the testimony of witnesses.^" § 2778. Proof of principal's guilt — Record of conviction. — The rule as stated in the preceding section requires that the guilt of the principal be established. Any legitimate evidence which does this or which tends to establish his guilt is competent and admissible. And for the purpose of establishing the guilt of the principal it is now the general rule that a record of his conviction and sentence is admis- sible in evidence for this purpose.'^ However, the rule is that such records of conviction are only prima facie evidence of the guilt of the principal. And the record of the conviction of the principal on a plea of guilty is not conclusive for any purpose connected with the "Edwards v. State. 80 Ga. 127, Car.) 98; McCarty v. State, 44 Ind. 4 S. E. 268. 214. "Vaughan v. State, 57 Ark. 1, 20 ^^ Anderson v. State, 63 Ga. 675; S. W. 588. Coxwell v. State, 66 Ga. 310; Groves "Gill V. State, 59 Ark. 422, 27 S. v. State, 76 Ga. 808; Stripland v. W. 598; State v. Rand, 33 N. H. 216; State, 114 Ga. 843, 40 S. E. 993; Self v. State, 6 Baxt. (Tenn.) 244; Keithler v. State, 10 Sm. & M. Simms v. State, 10 Tex. App. 131. (Miss.) 192; Levy v. People, 80 N. ^'Buck v. Commonwealth, 107 Pa. Y. 327; State v. Mosley, 31 Kans. St. 486; Vaughan v. State, 57 Ark. 355, 2 Pac. 782; State v. Chittem. 1, 20 S. W. 588. 2 Dev. L. (N. Car.) 49; West v. i^Poston V. State, 12 Tex. App. State, 27 Tex. App. 472, 11 S. W. 408. 482; United States v. Hartwell, 3 ^'o State v. Duncan, 6 Ired. L. (N. Cliff. (U. S.) 221; People v. Gray, 25 Wend. (N. Y.) 465. §• 3779.] ACCESSORIES. 80 trial of the accessory, if he choose to controvert it.^^ But the prose- cution is not limited to the introduction of a record but may estab- lish the guilt of the principal by any other competent evidence.^^ So, a record of the conviction of a principal on a plea of guilty can only be prima facie proof of his guilt as against the accessory.-* § 2779. Effect of acquittal. — In the jurisdictions which hold that the principal's guilt must be established in order to support a con- viction of the accessory, it is also the rule that proof of the princi- pal's acquittal operates as a complete defense on behalf of the ac- cessory and he must be discharged.-" This was carried to the extent of holding that where a verdict of guilty was returned against the accessory but before sentence was pronounced the principal was tried and acquitted, that on the production of the record of such acquittal of the principal the accessory should be discharged. -'' So where a principal was indicted and convicted and the conviction of the ac- cessory followed, but the principal thereafter appealed his case which was reversed, it was held that the accessory should be discharged.^' But in the jurisdictions where the distinction between principal and accessory has been abolished, the rule as to the conviction or ac- quittal of the principal no longer applies.-^ If the record shows an acquittal of the principal then the accessory must be discharged, and where the accessory was first tried and a verdict of guilty returned but before sentence was pronounced the principal was tried and ac- == Anderson v. State. 63 Ga. 675; So. 459; McCarty v. State, 44 Ind. State v. Mosley, 31 Kans. 355, 2 214. Pac. 782; Levy v. People, 80 N. Y. =^Ray v. State, 13 Neb. 55, 13 N. 327; People v. Buckland, 13 Wend. W. 2. (N. Y.) 592; United States v. Hart- "'People v. Bearss, 10 Cal. 68; well, 3 Cliff. (U. S.) 221; Studstill People v. Newberry, 20 Cal. 439; V. State, 7 Ga. 2; Commonwealth v. State v. Mosley, 31 Kans, 355, 2 Knapp, 10 Pick. (Mass.) 477; State Pac. 782; State v. Bogue, 52 Kans. V. Gleim, 17 Mont. 17, 41 Pac. 998. 79, 34 Pac. 410; State v. Patterson, "Levy V. People, 80 N. Y. 327. 52 Kans. 335, 34 Pac. 784; People 2* Anderson v. State, 63 Ga. 675; v. Kief, 126 N. Y. 661, 27 N. E. 556; Groves V. State, 76 Ga. 808; Baxter Noland v. State, 19 Ohio 131; Evans V. People, 7 111. 578; Buck v. Com- v. State, 24 Ohio St. 458; State v. mon wealth, 107 Pa. St. 486. Cassady, 12 Kans. 550; State v. =5 State V. Ludwick, Phil. (N. Jones, 7 Nev. 408; Spies v. People, Car.) 401; State v. Jones, 101 N. 122 111. 1, 12 N. E. 865; Reg. v. Car. 719, 8 S. E. 147; United States Hughes, Bell Cr. Cas. 242; Reg. v. V. Crane, 4 McLean (U. S.) 317. Pulham, 9 Car. & P. 280. »Bowen v. State, 25 Fla. 645, 6 81 CONFESSIONS OF FRINCIPAL. [§§ 2780, 2781. quitted, it was held that on the production of the record showing such acquittal of the principal the accessory should bo discharged. -° § 2780. Proof of principal's guilt — Confession. — It has already been shown in preceding sections that on the trial of an accessory the guilt of the principal must be proved, and that tliis might be done by any competent evidence. The courts are not agreed, however, on the C]uestion of the admissibility of the admissions or confessions made by the j)rincipal. The rule established by the decided weight of author- ities, and certainly by the better reasoning, is that the confession of the principal is admissible : ( 1 ) When the confession is such that it would be competent evidence if the principal himself were on trial; (8) that sucli confession is admissible only for the purpose of mak- ing the prima facie proof of the principal's guilt, and is not otherwise evidence against tlio accessory.^'' And this rule has been carried to the extent of holding that a confession is admissible where it goes not only to the guilt of the principal, but tends to prove the guilt of tlie accused.^ ^ But it seems that proof of such confession cannot be made, at least as evidence against the accused, until a conspiracy is estab- lished.^^ § 2781. Accessory before the fact — Proof of guilt. — Many stat- utes have abolished the distinction between principals and acces- sories before the fact and punish all as principals. Yet the rule is maintained that unless the proof would be sufficient to convict the accused as an accessory, according to the distinction at common law, he could not be found guilty under such gtatutcs.''^ But where a statute provides for punishing an accessory as a principal the acces- sory must be indicted as a principal ; otherwise there can be no con- ='Bowen v. State. 25 Fla. 645, fi W. 588; Gill v. State, 59 Ark. 422, So. 459; McCarty v. State, 44 Ind. 27 S. W. 598; State v. Rand, 33 N. 214. H. 216; Ogden v. State, 12 Wis. 532, =" Smith V. State, 46 Ga. 298; 592; Rex v. Turner, 1 Moody Cr. Groves v. State, 76 Ga. 808; Lynes Gas. 374. V. State, 36 Miss. 617; Self v. State, =' Territory v. Dwenger, 2 N. Mex. 6 Baxt. (Tenn.) 244; Morrow v. 73. State, 14 Lea (Tenn.) 475; Simms ^-Loggins v. State, 8 Tex. App. V. State, 10 Tex. App. 131; Bluman 434; Arnold v. State, 9 Tex. App. V. State, 33 Tex. Cr. App. 43, 21 S. 435; Crook v. State, 27 Tex. App. W. 1027; Hartwell v. United States, 198, 11 S. W. 444. 3 Cliff. (U. S.) 221; but see, contra: =^ State v. Farr. 33 Iowa 553. Vaughan v. State, 57 Ark. 1, 20 S. Vol. 4 Elliott Ev. — 6 § 2783.] ACCESSORIES. 82 viction.^* JSTo absolute rule can be given as to the nature or suffi- ciency of the proof to convict an accessory. It is never necessary that the evidence of an unlawful combination to perpetrate a par- ticular offense should be direct and positive. Such combination or common intent may be proved from all the facts and circumstances connected with the transaction.^^ And as stated by another court where the accused was charged as an accessory in a homicide case, "nor is it necessary that the acts or words of the accessory should directly incite or expressly command the principal to commit the homicide; it is enough if it appears that the acts or words of the ac- cessory were intended to secure the unlawful killing of the deceased, and that they effected that result."^*^ § 2782. Proof of advising or participating. — In order to estab- lish the guilt of a person charged as an accessory the proof must bring him clearly within the meaning of the term according to the definitions already given. In other words it must be shown that he either counseled, commanded or procured another to commit the crime, he himself not being actively or constructively present at the time it was committed. But it is not essential that the proof show that any specific mode of committing the offense should be coun- seled or commanded ; nor is it necessary to prove that the act was committed in the particular manner counseled or instigated. In the commission of the act itself the principal may vary the mode or cir- cumstances of its perpetration and yet the accessory be guilty; or the criminal liability may exist though the proof fails to establish the particular manner, time or place counseled, commanded or in- stigated by the accused.^^ But it is necessary that tlie proof sliow a criminal intent on the part of the accessory; or, as otherwise stated, the proof must show that the accessory intended the crimi- nal effect.^^ So it is held that the instigation or encouragement given '* Baxter v. People, 3 Gilm. (111.) Griffith v. State, 90 Ala. 583, 8 So. 368; Coates v. People, 72 111. 303; 812; Ferguson v. State, 134 Ala. 63, Usselton v. People, 149 111. 612, 36 32 So. 760. N. E. 952. =' Hicks v. United States, 150 U. ^^ State V. Lucas, 57 Iowa 501, 10 S. 140, 14 Sup. Ct. 144; Spies v. N. W. 868. People, 122 111. 1, 12 N. E. 865; ^^ Sage V. State, 127 Ind. 15, 26 Commonwealth v. Campbell, 7 Allen N. E. 667. (Mass.) 541; State v. Hickam, 95 3^ Hughes V. State, 75 Ala. 31; Mo. 322, 8 S. W. 252. 83 CRIME IN PURVIEW OF ACCESSORY'S ADVICE. [§ 2783. by the accessory may be by words, si. ing the authorities on tlio subject, said : "If the question were gov- erned solely by the intent of the defendant, such an act would not bo considered as amounting to an assault, and on the other hand, if it were governed by the probable and natural effect on the person aimed at, or by the tendency of the act to induce a broach of the peace, it would properly be regarded as such. After viewing the question in its various lights, we are inclined to hold with those who regard it as an assault, where the person aimed at does not know but that the gun is loaded, or has no reason to believe that it is not."**^ So it is held that "no specific intent is necessary to constitute the crime under this statute other than such as may be embraced in the act of mak- ing an assault with a dangerous weapon. This simply embraces the intentional and unlawful use of a dangerous weapon, by means of which an assault is committed with such weapon upon the person of another.''*^ § 2833. Unloaded g^n — Civil and criminal assault. — There seems to have been a different rule established in civil and criminal cases with respect to the liability for an assault with an unloaded gun. The cases holding that the act constitutes a criminal assault would with perfect consistency hold that there was a civil liability. The cases adopting the contrary rule seem to think it necessary to recognize a distinction between such assaults in criminal prosecutions and in civil actions for damages. The reasoning adopted by one writer at least was that "if intentionally frightening a person's animals with a gun gives him a right of action, a fortiori should he have an action against any one who in this manner intentionally frightens him. It cannot be doubted that in such cases an action lies, and the act done may with propriety enough be called an actionable assault, but it does not therefore follow that it is an indictable assault."*^ The Su- preme Court of Xew Hampshire has fully discussed the question in a civil action: but it made no distinction between civil and criminal assaults. In speaking on the subject generally the court said : '"One of the most important objects to be attained by tlie enactment of laws and the institutions of civilized society is, each of us shall feel secure Hancock, 27 N. H. 223; Reg. v. Hannam v. Mockett, 2 B. & C. 934; James. 1 Car. & Kir. 530. Carrington v. Taylor. 11 East 571; *= State v. Shepard. 10 Iowa 126. Ibottson v. Peat, 3 H. & C. 644; ^' State v. Godfrey. 17 Ore. 300, Keble v. Hickringill. 11 Mod. 74; 301. 20 Pac. 625. Keeble v. Hickeringill. 11 Mod. 130, *'2 Green Cr. Law. note 271, 274; 3 Salk. 9. § 2834,] ASSAULT. 12C> against unlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security. We have a right to live in so- ciety without being put in fear of personal harm. But it must be a reasonable fear of which we complain. And it surely is not unreason- able for a person to entertain a fear of personal injury, when a pistol is pointed at him in a threatening manner, when, for aught he knows, it may be loaded, and may occasion his immediate death. The busi- ness of the world could not be carried on with comfort if such things could be done with impunity."*^ § 2834. Drawing gun — ^Burden of proof as to being loaded. — Out of this conflict of cases on the question of whether or not the draw- ing or pointing of a loaded or unloaded gun is sufficient to constitute an assault, grows the question of the burden of proving whether or not the gun was loaded. On the trial of a case where a charge of an as- sault committed by pointing a gun or pistol at another person, the question is, must the state prove as a part of its original case that the weapon was loaded? The courts holding that the drawing or point- ing of an unloaded gun at another constitutes an assault would not require the state to prove the condition of the gun, neither would they ordinarily permit the accused to show that the gun was not loaded as a matter of defense. The other class of cases it seems establishes the rule that the burden is on the defendant to show that the gun was. not loaded.^** It seems to be the rule that where a person draws and points a gun toward another within shooting distance, accompanied by a threat to shoot or to do other violent injury, it will be presumed that the gun was loaded.^ ^ A few cases, however, have held that the burden is on the state to show that the gun or pistol under such cir- cumstances was loaded, and that no inference on that question can be drawn from the fact that an attempt was made to use the weapon as if it were in fact loaded.^ ^ *^ Beach v. Hancock, 27 N. H. 223. " Keefe v. State, 19 Ark. 190, 192; The court makes no distinction be- State v. Herron, 12 Mont. 230, 29 tween civil and criminal liability. Pac. 819; Beach v. Hancock, 27 N. ™ State V. Herron, 12 Mont. 230, H. 223; Richels v. State, 1 Sneed 29 Pac. 819; State v. Cherry, 11 (Tenn.) 606. Ired. L. (N. Car.) 475; Caldwell v. '^^ State v. Napper, 6 Nev. 113: State, 5 Tex. 18, 20; Crow v. State, State v. Swails, 8 Ind. 524; Klein 41 Tex. 468; Burton v. State, 3 Tex. v. State, 9 Ind. App. 365, 36 N. E App. 408. 763; Henry v. State, 18 Ohio 32. 127 ASSAULT AND BATTERY — DEFINITION. [§ 2835. Assault and battery. § 2835. Definition. — An assault and battery may be regarded or defined as tlie completion or culmination of an assault. The assault is usually considered as a part of or as being included in the battery or the assault and battery. There uiay be an assault under the rules- and definitions heretofore given, without a battery ; but it is evident that tliere can l)e no battery without an assault.-''^ The various stat- utes defining this offense usually embody the common law idea of assault and battery. According to the common law the least touch- ing of the person of another in anger was considered a battery. The reason given for this was that the law could not draw the lino be- tween different degrees of violence, and consequently it totally pro- hibited the lowest degree of any violence.-^* For these reasons a charge of unlawful beating is sufficiently sustained by proof of the least unlawful touching of the person of another in anger. The un- lawful beating as used in such statutes is held to mean the same as the word battery at common law.^^ As sometimes expressed : "A battery is defined to be the wilful touching of the person of another by the aggressor or by some substance put in motion by him."'^^''' The statutes of some of the states provide in substance that auy person who in a rude, insolent and angry manner shall unlawfully touch another, shall be deemed guilty of an assault and battery. Under such a definition it has been held that the proof must show at least three things: (1) The touching of the person of another; (2) such touch- ing must be unlawful; (3) the unlawful touching must be either in a rude or an insolent, or an angry manner. Proof that it was done in either manner is sufficient. But it is held to be insufficient to charge and prove only that the touching was unlawfully done.^^ So ■^^ Norton v. State, 14 Tex. 387; Tex. App. 543, 8 S. W. 664; State Fitzgerald v. Fitzgerald, 51 Vt. 420; v. Cody, 94 Iowa 169, 62 N. W. 702. Sweeden v. State, 19 Ark. 205; State "'■ 3 Blackstone Comm. 120; Hunt Twogood, 7 Iowa 252: State v. Cody, v. People. 53 III. App. Ill; Good- 94 Iowa 169, 62 N. W. 702; Furnish rum v. State, 60 Ga. 509; Norton v. V. Commonwealth, 14 Bush (Ky.) State, 14 Tex. 387. 180; Johnson v. State. 17 Tex. 515; '"'Wescott v. Arbuclcle, 12 Bradf. Commonwealth v. Brungess, 23 Pa. (111. App.) 580: Razor v. Kinsey. 55 Co. Ct. 13: see, Vol. TIT, Ch. 83. 111. App. 605. "Russell Crimea 1020: 2 Bishop •'Howard v. State. 77 Ind. 401; Cr. Law, § 72; Hunt v. People. 53 State v. Philley. 67 Ind. 304; Mc- 111. App. Ill; Foster v. State, 25 Culley v. State. 62 Ind. 428; Mr-Don- §§ 3836, 2837.] assault and battery. 138 it has been defined to be "any touching of the person of an individual, in a rude or angry manner, without justification."^* It has been held sufficient to establish the charge of an assault and battery where in a civil action the defendant admitted that he seized hold of the plain- tiff and held him awhile, and thereafter threw a piece of board strik- ing him on the leg.^" § 2836. Rule stated by Mr. Greenleaf. — This rule is stated by Mr. Greenleaf as follows: "A battery is the actual infiiction of violence on the person. This averment will be proved by evidence of any un- lawful touching of the person of the plaintiff, whether by the de- fendant himself, or by any substance put in motion by him. The degree of violence is not regarded in the law; it is only considered by the jury, in assessing the damages in a civil action, or by the judge, in passing sentence upon indictment. Thus, any touching of the person, in an angry, revengeful, rude or insolent manner ; spitting upon the person; jostling him out of the way; pushing another against him; throwing a squib or any missile, or water upon him; striking the horse he is riding, whereby he is thrown ; taking hold of his clothes in an angrv or insolent manner, to detain him, is a bat- tery. So, striking the skirt of his coat, or the cane in his hand, is a battery, for anything attached to the person partakes of its inviola- bility."«° § 2837. Direct striking not necessary. — In order to constitute as- sault and battery it is not necessary that the assailant actually strike the person assailed with his hand or fist; nor is it necessary that the aid v. Franchere, 102 Iowa 496, 71 600; Lord Derby, The, 17 Fed. 265 N. W. 421; Slusser v. State, 71 Ind. Conway v. Reed, 66 Mo. 346, 353 280; Hays v. State, 77 Ind. 450. State v. Davis, 1 Hill (S. Car.) 46 ^' State v. Harden, 2 Speer (S. Perkins v. Stein. 94 Ky. 436, 22 S. Car.) 152. W. 649; Carr v. State, 135 Ind. 1, 34 =» Fitzgerald v. Fitzgerald, 51 Vt. N. E. 533, 41 Am. St. 408; Brown v. 420. Kendall, 6 Cush. (Mass.) 296 ""1 Greenleaf Ev., § 84; Kirland Leame v. Bray, 3 East 593, 602 V. State, 43 Ind. 146; Marentille v. Forde v. Skinner, 4 Car. & P. 239 Oliver, 2 N. J. L. 358; Bull v. Col- Reg. v. Cotesworth, 6 Mod. 172 ton, 22 Barb. (N. Y.) 94; Respublica Cole v. Turner, 6 Mod. 149; Scott V. De Longchamps, 1 Dall. (Pa.) v. Shepherd. 2 W. Bl. 892; Pursell 111; Commonwealth v. Fleet. 8 v. Horn, 8 Ad. & El. 602, 605; Simp- Phila. (Pa.) 614; Clark v. Downing, son v. Morris, 4 Taunt. 821; Dod- 55 Vt. 259; United States v. Ortega, well v. Burford, 1 Mod. 24. 4 Wash. (U. S.) 531, Baldw. (U. S.) 129 INTENT. [§ 2838. striking be done with a weapon or instrument held by the assailant. The assault and battery may be committed in an indirect manner; that is by setting in motion or projecting some substance or force that touches or operates upon the person of another. The legal propo- sition is stated as follows: "One receives bodily harm, in a legal sense, when another touches his person against his will with physical force, intentional, liostile and aggressive, or projects such force against his person. "^^ § 2838. Intent. — A class of cases holds that it is necessary on a charge of assault and battery to prove the intent with which the act was done. By this is meant that the proof must show that tlie ac- cused intended to do some bodily harm to the person of the prosecut- ing witness. As said in a Texas case : "To constitute an assault and battery there must be an intent to injure. This must appear from the facts and circumstances surrounding the transaction.^'"- As stated by one court: "To support a charge of an assault and battery it is necessary to show that the act complained of w^as intentionally com- mitted."®' A person may be guilty of an assault and battery whatever be the means or extent of the force or degree of violence used; it has been held sufficient if there is used any unlawful violence upon another's person with intent to injure him.^* And for the purpose of proving the intent, it is proper to inquire if there had not been prior difficulties between the defendant and the prosecuting witness.*^^ This rule is not nullified by the rule elsewhere stated that the intent may be inferred from the act or from the injury inflicted. The effect of this rule is to cast the burden on the defendant to show that the injury complained of was caused by accident or that it was not in- tentionally inflicted. ""^ Hence under this rule requiring the presence of intent as the element of the crime, it may be shown that the inten; was wholly wanting and that the injury complained of was the resul': "People v. Moore, 50 Hun (N. State v. Clayborne, 14 Wash. 62«., Y.) 356, 3 N. Y. S. 159. 45 Pac. 403. •= Rutherford v. State, 13 Tex. "' Vanvactor v. State, 113 Ind. 27C, App. 92; Dickenson v. State, 24 Tex. 15 N. E. 341. App. 121, 5 S. W. 648; "Ware v. «* Evans v. State, 25 Tex. Sup. State, 24 Tex. App. 521, 7 S. W. 240; 303; Jarnigan v. State, 6 Tex. App. as to what is a sufficient charge of 465. intent, see, State v. Carpenter, 23 "' State v. Montgomery, 65 Iowa Iowa 506; State v. Clark, 80 Iowa 483, 22 N. W. 639. 517, 45 N. W. 910; State v. Harri- "^Rutherford v. State. 13 Tex. son, 82 Iowa 716, 47 N. W. 777; App. 92. Vol. 4 Elliott Ev. — 9 §§ 2839-2841.] assault and battery. 130 of accident.*'^ But notwithstanding this rule requiring proof of in- tent it has been held that where it appeared that the accused at- tempted to commit an assault and battery upon another person but accidentally struck and injured a bystander, he was guilty of an as- sault and battery.®* § 2839. Intent not essential to the crime. — But some cases hold that in actions for simple assault and battery the intent is not of the essence of the crime. That the only proof required is to show that the defendant committed the act or set in motion the force which re- sulted in the injury though it may have been done without any in- tent to injure.'^ This is the rule where the statute does not make the specific intent to wound or inflict grievous bodily harm an ingredient of the offense.'^" § 2840. Intent — Presumption. — From the difficulty of proving the specific intent the law very generously presumes the existence of the intent from certain acts or the result of such acts. The rule on this, subject at common law was, that "when the injury is caused by vio- lence to the person, the intent to injure is presumed, and it rests with the person inflicting the injury to show accident or innocent inten- tion.'^^ So it was held sufficient to show that the accused by force poured, or attempted to pour upon the person of another, a mixture of spirits of turpentine and pepper.'^^ § 2841. Intent — Inferred from circumstances. — While it is in- cumbent upon the state to prove the intent, yet the law, recognizing the difficulty of proving mental states, does not require proof of such intent by direct evidence, but it may be established by proof of such facts and circumstances from which the intent may naturally or rea- sonably be inferred. One court very aptly stated the rule thus : "But it is generally true that the state is not expected and cannot be re- quired to make proof of felonious intent, as a fact, by direct and positive evidence; for as a general rule, men who do or commit acts do not proclaim in public places the intent with which such acts are done. If the state were required to make direct and positive proof «' Vincent v. Stinehour, 7 Vt. 62. •" State v. Broadbent, 19 Mont. "« McCay v. State, 32 Tex. Cr. App. 467, 48 Pac. 775. 233, 22 S. W. 974. •• Evans v. State, 25 Tex. Sup. "Hill V. State, 63 Ga. 578. 303. "Murdock v. State, 65 Ala. 520. 131 INJURY TO FEELINGS. [§ 2842. of the felonious intent which characterizes the act done as a public offense, the result would be that many persons, charged and guilty of public crimes, would go acquit 'unwhipt of justice.' Therefore all that the state is required to do in such cases is to introduce such evidence on the trial of the cause as will satisfy the triers of the facts, whether court or jury, beyond a reasonable doubt, not only tliat the act was done by tlie defendant, but tliat it was done with the felonious intent charged in the indictment."'^ So it is held that the intent may be inferred from the act itself, and that in a certain class of cases no further proof of intent is required. But in some cases of simple assault and battery it is held that the intent will not be stretched beyond the result of the blow.'^* This rule that the intent or malice may be inferred from the act is very generally extended to the point of holding that the accused will not be permitted to overcome such inference by a statement that he did not intend any bodily injury or that he did the act in fun or sport. This rule ap- plies especially in cases where persons are injured by the discharge of a gun or pistol for the purpose of frightening others.''^ § 2842. Injury to feelings. — The courts generally adhere to the rule that in order to constitute an assault and battery there must be an unlawful touching in some manner prohibited by the statute. Some courts admitting this rule recognize that while there must be some physical act committed by the assailant yet the violence ma}' be either to the person or to the feelings or mind. This rule was aptly stated by the Texas Court of Appeals as follows : "The use of any unlawful violence upon the person of another, with the intent to injure, is an assault and battery. From this, two acts must concur, one physical and the other mental, — the act and the accompanying intent. There must be a physical act done by the assailant, which takes effect upon the person of the party assailed. The slightest force is sufficient; the least touching of the person of another will suffice. The act done or force used which takes effect must be intended, other- wise it would be accidental and therefore not unlawful. To the in- tended act or force must be added the intent to injure the party as- sailed. The injury intended may be to the feelings or mind, as well "Padgett V. State, 103 Ind. 550. 33 N. W. 30; People v. Miller, f»l 3 N. E. 377. Mich. 639, 52 N. W. 65. "People v. Ross, 66 Mich. 94. 96, "> Smith v. Commonwealth, 100 Pa. St. 324. See § 2818, et seq. §§ 2843, 2844.] assault and battery. 132 as to the person. The violence being used or the act being done, if the natural consequence of the act or violence is an injury, the law presumes this injury to have been intended, unless it be shown that the intention was innocent and not culpable. When an injury is ac- tually inflicted upon the person, the presumption that it was in- tended obtains. If to the mind, or feelings, the act or violence used must in its nature be calculated to wound or injure before the inten- tion to injure will be presumed. When it is sought to convict for an injury to the feelings or mind, the character of a person assaulted with all of the surrounding facts become of vital importance in de- termining whether there was an intent to injure."^^ § 2843. Parent — Assault and battery on child. — The courts of all civilized countries recognize that parents in the exercise of the right- ful and natural authority have the power to administer correction and chastisement in the punishment of their children. But courts are equally zealous in guarding children against punishment that is un- reasonable or inhuman and cruel. The general rule is well stated by the Indiana court as follows : "The law is well settled that a parent has the right to administer proper and reasonable chastisement to his child without being guilty of assault and battery ; but he has no right to administer unreasonable or cruel and inhuman punishment. If the punishment is excessive, unreasonable or cruel, it is unlawful. The mere fact that the punishment was administered by the appel- lant upon the person of his own child will not screen him from crimi- nal liability. Whether or not the punishment inflicted in this case was excessive or cruel was a question for the jury."'''' § 2844. Teacher — Assault and battery on pupil. — The law gener- ally concedes to a teacher the right to punish the pupil but the law holds that such punishment must be for the correction of the pupil and must be in moderation, with the proper motive, and not from vindictiveness nor in the spirit of malice. When the proof shows that " Donaldson v. State, 10 Tex. App. Hutchinson, 124 Cal. 677, 57 Pac. 307; Rutherford v. State, 13 Tex. 674; Neal v. State, 54 Ga. 281; State App. 92. v. Bitman, 13 Iowa 485; Common- " Hornbeck V. State, 16 Ind. App. wealth v. Coffey, 121 Mass. 66; 484, 45 N. E. 620; Hinkle v. State, State v. Alford, 68 N. Car. 322; 127 Ind. 490, 26 N. E. 777; Fletcher State v. Jones, 95 N. Car. 588; John- V. People, 52 111. 395; Smith v. Slo- son v. State, 2 Humph. (Tenn.) 282. cum, 62 111. 354; Hutchinson v. 133 BY PARENT — PRESUMPTION AND BURDEN OF PROOF. [§ 2845. the punishment inflicted was immoderate or unreasonable, the teaclier is held to be criminally liable. This rule was stated by the Massachu- setts court thus: "If, in inflicting punishment upon his pupil he went beyond the limit of moderate castigation, and, either in the mode or degree of correction was guilty of any unreasonable and dis- proportionate violence or force, he was clearly liable for such in a criminal prosecution." It was held in the same case that a wrongful intent may be inferred from proof of the unreasonable and excessive use of force.'^^ And on the same subject the Supreme Court of Indiana say: "To support a charge of an assault and battery it is necessary to show that the act complained of was intentionally committed. But in the case of the chastisement of a pupil, the intent may be inferred from the unreasonableness of the method adopted or the excess of force employed, but the burden of proving such unreasonableness and such excess rests upon the state. In such a case in addition to the general presumption of his innocence, the teacher has the presump- tion of having done his duty in support of his defense."^* § 2845. Assault and battery by parent — Presumption and burden of proof. — In seeking to establish the charge of assault and battery against a parent or against one who stands in loco parentis, a differ- ent rule as to the proof prevails. No criminal intent is inferred from the fact of the punishment of a child by a parent or teacher. On the contrary the law presumes the absence of any criminal intent, and that he has done his duty.®** And in addition to this it is pre- sumed that the chastisement was proper and the punishment moder- ate.®^ On the question of the burden of proof in such eases and the presumption, the Supreme Court of Tennessee say: "We think the proper rule is, that where the relation of schoolmaster and scholar, "Commonwealth v. Randall, 4 Vt. 102; State v. Burton, 45 Wis. Gray (Mass.) 36; Cooper v. McJun- 150. kin, 4 Ind. 290; Gardner v. State, ""Vanvactor v. State, 113 Ind. 276, 4 Ind. 632; Danenhoffer v. State, 15 N. E. 341; Fertich v. Michener, 69 Ind. 295; Vanvactor v. State, 113 111 Ind. 472, 11 N. E. 605; Lander Ind. 276, 15 N. E. 341; State v. Pen- v. Seaver, 32 Vt. 114. dergrass, 2 Dev. & B. (N. Car.) ""Vanvactor v. State, 113 Ind. 276, 365; State v. Alford, 68 N. Car. 322; 15 N. E. 341. State v. Jones, 95 N. Car. 588; State "Anderson v. State, 3 Head V. Stafford, 113 N. Car. 635, 18 S. (Tenn.) 454; Turner v. State, 35 E. 256; State v. Rhodes, 61 N. Car. Tex. Cr. App. 369, 33 S. W. 972; 453; Anderson v. State, 3 Head Hathaway v. Rice. 19 Vt. 102. (Tenn.) 454; Hathaway v. Rice, 19 §§ 2846, 2847.] assault and battery. 134 parent and child, master and apprentice, or any similar relation, is established in defense of a prosecution of this sort, the legal presump- tion is, that the chastisement was proper; this must be rebutted by showing on the part of the state or the proof before the jury that it was excessive, or without any proper cause. To hold a parent bound to prove that he had good cause to whip his child, or be subject to a conviction upon indictment, would be monstrous. The same rule applies to the relation under consideration."^- "In order to convict a parent the state must show that he was inflicting immoderate pun- ishment upon the girl."®^ § 2846. Excessive punishment — What constitutes. — The question of the excessive cruelty of the punishment is to be left to the jury. But where the proof shows that the punishment, however severe, pro- duced temporary pain only, and no permanent results, it is not neces- sarily inhuman and cruel or beyond parental authority and for the reformation of the child. But "any punishment therefore which may seriously endanger life, limb or health or shall disfigure the child, or cause any other permanent injury, may be pronounced in itself immoderate, as not only being unnecessary for, but inconsist- ent with, the purpose for which correction is authorized."^* § 2847. Self-defense. — The rules of proof where the accused justi- fies his acts on the ground of self-defense are practically the same in cases of assault and battery as those in higher grades of offenses. These rules will be given more fully and the authorities more gen- erally collected in subsequent chapters. The general rule is that when a person is without fault, is in a place where he has a right to be, and is assaulted, he has a right to defend himself against the threatened or attempted assault. As sometimes stated he has the right to repel force by force, and this he may do without retreating. If the proof shows that in the reasonable exercise of this right he inflicted bodily injury upon his assailant he is justified or excusable.-^ This right « Anderson v. State. 3 Head '^ State v. Alford, 68 N. Car. 322; (Tenn.) 454; Johnson v. State, 2 State v. Pendergrass, 2 Dev. & B. Humph. (Tenn.) 282; State v. Pen- (N. Car.) 365; State v. Jones, 95 dergrass, 2 Dev. & B. (N. Car.) 365; N. Car. 588; State v. Stafford, 113 State V. Harris, 63 N. Car. 1; Com- N. Car. 635. 18 S. E. 256. monwealth v. Randall, 4 Gray "Miller v. State. 74 Ind. 1; Pres- (Mass.) 36. ser V. State, 77 Ind. 274; McDermott «=■ Turner v. State, 35 Tex. Cr. App. v. State, 89 Ind. 187; Mannahan v. 369, 33 S. W. 972. State, 18 Ind. App. 297. 47 N. E. 135 SELF-DEFENSE. [§ 2848. of self-defense is given to one who is himself without fault, and in order to invoke the benefit of the rule he must show that he was without fault.-^ In criminal cases proof of the facts constituting self- defense or all matters which justify or even go in mitigation of the assault and battery charged may generally be given in evidence under the plea of not guilty.^^ § 2848. Self-defense — Excessive force. — This right to invoke the rule of self-defense is subject to another exception. The term itself implies the defense of one's person from a contemplated or attempted assault and tliis is generally the limit of the right ; the rule cannot be extended beyond the natural and inherent right that a person has to protect himself from harm or violence. For these reasons a person when assaulted cannot, under his pretended right of self-defense, use any more force than is reasonably necessary to protect himself. He will not be permitted under the guise of self-defense to administer punishment to his assailant; to claim the benefit of this right he must content himself with having successfully repelled his adversary. And if the proof shows that he did more, or if he followed up his assailant and administered apparently needed punishment, or if it is shown that he used excessive force under all the circumstances he will be criminally liable for assault and battery.*^ The law is not over pre- cise, however, in the application of tliis rule of excessive force on the part of the person assaulted. It permits him to act upon appearances and indulges the inferences that he may draw from the acts, conduct and appearance of his assailant at the time. Hence, if the proof shows that under all the circumstances the means used and the manner of the use in resisting were not disproportioned to the character of 1076; State v. Hays, 23 Mo. 287; Gizler v. Witzel, 82 111. 322; Illinois Hor. & Th. Cas. 492. &c. Co. v. Waznius, 101 111. App. "^Kingen v. State, 45 Ind. 518; 535; Steiner v. People, 187 111. 244. Wall v. State, 51 Ind. 453; Runyan 58 N. E. 383; Adams v. Waggoner, V. State, 57 Ind. 80; Presser v. State, 33 Ind. 531, 533; Dole v. Erskine, 77 Ind. 274; Story v. State, 99 Ind. 35 N. H. 503; Castner v. Sliker, 33 413. N. J. L. 95, 99; Stockton v. State, "People v. Shanley, 30 Misc. (N. 25 Tex. 772, 776; Chambers v. Por- Y.) 290, 63 N. Y. S. 389; State v. ter, 5 Coldw. (Tenn.) 273, 282; Elliott, 11 N. H. 540. State v. Wood, 1 Bay (S. Car.) 351; *» Mitchell v. State. 41 Ga. 537; Commonwealth v. Bush, 112 Mass. Berry v. State, 105 Ga. 683, 31 S. 280; State v. Gibson, 10 Ired. L. E. 592; Woodman v. Howell, 45 111. (N. Car.) 214. 367; Ogden v. Claycomh, 52 111. 365; §i§ 2849-2851.] assault and battery. 136 the assault made or attempted, he will be excusable.*® This rule on the question of the use of excessive force has been aptly stated by the New Hampshire Supreme Court thus: "The self-defense must be regulated by the nature, degree and design of the attack, and the repelling force must go no farther than is necessary to prevent the mischief intended by the aggressor."^" § 2849. Self-defense — Duty of assailant. — The right of self-de- fense may be extended to the original assailant under certain circum- stances. But before this can be done the party who wrongfully and unlawfully begins a contest must place himself clearly in the right. Under such circumstances to invoke the right to the rule of self-de- fense he must prove that after having begun the assault he has made an effort in good faith to withdraw. ^^ In order to invoke this rule the person who wrongfully or unlawfully provokes a quarrel and i& himself the aggressor and enters upon a personal combat, when as- saulted or repelled by his adversary, cannot justify the use of a dangerous or deadly weapon without first showing that he withdrew or attempted to withdraw in good faith from the contest.®^ § 2850. Defense of family. — This right of self-defense is not limited to the person assailed. The right extends equally to the de- fense of a man's family, his possession or his property. In one case it was said : "The defense of one's self, husband, wife, child, parent, mother or servant is, under certain circumstances, a natural right."®^ § 2851. Defense of possession. — This right to defend is granted to the person in the mere possession of property, and the rule is that the bare possessor of a thing has a right forcibly to repel any forcible attempts to take it from him. He has the right to use as much force as is necessary to prevent his exclusion from the use of the property or its forcible or illegal removal.^* ''Pease v. State, 13 Tex. App. 18; Stoffer v. State, 15 Ohio St. 47, Hor. State V. Hill, 4 Dev. & B. (N. Car.) & Th. Cas. 213. 491, Hor. & Th. Cas. 199. '•^ Presser v. State, 77 Ind. 274; ""State v. Elliott. 11 N. H. 540. Barnett v. State, 100 Ind. 171. " Hittner V. State, 19 Ind. 48, Hor. '^ State v. Elliot, 11 N. H. 540; & Th. Cas. 236; Presser v. State, 77 Curtis v. Hubbard, 1 Hill (N. Y.) Ind. 274; Story v. State, 99 Ind. 413; 336; see. Vol. Ill, § 1701. Commonwealth v. Riley, Hor. & Th. ="' Roach v. People, 77 111. 25; Com- Cas. 155; State v. Hill, 4 Dev. & B. monwealth v. Kennard, 8 Pick. (N. Car.) 491, Hor. & Th. Cas. 199; (Mass.) 133; Commonwealth v. 137 DEFENSE OF PROPERTY — DEGREE OF FORCE. [§§ 2852-2854. § 2852. Defense of property. — For the same reasons a person has a riglit to defend liis property and the same rules govern as to the de- gree of force. An intruder may be ordered out of the house or off of the premises of another; but the owner has no right to expel him by force until gentler means have failed. But if the intruder fails or refuses to leave, the owner of the property or premises may then use as much force as is requisite for the purpose of ejecting him. But, as in other eases, no greater force than is necessary to expel the in- truder can be employed.^'' Where the defense is a justification on the ground of possession or ownership, it is proper for the defendant to prove that he was in the possession of the property, or that he owned the premises on which the alleged assault and battery were committed, and that he did the acts complained of in defense of the possession of such property or premises.^*^ But it must be remembered that the proof must show possession ; and it has been held that the owner would not be justified in committing an assault and battery for the purpose of reducing his right of ownership to actual possession. ^^ § 2853. Degree of force. — The rule governing the degree of force to be used applies equally to persons and property. The rule has been thus stated : "The right to property of all kinds may be forcibly de- fended when it is forcibly attacked, and that the degree of force to be used is to be measured not by the value of the article, but by the degree of force used in the attaok."^^ As stated in an early California case: "The owner of the property and in possession of the same had a right to use such force as was necessary to prevent a forcible tres- pass/'»» § 2854. Degree of force — Distinction. — There seems to be a dis- tinction in the degree of force used for the purpose of protecting Power, 7 Mete. (Mass.) 596; Com- 590; People v. Smith, 24 Barb. (N. monwealth v. Crotty, 10 Allen Y.) 16; Corey v. People, 45 Barb. (Mass.) 403; People v. Payne, 8 (N. Y.) 262; Weaver v. Bush, S Cal. 341; Harrington v. People, 6 Term R. 78; see, Vol. Ill, § 1699. Barb. (N. Y.) 607; State v. Miller, «• Harrington v. People, 6 Barb. 12 Vt. 437. (N. Y.) 607. ">1 Wharton Cr. Law, §§ 100, 506; '•^Parsons v. Brown, 15 Barb. (N. Commonwealth v. Clark, 2 Mete. Y.) 590. (Mass.) 23; Commonwealth v. Pow- ** 1 Wharton Cr. Law. § 100. er. 7 Mete. (Mass.) 596; Common- »» People v. Payne, 8 Cal. 341; Peo- wealth v. Dougherty, 107 Mass. 243; pie v. Flanagan, 60 Cal. 2; Johnson Parsons v. Brown, 15 Barb. (N. Y.) v. Patterson„14 Conn. 1. ■§ 2855.] ASSAULT AND BATTERY. 138 property in the first instance depending on tlie nature and character of the attack. The rule on this subject is stated thus: "Where an intrusion upon property is made without force, it can only be re- pelled on notice to the intruder to leave, and gently laying hands on him to compel it. Where the entry is by actual force, force may be repelled by force, but too great care and caution cannot be used lest the individual should transcend the limited power necessarily placed in his hands for the protection of his rights.' WlOO § 2855. Self-defense — Burden of proof. — The burden in criminal cases as a rule is on the state or the government to prove the com- mission of the offense by the accused beyond a reasonable doubt. And this rule applies to misdemeanors as well as to felonies. But there is a conflict in the decided cases as to the burden of proof in criminal cases where the question of justification or self-defense is interposed. One class of cases holds that it is only incumbent upon the state to prove the assault and battery or the violence inflicted on the person and that it is not necessary to prove that the act was not justified: that this is sufficient prima facie proof of guilt even beyond a reason- able doubt. This prima facie case on the part of the state may be overcome by proof of justification. And this rule seems to obtain whether the evidence of justification is connected with the evidence for the prosecution, or whether it is given on behalf of the defend- ant.^''^ Another class of cases holds that it is neccessary for the state to prove beyond a reasonable doubt not only the fact of the assault and battery but the additional fact that it was unjustified. One rea- son given for this rule is, if the act was justifiable it is not an assault and battery. The rule seems to be that if the evidence on the ques- tion of justification leaves in doubt one of the essential elements of the offense, it has failed to establish beyond a reasonable doubt that the act was wrongful and unjustifiable, and the defendant is entitled to the benefit of such doubt. ^°^ '*> State v. Elliot 11 N. H. 540; don, 88 Cal. 422, 26 Pac. 502; Saw- State v. Woodward, 50 N. H. 527; yer v. People, 91 N. Y. 667; People Scribner v. Beach, 4 Den. (N. Y.) v. McCarthy, 110 N. Y. 309, 18 N. 448; State v. Davis, 80 N. Car. 351; E. 128; People v. Rodrigo, 69 Cal. State v. Taylor, 82 N. Car. 554; 601, 11 Pac. 481; State v. Shea, 104 TuUay v. Reed, 1 Car. & P. 6; Green Iowa 724, 74 N. W. 687; see. People T. Goddard, 2 Salk. 641. v. Shanley, 30 Misc. (N. Y.) 290, "' People V. Rodrigo, 69 Cal. 601, 62 N. Y. S. 389. 11 Pac. 481; People v. Knapp, 71 ^"^ Commonwealth v. McKie, 1 Cal. 1, 11 Pac. 793; People v. Gor- Gray (Mass.) 61; State v. Morphy, 139 RETAKIXG PROPERTY. [§ 285(), "^S-jT. § 2856. Retaking property — No justification. — The courts arc not agreed in hokling that an assault and buttery is justifiable where the proof shows that the owner was attempting to take his property from the possession of another and the battery was committed by liim in so doing. The rule established by some cases is that an assault and battery cannot be justified, excused or extenuated where tlie proof shows that such assault and battery was committed by the owner of property in an attempt to take it from a third person. ^"^^ The rule established in IMassachusetts is that one whose property is wrongfully taken by another may thereupon retake it, but he must use no more than reasonable force to do so ; and the question of whether or not the force was excessive is for the jury.'^"'' § 2857. Retaking property — ^When justifiable.— A class of cases seems to hold that when one's property is wrongfully taken from him, he has the right to follow immediately and retake it ; but he must use no more force than is reasonably necessary under the circumstances. The rule on this branch of the subject is thus stated by the Supreme Court of New Hampshire: "A power of retaking property, under certain circumstances, is necessarily incident to the protection of the above rights. But this right of recapture of property is far more lim- ited than its defense when in our actual possession. Where the prop- erty is immediately followed for recapture from the individual tak- ing it, the same rule for the most part holds as in the defense of property in possession. The controversy is immediately consequent upon the act of taking, and the law arising upon it is the same. Gen- erally the only points to be determined in such case are, whether the pursuer has an undoubted right of property, and of immediate pos- session, and whether the individual removing it is a mere wrong- 33 Iowa 270; State v. Porter, 34 Y.) 262; Scribner v. Beach. 4 Den. Iowa 131; State v. Fowler, 52 Iowa (N. Y.) 448; People v. Cooper, 13 103, 2 N. W. 983; State v. Cross, 68 Wend. (N. Y.) 379; State v. Black, Iowa 180, 26 N. W. 62; State v. 109 N. Car. 856, 13 S. E. 877; Ter- Dillon, 74 Iowa 653, 38 N. W. 525; rell v. State, 37 Tex. 442. State v. Donahoe, 78 Iowa 486, 42 "'Commonwealth v. Donahue, 148 N. W. 297; State v. Fowler, 2 Ky. Mass. 529, 20 N. E. 171; Common- L. R. 150; Commonwealth v. Clark, wealth v. Lynn, 123 Mass. 218; 2 Mete. (Mass.) 23. State v. Dooley, 121 Mo. 591, 26 S. "^Hendrix v. State. 50 Ala. 148; W. 558; Anderson v. State. 6 Baxt. Parsons v. Brown. 15 Barb. (N. Y.) (Tenn.) 60S; Cox v. State, (Tex. 590; Corey v. People, 45 Barb. (N. Cr. App.), 34 S. W. 754. ASSAULT AND BATTERY. 140 doer. In such case a recapture of the property is permitted by the individual, when made only with the reasonable exercise of power which the occasion demands, and when limited and controlled by the urgency of the necessity compelling to this course."^*^^ *•» State V. Elliot. 11 N. H. 540; v. Higgs, 10 C. B. N. S. 713; Bonner Sterling v. Warden, 51 N. H. 217: v. State, 97 Ala. 47, 12 So. 408. Mills V. Wooters, 59 111. 234; Blades CHAPTER CXXXIV. BIGAMY. Sec. Sec. 2858. Scope of Chapter. 2867. First husband or wife living 2859. Definition. — Presumptions. 2860. Jurisdiction — Proof. 2868. Absence of husband or wife — 2861. Validity of first marriage. Effect and burden. 2862. First marriage — Method of 2869. First husband or wife living proof. — Distinction in statutes. 2863. First marriage — Proof by ad- 2870. Polygamy — Proof under Ed- missions, mund's law. 2864. Second marriage — Proof es- 2871. Second marriage in good faith tablishes offense. — No defense. 2865. Second marriage — Presump- 2872. Second marriage in good faith tion. — Defense. 2866. First husband or wife living 2873. Divorce as a defense — Burden — Proof. 2874. First and second wives as witnesses. § 2858. Scope of chapter. — Bigamy is made a crime by statute in perhaps every state of the United States. There is great unanimity in the several statutes as to the crime itself, but some differences in the statutes with reference to subsequent cohabitation and other at- tending matters. It is not within the scope of this work, nor is it at all practical to supply rules of proof adapted to the various statutes of the several states. The purpose here is to give the general rules of proof that may apply to the statutes generally. § 2859. Definition. — For reasons suggested in the preceding sec- tion it is not possible to give a definition of bigamy that will fully conform to the various statutes of the several states; but the essen- tial elements of the crime are so generally recognized that the com- mon definition is practically of universal application. The prevailing idea in the definition given by ]\Ir. Blackstone is very generally ad- hered to when he defines bigamy as that "which properly signifies being twice married, but is more justly denominated })olygamy, or having a plurality of wives at once. Such second marriage, living the 141 § 28G0.] BIGAMY. 143 former husband or wife, is simply void, and the mere nullity, by the ecclesiastical law of England; and yet the legislature has thought it just to make it a felony, by reason of its being so great a violation of the public economy and decency of a well-ordered state."^ A writer on criminal law says of it : "Bigamy, in its proper significa- tion, is said to mean only being twice married, and not having a plurality of wives at once."- As defined by some statutes, "any per- son being married who, during the life of the former husband or wife, shall marry another person in this state, or, if the marriage with such other person take place out of the state, shall thereafter co- habit with such other person in this state," shall be deemed guilty of bigamy, etc.^ Other statutes say of it: "If any person, who has a former husband or wife living, shall marry another person or shall continue to cohabit with such second husband or wife, he or she shall, etc., be deemed guilty of polygamy," etc.* The Arkansas Su- preme Court briefly says of bigamy : "It is the marrying, by a per- son who has a husband or wife living, that constitutes the offense ■under the statute."^ In defining bigamy the Supreme Court of Pennsylvania say: "Polygamy is the proper term to describe the offense we have been discussing; but by long usage bigamy has come to be understood in law to be the state of a man who has two wives, or a woman who has two husbands at the same time."* Some statutes have another and very important element where they provide that "the offense of bigamy consists in the wilful contracting a second marriage, knowing the former marriage to be subsisting."^ § 2860. Jurisdiction — Proof. — It is a fundamental law of proced- ure in criminal cases that the proof must bring the alleged crime within the jurisdiction of the court. Under this rule in prosecutions for bigamy where the statutory offense consists in marrying another person while a former husband or wife is living, the evidence must * 2 Blackstone Coram., 163. Halbrook v. State. 34 Ark. 511 ; ''I Russell Crimes, 186, note a. State v. Hayes, 10 La. 352; Niece = 3 Wharton Cr. Law, § 2623. v. Territory, 9 Okla. 535, 60 Pac. * Finney v. State, 3 Head (Tenn.) 300; Commonwealth v. Grise, 11 544; Johnson v. Commonwealth, 86 Phila. (Pa.) 655; Murphy v. Ram- Ky. 122, 5 S. W. 365; Dotson v. sey, 114 U. S. 15, 5 Sup. Ct. 747; 2 State, 62 Ala. 141; State v. Nadal, Wharton Cr. Law. § 1682; Bishop 69 Iowa 478, 29 N. W. 451; State v. Stat. Crimes, § 577. Johnson, 12 Minn. 476, 93 Am. Dec « Gise v. Commonwealth, 81 Pa. 252; Commonwealth v. Lucas, 158 St. 428, 2 Wkly. No. Cas. 589. Mass. 81. 32 N. E. 1033. ^ Beggs v. State, 55 Ala. 108. ^Scoggins V. State, 32 Ark. 205; 143 VALIDITY OF FIRST MARRIAGE. [? 2?^()1. show, unless otherwise provided by statute, that the soeond marriage ceremony was performed within the county where the indictment was returned. Subsequent cohabitation in the same county or in another jurisdiction may be made an offense by statute, but it is not bigamy. "The criminal second marriage is an indispensable element of the statutory offense, and must be averred and proved."^ § 2861. Validity of first marrage. — In prosecution for bigamy the state must prove both a prior and subsequent marriage beyond a reasonable doubt. The one fact that makes the second marriage criminal is that of an existing prior marriage which has not been dis- solved either by death or divorce. The first marriage must not only be proved, but it must be made to appear that it was valid according to the laws of the state or country where celebrated." This general rule was more fully stated by the Supreme Court of Illinois: "To constitute the offense charged in this indictment it was incumbent on the prosecution to show, against the defendant, two successive marriages, — one legal and innocent, the other penal. Both must be actual. The first marriage must be valid and binding and a marriage in fact. Marriage with capacity and consent, proved by direct testi- mony, as by the evidence of witnesses who saw and heard the mar- riage celebration performed between the parties, or record evidence, with identification, would be evidence of actual marriage in fact."^" If the first marriage is illegal or void or has been dissolved for any reason there can be no conviction for bigamy.^ ^ A marriage void by »Beggs V. State, 55 Ala. 108; Wil- Weinberg v. State, 25 Wis. 370; Hams V. State, 44 Ala. 24; Brewer Bishop Stat. Crimes. § 609. V. State, 59 Ala. 101; Walls v. State, '" Hiler v. People, 156 111. 511, 41 32 Ark. 565; State v. Johnson, 12 N. E. 181; Cartwright v. McGown, Minn. 476; Watson, In re, 19 R. I. 121 111. 388, 12 N. E. 737; Hebhle- 342, 33 Atl. 873; Finney v. State, 3 thwaite v. Hepworth, 98 111. 126; Head (Tenn.) 544; Keneval v. Port v. Port, 70 111. 484; Harmon v. State, 107 Tenn. 581, 64 S. W. 897; Harmon, 16 111. 85; Lowery v. Peo- People v. Mosher, 2 Park. Cr. Cas. pie, 172 111. 466, 50 N. E. 165; Ly- (N. Y.) 195; United States v. Jer- man v. People, 198 111. 544, 64 N. negan, 4 Cranch (U. S.) 1; State v. E. 974; Lyman v. People, 98 111. Cutshall, 110 N. Car. 538, 15 S. E. App. 386; State v. Winkley, 14 N. 261; State v. Palmer, 18 Vt. 570; H. 480; State v. Davis, 109 N. Car. Bishop Stat. Crimes, §§ 587, 588. 780; 14 S. E. 55; Hayes v. People. « Parker v. State, 77 Ala. 47; Mc- 25 N. Y. 390. Deed v. McDeed, 67 111. 545; Canale " Halbrook v. States, 34 Ark. 511; V. People, 177 111. 219, 52 N. E. 310; State v. Goodrich, 14 W. Va. 834; Hull v. State, 7 Tex. App. 593; 3 Greenleaf Ev., § 208. §§ 2862, 2863.] bigamy. 144 reason of non-age of the parties and not confirmed by cohabitation after arriving at the statutory age has been held to be insufficient to establish a subsequent marriage bigamous.^ = §2862. First marriage — Method of proof. — The rules governing the proof of such first marriage, generally, are practically the same as those previously given in prosecutions for adultery .^^ It has been held that "when the celebration of a marriage is once shown, the con- tract of marriage, the capacity of the parties, and every other fact necessary to the validity of a marriage will be presumed, until the contrary is shown." ^* So it has been held that the record of a decree granting a divorce from the first or lawful wife after the alleged sec- ond marriage, with evidence to identify the parties, is competent as proof of the marriage.^^ So the silence of the accused in the face of a charge that his first wife was still living was held to be in the nature of an admission both of the former marriage and the fact of his knowledge or belief that the lawful wife was living. ^« Where a mar- riage took place in a foreign country, followed by cohabitation, in the absence of proof of the laws of such country relating to the sol- emnization of marriages, it has been held that such marriages will be presumed to be legal.^^ § 2863. First marriage — Proof by admissions. — ^The courts are not unanimous on the rule as to whether or not in prosecutions for bigamv, as in prosecutions for adultery,^^ the fact of the marriage can , be sufficiently established by proof of admissions of the accused. But the great weight of authority and the better reasoning are in favor of the proposition that the fact of the marriage may be established by proof of such admissions. Some cases justify this holding on the theory that these admissions are equivalent to the proof by a party ^^Shafher v. State, 20 Ohio 1; but Ferrie, 26 Barb. (N. Y.) 177; State see, People v. Slack, 15 Mich. 193; v. Kean, 10 N. H. 347; State v. State v. Cone, 86 Wis. 498, 57 N. Clark, 54 N. H. 456. W. 50. "Halbrook v. State, 34 Ark. 511; "See Vol. IV, §§ 2799-2803; State v. Ashley, 37 Ark. 403. Bishop Stat. Crimes, § 610. '" State v. Plym, 43 Minn. 385, 45 "Cartwright v. McGown, 121 111. N. W. 848. 388, 12 N. E. 737; Barber v. People, "Commonwealth v. Kenney, 120 203 111. 543, 68 N. E. 93; Strode v. Mass. 387; but see. People v. Lam- Magowan, 2 Bush (Ky.) 621; Peo- bert, 5 Mich. 349. pie v. Calder, 30 Mich. 85; Fleming ^ See, Vol. IV, § 2802. V. People, 27 N. Y. 329; Caujolle v. 145 PROOF OF FIRST MARRIAGE BY ADMISSIONS. [§ 28G3. who was present and witnessed the cereraon}-. Other cases yield as- sent to the rule by holding that proof of such admissions in connec- tion with proof of other circumstances is sufficient; while other cases assert that in the absence of local laws describing certain formalities and ceremonies to validate a marriage the fact may be proved by the admissions of the party. ^^ In an earlier case the Alabama court held that in such prosecutions the fact of marriage may be proved by co- habitation and confessions of the accused. And it was held that if the proof be full and satisfactory it was unnecessary to produce either the record, or the testimony of witnesses who were present.^" By the common law consent followed by cohabitation constituted a valid marriage. Hence the rule is established that in states or countries where the common law is presumed to exist proof of admission of a marriage is the proof of a fact which may rest in parol only, and such admissions are competent evidence of the fact. In any event the admissions must be sufficient to prove the fact of a marriage beyond '» Williams v. State, 54 Ala. 131: Parker v. State, 77 Ala. 47; United States v. Tenney, 2 Ariz. 127, 11 Pac. 472; Halbrook v. State, 34 Ark. 511; Cook v. State, 11 Ga. 53; Murphy v. State, 50 Ga. 150; Arnold v. State, 53 Ga. 574; Dale v. State, 88 Ga. 553, 15 S. E. 287; McSein v. State, 120 Ga. 175, 47 S. E. 544; Jackson v. People. 2 Scam. (111.) 231; Tucker V. People, 122 111. 583, 13 N. E. 809; State V. Seals, 16 Ind. 352; Squire V. State, 46 Ind. 459; State v. Nadal, 69 Iowa 478, 29 N. W. 451; State v. Hughes, 35 Kans. 626, 12 Pac. 28; Commonwealth v. Jackson, 11 Bush (Ky.) 679; Cay ford's Case, 7 Me. 57; Ham's Case, 11 Me. 391; State V. Hodgskins, 19 Me. 155; State v. Libby, 44 Me. 469; Commonwealth V. Holt, 121 Mass. 61; Common- wealth V. Dill, 156 Mass. 226, 30 N. E. 1016; Commonwealth v. Hayden, 163 Mass. 453, 40 N. E. 846; People V. Perriman, 72 Mich. 184, 40 N. W. 425; People v. Imes, 110 Mich. 250, 68 N. W. 157; State v. Armington, 25 Minn. 29; State v. Plym, 43 Minn. 385, 45 N. W. 848; State v. Vol. 4 Elliott Ev. — 10 McDonald, 25 Mo. 176; State v. Cooper, 103 Mo. 266, 15 S. W. 327; State V. Clark, 54 N. H. 456; State v. Wylde, 110 N. Car. 500, 15 S. E. 5; Wolverton v. State, 16 Ohio 173; Stanglein v. State, 17 Ohio St. 453; Forney v. Hallacher, 8 S. & R. (Pa.) 159; Greenwalt v. McEnelley, 85 Pa. St. 352; Commonwealth v. Henning, 10 Phila. (Pa.) 209; Commonwealth V. Murtagh, 1 Ashm. (Pa.) 272; State V. Medbury, 8 R. I. 543; State V. Gallagher, 20 R. I. 266, 38 Atl. 655; State v. Britton, 4 McCord (S. Car.) 256; State v. Hilton, 3 Rich. L. (S. Car.) 434; Bashaw v. State, 1 Yerg. (Tenn.) 176; Dumas v. State, 14 Tex. App. 464; State v. Abbey, 29 Vt. 60; Warner v. Com- monwealth, 2 Va. Cas. 95; Oneale V. Commonwealth, 17 Gratt. (Va.) 582; Bird v. Commonwealth, 21 Gratt. (Va.) 800; Womack v. Tank- ersley, 78 Va. 242; State v. Good- rich, 14 W. Va. 834; Miles v. United States, 103 U. S. 304; Reg. v. Sim- monsto, 1 Car. & Kir. 164. =»Langtry v. State, 30 Ala. 536. s 2864.] BIGAMY, 146 a reasonable doubt. -^ But another class of cases holds that evidence of cohabitation, reputation, etc., is not admissible, and that proof of admissions is not sufficient to establish the fact of a prior marriage, but it must be proved by direct evidence.^^ § 2864. Second marriage — Proof establishes offense. — Under statutes which define the crime by simply providing in substance that any person who is now married shall take to himself or herself an- other husband or wife, while his or her former husband or wife is still alive, it is only necessary to prove in addition to the first mar- riage three things: (1) That the accused has a former husband or wife living: (2) the fact of the second marriage: (3) the identity of the parties. It is expressly held that proof of subsequent cohabi- tation is not required, nor is it necessary to show the consummation of the second marriage by any carnal act.^^ Of this rule the Alabama court say: "Cohabitation, consequent on the marriage, is not an in- gredient of the offense. It is complete, when the second marriage, if valid, would be complete according to the law of the place in which it is formed. Public morals are violated, public policy is offended, and an illegal contract is made, when the rites are solemnized ac- cording to the forms of law. Then, if the prior marriage did not avoid, the relation of husband and wife would be formed, and all its in- cidents would attach. It is the vicious contract, the violation of public morals and policy, the law denounces and punishes.^'-* It is no de- fense, however, to prove that the second marriage is void or prohibited by statute. It is the entering into the void or bigamous marriage ==> Williams v. State, 54 Ala. 131; Weinberg v. State, 25 Wis. 370; see, Parker v. State, 77 Ala. 47. Hayes v. People, 25 N. Y. 390; Will- == Clayton v. Wardell, 4 N. Y. 230; mett v. Harmer, 8 Car. & P. 695. Eisenlord v. Clum, 126 N. Y. 552, =^ Scoggins v. State, 32 Ark. 205; 562, 27 N. E. 1024; People v. Hum- Beggs v. State, 55 Ala. 108; State v. phrey, 7 Johns. (N. Y.) 314; Gaha- Patterson, 2 Ired. L. (N. Car.) 346; gan V. People, 1 Park. Cr. Cas. (N. Nelms v. State, 84 Ga. 466, 10 S. E. Y.) 378; Clayton v. Wardell, 5 Barb. 1087; Gise v. Commonwealth, 81 Pa. (N. Y.) 214; People v. Kelly, 37 St. 428, 2 Wkly. No. Cas. 589; State Hun (N. Y.) 160; Dann v. King- v. Johnson, 12 Minn. 476, 93 Am. dom 1 T. & C. (N. Y.) 492; People Dec. 252; Reg. v. Bawm, 1 Cox Cr. V. Edwards, 25 N. Y. S. 480; State Cas. 33. V. Roswell, 6 Conn. 446; State v. =' Beggs v. State, 55 Ala. 108; Armstrong, 4 Minn. 335; State v. State v. Smiley, 98 Mo. 605. Whaley, 10 Rich. L. (S. Car.) 500; 147 SECOND MARRIAGE. [§ 28(irj. while the prior valid marriage exists that constitutes the gist of tlie offense,^'^ § 2865. Second marriage — Presumption. — One class of cases holds that every presumption must be indulged in favor of the validity of the second marriage ; and it has been held that the ordinary presump- tion in favor of the continuance of human life should not in this class of cases outweigh the presumption in favor of the innocence of the accused. In an early Illinois case it was said : "^Yllen it is shown that a marriage has been consummated in accordance with the forms of the law, it is to be presumed that no legal impediments existed to their entering into matrimonial relations, and tlie fact, if shown, that either or both of the parties have been previously married, and, of course, at a former time having a husband or wife living, does not destroy the prima facie legality of the last marriage. The natural inference in such case is, that tlie former marriage has been legally dissolved, and the burden of showing that it has not been, rests upon the party seeking to impeach the last marriage. The law does not impose upon every person contracting a second marriage the necessity of preserving the evidence that the former marriage has been dissolved eitlicr by death of their former consort or by a de- cree of court, in order to protect themselves against a bill for a di- vorce or a prosecution for bigamy ."^^ In such prosecutions there is not only the ordinary presumption of innocence but there exists also the presumption that the second marriage was legal and valid. This is the basis for rejecting proof of cohabitation as insufficient proof of marriage in prosecutions of bigamy, as the law generally sup- poses that the accused would abandon an illicit cohabitation rather than commit the crime of bigamy. So on this theory it has been stated that "the presumption of marriage will not arise from the co- •" People v. Brown, 34 Mich. 339; 81; Teter v. Teter, 101 Ind. 129; People v. Mendenhall, 119 Mich. 404, Boulden v. Mclntire, 119 Ind. 574, 78 N. W. 325. 21 N. E. 445; Wenning v. Teeple, =« Harris v. Harris, 8 111. App. 57; 144 Ind. 189, 41 N. E. 600; Dixon v. Donahue v. Donahue, 17 111. App. People, 18 Mich. 84; Hull v. Rawls, 578; Johnson v. .Johnson, 114 111. 27 Miss. 471; Klein v. Landman, 29 611, 3 N. B. 232; Schmisseur v. Bea- Mo. 259; Yates v. Houston, 3 Tex. trie, 147 111. 210, 35 N. E. 525; Pot- 433; Greensborough v. Underhill. ter V. Clapp, 203 111. 592, 68 N. E. 12 Vt. 604. § 2866.] BIGAMY. liS liabitntion of a man with a woman, if during lier life and without any proof of a divorce, he marries another wonian."-^ § 2866. First husband or wife living — Proof. — The statutes on the subject of bigamy necessarily provide that the offense consists in marrying another person when the husband or wife of a prior ex- isting marriage is still living. In order to establish the offense under such statutes it must be proved beyond a reasonable doubt that the former husband or wife is living, or was alive at the date of the al- leged second marriage. Such proof is essentialto a conviction; but it is not necessary that the evidence on this subject be direct and positive; the fact may be shown by circumstantial evidence. Nor is it always necessary that the proof show that the former husband or wife was alive at the precise time of the alleged second marriage, but if either is shown to be living recently prior to the time of such mar- riage, it is held by some courts that the law will presume the con- tinuation of life.-'' The record of a decree of divorce in favor of the first wife, entered subsequent to the time of the alleged bigamous marriage was held competent and sufficient to show that the true and lawful wife was living at the time of the second marriage.^'' But the fact that the second wife knew that a former wife was living does not make the second marriage any less bigamous or polygamous; the effect of such knowledge is to vitiate the second marriage.^'' 2^ Jones V. Jones, 45 Md. 144; 43 Minn. 385, 45 N. W. 848; Gibson Breakey v. Breakey, 2 U. C. Q. B. v. State, 38 Miss. 313; State v. Zich- 349; ante, Vol. I, § 123. field, 23 Nev. 304, 46 Pac. 802; State =8Dotson V. State, 62 Ala. 141; v. Norman, 13 N. Car. 222; State v. Jones V. State, 67 Ala. 84 ; Parker v. Burns, 90 N. Car. 707 ; Niece v. Ter- State, 77 Ala. 47; Scoggins v. State, ritory, 9 Okla. 535, 60 Pac. 300; Gise 32 Ark. 205; People v. Feilen. 58 v. Commonwealth, 81 Pa. St. 428, 2 Cal. 218; Prichard v. People, 149 111. Wkly. No. Cas. 589; State v. Bare- 50, 36 N. E. 103; Hiler v. People, foot, 2 Rich. L. (S. Car.) 209; Gor- 156 111. 511, 41 N. E. 181; Squire v. man v. State, 23 Tex. 646; May v. State, 46 Ind. 459; State v. Hughes, State, 4 Tex. App. 424; Hujl v. 35 Kans. 626, 12 Pac. 28; Johnson State, 7 Tex. App. 593; State v. V. Commonwealth, 86 Ky. 122, 5 S. Goodrich, 14 W. Va. 834; 2 Wharton W. 365; State v. Barrow, 31 La. Cr. Law, §§ 1704, 1705; Bishop Stat. Ann. 691; Barber v. State, 50 Md. Crimes, § 611; Reg. v. Lumley, L. R. 161; Commonwealth v. Mash, 7 ICC. Res. 196, 11 Cox Cr. Cas. Mete. (Mass.) 472; Commonwealth 274. V. McGrath, 140 Mass. 296, 6 N. E. =' Halbrook v. State, 34 Ark. 511; 515; Commonwealth v. Caponi, 155 State v. Ashley, 37 Ark. 403. Mass. 534, 30 N. E. 82; State v. Arm- =» United States v. Tenney, 2 Ariz, ington, 25 Minn. 29; State v. Plym, 127, 11 Pac. 472. 149 FIRST HUSBAND OR WIFE LIVIXG. [§§ 28GT, 28G8. § 2867. First husband or wife living — Presumptions. — While it is necessary for the state to prove tliat the iirst husband or wife was living, it is not required always to prove this fact by positive or di- rect evidence. In some instances presumptions may supply the proof or ratlier aid the evidence offered. Thus it has heen held that if the proof shows that recently, or at a period not too remote before the second marriage, the first husband or wife was living, tlic jury may presume that such first husband or wife was still living at the time of the marriage.^ ^ In such cases there then arises a conflict of pre- sumptions. The law presumes the accused to be innocent. But in this class of cases it may be presumed that tlie former liusband or wife is living. There becomes a clear conflict of presumptions. One class of cases holds that these counter presumptions neutralize each other, and that the case must rest on the evidence and otlier pre- sumptions which must be sufficient to establisli the guilt l)eyond a reasonable doubt. ^^ But another class of cases, perhaps of equal weight if not on better reasoning, has held that where neither pre- sumption is aided by proof of facts or circumstances, that the pre- sumption of innocence supplemented by the presumption of the valid- ity of the second marriage must prevail over the presumption that the first husband or -wife is still living.^^ g 2868. Absence of husband or wife — Effect and burden. — Some exceptions are made by these statutes to the ell'ect tliat where a lius- =1 Parker v. State. 77 Ala. 47, 54 El. 540; Rex v. Twyning, 2 B. & Aid. Am. R. 43; Squire v. State, 46 Ind. 386; Reg. v. Willshlre, 14 Cox Cr. 459; Gorman v. State, 23 Tex. 646; Cas. 541, 6 L. R. Q. B. 366; Reg. v. Williams v. Williams, 63 Wis. 58, Lumley, L. R., 1 C. C. Res. 196, 11 23 N. W. 110; Reg. v. Lumley, 11 Cox Cr. Cas. 274; 1 Greenleaf Ev., Cox Cr. Cas. 274. L. R., 1 C. C. Res. §§ 34, 35; Bishop Stat. Crimes, 196; Reg. v. Willshire, 14 Cox Cr. § 611; 1 Bishop Mar. Dlv. & Sep., Cas. 541, 6 L. R. Q. B. 366; Reg. § 949, et seq. V. Jones, 15 Cox Cr. Cas. 284. -People v. Feilen, 58 Cal. 218; ^-People V. Feilen, 58 Cal. 218; White v. White, 82 Cal. 427, 23 Pac. White V. White, 82 Cal. 427, 23 Pac. 276; Johnson v. Johnson, 114 111. 276; Donahue v. Donahue, 17 111. 611, 3 N. E. 232; Jones v. Jones, 48 App. 578; Squire v. State, 46 Ind. Md. 391; Senser v. Bower, 1 P. & W. 459; Dixon v. People, 18 Mich. 84; (Pa.) 450; Chapman v. Cooper, 5 State V. Plym, 43 Minn. 385, 45 N. Rich. L. (S. Car.) 452; Montgomery W. 848; Clayton v. Wardell, 4 N. Y. v. Bevans, 1 Sawy. (U. S.) 653, 666: 230; Fenton v. Read, 4 Johns. (N. Hull v. State, 7 Tex. App. 593; Y.) 52; Northfield v. Plymouth, 20 Greensborough v. Underhill, 12 Vt. Vt. 582; Rex v. Harborne, 2 Ad. & 604. §§ 2869, 2870.] bigamy. 150 band or wife has been absent or unheard of for a certain number of years the other may lawfully marry. But to make such absence a de- fense the proof must show that it was continuous for the statutory period and the husband or wife re-marrying must be ignorant of the life or death of the absent spouse; the two elements must concur. So when the state proves that the former husband or wife was living at a specified time before the second marriage the burden is then upon the defendant to show either death or a continuous absence for the statutory period.^* And when the defendant has proved seven years' continuous absence as held by some cases, the burden is then on the state to prove that the accused knew that the other spouse was alive within such period.^^ § 2869. First husband or wife living — Distinction in statutes. Some of these statutes provide that if any person, who has a former husband or wife living, shall marry another person, he shall be guilty of bigamy, except in certain cases. Others provide in substance that if any man or woman, being unmarried, shall knowingly marry the wife or husband of another person, such man or woman shall be deemed guilty of the crime of bigamy. Under both classes of statutes it is incumbent on the state to prove that the accused knew either that the former husband or wife was still living or that the other party to the second marriage had a husband or wife living.^^ § 2870. Polygamy — Proof under Edmunds law. — The United States statute for the suppression of polygamy, commonly called the Edmunds Act was intended not only to suppress and punish polyga- mous marriages but also to prevent and punish persons who had theretofore contracted such marriages from thereafter cohabiting with more than one woman. It was especially provided by that act that if any male person in the exclusive jurisdiction of the United States should cohabit with more than one woman, he should on conviction be punished, etc. Under this statute it has been held that to establish the offense it is not necessary to prove that the accused =•* Jones v. State, 67 Ala. 84; Par- Reg. v. Heaton, 3 Fost. & F. 819; ker V. State, 77 Ala. 47; 2 Wharton Bishop Stat. Crimes, § 607. Cr. Law, §§ 1704, 1705. ^Parker v. State, 77 Ala. 47; Ar- •'» People v. Meyer, 8 N. Y. St. 256; nold v. State, 53 Ga. 574; State v. Reg. v. Curgenwen, 10 Cox Cr. Cas. Barrow, 31 La. Ann. 691; State v. 152; Reg. v. Ellis, 1 Fost. & F. 309; Johnson, 12 Minn. 476, 93 Am. Dec. 252. 151 POLYGAMY — GOOD FAITH NO DEFENSE. [§ 2871. and two or more women, or either of them, occupied the same bed or slept in the same room, or that he had sexual intercourse with either of them. The statute was intended to refer to the relation between man and woman, founded on the existence of actual marriage, or on the holding out of that existence. Of this the Supreme Court of the United States say : "It is the practice of unlawful cohabitation with more than one woman that is aimed at, a cohabitation classed with polygamy and having its outward semblance. II is not on the one hand meretricious unmarital intercourse with more than one woman. General legislation as to lewd practice is left to the territorial govern- ment. Nor, on the other hand, does the statute pry into the intimacies of the marriage relation. But it seeks not only to punish bigamy and polygamy, when direct proof of the existence of those relations can be made, but to prevent a man from flaunting in the face of the world the ostentation and opportunities of a bigamous household, with all the outward appearances of the continuance of the same re- lations which existed before the act was passed, and without reference to what may occur in the privacy of those relations."^^ And tliis rule has been carried to the point of holding a man guilty under this statute who has two wives residing within the jurisdiction of the court, both bearing his name and known as his wives, even where the evi- dence shows that he has deserted one and cohabits exclusively with the other.^^ So under a charge of living and cohabiting together it was conceded that sexual intercourse was a necessary element of the statutory offense ; but it was held that the offense might be estab- lished without proof of the sexual act, even where the proof showed absolute incapacity on the part of one of the parties, as the continual sexual intercourse during entire time was not indispensable to the con- tinuance of the bigamous cohabitation.^^ § 2871. Second marriage in good faith — No defense. — The au- thorities are practically unanimous in holding that proof of the fact that the second marriage was entered into in good faith and under the honest belief that the first spouse was dead, constitutes no de- '" Cannon v. United States, 116 U. 463 ; United States v. Groesbeck, 4 S. 55, 6 Sup. Ct. 278; United States Utah 487, 11 Pac. 542; Murphy v. V. Snow, 4 Utah 295, 9 Pac. 686; Ramsey, 114 U. S. 15, 5 Sup. Ct. 747. United States v. Smith, 5 Utah 232, '' United States v. Clark. 6 Utah 14 Pac. 291; United States v. Peay, 120, 21 Pac. 463. 5 Utah 263, 14 Pac. 342; United =*» Cox v. State, 117 Ala. 103, 23 So. States V. Clark, 6 Utah 120, 21 Par. 806. §• 2872.] BIGAMY, 152 fense to a charge of bigamy. It will be observed, however, that these holdings are mostl}' under statutes where the criminal intent is not an essential of the crime; and under such statutes the second mar- riage is contracted at the risk of the parties.'*" On this subject the Supreme Court of Massachusetts have said : "It appears to us, that in a matter of this importance, so essential to the peace of families and the good order of society, it was not the intention of the law to make the legality of a second marriage, whilst the former husband or wife is in fact living, depend upon ignorance of such absent party's being alive, or even upon an honest belief of such person's death. Such belief might arise after a very short absence. But it appears to us, that the legislature intended to prescribe a more exact rule, and to declare, as law, that no one shall have a right upon such ignorance that the other party is alive, even upon such honest belief of death, to take the risk of marrying again, unless such belief is confirmed by an absence of seven years, with ignorance of the absent party's being alive within that time."-*^ But some cases hold that evidence of good faith is admissible for the purpose of mitigating the punish- ment.*^ § 2872. Second marriage in good faith — Defense. — Under the pe- culiar wording of some statutes in such prosecution, a few cases hold that where the proof showed that the accused had used due care and had made due inquiry in order to ascertain the truth, and that he had reliable information and had reason to believe and did in fact believe that the other spouse had obtained a legal divorce, a conviction could not be sustained.*^ The same rule seems to obtain in some jurisdictions where the accused on reliable information *«Dotson V. State, 62 Ala. 141; Pac. 802; People v. Weed, 29 Kun 2 McClain Cr. Law, § 1076. (N. Y.) 628; Medrano v. State, 32 "Russell V. State, 66 Ark. 185, 49 Tex. App. 214; Reg. v. Moore, 13 S. W. 821; State v. Hughes, 58 Iowa Cox Cr. Cas. 544; Reg. v. Tolson, 165, 11 N. W. 706; Davis v. Com- L. R.. 23 Q. B. 168. monwealth, 13 Bush (Ky.) 318; ^= Russell v. State, 66 Ark. 185, 49 State v. Goodenow, 65 Me. 30; Com- S. W. 821. monwealth V. Mash, 7 Mete. (Mass.) '=" Squire v. State, 46 Ind. 459; 1 472; Commonwealth v. Hayden, 163 Bishop Cr. Law, 187, note 15; Mass. 453, 40 N. E. 846; Reynolds v. Bishop Stat. Crimes, §§ 596a, 59Cb; State, 58 Neb. 49, 78 N. W. 483; 2 McClain Cr. Law, 1076. State V. Zichfield, 23 Nev. 304, 46 153 DIVORCE AS A DEFEXSE, [§§ 2873, 2874. honestly believed that the spouse of the first marriage was dead and the second marriage was contracted in good faith.** § 2873. Divorce as a defense — Burden. — A legal divorce, duly granted before the second marriage constitutes a valid defense to a charge of bigamy. But where evidence of a divorce is offered as a de- fense in such a case, it has been held that the burden is on the de- fendant to prove the validity of the decree. This is on the theory that "when the defendant is, in the first instance, shown to have done an act which was unlawful unless he was distinctly authorized to do it, the proof of authority is thrown upon him."*^ And it has been held by many cases that an invalid decree of divorce affords no defense to a charge of bigamy. This rule is applied more especially to the cases where it appeared that the accused was the person who procured such pretended divorce.**^ And the rule has been held to be the same where the accused acted under legal advice and was in- formed and honestly believed that he was lawfully divorced from the first wife.*" § 2874. First and second wives as witnesses. — The statutes very generally provide that in criminal cases the husband and wife shall not be Avitnesses for or against each other. The cases are not har- monious on the question of the competency of the first and lawful wife as a witness in prosecution for bigamy. The general rule, sup- ported by the weight of the authorities, is that in such a prosecution "Dixon V. People, 18 Mich. 84; '"Thompson v. State, 28 Ala. 12; People V. Meyer, 8 N. Y. St. 25G; Tucker v. People, 122 111. 583, 13 N. Reynolds v. State, 58 Neb. 49, 78 E. 809; Hood v. State, 56 Ind. 263; N. W. 483; State v. Stank, 9 Ohio Commonwealth v. Lane, 113 Mass. Dec. 8, 10 Cin. Wk. Law Bui. 16 Reg. V. Turner, 9 Cox Cr. Cas. 145 Reg. V. Jones, 11 Cox Cr. Cas. 358 Reg. v. Horton, 11 Cox Cr. Cas. 670 g. V. Moore, 13 Cox Cr. Cas. 544 458; People v. Dawell, 25 Mich. 247; Crawford v. State, 73 Miss. 172, 18 So. 848; State v. Gonce, 79 Mo. 600; People V. Baker, 76 N. Y. 78 ; People V. Faber, 92 N. Y. 146; People v. Reg. V. Tolson, L. R. 23 Q. B. 168, Chase, 28 Hun (N. Y.) 310; People 16 Cox Cr. Cas. 629. v. Weed, 29 Hun (N. Y.) 628; Van ^= Comonwealth v. Boyer, 7 Allen Fossen v. State, 37 Ohio St. 317; 2 (Mass.) 306; State v. Barrow, 31 McClain Cr. Law, § 1075. La. Ann. 691; Reynolds v. State, 58 <" Russell v. State, 66 Ark. 185, 49 Neb. 49, 78 N. W. 483; Tice v. S. W. 821; State v. Armington. 2."> Reeves, 30 N. J. L. 314; 1 Jones Ev., Minn. 29; Davis v. Commonwealth, § 199. 13 Bush (Ky.) 318. § 2874.] BIGAMY. 154 the first and true wife is not competent as a witness against her husband/^ But some courts hold that the lawful wife is a competent witness against the accused to prove the marriage between them.*® Where the first marriage is clearly proved, or in case it is not con- troverted, it has been held that the second wife is a competent wit- ness to prove the second marriage, and that she is competent as to all other questions which do not tend to defeat the first marriage or legalize the second.^" "Wiliams v. State, 44 Ala. 24; State V. Ryan, 1 Pen. (Del.) 81, 39 Atl. 777; Williams v. State, 67 Ga. 260; Miner v. People, 58 111. 59; Hiler v. People, 156 111. 511, 41 N. E. 181; Barber v. People, 203 111. 543, 68 N. E. 93; People v. Quanstrom, 93 Mich. 254, 53 N. W. 165; People v. Westbrook, 94 Mich. 629, 54 N. W. 486; People v. Turner, 116 Mich. 390, 74 N. W. 519; State v. Arm- strong, 4 Minn. 335; Overton v. State, 43 Tex. 616; Compton v. State, 13 Tex. App. 271; Bassett v. United States, 137 U. S. 496, 11 Sup. Ct. 165; State v. McDavid, 15 La. Amn. 403; State v. Ulrich, 110 Mo. 350, 19 S. W. 656; Bishop Stat. Crimes, § 613; 1 Russell Crimes, § 715. *' State v. Sloan, 55 Iowa 217, 219, 7 N. W. 516; State v. Hughes, 58 Iowa 165, 11 N. W. 706; State v. Armstrong, 4 Minn. 335; Lord v. State, 17 Neb. 526, 23 N. W. 507; Owens v. State, 32 Neb. 167, 174, 19 N. W. 226; State v. McDavid, 15 La. Ann. 403 ; State v. Patterson, 2 Ired. L. (N. Car.) 346; Johnson v. State, 61 Ga. 305; Finney v. State, 3 Head (Tenn.) 544. ^"Lowery v. People, 172 111. 466, 50 N. E. 165; Barber v. People, 203 111. 543, 68 N. E. 93; Miles v. United States, 103 U. S. 304; State v. Pat- terson, 2 Ired. L. (N. Car.) 346. CHAPTER CXXXV. BLACKMAIL. Sec. Sec. 2875. Nature and extent. 2884. Instituting criminal proceed- 2876. Definition. ings — Intent. 2877. Statutory definition. 2885. Proof of intent to extort. 2878. Extortion. 2886. Threats to collect bona fide 2879. Extortion and bribery. indebtedness. 2880. Proof of threat. 2887. Truth or falsity of charge ira- 2881. Parol proof to aid or explain material. writing. 2888. Knowledge that crime was 2882. Threat of prosecution. committed — No defense. 2883. Threat— Prosecution by third person. § 2875. Nature and extent. — The term "blackmail" originated in the nature and character of certain rents. Originally the idea of crime was not associated with the term. In later English history the term was used to denote a tribute enforced by Scottish Higliland chieftains on the inhabitants of the Lowlands, or on English dwellers along the Scottish border on condition that they should be free from the raids of the border thieves. In the progress and history of the de- velopment of crime the term has come to be applied to threats or threatening letters accusing and threatening prosecution and ex- posure unless a sum of money is paid or valuable articles or property delivered. It now also generally includes the idea of extortion by an officer who, under threats or menace of arrest and imprisonment compels the payment of illegal or unwarranted fees.^ § 2876. Definitions. — The general definitions of the term black- mail include the idea of compelling a person to pay a sum of money in consideration that the person demanding the money will not prosecute him for an alleged crime or expose him on account of some alleged infamous conduct. A more practical definition is given as *1 Hume Hist, of Eng. 473; Life Asso. &c. v. Boogher, 3 Mo. App. 173. 155 § 2877.] BLACKMAIL. 156 follows : "the extortion of money by threats or overtures towards criminal prosecution, or the destruction of a man's reputation or social standing."' One of the New York inferior courts said of the term : "In common parlance, and in general acceptation, it is equiva- lent to, and synonymous with, extortion — the exaction of money, either for the performance of a duty, the prevention of an injury or the exercise of an influence. It supposes the service to be unlawful, and the pa3^ment involuntary. Not unfrequently it is extorted by threats, or by operating upon the fears or the credulity, or by promises to conceal, or offers to expose, the weaknesses, the follies, or the crimes of the victim. There is moral compulsion, which neither necessity, nor fear, nor credulity can resist."^ § 2877. Statutory definition. — The statutes which define the of- fense and prescribe the penalty do not always use the term black- mail; but it comes clearly within the meaning and terms of these statutory definitions. The statutes upon the subject are substantially as follows: "That if any person shall either verbally, or by any let- ter or writing, or any written or printed communication demand of any person with menaces, any chattel, money, or other valuable se- curity; or if any person shall accuse or threaten to accuse, or shall knowingly send or deliver any letter or writing or any written or printed communication, with or without a name subscribed thereto, or signed with a fictitious name, or with any letter, mark or designa- tion, accusing or threatening to accuse, any person of any crime, punishable by law, or of any immoral conduct, which, if true, would tend to degrade, and disgrace such person, or to do any injury to the person or property of any one, with intent to extort or gain from such person, any chattel, money or valuable security, or any pecuniary ad- vantage whatsoever, or with an intent to compel the person threatened to do any act against his will, with the intent aforesaid; every such offender shall be deemed guilty of a felony."* = Black Law Diet— "Blackmail:" Sparks, 44 Kans. 465, 24 Pac. 979; 1 Bouvier L. Diet. — "Blackmail;" 2 Wharton Cr. Law. § 1664. 1 Rap. & Lawr. L. Diet.— "Black- * McMillen v. State. 60 Ind. 216; mail." Kistler v. State, 54 Ind. 400; State ^Edsall V. Brooks, 17 Abb. Pr. v. Hammond, 80 Ind. 80; State v. (N. Y.) 221, 26 How. Pr. (N. Y.) Pierce, 76 Iowa 189, 40 N. W. 715; 426, 2 Rob. (N. Y.) 29; Edsall v. People v. Griffin, 2 Barb. (N., Y.) Brooks, 3 Rob. (N. Y.) 284; Hess v. 427; Brabham v. State, 18 Ohio Ct. 485. 157 EXTORTION. [§§ 2878-2880. S 2878, Extortion. — lATiat is now called extortion and generally made criminal comes clearly within the definition and meaning of blackmail. But it is more limited in its application as a criminal of- fense. As a crime it is applied, perhaps exclusively, to officers who by reason of their official position and by threats and menaces extort money unlawfully or without authority of law. Blackstone defines it to be "an abuse of public justice which consists in any officers unlawful taking, by color of his office, any money that is not due to him."'^ The statutory offense, usually consists in taking or exacting (jompensation or reward for services in addition to such as are al- lowed by law and is generally made a misdemeanor only.*^ As de- fined by one law writer: "It is the corrupt demanding or receiving by a person in office, of a fee for services whicli sliould l)c rendered gratuitously; or where compensation is permissible, of a larger fee than the law justified, or a fee not yet due."^ §2879. Extortion and bribery. — A clear distinction exists be- tween the statutory offense of extortion and bribery. Proof of the one will not support the other, and the soliciting and accepting of a bribe by an officer cannot be shown to be extortion. Thus proof that an officer holding a search warrant indicated that for a sum of money paid him he would not serve the warant, and that he did receive and accept a sum of money, was held insufficient to sustain a charge of blackmail or extortion.^ § 2880. Proof of threat. — The proof must show that a threat was used for the purpose or with the intention of extorting the money. But it is not necessary that either the oral language or the writing should expressly state a threat ; it is not even necessary that the threat should be apparent from the face of the letter. It is sufficient under some statutes, if the language used is adapted to imply a threat ; it is then held to come within the statute. It has been held that if the writ- ing is adapted to imply one or more of the threats mentioned in the statute the offense is committed. On this subject the California court say: "Parties guilty of the offense here alleged seldom possess the hardihood to speak out boldly and plainly, but deal in mysteries and ^2 Blackstone Comm. 141. '2 Bishop Cr. Law (New), § 390; ^Edsall v. Brooks, 3 Rob. (N. Y.) 2 Wharton Cr. Law, § 1574. 284. estate v. Pierce, 76 Iowa 189, 40 N. W. 715. § 2881.] BLACKilAIL. 158 ambiguous phrases, mysterious and ambiguous to the world at large, but read in the light of surrounding circumstances by the party for whom intended they have no uncertain meaning.'"^ The New York court has emphasized the fact that no precise words are necessary to convey the threat. The court said : "To ascertain whether a letter con- veys a threat, all its language, together with the circumstances un- der which it was written, and the relations between the parties may be considered, and if it can be found that the purport and natural effect of the letter is to convey a threat, then the mere form of words is unimportant."^" It is not necessary to prove the effect which the threats may have had on the person threatened; nor is it necessary to prove that any money or property was thereby obtained. The of- fense under the statutes generally consists in the malicious threat to accuse another of an offense with intent to extort money. ^^ § 2881. Parol proof to aid or explain writing. — The proof must show to the satisfaction of the jury that the threat was made in the letter, where it is so charged. But if the threat does not clearly appear parol proof is admissible and competent to show that by the use of the language, figures or phrases employed by the writer, the threat was in fact made. "A person, by the use of a phrase or word, or by referring to some prior circumstances, well laiown to both parties, might convey to the mind of the persons addressed, the understand- ing that, if the thing requested or demanded was not done, that the writer would accuse him of some criminal offense or violation of the moral laws of the community where he resided, which would bring him into contempt and disgrace."^^ If the letter containing the threat is ambiguous it may be explained by parol proof of ex- traneous facts, and the intention of the writer may be obtained by proof of his declarations. And it has been held that the prosecuting witness may be asked as to what appeared to him to be the meaning of the letter.^^ 'People v. Choynski, 95 Cal. 640, Eichler, 75 Hun (N. Y.) 26, 26 N. 30 Pac. 791; People v. Thompson, Y. S. 998; People v. Thompson, 97 97 N. Y. 313. N. Y. 313. ** People v. Thompson, 97 N. Y. '= Motsinger v. State, 123 Ind. 498, 313. 24 N. E. 342; State v. Linthicum, "State V. Bruce. 24 Me.-71. 68 Mo. 66; 2 Wharton Cr. Law, § "People V. Gillian, 50 Hun (N. 1665. Y.) 35, 2 N. Y. S. 476; People v. 159 THREATS. [§§ 2882-2884. § 2882. Threat of prosecution. — It is not required that the proof show an actual threat to institute criminal proceedings. The threats need not refer in terms to the criminal courts. It is sufficient if they reasonably be understood to embrace a criminal prosecution. Thus where the threats were "give me five hundred dollars, or I'll put this thing in court," and "if you don't see my lawyer before five o'clock you will be arrested," these were held sufficiently broad to em- brace threats of a criminal prosecution.^* So it has been held that proof of a threat "to proceed against you criminally," is equivalent to proof of a threat to accuse the person of a crime. ^^ § 2883. Threat — Prosecution by third person. — Nor is it neces- sary to the commission of the offense that the person making the threat should himself make the accusation or institute the criminal proceedings. It may be done by a third person. Thus where the let- ter containing the alleged threat showed that the prosecution would be instituted by another person, but where it further appeared that the writer of the letter would be the principal witness on the part of the state in the criminal prosecution, it was held sufficient as a threat that a formal accusation of crime would be niade.^® § 2884. Instituting criminal proceedings — Intent. — The offense may be complete without sending any communication whatever to the person threatened. It may be committed by instituting criminal pro- ceedings; or by entering into a conspiracy and instituting such pro- ceedings for the purpose and with the intent to extort money or other thing of value by inducing or compelling the defendant in such pro- ceedings to pay money for the purpose of ending the prosecution. Thus under an indictment which charged the defendants with a con- spiracy for the purpose of extorting money by filing or causing to bo filed with an officer having jurisdiction an affidavit charging an al- leged criminal assault, it was held sufficient to prove that the affidavit was filed with the intent of extorting money from the person therein accused and that the criminal charge was a sufficient accusation within the meaning of the statute.^ ^ " Commonwealth v. Bacon, 135 " Commonwealth v. Dorus, lOS Mass. 521; People v. Tonielli, SI Mass. 488; People v. Braman, 30 Cal. 275, 22 Pac. 678. Mich. 460. "People V. Eichler, 75 Hun (N. '' Utterback v. State, 153 Ind. 545, Y.) 26, 26 N. Y. S. 998. 55 N. E. 420. §§ 3885, 2886.] blackmail. 1G3 § 2885. Proof of intent to extort. — The mere proof of the words used in the way of a threat is not sufficient to establish the crime. The proof must show the existence of an intent to extort. The Supreme Court of Massachusetts said : "The gist of the offense is the intent to extort money by a malicious threat to accuse of some crime. The words used do not constitute the offense, without the accompanying intent to extort."^® On this question of the proof of intent the same court said : "The act itself implies criminal intent, and there is no occasion in construing the statute to hold that, to create the offense, anything more is required than is implied in the usual definition of malice."^'' And it has been held that the intent may appear on the face of the writing itself.^" § 2886. Threats to collect bona fide indebtedness. — The question has been raised as to whether or not the making of threats to prosecute for a supposed or alleged crime for the purpose of compelling the payment of a bona fide indebtedness is an offense under the various statutes on the subject of blackmail. It must be borne in mind that the statutory offense consists in making the threat with the intent to extort or for gain. The solution of the problem then turns upon the point whether a threat to compel the payment of a bona fide in- debtedness is or is not an intention to extort or to gain. The few cases on the subject have held that such threats are not within the statute. Of this the Supreme Court of Indiana said : "We are of opinion that a threat to prosecute for an alleged or supposed offense connected with the creation of a debt, where the object of the threat is merely to secure the payment of the debt due from the person threatened to the person making the threat, does not come within the spirit or purpose of the statute."-^ So where threats were used for the purpose of securing payment for property destroyed, and where the act on which the threatening accusation was based was not punishable by law, it was held that the offense was not established. ^- ^' Commonwealth v. Moulton, 108 -" People v. Braman, 30 Mich. 460. Mass. 307; Commonwealth v. Good- "State v. Hammond, 80 Ind. 80; win, 122 Mass. 19; People v. Card- People v. Griffin, 2 Barb. (N. Y.) ner, 144 N. Y. 119, 38 N. E. 1003; 427; Mann v. State, 47 Ohio St. 556, State V. Bruce, 24 Me. 71. 26 N. E. 226; see, Brabham v. State, "Commonwealth v. Goodwin, 122 18 Ohio St. 485. Mass. 19; Commonwealth v. Buck- -Mann v. State, 47 Ohio St. 556, ley, 147 Mass. 581, 18 N. E. 571. 26 N. E. 226. 161 TRUTH NO DEFENSE. [§§ 2887, 2888. § 2887. Truth or falsity of charge immaterial. — The prosecution is only required to make out or prove the threat with the intention of unLawl'ully extorting either money or something of value from the person threatened. The state is not required to offer any proof on the subject of the offense or conduct alleged in connection with the threat. The truth or falsity of the charge made on whicli the threat or the effort to extort is based, is wholly immaterial.-^ On this theory it was held error for a court to instruct a jury that if they found the defendant guilty of blackmail they might con- sider the facts in relation to the charge made as bearing on the question of his punishment."* But in some cases it has been held that the truth of the accusation may become material for the purpose of determining the intent with which the defendant made the ac- cusation.^^ § 2888. Knowledge that crime was committed — No defense. — The accused will not be permitted to prove as a matter of defense that he either believed or knew that the person threatened was in fact guilty of the crime charged. On this subject it was said by a New York court: "The fact that the person who, in writing or orally, makes such a threat for such a purpose believes or even knows that the person threatened has committed the crime of which he is threat- ened to be accused, does not make the act less criminal. The moral turpitude of threatening for the purpose of obtaining money, to ac- cuse a guilty person of the crime which he has committed is as great as it is to threaten, for a like purpose, an innocent person of having committed a crime. Tlie intent is the same in both cases to acquire money without legal right by threatening a criminal prosecution. But threatening a guilty person for such a purpose is a greater in- jury to the public than to threaten an innocent one, for the reason that the object is likely to be obtained, and the result is the conceal- ment and compounding of felonies to the injury of the state. The fact that the defendant believed in the complainant's guilt is no defense and is not even a mitigating fact."-" ^People V. Choynski, 95 Cal. 640, -' Kistler v. State, 64 Ind. 371. 30 Pac. 791; Motsinger v. State, 123 == Mann v. State, 47 Ohio St. 556, Ind. 498, 24 N. E. 342; Elliott v. 26 N. E. 226; Reg. v. Richards, 11 State, 36 Ohio St. 318; Common- Cox Cr. Cas. 43. wealth V. Buckley, 147 Mass. 581, -"People v. Eichler, 75 Hun (N. 18 N. E. 571; People v. Whitte- Y.) 26, 26 N. Y. S. 998. more. 102 Mich. 519, 61 N. W. 13. Vol. 4 Elliott Ev. — 11 CHAPTEE CXXXVL BLASPHEMY. Sec. Sec. 2889. Generally. 2894. Words used in hearing of oth- 2890. Common law definitions. ers— Proof. 2891. Punishable at common law. 2895. Profanity — Nuisance. 2892. Statutory definition. 2896. Words used — Illustration. 2893. Character of language used. § 2889. Generally. — The statutes of almost every civilized coun- try make blasphemy or profanity a crime. But there is some di- versity among these statutes as to what constitutes the offense. How- ever, there are some general definitions that are practically com- mon to all the statutes; or rather there are certain terms and prin- ciples which form the underlying bases of all the statutory offenses. The punishment for blasphemy is not intended to cause or compel a belief in or recognition of God or of a Supreme Being ; but the ob- ject and purpose of the punishment is to secure order and maintain decency, and to prevent that which is offensive to the general com- munity and to a large portion of the citizens of every country. The common law has been held to be the guardian, to a certain extent, of the morals of the people, and its object is to protect against offenses which are openly and notoriously against public decency and good morals.^ Legislatures do not prescribe penalties and courts do not inflict punishment for blasphemy on the theory that it is a crime against God, but for the reason that the offense is considered as com- mitted against man, or against society, and that it tends to disturb the public peace.^ Courts now very generally recognize Christianity, as revealed and taught by the Bible, as a part of the law of the land, and therefore respect and protect its institutions as well as ta regulate the public morals.^ "The laws and institutions of this state iGrisham v. State, 2Yerg. (Tenn.) Y.) 290; Bell v. State, 1 Swan 589; Bell's Case, 6 City Hall Rec. (Tenn.) 42; Updegraph v. Com- (N, Y.) 38. monwealth, 11 S. & R. (Pa.) 394; = State v. Chandler, 2 Har. (Del.) Sparhawk v. Union &c. R. Co., 54 553. Pa. St. 401. 'People V. Ruggles, 8 Johns. (N. 162 103 DEFINITION. [§§ 2890, 2891. are built on the foundation of reverence for Christianity. To this extent, at least, it must certainly be considered as well settled that the religion revealed in the Bible is not to be openly reviled, ridiculed or blasphemed, to the annoyance of sincere believers who compose the great mass of the good people of the commonwealth."* § 2890. Common law definitions. — In order to get the definition of blasphemy, as in treason, murder, perjury and many other crimes, resort must be had to the common law for the legal definition. Ac- cording to some definitions blasphemy "consists in maliciously re- viling God, or religion."^ An English court said : "They would not suffer it to be debated whether defaming Christianity in general was not an offense at common law ; for that whatever strikes at the root of Christianity tends manifestly to a dissolution of the Civil Govern- ment."^ Some writers say : "Blasphemy is any oral or written re- proach maliciously cast upon God, His name, attributes or religion."^ "In English law, blasphemy is the offense of speaking matter re- lating to God, Jesus Christ, the Bible or the Book of Common Prayer, intended to wound the feelings of mankind or to excite contempt and hatred against the Church by law established, or to promote immorality. According to some opinions it is also blasphemy to speak words denying the truth of Christianity in general, or the existence of God, even if spoken decently and in good faith."® "In criminal law, to a.ttribute to God that which is contrary to his nature, and does not belong to him, and to deny what does; a false reflection uttered with a malicious design of reviling God."" § 2891. Punishable at common law. — Blackstone says : "The fourth species of offenses, therefore, more immediately against God and religion, is that of blasphemy against the Almighty, by denying his being or providence ; or by contumelious reproaches of our Savior Christ. Whither also may be referred all profane scoffing at the holy scripture, or exposing to cont<^mpt and ridicule. These are offenses *Zeisweiss v. James. 63 Pa. St. '2 Bishop Cr. Law, §§ 76. 88; De- 465; Goree v. State, 71 Ala. 7; An- laney, Ex parte, 43 Cal. 478. drew V. New York Bible &c. Soc., 4 ' Rap. & Lawr. L. Diet. — "Blas- Sandf. (N. Y.) 156. phemy;" Black L. Diet.— "Blas- '" People V. Rnggles, 8 Johns. (N. phemy." Y.) 290. ''Bouvier L. Diet. — "Blasphemy." "Rex V. Woolston. 2 Sir. 83 1. Fitzg. 64; Taylor's Case, Vent. 293 § 2892.] BLASPHEMY. 164 punishable at common law by fine and imprisonment, or other in- famous corporal punishment; for Christianity is part of the laws of England."" The publication of a blasphemous libel on the Old Testa- ment has been held to be indictable offense at common law.^^ Some cases admit that Christianity is so far a part of the common law, or the law of the land, that the law will not permit the essential truths of religion to be ridiculed and reviled, and that blasphemy was an indictable offense at common law.^^ § 2892. Statutory definition. — An early Massachusetts statute pro- vided "that if any person shall wilfully blaspheme the holy name of God, by denying, cursing or contumeliously reproaching God, his crea- tion, government or final judging of the world, etc." In commenting on this subject the Supreme Court of Massachusetts said : "In general, blasphemy may be described as consisting in speaking evil of the Deity with an impious purpose to derogate from the divine majesty, and to alienate the minds of others from the love and reverence of God. It is purposely using words concerning God, calculated and designed to impair and destroy the reverence, respect and confidence due to him, as the intelligent creator, governor and judge of the world. It embraces the idea of detraction when used toward the Supreme Being; as ''calumny' usually carries the same idea, when applied to an individual. It is a wilful and malicious attempt to lessen men's reverence of God, by denying his existence, or his attrilmtes as an intelligent creator, governor and judge of men, and to prevent their having confidence in him as such."^=^ The Pennsylvania statute provided "that whosoever shall wilfully, premeditatedly, and despitefully blaspheme, and speak loosely and profanely of Almighty God, Christ Jesus, the Holy Spirit, «4 Blackstone Comm. 59; Upde- 76; Reg. v. Bradlaugh, 15 Cox Cr. graph V. Commonwealth, 11 S. & R Cas. 217. (Pa.) 394; State v. Chandler, 2 Har. "Reg. v. Hetherington, 5 Jur. (Del.) 553; Aikenhead's Case, 13 529;Reg. v. Bradlaugh, 15 Cox Cr. State Tr. 918; Williams' Case, 26 Cas. 217; Williams' Case, 26 State State Tr. 654; Eaton's Case, 31 State Tr. 654. Tr. 927; Taylor's Case, Vent. 293; '= Andrew v. New York Bible &c. Rex v. Woolston, 2 Str. 834, Fitzg. Soc, 4 Sandf. (N. Y.) 156; Upde- 64; Rex v. Waddington, 1 B. & C. graph v. Commonwealth, 11 S. & R. 26,' 8 E. C. L. 12; Cowan v. Mil- (Pa.) 394; Vidal v. Girard, 2 How. bourn, L. R., 2 Exch. 230; Nayler's (U. S.) 126, 198. Case, 5 State Tr. 802; Reg. v. Jus- "Commonwealth v. Kneeland, 20 tice of Lancashire, 7 Cox Cr. Cas. Pick. (Mass.) 206; People v. Rug- gles, 8 Johns. (N. Y.) 290. 165 CHARACTER OF LANGUAGE USED. [§§ 2893, 2894. or the Scriptures of Truth, and is legally convicted thereof, shall for- feit, etc.'^^^ § 2893. Character of language used.-:-However explicit and defi- nite the statutes may be it is not always necessary, in order to estab- lish the offense, to prove that the name of the Deity or any appellation thereof was used. It has been held that where "any words importing an imprecation of divine vengeance or implying divine condemnation so used as to constitute a public nuisance would suffice."^'' And the Supreme Court of Tennessee said: "A single act of profanity would not ordinarily be sufficient to convict a defendant. But, as we have said, even a single oath, either by its terms, its tone or manner, or the circumstances under which it was uttered, might be a nuisance."^® In an indictment for blasphemy, it must be cliarged, and the proof must show that the words were spoken profanely. This was held to be the gist of the offense.^' § 2894. Words used in hearing of others — Proof. — It is not suf- ficient to establish the offense of blasphemy to prove the speaking of the words only. And it has been held that a person could not be con- victed on such an indictment on proof of his confession that he had made use of the words charged in the indictment. In order to estab- lish the offense the state must prove that the defendant used the lan- guage alleged to be blasphemous and that it was so used in the presence and hearing of other persons.^ ^ The rule adopted by a re- cent ease is "that profane swearing and cursing in a loud and boisterous tone of voice, in the presence and hearing of citizens of the common- wealth passing and repassing on the public streets and highways of " Updegraph v. Commonwealth, " Commonwealth v. Spratt, 14 11 S. & R. (Pa.) 394; a very com- Phila. (Pa.) 365; Updegraph v. plete collection of the statutes of Commonwealth, 11 S. & R. (Pa.) the various states on the subject of 394. blasphemy, together with cases on '^ People v. Porter, 2 Park. Cr. the sufficiency of the indictment and Cas. (N. Y.) 14; State v. Chandler, the constitutionality of such stat- 2 Har. (Del.) 553; Goree v. State, utes is found in the notes in, 22 T^. 71 Ala. 7; State v. Pepper, 68 N. R. A. 353. Car. 259; State v. Barham, 79 N. "Gaines v. State, 75 Tenn. 410: Car. 646; Commonwealth v. Linn, Isom V. State (Tenn.) Sept. Term 158 Pa. St. 22, 27 Atl. 843, 22 L. R. 1880; Holcomb v. Cornish, 8 Conn. A. 353; Bell v. State, 1 Swan 375. (Tenn.) 42; Young v. State, 78 " Young V. State, 78 Tenn. 165. Tenn. 165. § 2895.] BLASPHEMY. 166 the commonwealth to such an extent as to be a common nuisance to all citizens being present and hearing the same, is an indictable offense at common law."^^ But under some statutes in prosecutions for blas- phemy or profanity it is not necessary to prove that the profane lan- guage was used publicly.-" Under a statute which makes it a crime to "profanely swear and curse in a public place," it has been correctly held that "the indictment should set out and the proof should show the words spoken."^^ And according to the rule in some states a single act of profanity, or profane swearing, is punishable as against good morals.-^ § 2895. Profanity — Nuisance. — According to the statutes and de- cisions in some states it must be stated in the indictment and proved on the trial that the profanity charged was uttered in the hearing of divers persons, and the proof must be sufficient to show that the act constituted a nuisance. As said in one case : "To render the crime in- dictable, the acts must be so repeated and public as to become a nui- sance and inconvenience to the public, for they then constitute a pub- lic nuisance. ... It has been repeatedly decided by this court that profane swearing is not punishable by indictment in this state when committed in single acts ; but to make it so, as has been intimated by several judges, it must be perpetrated so publicly and repeatedly as to become an annoyance and inconvenience to the citizens at large."^^ The Supreme Court of Tennessee adopted the same rule and held that whenever, upon a trial under a sufficient indictment, there is evidence that the swearing, or profane language was a nuisance to the public, the offense is made out." From these holdings it must not '» Commonwealth v. Linn, 158 ^ State v. Jones, 9 Ired. L. (N. Pa. St. 22, 27 Atl. 843, 22 L. R. A. Car.) 38; State v. Deberry, 5 Ired. 353. L. (N. Car.) 371; State v. Brown. -» Bodenhamer v. State, 60 Ark. 3 Mur. (N. Car.) 224; State v. Wal- 10, 28 S. W. 507; Taney v. State, ler, 3 Mur. (N. Car.) 229; State v. 9 Ind. App. 46, 36 N. E. 295. Baldwin, 1 Dev. & B. (N. Car.) -1 Walton V. State. 64 Miss. 207, 195; State v. Ellar, 1 Dev. (N. Car.) 8 So. 171; State v. Freeman, 63 Vt. 267; State v. Pepper, 68 N. Car. 259; 496, 22 Atl. 621; State v. Ratliff, State v. Powell, 70 N. Car. 67; De- 10 Ark. 530; Updegraph v. Common- laney. Ex parte, 43 Cal. 478. wealth, 11 S. & R. (Pa.) 394; Rex ^^ State v. Graham, 3 Sneed V. Sparling, 1 Str. 497; Rex v. Pop- (Tenn.) 134; State v. Steele, 3 plewell, 1 Str. 686; 2 Bishop Cr. Heisk. (Tenn.) 135; Gaines v. State, Proc, § 123. 75 Tenn. 410; Young v. State, 78 ==^Delaney, Ex parte, 43 Cal. 478. Tenn. 165. 1G7 WORDS HELD BLASPHEMOUS. [§ 2S9G. be understood that it would be required to prove a succession of sepa- rate and distinct acts or occasions of profanity. Such a rule would defeat the purpose of all such statutes. But consistently with these cases, where the proof shows that on a single occasion, the continued and public use of profane oaths frequently and boisterously repeated for the space of five minutes, was held sufficient under an indictment charging a public nuisance.^^ Under the common law, as held and administered in some of the states, in order to establish a case of pro- fanity the proof must show that it was so public as to be a nuisance.-' § 2896. Words used — Illustrations. — The general definitions of blasphemy must be relied on principally as precedents. Of the many cases sustaining indictments for such offense, very few of them pro- fess to give the language used. Some, however, have stated the sub- stance of the charge. Thus in one case, it was held a sufficient charge of blasphemy where the accused, among other things, used in substance, the following : "That the holy scriptures were a mere fable, that they were contradictions, and that although they contained a number of good things, yet they contained a great many lies."-^ In another case it was held sufficient where the accused used the wicked and blas- phemous words, to wit, "Jesus Christ was a bastard, and his mother must be a whore.""^ Another expression held sufficient was as fol- lows: "That the virgin Mary was a whore and Jesus Christ was a bastard."-^ Another charge was held sufficient where it stated that the accused did "unlawfully and profanely curse, swear, aver and im- precate by and in the name of God, Jesus Christ and the Holy Ghost, by then and there unlawfully saying "^God damned.' "^° '"^ State V. Chrisp, 85 N. Car. 528; ^ Updegraph v. Commonwealth, State v. Jones, 9 Ired. L. (N. Car.) 11 S. & R. (Pa.) 394. 38; State v. Brewington, 84 N. Car. "** People v. Ruggles, 8 Johns. (N. 783. Y.) 290. ^1 Archibald PI. & Pr. 607; Clark =' State v. Chandler, 2 Har. (Del.) Cr. Law 303; 2 Wharton Cr. Law, 553. § 1431; State v. Jones, 9 Ired. L. =° Taney v. State, 9 Ind. App. 46, (N. C.) 38; State v. Powell, 70 N. 36 N. E. 295. Car. 67; Gaines v. State, 75 Tenn. 41 CHAPTER CXXXVII. BRIBERY. Sec. 2897. Generally. 2898. Burden of proof. 2899. Questions of law or fact. 2900. Identity. 2901. Intent. 2902. Evidence for prosecution — Other acts of accused. 2903. Documentary evidence. Sec. 2904. Financial dealings of parties. 2905. What need not be proved — Variance. 2906. Accomplices — Decoy — Con- spirators. 2907. Confessions and admissions. 2908. Defenses. § 2897. Generally. — Bribery has been defined as the voluntary giving or receiving of anything of value in corrupt payment for an official act done or to be done.^ Another definition that has frequently been approved is that bribery is the receiving or offering any undue re- ward by or to any person whatsoever, whose ordinary profession or business relates to the administration of public justice, in order to in- fluence his behavior in office, and incline him to act contrary to the known rules of honesty and integrity.^ But even at common law a similar giving, offering or receiving of money or any undue reward to an election officer or even to a voter to corruptly influence him might constitute bribery f and, under some of the modern statutes, the term has a still broader meaning.* ^2 Bishop Cr. Law, § 85; State v. Pritchard, 107 N. Car. 921, 12 S. E. 50; Honaker v. Board of Education, 42 W. Va. 170, 175, 24 S. E. 544, 57 Am. St. 847, 32 L. R. A. 413; as to instigating and soliciting bribe, see Note III. 25 L. R. A. 434. = 1 Russell Crimes, 154; Watson v. State, 29 Ark. 299, 302; State v. Davis, 2 Pen. (Del.) 139, 141, 45 Atl. 394; Walsh v. People, 65 111. 58, 65, 16 Am. R. 569; see also, State v. Miles, 89 Me. 142, 36 Atl. 70; as to embracery, see, 1 Russell Crimes 264; 1 Hawkins P. C, Chap. 85, § 7; 4 Blackstone Comm. 140. ^Rex V. Plympton, 2 Ld. Raym. 1377; Russell Crimes 154; Simpson V. Yeend, L. R. 4 Q. B. 626; Bayn- tun V. Cattle, 1 Mood. & R. 265; see also note in, 5 L. R. A. 217. ^ See, United States v. McBosley, 29 Fed. 897; Thompson v. State, 16 Ind. App. 84, 44 N. E. 763; State v. Williams, 136 Mo. 293, 38 S. W. 75 (bribery of witness) ; Berry v. Hull, 6 N. Mex. 643, 30 Pac. 936. 168 1G9 BURDEN OF PROOF. [§§ 2898-2900. .§ 2898. Burden of proof. — In propcc-utions for bribery as in other criminal cases, tlic accused is presumed to be innocent, and the bur- den of establishing his guilt by proving all the necessary elements of the offense is upon the state.^ Thus, the state must generally prove that a corrupt offer or solicitation to bribe was made, or an agreement to give, receive and accept a bribe, and that such a proposal or agree- ment was made to, by or with an officer or a person at the time acting in an official capacity.^ And, as in other prosecutions for crime, the defendant's guilt must be proved beyond a reasonable doubt. § 2899. Questions of law or fact. — What is necessary in law to constitute bribery is a question of law for the court. But whether, un- der the circumstances, bribery has been committed by the accused is a question of fact for the jury."^ So, the question as to whether the promise or payment was made in good faith for a lawful purpose is a question of fact for the jury.® As elsewhere shown, however, there are a few jurisdictions in which the jurors are made judges of the law as well as the facts. Yet, even in such jurisdictions, the court instructs as to the law. And it has been held that whether an officer is one who comes within the statute is a question of law for the court.^ § 2900. Identity. — The identity of the accused as a guilty party must, of course, be shown either by direct or circumstantial evidence, but if he is charged with accepting a bribe, it seems that the identity of the person offering the bribe need not be proved. It has been held "Yee Gee, In re, 83 Fed. 145; 169, 20 Pac. 396; Commonwealth v. White V. State, 103 Ala. 72, 16 So. Donovan. 170 Mass. 228, 49 N. E. 63; Commonwealth v. Murray, 135 104; State v. Geyer, 3 Ohio N. P. Mass. 530; State v. Graham, 96 Mo. 242, 3 Ohio Leg. N. 431; Common- 120, 8 S. W. 911; State v. Butler, 178 wealth v. Petroff, 2 Pearson (Pa.) Mo.' 272, 77 S. W. 560; Devlin v. 534, 8 Wkly. Notes Cas. (Pa.) 212; New York, 4 Misc. (N. Y.) 106, 23 State v. Smith. 72 Vt. 366, 48 Atl. N. Y. S. 888. 647. "Yee G^e In re, 83 Fed. 145; Mohnson v. Commonwealth, 90 State V. Graham. 96 Mo. 120, 8 S. Ky. 53, 13 S. W. 520. W. 911; State v. Meysenburg, 171 'People v. Jaehne, 103 N. Y. 182, Mo. 1, 71 S. W. 229; but under the 8 N. E. 374; Diggs v. State, 49 Ala. Missouri statute against offering a 311; Messer v. State, 37 Tex. Cr. gift to influence a juror, an actual App. 635, 40 S. W. 488; but see, tender thereof is not required to be State v. Wynne, 118 N. Car. 1206, shown; State v. Woodward, 182 Mo. 24 S. E. 216, and compare. State v. 391, 81 S. W. 857. McDonald, 106 Ind. 233, 6 N. E. 607. 'People V. Fong Ching, 78 Cal. §§ 2901, 2902.] BRIBERY. 170 sufficient in such a case if the agreement to accept a bribe is proved with some person, no matter whom.^° § 2901. Intent. — Although proof of a corrupt intent alone is not sufficient to support a prosecution for bribery, yet when such intent is manifested by overt acts, such as a promise to give the officer a reward as a premium to induce him to act contrary to his duty, proof of that fact is generally sufficient.^^ But while it may be inferred from cir- cumstances, yet if a corrupt intent on the part of the officer receiving or of the person offering a bribe is essential to constitute the crime it must be made to appear beyond a reasonable doubt. ^^ It has also been held that where the charge is for receiving money for a promise not to perform a duty required by statute, evidence on the part of the defendant of his ignorance of the duty is relevant and material as tending to support his claim that he made no promise not to perform the statutory duty.^^ § 2902. Evidence for prosecution — Other acts of accused. — It is usually competent to show the various steps taken by the accused in committing the crime, including preliminary negotiations with the other parties,^'* to the unlawful transaction and his acts subsequent to the offense charged, which tend to confirm that charge, by showing that he carried out his promise or did what was naturally to be ex- pected if bribed as alleged, or the like.^^ Other acts of bribery remote in time and unconnected with the offense charged are inadmissible in evidence,^" but where the prosecution is for offering to bribe an officer, ^« People V. O'Neil, 109 N. Y. 251, v. Meysenburg, 171 Mo. 1, 71 S. W. 16 N. E. 68. 229. " People v. Markham, 64 Cal. 157, " State v. Gardner, 88 Minn. 130, 30 Pac. 620. 49 Am. R. 700. 92 N. W. 529; People v. O'Neil, 109 "State v. Pritchard, 107 N. Car. N. Y. 251, 16 N. E. 68; People v. 921, 12 S. E. 50; see also, People Kerr, 6 N. Y. S. 674; but see. People V. Kerr, 6 N. Y. S. 674; White v. v. Bissert, 71 App. Div. (N. Y.) 118 State, 103 Ala. 72, 16 So. 63, com- 75 N. Y. S. 630. pare. Commonwealth v. Murray, 135 " People v. Sharp, 107 N. Y. 427, Mass. 530. 14 N. E. 319, 1 Am. St. 851; Guthrie "Newman v. People, 23 Colo. 300, v. State, 16 Neb. 667, 21 N. W. 455; 47 Pac. 278. But it was also held see also. State v. Gardner, 88 Minn. that ignorance of the law would not 130, 92 N. W. 529; State v. Meysen- constitute a defense. burg, 171 Mo. 1, 71 S. W. 229; Peo- '* State V. Durnam, 73 Minn. 150, pie v. Hurley, 126 Cal. 351, 58 Pac. 75 N. W. 1127; State v. Smith, 72 814. Vt. 366, 48 Atl. 647; see also, State 171 DOCUMENTARY EVIDENCE. [§ 2903. subsequent offers made to the same officer, or bribes in regard to the same subject matter, or part of the same system are admissible.^^ And it may be said generally with some degree of accuracy that all proper testimony going to show that one charged with receiving a bribe did actually receive it is admissible.^^ But on the trial of a prosecution for offering a witness a bribe to testify that he had seen some persons attack the person accused of murder, and that "the latter had shot in among them," it was held error to permit the introduction by the prosecution in the bribery case of all the details of the arrest of the accused and his conduct, such as that the alleged murderer attempted to shoot the officer, had several pistols in his possession and wore a coat of mail, although it was competent to introduce evidence of the general nature of the crime in connection with which the offer was made, in order to prove the materiality of the alleged false testimony.^^ § 2903. Documentary evidence. — A legislative journal has been held admissible to show the pendency of the matter with regard to which a member of the legislature was charged with bribery ;^'* and so has the record of a case in which the defendant was charged with at- tempted bribery of jurors, to show that the cause was pending,-^ and that the jurors served in such case.-^ So, it has been held proper to introduce a previous indictment for the same offense, which was quashed, to show that the pending prosecution is not barred by the statute of limitations.^^ So, a letter to the accused bearing upon and relevant to the question of bribery is admissible in evidence, where a witness testified that the accused showed it to him, and stated that warrants therein listed were issued by him in consideration of money received from the person in wliose favor they were issued.^* And where the charge was for offering to receive a bribe, letters from an agent to his employer communicating the facts bearing upon the is- sue, being an incident of the business, and contemporaneous therewith, were admitted as a part of the res gestae.-^ "Rath V. State, 35 Tex. Cr. App. "People v. Northey, 77 Cal. 618, 142, 33 S. W. 229; Guthrie v. State, 19 Pac. 865, 20 Pac. 129. 16 Neh. 667, 672, 21 N. W. 455. -'■ White v. State, 103 Ala. 72, 16 "People V. McGarry, (Mich.) 99 So. 63. N. W. 147. =* Glover v. State, 109 Ind. 391, " People V. Fong Ching. 78 Cal. 10 N. E. 282. 169, 20 Pac. 396. =^ State v. Desforges, 48 La. Ann. =" State v. Smalls, 11 S. Car. 262. 73, 18 So. 912; see also, State v. =' White V. State. 103 Ala. 72, 16 Durnam, 73 Minn. 150, 75 N. W. So. 63. 1127. §§ 2904, 2905.] bribery. • 172 § 2904. Financial dealings of parties. — On the trial of a prosecu- tion for accepting a bribe the business conditions and financial trans- actions of the accused may be shown. ^"^ So, in a prosecution for giving a bribe, evidence is admissible to show that, at about the time of the alleged bribery, the corporation, in whose interest the bribe was given, raised the required amount of money, for which there was no apparent necessity for legitimate purposes, and that it failed to account there- for, and the money did not appear to have been used for legitimate ends, and that the alleged receiver of the bribe shortly after the trans- action paid off a large mortgage with bills of a large denomination.^^ § 2905. What need not be proved — Variance. — Under a statute making it an offense to offer a gift to corruptly influence a juror, it has been held unnecessary to prove an actual tender of the gift.^* So, on the trial of a prosecution for giving a bribe, it has been held un- necessary to prove that the person bribed made any promise as to his future action.^® Something of value must usually be shown to have been given, offered or tendered,^" but it is not necessary to prove the value of the bribe precisely as laid in the indictment.^^ It is generally sufficient merely to prove that it is of some value.^^ But the variance in the description of the alleged bribe may be so great as to be fatal.^" It has also been held that evidence that the bribe was paid on some day or about the time charged, although not on the exact day, is suf- ficient.^* And it is not necessary to introduce record evidence as to the election or appointment and qualification of the officer charged to have been bribed by the accused. ^^ =' People V. O'Neil, 109 N. Y. 251, =' Diggs v. State, 49 Ala. 311; 16 N. E. 68; State v. Smalls, 11 S. Watson v. State. 39 Ohio St. 123; Car. 262; but see where they cov- People v. Salsbury, (Mich.) 96 N. ered long period, People v. Stephen- W. 936. son, 91 Hun (N. Y.) 613, 36 N. Y. S. =^ Commonwealth v. Donovan, 170 595. Mass. 228, 49 N. E. 104; see also, =' People V. Kerr, 6 N. Y. S. 674; People v. Salsbury, (Mich.) 96 N. see also, People v. McGarry, (Mich.) W. 926. 99 N. W. 147. ^= State v. Meysenburg, 171 Mo. 1, ^ State V. Miller, 182 Mo. 370, 81 71 S. W. 229. S. W. 867; State v. Woodward, 182 ^'^ People v. McGarry, (Mich.) 99 Mo. 391. 81 S. W, 857. N. W. 147. "'Commonwealth v. Donovan, 170 ''Rath v. State, 35 Tex. Cr. App. Mass. 228, 49 N. E. 104. 142, 33 S. W. 229. ■'"Watson V. State, 39 Ohio St. 123; People v. Kerr, 6 N. Y. S. 674. 173 ACCOMPLICES — CONFESSIONS [§§ 290G, 2907. § 2906. Accomplices — Decoys — Conspirators. — The fact that a wit- ness is a paid "spotter" or has acted as a detective or decoy apparently entering into the criminal plan for the purpose of detecting and ex- posing it does not itself render his evidence unworthy of belief as a matter of law/*' but it has been held that the defendant may fully cross-examine him as to his connection with the case, and as to the names of all who were concerned in the alleged detection.^^ It has also been held that the subsequent disclosure by a detective to his su- perior officer, in such a case, is admissible to show that he was not in reality an accomplice.^® The general subject of accomplices and cor- roboration of their evidence is elsewhere treated, and it is sufficient in this connection to refer to a few of the recent cases. ^^ It is generally necessary, in order to make the declarations of alleged co-conspirators competent and admissible in bribery cases, to show the conspiracy and some connection with the accused as such.^° Indeed, even when a con- spiracy is shown, such declarations have been held inadmissible against a defendant who is on trial for a separate and distinct offense.*^ § 2907. Confessions and admissions. — The subject of confessions has been fully treated in another volume, but a reference to two or three matters and authorities may not be out of place in this connection. Al- though here, as elsewhere, the general rule is that there must be evi- dence of the corpus delicti aside from the confession, yet it has been held that if, in addition to the confessions, there is proof of circum- stances which, although they might be susceptible of an innocent con- struction, are, nevertheless, calculated to suggest the commission of the crime for the explanation of which the confession furnished the key, it should be allowed to go to'the jury.*^ It has also been held that on the trial of a prosecution against a member of the school board for bribery, admissions by him to the effect that he had drawn warrants for certain amounts at certain times, such admissions being endorsed on the back '« Wellcome, In re, 23 Mont. 450, N. E. 68; Rath v. State, 35 Tex. Cr. 59 Pac. 445. App. 142, 33 S. W. 229. "People V. Liphardt, 105 Mich. ""People v. Sharp, 107 N. Y. 427, 80. 62 N. W. 1022. 14 N. E. 319, 1 Am. St. 851. ^Reg. v. Dewar, 26 Ont. (Can.) ** State v. Gardner, 88 Minn. 130, 512. ' 92 N. W. 529. "See, People v. Bissert, 71 App. "= People v. Jaehne, 103 N. Y. 182, Div. (N. Y.) 118, 75 N. Y. S. 630; 8 N. E. 374. People V. O'Neil, 109 N. Y. 251, 16 § 2908,] BRIBEEY. 174 of a letter of inquiry addressed to him, when taken in connection with the other established facts of the case, are competent.*^ § 2908. Defenses. — Ignorance of the law is not a defense in brib- ery cases any more than in other criminal cases, and it has been held that it was no defense for an officer charged with having accepted a bribe under an agreement not to seize gambling devices to show that he was ignorant of a statute making it his duty to seize them; and further, that it was no defense that the prosecuting witness gave the bribe and procured such omission of duty.** Nor can the officer ques- tion the constitutionality of the statute,*^ or the like. Evidence of good character and reputation is admissible in a prosecution for bribery, but it is no defense to the crime where the proof establishes its com- mission by the accused as a fact.*** It is not competent for a witness to testify that he had learned, since the arrest of the accused, that his reputation before his arrest was bad.*^ In a prosecution for bribery where a specific intent is the essence of the crime intoxication may be shown in a proper case, and if drunkenness is set up as a defense in such a case the character and extent of the drunkenness, the conduct of the defendant and any other facts tending to show that he did not know what he was doing may generally be shown, and the question left to the jury.*^ But to permit another witness to state that the accused was so drunk that he did not know what he was doing would be in vio- lation of the rule forbidding witnesses to state mere opinions or con- clusions which are for the jury to draw.*^ « Glover v. State. 109 Ind. 391, v. State, 109 Ind. 391, 10 N. E. 282; 10 N. E. 282. Gilchrist v. Schmidling, 12 Kans. "Newman v. People, 23 Colo. 300, 263; Moseley v. State, 25 Tex. App. 47 Pac. 278; see also as to instiga- 515, 8 S. W. 652. tion by others being no defense, *" Wellcome, In re, 23 Mont. 450, People V. Liphardt, 105 Mich. 80, 59 Pac. 445. 62 N. W. 1022. "People v. Fong Ching, 78 Cal. *^ Newman v. People, 23 Colo. 300, 169, 20 Pac. 396. 47 Pac. 278; State v. Gardiner, 54 ^^ White v. State, 103 Ala. 72, 16 Ohio St. 24, 42 N. B. 999, 31 L. R. So. 63. A. 660; see also. State v. Duncan, "White v. State, 103 Ala. 72, 16 153 Ind. 318, 54 N. E. 1066; Glover So. 63. CHAPTER CXXXVIII. BURGLARY. -Definition and ele- Sec. 2909. Generally- ments. 2910. Burden of proof and presump- tions. 2911. Questions of law or fact. 2912. Evidence of breaking and en- tering. Sec. 2913. Evidence as to dwelling house and ownership. 2914. Evidence as to time. 2915. Evidence as to intent. 2916. Identification. 2917. Other offenses. ' 2918. Possession of stolen property. 2919. Defenses. § 2909. Generally — Definition and elements. — Burglary is the breaking and entering the house of another in tlic night-time with the intent to commit a felony, whether the felony is actually committed or not.^ The elements to be proved at common law are: A felonious breaking and entering; that the building was a dwelling-house; that the act occurred in the night-time; an intention to commit some felony in the house.- But under many of the modern statutes other buildings are included, as well as dwelling-houses, and under some of them the breaking and entry may be in the day-time as well as at night, while, under others, a breaking is not essential. § 2910. Burden of proof and presumptions. — The presumption of innocence existing, the burden is upon the prosecution to show the guilt of the accused beyond a reasonable doubt,''' and, according to the better and prevailing rule, this burden remains upon the prosecution throughout the trial.* The prosecution must, in the absence of a stat- ^ Russell Crimes, 1; Anderson v. State, 48 Ala. 665, 666, 17 Am. R. 36; McVey, In re, 50 Neb. 481, 70 N. W. 51; 2 Am. St. 383, note. -See, State v. Wilson, 1 N. J. L. 502, 1 Am. Dec. 216, and authori- ties cited in notes to the next sec- tion; also, see 2 Am. St. 383, note. ^People v. Winters, 93 Cal. 277, 28 Pac. 946; People v. Flynn, 73 Cal. 511, 15 Pac. 102; State v. Mor- ris, 47 Conn. 179; State v. Manluff, 1 Houst. (Del.) 208; Farley v. State. 127 Ind. 419, 26 N. E. 898; Coleman V. State, 26 Tex. App. 252, 9 S. W. 609. ^Farley v. State, 127 Ind. 419, 26 N. E. 898, and other authorities cited in last note, supra; for a fur- ther consideration of this general 175 2910.] BURGLARY. 176 ute making a change in the elements of the crime, show that the build- ing burglarized was a dwelling-house, or at least that it was within the curtilage.^ But whether the particular building in question was with- in the curtilage has been held to be a question of fact for the jury." So, the gist of the offense of burglary usually being the breaking and entering,'' that element must also be established beyond a reasonable doubt.^ And the burden is upon the prosecution not only to prove the burglarious entry, but also to show that such entry was made with in- tent to commit a felony as alleged.^ So, if the statute does not mal^e rule, see. Vol. I, §§ 95. 126; State V. Brady, (Iowa) 91 N. W. 801, 805. ^ Moore v. People 47 Mich. 639, 11 N. W. 415; State v. Fisher, 1 Pen. (Del.) 303, 41 Atl. 208. But it has been held that actual resi- dence therein at the time of the al- leged burglary need not be shown; Schwabacher v. People, 165 111. 618, 46 N. E. 809; State v. Meerchouse, 34 Mo. 344. 86 Am. Dec. 109; but compare the second case cited in this note. In, Holland v. State, (Tex. Cr. App.) 74 S. W. 763, evi- dence that the defendant burglar- ized a room in a hotel in which the prosecuting witness resided was held suflBcient under an indictment charging that it was a private resi- dence. See generally, 2 Am. St. 388, et seq. «Wait v. State, 99 Ala. 164, 13 So. 584; as to what is considered within the curtilage generally, see. State V. Bugg, 66 Kans. 668, 72 Pac. 236; Shotwell v. State, 43 Ark. 345; People V. Griffith, (Mich.) 95 N. W. 719; Fisher v. State, 43 Ala. 17; Rex V. Garland, 1 Leach C. C. 144; 4 Blackstone Comm. 225; 1 Hale P. C. 558, § 9; 8 Am. & Eng. Ency. of Law (2d ed.) 527; ante. Chap. 132. ' State V. Hutchinson, 111 Mo. 257, 20 S. W. 34. "Lester v. State, 106 Ga. 371, 32 S. E. 335; Lowder v. State, 63 Ala. 143, 35 Am. R. 9; Washington v. State, 21 Fla. 328; White v. State, 51 Ga. 285; People v. McCord, 76 Mich. 200, 42 N. W. 1106; State v. Warford, 106 Mo. 55, 16 S. W. 88G, 27 Am. St. 322; McGrath v. State, 25 Neb. 780, 41 N. W. 780; State v. Cowell, 12 Nev. 337; but proof cf very slight force may sustain con- viction; May V. State, 40 Fla. 426, 24 So. 498; Sims v. State, 136 Ind. 358, 36 N. E. 278; State v. Reid, 20 Iowa 413; State v. Herbert, 63 Kans. 516, 66 Pac. 235; State v. Warford, 106 Mo. 55, 16 S. W. 886, 27 Am. St. 322; and, as will hereafter appear, it is sufficient in some cases to show a constructive breaking. « People V. Crowley, 100 Cal. 478, 35 Pac. 84; People v. Hope, 62 Cal. 291; State v. Carpenter, Houst. Cr. (DeL) 367; State v. Fisher, 1 Pen. (Del.) 303, 41 Atl. 208; Davis V. State, 22 Fla. 633; Schwabacher V. People, 165 111. 618, 46 N. E. 809; State V. Carroll, 13 Mont. 246, 33 Pac. 688; State v. Green, 15 Mont. 424, 39 Pac. 322; State v. Cowell, 12 Nev. 337; Coleman v. State, 26 Tex, App. 252, 9 S. W. 609; Walton v. State, 29 Tex. App. 163, 15 S. W. 646; Mitchell v. State, 33 Tex. Cr, App. 575, 28 S. W. 475; see also, Starchman v. State, 62 Ark. 538, 36 S.- W. 940; Rush v. State, 114 Ga. 113. 39 S. E. 941. 177 QUESTIONS OF LAW OR FACT. [§§ 2911, 2912. a breaking and entering by daylight burglary, it must also be shown beyond a reasonable doubt that the breaking and entering were done in the night-time.^" As will be shown hereafter, however, circum- stantial as well as direct evidence may be sufficient to establish one or more of these various elements in the particular case. § 2911. Questions of law or fact. — The question as to whether the essential elements exist in the particular case is usually for the jury to determine from the evidence, including such proper inferences as may be drawn therefrom. Thus, it is for the jury to determine whether the act was done in the night-time." So, the identity of the accused and of the property, the intent, and the like, are questions of fact for the jury.^^ But the court should instruct as to what are the necessary ele- ments of the crime and as to what is meant by them or what is neces- sary in law to constitute the crime.^^ § 2912. Evidence of breaking and entering. — In order to prove a breaking and entering, it is generally necessary to show that the house was closed,^* and evidence of the condition of the premises shortly be- fore and after the commission of the alleged ofEense is usually compe- tent. Thus, evidence that a window or door was found open at the time and that it had been left closed shortly before has been held suffi- »» People v. Flynn. 73 Cal. 511, 15 E. 809; Green v. State, (Tex. Cr. Pac. 102; People v. Taggart, 43 Cal. App.) 58 S. W. 99. 81; Waters v. State, 53 Ga. 567; "Rose v. Commonwealth, 19 Ky. State V. Frahm, 73 Iowa 355, 35 N. L. R. 272, 40 S. W. 245. W. 451; People v. Bielfus, 59 Mich. "Kelly v. State, 82 Ga. 441; 576, 26 N. W. 771; Ashford v. State, Green v. State, 68 Ala. 539; State 36 Neb. 38, 53 N. W. 1036; see also, v. Groning, 33 Kans. 18, 4 Pac. 446; Adams v. State, 31 Ohio St. 462; McGrath v. State, 25 Neb. 780, 41 N. Reg. V. Nicholas, 1 Cox Cr. Cas. 218. W. 780; Washington v. State, 21 "State V. Leaden, 35 Conn. 515; Fla. 328; People v. McCord, 76 Mich. People v. Taylor, 93 Mich. 638, 53 200, 42 N. W. 1106; Jones v. State, N. W. 777; Davis v. State, 3 Coldw. 25 Tex. App. 226. Drawing a bolt, (Tenn.) 77; see also. State v. Whit, lifting a latch or opening with a Ivey 4 Jones L. (N. Car.) 349. has been held sufficient evidence of '= Commonwealth v. Chilson, 2 a breaking. Kent v. State, 84 Ga. Cush. (Mass.) 15; People v. Smith, 438, 11 S. E. 355; State v. O'Brien, 92 Mich. 10, 52 N. W. 67; State v. 81 Iowa 93, 46 N. W. 861; State v. Williamson, 42 Conn. 261; State v. Scripture, 42 N. H. 485; Hale P. C. Bell, 29 Iowa 316; People v. Win- 553; see also, Sims v. State, 136 ters, 93 Cal. 277, 28 Pac. 946; Schwa- Ind. 358, 36 N. E. 278. bacher v. People, 155 111. 618, 46 N. Vol. 4 Elliott Ev. — 12 2913.] BUEGLAEY, 178 cicnt evidence of a breaking.^^ It has also been held competent to show that shoes or clothing belonging to the accused were found near by, and that, from appearances, force had been used to gain an en- trance.^** And circumstantial evidence has been held sufficient in other cases to show both a breaking^^ and an entry.^^ The entrance must have been without the owner's consent, and circumstantial evi- dence has been held insufficient to show that he did not consent, in a few cases where the owner was present, and was a witness and did not testify upon the subject." But, ordinarily, it may be shown by cir- cumstantial evidence.^" § 2913. Evidence as to dwelling-house and ownership. — As al- ready shown, the prosecution must prove that the building entered was a dwelling-house, or such a building as to come within the statute. Evidence is therefore competent as to the character and ownership of the premises.^^ So, unless the statute is such as to make a variance as to the ownership of the premises immaterial, it must generally l)e proved as charged." But the ownership or value of property stolen or the like by the burglar is generally immaterial, and need not be proved precisely as alleged.-^ « People v. Curley, 99 Mich. 238, 58 N. W. 68; State v. Warford, 106 Mo. 55. 16 S. W. 886. "Fort V. State, 52 Ark. 180, 11 S. W. 959; England v. State, 89 Ala. 76, 8 So. 146; People v. Block, 60 Hun (N. Y.) 583, 15 N. Y. S. 229. "Holland v. State, 112 Ga. 540, 37 S. E. 887; Commonwealth v. Ha- gan, 170 Mass. 571, 49 N. E. 922; State V. Christmas, 101 N. Car. 749, 8 S. E. 361; State v. Bee, 29 S. Car. 81, 6 S. E. 911; United States v. Lantry, 30 Fed. 232. "State V. Watkins, 11 Nev. 30; for other cases in which the evi- dence was held sufficient to show a breaking and some in which it was held insufficient, see, 2 Am. St. 383- 387, note. « Ridge V. State, (Tex.) 66 S. W. 774; see also. Wisdom v. State, (Tex.) 61 S. W. 926; People v. Can- iff, 2 Park. Cr. Cas. (N. Y.) 586. ^» State v. Hayes, 105 Mo. 76, 18 S. W. 514; Hurley v. State, 35 Tex. Cr. App. 359, 33 S. W. 354. ==1 Houston v. State, 38 Ga. 165. =^ Jackson v. State, 102 Ala. 167, 15 So. 344; Berry v. State, 92 Ga. 47, 17 S. E. 1006; Rodgers v. People, 86 N. Y. 360. 40 Am. R. 548; Doan v. State, 26 Ind. 495; State v. Mc- Carthy, 17 R. I. 370, 22 Atl. 282; James v. State, 77 Miss. 370, 26 So. 929, 78 Am. St. 527; State v. Hill, 48 W. Va. 132, 35 S. E. 831. =^ State V. Tyrrell, 98 Mo. 354, 11 S. W. 734; State v. Hutchinson, 111 Mo. 257, 20 S. W. 34; Brown v. State, 72 Miss. 990, 18 So. 431; Mc- Crary v. State. 96 Ga. 348, 23 S. B. 409; Reg. v. Clarke, 1 Car. & Kir. 421, 47 E. C. L. 421; admissions of such evidence held harmless; Far- ley V. State, 127 Ind. 419, 26 N. E. 898; Pyland v. State, 33 Tex. Cr. App. 382, 26 S. W. 621. 179 EVIDENCE AS TO TIME — PREPARATIONS. [§ 2914. § 2914. Evidence as to time — Preparations. — As already stated, at common law, and except where the rule is changed by statute, it must be shown that the breaking and entering occurred in the night- time.^* It is held, however, that evidence that features were dis- cernible by artificial light, or by moonlight, will not avail the ac- cused. -•"■' But an almanac has been admitted, although rather to refresh the memory of the court and jury than as evidence, as to the time the sun set upon the day in question.-^ It is said that proof of a breaking in one night and an entrance the following night will sus- tain a conviction. ^^ If the evidence leaves the exact time in doubt, and it cannot be ascertained whether the breaking in was in the night-time or not, the prisoner should have the benefit of the doubt.-" But the time may be shown by circumstantial evidence. ^^ Evidence that the accused had made preparations to commit a burglary and had endeavored to induce the custodian of the premises to absent himself, or had produced burglar's tools,^" and had been seen lurking about the premises,^ ^ or had made inquiries as to property which was in the house,^^ or as to the character, financial circumstances and habits of its inmates, has been held admissible.^ ^ »* Ashford v. State, 36 Neb. 38, 40, 53 N. W. 1036; People v. Flynn, 73 Cal. 511, 15 Pac. 102; People v. Griffin, 19 Cal. 578; State v. Sey- mour, 36 Me. 225, 227; State v. Leaden, 35 Conn. 515; Guynes v. State, 25 Tex. App. 584, 8 S. W. 667; Waters v. State, 53 Ga. 567; Allen V. State, 40 Ala. 334 ; Commonwealth V. Glover, 111 Mass. 395, 402; Peo- ple V. Blelfus, 59 Mich. 576, 26 N. W. 771; as to what is considered night-time under this rule, see, 4 Blackstone Comm. 224; 3 Coke Inst. 63; State v. Bancroft, 10 N. H. 105. The statute sometimes defines it. Reg. v. Polly, 1 Car. & Kir. 77, 47 E. C. L. 77; Commonwealth v. Wil- liams, 2 Cush. (Mass.) 582. ^ State V. Morris, 47 Conn. 179; State V. McKnight, 111 N. Car. 690, 692, 16 S. E. 319; Commonwealth v. Kaas, 3 Brewst. (Pa.) 422; State v. Bancroft, 10 N. H. 105, 107; 2 East P. C. 509; 1 Hale P. C. 550. *" State V. Morris, 47 Conn. 179. " Rex V. Smith, Russ. & Ry. 417 ; see also. Commonwealth v. Glover, 111 Mass. 395. =* Waters v. State, 53 Ga. 567. =»Houser v. State, 58 Ga. 78; State V. Bancroft, 10 N. H. 105; State v. Taylor, 37 La. Ann. 40. '"People V. Calvert, 67 Hun (N. Y.) 649, 22 N. Y. S. 220. " State V. Turner, 106 Mo. 272, 17 S. W. 304. 3= Gilmore v. State, 99 Ala. 154, 13 So. 536. '^lUnderhill Cr. Ev., § 371; State V. Ward, 103 N. Car. 419, 423, 8 S. E. 814. But it has been held that proof that the value of the property in the house was small does not ad- mit evidence that the accused is a man of large means and in good cir- cumstances. Coates V. State, 31 Tex. Cr. App. 257, 261, 20 S. W. 585. §§ 2915, 2916.] BURGLARY. 180 § 2915. Evidence as to intent. — Where a felony is actually com- mitted by the defendant in the house broken into and entered by him there could not well be better evidence of his felonious intent than the proof of the commission of such felony.^* But it may also be shown by other facts and circumstances, or by some act or declaration of the defendant.^^ Thus, where the accused, having broken and entered the house, is discovered collecting articles of value or ransacking a trunkj^"^ or where he immediately fled from the house, on being sur- prised, or clothing was found placed in a bundle outside the house," or the like,2« evidence thereof is admissible and may well justify an inference of felonious intent. But the inference thus arising may be rebutted, and proper evidence is admissible in behalf of the accused to explain his actions and rebut the criminating circumstances.^* § 2916. Identification — ^Burglarious tools. — Direct evidence is, of course, admissible, in a proper case, to identify the prisoner, and, as elsewhere shown, ordinary witnesses may testify as to the identity of persons or things even though such testimony partakes of the nature of a conclusion or an opinion.*^ So, real evidence and an inspection or physical examination may be permitted, in some jurisdictions nt least, for the purpose of identification." And the identity of the '* Jones V. State, 18 Fla. 889; So. 863; State v. Anderson, 5 Wash. Stokes V. State, 84 Ga. 258, 10 S. 350, 31 Pac. 969. E. 740; Speers v. Commonwealth, ^People v. Curley, 99 Mich. 238, 17 Gratt. (Va.) 570; 2 East P. C. 58 N. W. 68. 520 note. =•« State v. McBryde, 97 N. Car. ^^'steadman v. State, 81 Ga. 736, 393, 1 S. E. 925; Hill v. Common- 8 S. E. 420; McComb v. Common- wealth, 12 Ky. L. R. 914, 15 S. W. wealth, 11 Ky. L. R. 508, 12 S. W. 870; see also, Alexander v. State, 31 382; State v. Worthen, 111 Iowa Tex. Cr. App. 359, 20 S. W. 756; 267, 82 N. W. 910; State v. Maxwell, Steadman v. State, 81 Ga. 736, 8 S. 42 'lowa 208; People v. Marks, 4 E. 420; 2 Am. St. 396, 397, note; but Park. Cr. Cas. (N. Y.) 153; Alex- see, Hamilton v. State, 11 Tex. App. ander v. State. 31 Tex. Cr. App. 359, 116; Rush v. State, 114 Ga. 113, 39 20 S. W. 756; Commonwealth v. S. E. 941. Shedd, 140 Mass. 451, 5 N. E. 254; ^^ People v. Griffin, 77 Mich. 585, Feister v. People, 125 111. 348, 17 43 N. W. 1061; State v. Meche, 42 N. E. 748; Burrows v. State, 84 Ind. La. Ann. 273, 7 So. 573; State v. 529; People v. Morton, 4 Utah 407. Fox, 80 Iowa 312, 45 N. W. 874, 20 11 Pac. 512; State v. Caddie, 35 W. Am. St. 425. Va 73, 12 S. E. 1098. '"Vol. I, § 680. » Clifton V. State, 26 Fla. 523, 7 "See, Vol. II, §§ 1014. 1221, 1223, 1231. 1232. 181 IDENTIFICATION OTHER OFFENSES. [§ 2917. prisoner as the person who committed the burglary, may be shown by circumstantial evidence" as well as by direct evidence. Even a closely connected collateral crime or offense may be shown in a proper case for this purpose.*^ And, as will hereafter be shown, possession of stolen goods or the fruits of the crime may likewise be shown in a proper case upon this question as well as for other purposes.^* The possession of burglarious tools and instruments with which the crime was committed is also relevant, and may be shown, especially with other evidence tending to connect the accused with the offense.'*^ So, evi- dence of footprints found near the place of the crime shortly after the burglary similar to those made by him,**^ or of an article of clothing or the like found at the scene of the crime and shown to have belonged to him, is usually competent and admissible as tending to show his presence there at the time of the commission of the crime.*^ § 2917. Other offenses. — In prosecutions for burglary as in other cases, the general rule is that the prosecution cannot prove the com- mission by the defendant or others of other burglaries, or offenses, not in any way connected with the particular crime charged in the indict- ment.*^ But evidence of another burglary than that charged, or of any *= State V. Manluff, Houst. Cr. « Gilmore v. State. 99 Ala. 154. (Del.) 208; Maroney v. State, 8 13 So. 536; see also, Cooper v. State, Minn. 218; Johnson v. Common- 88 Ala. 107, 7 So. 47; Miller v. State, wealth, 29 Gratt. (Va.) 796; Vol. I, 91 Ga. 186, 16 S. E. 985; People v. § 174; see also, State v. Robertson, Wolcott, 51 Mich. 612, 17 N. W. 78: 111 La. Ann. 35, 35 So. 375. Commonwealth v. Pope, 103 Mass. ''Vol. I, § 174, note 201*; see also, 440; State v Reitz, 83 N. Car. 634. Perry v. State, (Tex. Cr. App.) 78 And on the other hand the accused S. W. 513. may show that he could not have "Walker v. State, 97 Ala. 85, 12 made the tracks. State v. Melick, So. 83; State v. Groning, 33 Kans. 65 Iowa 614. 22 N. W. 895. 18, 5 Pac. 446; Jackson v. State, 28 *" People v. Rowell, 133 Cal. 39. Tex. App. 370, 13 S. W. 451; Wood- 65 Pac. 127; see also. People v. rufE v. State, '(Tex.) 20 S. W. 573; Flynn, 73 Cal. 511, 15 Pac. 102, with State v. Hullen, 133 N. Car. 656, 45 which however, compare. People v. S. E. 513. Cronk, 40 App. Div. (N. Y.) 206, « White v. People, 179 111. 356, 53 58 N. Y. S. 13. N. E. 570; Commonwealth v. Wil- **Vol. I, § 175; People v. McNutt. liams, 56 Mass. 582; State v. Franks, 64 Cal. 116. 28 Pac. 64; Roberson 64 Iowa 39, 19 N. W. 832; People v. v. State, 40 Fla. 509, 24 So. 474; Hope, 62 Cal. 291; State v. Haynes, State v. Johnson, 38 La. Ann. 686: 7 N. Dak. 70. 72 N. W. 923; see also, People v. Henry, 129 Mich 100, 8S People v. Larned, 7 N. Y. 445; Bruen N. W. 77; State v. Hale. 156 Mo. 102. V. People. 206 111. 417, 69 N. E. 24. 56 S. W. 881; Swan v. Common- § 2918.] BURGLARY. 183 other offense, is admissible, if both offenses are in reality parts of tlie same transaction or otherwise connected within the exception elsewhere stated, or if it shows the whereabouts of the defendant at the time al- leged in the indictment, or otherwise tends to show a regular organized system or to connect him with the offense charged, so as to fall within such exception. *° Evidence of other burglaries and larcenies by the defendant at the same place, or in a different house, at about the same time, may also be admissible on the question of intent.^" But the de- fendant cannot ordinarily show that other burglaries were committed at about the same time as that with which he is charged,^^ although there are instances in which he may show that some one else, and not he, committed the crime in question. § 2918. Possession of stolen property. — ^The effect of evidence of recent possession of stolen property has already been considered, and while it is universally conceded that such evidence is admissible in a proper case, much tlie same conflict among the authorities exists in regard to whether such evidence of itself raises any true presumption of guilt in cases of burglary as in other cases, although the conflict is not, perhaps, so great as in cases of larceny. The better and pre- vailing rule seems to be that stated in a recent case'^^ substantially as wealth, 104 Pa. St. 218; Hunt r. 14 S. E. 766rGass'v7 State (Tex. State, (Tex. Cr. App.) 60 S. W. 965; Cr. App.) 56 S. W. 73; State v. see also, People v. Greenwall, 108 Noris, 27 Wash. 453, 67 Pac. 983; N. Y. 296, 15 N. E. 404; McAnally Reg. v. Cobden, 3 F. & F. 833. V. State (Tex. Cr. App.) 73 S. W. "State v. Franke, 159 Mo. 535, 60 404. S. W. 1053; Osborne v. People, 2 '"See, Vol. I, § 175; Vol. IV, Park. Cr. Cas. (N. Y.) 583; Com- § 2916; also, Ray v. State, 126 Ala. monwealth v. Shepherd, 2 Pa. Dist. 9, 28 So. 634; Mason v. State, 42 345; State v. Weldon, 39 S. Car. Ala. 532; People v. McGilver, 67 318, 17 S. E. 688, 24 L. R. A. 126; Cal. 55, 7 Pac. 49; Roberson v. State, State v. Valwell, 66 Vt. 558, 29 Atl. 40 Fla. 509, 24 So. 474; Frazier v. 118; but see, People v. McNutt, 64 State, 135 Ind. 38, 34 N. E. 817; Cal. 116, 28 Pac. 64; State v. John- State V. Wrand, 108 Iowa 73, 78 N. son, 38 La. Ann. 686; People v. W. 788; People v. Mead, 50 Mich. Henry, 129 Mich. 100, S8 N W. 77; 228, 15 N. W. 95; People v. Gibson, McAnally v. State, (Tex. Cr. App.) 58 Mich. 368, 25 N. W. 316; State 73 S. W. 404. V. Adams, 20 Kans. 311; State v. "State v. Smarr, 121 N. Car. 669, Fitzsimon, 18 R. I. 236, 27 Atl. 446, 28 S. E. 549; Roberson v. State, 40 49 Am. St. 766; Commonwealth v. Fla. 509. 24 So. 474. Scott, 123 Mass. 239, 25 Am. R. 81; ^= State v. Brady, (Iowa) 91 N. State V. Robinson, 35 S. Car. 340, W. 801, 803, 805. 183 POSSESSION OF STOLEN PROrERTY — DEFENSES. [§ 2919. follows : There is no legal presumption of guilt of burglary attacliing to the mere possession of the stolen goods by the accused ; but such fact, if the alleged fact be of recent occurrence, has a tendency to prove his guilt, and, if there be other proved circumstances tending to connect him with the commission of the offense, the fact of possession, thus aided, will sustain a conviction ;" or, in other words, where, independ- ent of the mere possession by the accused of the recently stolen goods, the evidence tends to show that a burglary was committed by some one, and that the theft of the goods was accomplished at the same time, and by means of such burglary, the proof of possession of the fruits of the crime will be sufficient to sustain a conviction of the felonious break- ing and entering,^* but of itself the mere fact of possession of stolen goods does not create a presumption that the possessor was guilty of burglary. § 2919. Defenses. — The same defenses are open to the accused in cases of burglary as in most prosecutions. Thus, he may establisli or in- troduce evidence to prove an alibi, or, in general, he may introduce any competent evidence tending to show that he did not commit the crime with which he is charged. ^^ He may show that he was so drunk at the time of its commission that he could not have committed it."° And ==> Citing, State v. Powell, 61 Kans. People v. Wood, 99 Mich. 620, 58 81, 58 Pac. 968; Methard v. State, N. W. 638; see also, King v. State, 19 Ohio St. 363; People v. Fagan, 99 Ga. 686, 26 S. E. 480; Porterfield 66 Cal. 534, 6 Pac. 394; People v. v. Commonwealth, 91 Va. 801. 22 Hannon, 85 Cal. 374, 24 Pac. 706; S. E. 352; State v. Blue, 136 Mo. 41. Metz V. State, 46 Neb. 547, 65 N. W. 37 S. W. 796; State v. Raymond. 46 190; Davis v. People, 1 Park. Cr. Conn. 345; Smith v. State, 58 Ind. Cas. (N. Y.) 447; State v. Conway, 340; Cavender v. State. 126 Ind. 47, 56 Kans. 682, 44 Pac. 627; Ryan v. 25 N. E. 875. The inference is one State, 83 Wis. 486, 53 N. W. 836; of fact to be drawn from all the evi- State V. Graves, 72 N. Car. 482; dence rather than a so-called pre- State V. Hodge, 50 N. H. 510; Talia- sumption of law. See also and com- ferro V. Commonwealth. 77 Va. 411; pare, State v. Williams, 120 Iowa Falvey v. State, 85 Ga. 157, 11 S. 36, 94 N. W. 255, v/ith State v. Swift, E. 607; Stuart v. People, 42 Mich. 120 Iowa 8, 94 N. W. 269. 255, 3 N. W. 863; Brooks v. State, =^ See generally, Grantham v. 96 Ga. 353, 23 S. E. 413; 1 McClain State, 95 Ga. 459, 22 S. E. 281; Cr. Law, § 514. Price v. People, 109 111. 109; Robin- ■^ Smith V. People, 115 111. 17, 3 son v. State, 53 Md. 151, 36 Am. R. N. E. 733; Langford v. People, 134 399. 111. 444, 25 N. E. 1009; Magee v. '» Ingalls v. State, 48 Wis. 647. People, 139 111. 138, 28 N. E. 1077; 4 N. W. 785; see also, Schwabacher 2919.] BURGLARY, 184 he may generally introduce evidence to show by circumstances, or even testify himself, that his intent was different from that charged." So, where he has possession of stolen property or the like, or other circum- stances indicating or leading to the inference of his guilt have been shown by the prosecution, he may introduce competent evidence to ex- plain his possession or otherwise rebut the evidence of the prosecu- tion.^® V. People, 165 111. 618, 46 N. E. 809; State V. Bell, 29 Iowa 316; but com- pare, State V. Shores, 31 W. Va. 491, 7 S. E. 413, 13 Am. St. 875. «' State V. Meche, 42 La. Ann. 273, 7 So. 573; People v. Griffin, 77 Mich. 585, 43 N. W. 1061. ^' See, Henderson v. State, 70 Ala. 23, 45 Am. R. 72; Leslie v. State, 35 Fla. 171, 17 So. 555; Roberson v. State, 40 Fla. 509, 24 So. 474; Hays v. State, 30 Tex. App. 472, 17 S. W. 1063; State v. Owsley, 111 Mo. 450, 20 S. W. 194; as to good character and financial circumstances, see, Cavender v. State, 126 Ind. 47, 25 N. E. 875. CHAPTER CXXXIX. CONSPIRACY. Sec. 2920. Generally — Distinction be- tween civil and criminal conspiracy. 2921. Definition. 2922. Statutory conspiracy. 2923. Conspiracy not an attempt to commit crime. 2924. Pleading conspiracy. 2925. Pleading — Stating means em- ployed. 2926. Pleading overt act — Surplus- age. 2927. Criminal conspiracy. 2928. Criminal conspiracy — M a r y - land rule. 2929. "Unlawful" — Meaning. 2930. "Unlawful" — Wisconsin and New Hampshire rule. 2931. Public injuries. 2932. Public injuries — New Hamp- shire rule. 2933. Private injuries. 2934. Order of proof. 2935. Two or more engaged. 2936. Proof of conspiracy. 2937. Proof of conspiracy — SufB- ciency. Sec. 2938. Proof of formal agreement not necessary. 2939. Declarations of co-conspirator — Admissibility as evidence. 2940. Declarations of co-conspirator Preliminary proof. 2941. Declarations of co-conspirator — Prima facie case. 2942. Prima facie case — Sufficiency. 2943. Declarations of co-con::pirators — Limitations to rule. 2944. Declarations made after con- spiracy terminated — R u 1 e and exceptions. 2945. Proof when co-conspirators are not named. 2946. Overt acts — Proof of not re- quired. 2947. Overt acts — When proof neces- sary. 2948. Overt acts and conspiracy merged. 2949. Labor combinations — W hen criminal. 2950. Labor combinations — Vermont rule. 2951. Labor combinations — Strikes, boycott and picketing. § 2920. Generally — Distinction between civil and criminal con- spiracy. — The scope of this chapter is to treat distinctively the rules of proof in criminal conspiracy, avoiding, except incidentally, any treatment of such rules as apply in civil actions for damages occa- sioned by wrongful or unlawful conspiracies. However, it may be proper in a general and preliminary way to note the distinction be- tween civil and criminal conspiracies. By civil conspiracy is meant such a conspiracy as will furnish a basis for a civil action for dam- 185 3931.] COXSPIEACY. ISG ages. A criminal conspiracy may be complete without in any way af- fecting or damaging any particular person. But to afford the basis of a civil action for damages tlie proof must show that the alleged conspiracy was carried out and operated to the injury of the party complaining. A criminal conspiracy when fully executed may also fall within the term civil conspiracy. And it is barely possible that every civil conspiracy has within it some of the characteristics, if not the essential ingredients, of a criminal conspiracy. The dicta of the cases are to the effect that the gist of the criminal conspiracy is the unlawful combination, and the gist of the civil conspiracy is the injury or damage actually done.^ § 2921. Definition. — Courts and law writers recognize the diffi- culty in defining criminal conspiracy. But general definitions are given which may aid in determining the nature and character of the of- fense, if not regarded as exact in each particular case. The most com- prehensive statement and the most generally accepted definition is that it is the combination or conspiracy of two or more persons for the ac- ^ Brown v. Jacobs &c. Co., 115 Ga. 429, 41 S. E. 553; Herron v. Hughes, 25 Cal. 560; Dowdell v. Carpy, 129 Cal. 168, 61 Pac. 948; State v. Row- ley, 12 Conn. 101; State v. Glidden, 55 Conn. 46, 8 Atl. 890; Anderson v. Jett, (Ky.) 6 L. R. A. 390; Texas &c. Co. V. Adoue, 83 Tex. 650, 19 S. W. 274; Park &c. Co. v. National &c. Asso., 30 App. Div. (N. Y.) 508, 52 IM. Y. S. 475; People v. Chicago &c. Gas Co., 130 111. 268, 22 N. E. 798, 8 L. R. A. 497; McHenry v. Sneer, 56 Iowa 649, 10 N. W. 234; Kimball V. Harman, 34 Md. 407; Garing v. Fraser, 76 Me. 37; Commonwealth V. Waterman, 122 Mass. 43; Vege- lahn V. Guntner, 167 Mass. 92, 44 N. E. 1077; Plant v. Woods, 176 Mass. 492, 57 N. E. 1011; Bush v. Sprague, 51 Mich. 41, 16 N. W. 222; State V. Donaldson, 32 N. J. L. 151; Hutchins v. Hutchins, 7 Hill (N. Y.) 104; Adler v. Fenton, 24 How. (U. S.) 407; People v. Sheldon, 139 N. Y. 251, 34 N. E. 785; State v. Younger, 1 Dev. L. (N. Car.) 357; Laverty v. Vanarsdale, 65 Pa. St. 507; Morris Run &c. Co. v. Barclay &c. Co., 68 Pa. St. 173, 187; State v. Stewart, 59 Vt. 273. 9 Atl. 559: Boutwell v. Marr, 71 Vt. 1, 42 Atl. 607; Smith v. Nippert, 76 Wis. 86, 44 N. W. 846; Martens v. Reilly, 109 Wis. 464, 84 N. W. 840; United States v. Weber, 114 Fed. 950; United States v. Addyston &c. Co., 29 C. C. A. 141. 85 Fed. 271; United States V. Trans-Missouri &c. Asso., 166 U. S. 290, 17 Sup. Ct. 540; United States v. Cassidy, 67 Fed. 698; East Nissouri v. Horseman, 16 U. C. Q. B. 556; Mogul &c. Co. v. McGregor, L. R. 21 Q. B. 544; Huttley v. Sim- mons, 1 Q. B. (1898) 181; Rex v. Journeymen Taylors, 8 Mod. 11; Savile v. Roberts, 1 Ld. Raym. 374, 378; see, 1 Eddy Combinations, §§ 171, 340; for a collection of au- thorities on the question of civil conspiracy, see, 8 L. R. A. 497, note; 57 L. R. A. 547. note. 187 DEFIXITIOXS. [§ 2921. complishment of an unlawful purpose ; or such a combination or con- spiracy of two or more persons to effect a lawful purpose by unlawful methods or means.- j\Ir. Bishop defines it as follows: "Conspiracy is the corrupt agreeing together of two or more persons to do by concert- ed action something unlawful, eitlier as a means or as an end. The unlawful thing must be such as would be indictal)ly performed by one alone, or, not being such, be of the nature particularly adapted to in- jure the public or some individual by reason of the combination."^ The Supreme Court of ]\rassachusetts in an early case recognized the diffi- culty of accurately defining this crime, and say : "But the great diffi- culty is in framing any definition or description, to be drawn from the decided cases, wliich shall specifically identify this offense — a descrip- tion broad enough to include all cases punishable under this descrip- tion, without including acts which are not punishable. Without at- tempting to review and reconcile all the cases, we are of opinion that, as a general description, though perhaps not a precise and accurate definition, a conspiracy must be a combination of two or more persons by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or un- lawful, by criminal or unlawful means. We use the terms criminal or unlawful, because it is manifest that many acts are unlawful which are not punishable by indictment or other public prosecution ; and yet there is no doubt, we think, that a combination by numbers to do thera would be an unlawful conspiracy, and punishable by indictment."* As defined by an inferior court of Ohio, "a conspiracy is a combina- tion of two or more persons by some concert of action to accomplish 'Clinton v. Estes, 20 Ark. 216; Atl. 559; Boutwell v. Marr, 71 Vt. Smith V. People, 25 111. 9; Spies v. 1, 42 Atl. 607; People v. Flack, 125 People, 122 111. 1, 12 N. E. 865, 17 N. Y. 324, 26 N. E. 267; State v. N. E. 898; Orr v. People, 63 111. Crowley, 41 Wis. 271; Martens v. App. 305; Sparks v. Commonwealth, Reilly, 109 Wis. 464, 84 N. W. 840; 89 Ky. 644, 20 S. W. 167; State v. Pettibone v. United States, 148 U. Slutz, 106 La. Ann. 182, 30 So. 298; S. 197. 13 Sup. Ct. 542; United States State V. Mayberry, 48 Me. 218; Ell- v. Lancaster, 44 Fed. 896; United zey V. State, 57 Miss. 826; Common- States v. Johnson, 26 Fed. 682; wealth V. Hunt, 4 Mete. (Mass.) Ill; United States v. Cassidy, 67 Fed. Hart V. Hicks, 129 Mo. 99, 31 S. W. 698; Drake v. Stewart, 22 C. C. A. 351; State v. Davies, 80 Mo. App. 104, 76 Fed. 140; Wright v. United 239; State v. Kennedy, 177 Mo. 98, 75 States, 48 C. C. A. 37, 108 Fed. 805; S. W. 979; State v. Donaldeon, 32 N. Reg. v. Parnell, 14 Cox Cr. Cas. 508. J. L. 151; State v. Burnham, 15 N. '2 Bishop Cr. Law, § 172. H. 396; State v. Straw, 42 N. H. * Commonwealth v. Hunt, 4 Mete. 393; State v. Stewart, 59 Vt. 1, 9 (Mass.) 111. §§ 2922, 2923.] conspiracy. 188 some criminal or unlawful purpose, or some purpose not in itself crimi- nal or unlawful by criminal or unlawful means. "^ § 2922. Statutory conspiracy. — The United States and some of the states have statutes prescribing penalties against conspiracy. But these statutes do not profess to enumerate the acts necessary to con- stitute the offense; the prohibition under the statute of the United States extends to two or more persons who conspire either to com- mit any offense against the United States or to defraud the United States in any manner or for any purpose. Some of these statutes further provide that if one or more of the parties to the con- spiracy do any act in carrying out the conspiracy then all the parties to such conspiracy shall be liable. Under such a statute it has been held necessary to prove three elements in order to establish the offense: (1) The act of two or more persons conspiring together; (2) to commit any offense against the United States; (3) the overt act or the doing of any act to effect the object of the conspiracy.^ Under such statutes it has been held that it was not essential to state the name of the other persons with, whom the defendant conspired, and it was not necessary to allege the acts done.^ The decided cases holding the proof sufficient to establish a conspiracy under the statute are bet- ter precedents than abstract rules.* § 2923. Conspiracy not an attempt to commit crime. — A distinc- tion exists between a conspiracy and an attempt to commit a crime. It may be admitted, however, that conspiracy in some of its essential fea- tures is very closely akin to an attempt to commit a crime. And it is equally true that in some instances the proof that would support a charge of an attempt would also be sufficient to prove a conspiracy. In discussing the resemblance which a conspiracy bears to an attempt to commit crime the Supreme Court of Connecticut say : "It differs from the common-law attempt, in that it is not merged in the crime intend- ed ; if that crime is actually committed, as well as in other respects. But in many cases the separating line between the offense of a conspiracy = State V. Snell, 2 Ohio N. P. 55; States v. Dunbar. 27 C. C. A. 488, 83 Owens V. State, 84 Tenn. 1; Girdner Fed. 151; United States v. Stevens, v. Walker, 1 Heisk. (Tenn.) 186; 27 Fed. Gas. No. 16392. 3 Greenleaf Ev.. § 89. ' United States v. Dunbar, 27 C. " United States v. Barrett, 65 Fed. G. A. 488, 83 Fed. 151. 62; United States v. Gassidy. 67 Fed. '8 Gyc. Law & Proc. 628, n. 44. 698; United States v. Benson, 17 Gases cited. G. G. A. 293, 70 Fed. 591; United 189 PLEADING. [§ 2924. and of an attempt to commit that crime is one difficult to draw; in some cases the facts may support either offense. Two elements, there- fore, enter into the crime of conspiracy: wrongful combination and criminal attempt."® So a joint attempt to commit a crime is not nec- essarily a conspiracy. It only rises to that degree when the combina- tion is of such a nature and to such an extent as to increase the danger to the public from such an attempt. "It is the special danger to the public from wrongful acts that are accomplished through the force of combination, which has induced the courts to treat an attempt to ac- complish such acts through the force of combination as a criminal at- tempt, although the acts may not be criminal when committed or at- tempted otherwise than through a wrongful combination for tliat pur- pose."i<» § 2924. Pleading conspiracy. — The rule of pleading on this sub- ject is that it is not necessary to set out the means used when the com- bination or alleged conspiracy is to do an unlawful act ; but the means adopted and used must be fully stated when such combination or con- spiracy is to do a lawful act by unlawful means or methods." The indictment must show either that the object of the conspiracy or the means employed to accomplish it are criminal.^- ° State V. Gannon, 75 Conn. 206, 52 State v. Roberts, 34 Me. 320; Peo- Atl. 727; State v. Wilson, 30 Conn, pie v. Richards, 1 Mich. 216; Alder- 500. man v. People, 4 Mich. 414; People "State V. Gannon, 75 Conn. 206, v. Clark, 10 Mich. 310; People v. 52 Atl. 727. Arnold, 46 Mich. 268, 9 N. W. 406; "Smith V. People, 25 111. 9; Mus- People v. Petheram, 64 Mich. 252, grave v. State. 133 Ind. 297, 32 N. 31 N. W. 188; People v. Butler, 111 E. 885; State v. Murphy, 6 Ala. 765, Mich. 483, 69 N. W. 734; People v. 41 Am. Dec. 79; State v. Jones, 13 Dyer, 79 Mich. 480, 44 N. W. 937; Iowa 269; Commonwealth v. Ward, State v. Parker, 43 N. H. 83; Com- 92 Ky. 158, 17 S. W. 283; Common- monwealth v. McKisson, 8 S. & R. wealth V. Grinstead, 108 Ky. 59, 55 (Pa.) 420; Twichell v. Common- S. W. 720; Commonwealth v. wealth, 9 Pa. St. 211; Hazen v. Com- O'Brien, 12 Cush. (Mass.) 84; Com- monwealth, 23 Pa. St. 355; State v. monwealth v. Wallace, 16 Gray De Witt, 2 Hill (S. Car.) 282; State (Mass.) 221; Commonwealth v. v. Noyes, 25 Vt. 415; State v. Crow- Barnes, 132 Mass. 242; Common- ley, 41 Wis. 271; Pettibone v. United wealth V. Eastman, 1 Cush. (Mass.) States, 148 U. S. 197, 13 Sup. Ct. 223; Commonwealth v. Fuller, 132 542; Wright v. United States, 48 C. Mass. 563; Commonwealth v. Mes- C. A. 37, 108 Fed. 805; 2 Bishop New erve, 154 Mass. 64, 27 N. E. 997; Cr. Proc, § 204. State V. Buchanan, 5 H. & J. (Md.) '= State v. Jones, 13 Iowa 269; 317; State v. Bartlett, 30 Me. 132; State v. Bartlett, 30 Me. 132; State § 2925.] CONSPIKACY. 190 § 2925. Pleading — Stating means employed. — A clear statement of the rule is that in cases where the purpose of the conspiracy itself does not appear to he unlawful or criminal, then a full and exact state- ment of the means contemplated to carry it out m.ust be stated, and the statement must show that such contemplated means are unlawful or criminal.^^ The Supreme Court of Wisconsin stated the rule thus: "So the rule of common law is, as regards indictments for criminal conspiracies, that where the crime depends on the object of the con- spiracy, that object must be set forth, but the means need not be ; but where the crime depends upon the charatcer of the means to be em- ployed, they are material and must be alleged."^* Thus, where the pur- pose of the conspiracy was to cheat and defraud, it was held that the means used or proposed to be used should be set out that the court may know that it was a conspiracy to effect the proposed object by illegal means.^^ On this subject of pleading the Supreme Court of Massachusetts stated the rule thus: "That when the criminality of a conspiracy consists in an unlawful agreement of two or more persons to compass or promote some criminal or illegal purpose, that purpose must be fully and clearly stated in the indictment; and if the crimi- nality of the offense, which is intended to be charged, consists in the agreement to compass or promote some purpose, not of itself criminal or unlawful, by the use of fraud, force, falsehood, or other criminal or unlawful means, such intended use of fraud, force, falsehood, or other criminal or unlawul means must be set out in the indictment."^** But where the object of the conspiracy was to obtain money by false V. Ripley, 31 Me. 386; Alderman v. "Martens v. Reilly, 109 Wis. 464, People, 4 Mich. 414; People v. Clark, 84 N. W. 840; State v. Crowley, 41 10 Mich. 310; State v. Burnham, 15 Wis. 271; People v. Richards, 1 N. H. 396; State v. Noyes, 25 Vt. Mich. 216; Rex v. Gill, 2 B. & Aid 415. 204; Reg. v. King, 7 Q. B. 782; Syd- ^^ Commonwealth v. Meserve, 154 serff v. Reg., 11 Q. B. 245. Mass. 64, 27 N. E. 997; Common- ^^^ Commonwealth v. Eastman, 1 wealth V. Wallace, 16 Gray (Mass.) Cush. (Mass.) 189; Commonwealth 221; Commonwealth v. Hunt, 4 v. Shedd, 7 Cush. (Mass.) 514; Com- Metc. (Mass.) Ill; State v. May- monwealth v. Hunt, 4 Mete. (Mass.) berry, 48 Me. 218; Alderman v. Pec- 111, 125; Lambert v. People, 9 Cow. pie, 4 Mich. 414; State v. Parker, 43 (N. Y.) 578; People v. Flack, 125 N. H. 83; State v. Christianbury, 44 N. Y. 324, 26 N. E. 267; see cases N. Car. 46; but see. People v. Rich- in note 13 of this section, ards, 1 Mich. 216; People v. Arnold, ^« Commonwealth v. Hunt, 4 Mete. 46 Mich. 268, 9 N. W. 406; People v. (Mass.) 111. Butler, 111 Mich. 483, 69 N. W. 734; State V. Crowley, 41 Wis. 271. 191 PLEADING — CRIMIXAL CONSPIRACY. [§§ 2926, 2927. pretense, and by false and privy tokens, and such acts were themselves statutory crimes, it was held unnecessary to plead more specifically the means employed.^ '^ § 2926. Pleading — Overt acts — Surplusage. — "\Miile it is unneces- sary to allege in the indictment, as a matter of pleading, that the pur- pose of the alleged conspiracy was accomplished, yet whether it is pleaded or not it is not necessary to prove on the trial in order to estab- lish the conspiracy that it was in fact consummated and completed.^^ Xor is it necessary, as a matter of pleading, to allege any overt acts, or to set out any actual damage to the person intended to be defrauded or injured.^^ It is also a rule of pleading that if the alleged and il- legal combination is imperfectly and insufficiently stated in _ the in- dictment, it will not be aided by averments of acts done in pursuance of the conspiracy.-'^ § 2927. Criminal conspiracy. — The term criminal conspiracy em- bodies its own meaning. The definitions given by courts are in the na- ture of illustrations or they indicate the elements entering into the offense. No better definition can be given of criminal conspiracy than that stated by some of the courts. These serve both to define and il- lustrate, or to state the essential elements entering into the offense. Thus, the Kentucky Court of Appeals said of it: "A criminal con- spiracy is (1) a corrupt combination (2) of two or more persons, (3) by concerted action to commit (4) a criminal or an unlawful act; (a) or an act not in itself criminal or unlawful by criminal or unlawful means; (b) or an act which would tend to prejudice the public in gen- eral, to subvert justice, disturb the peace, injure public trade, affect public health, or violate public policy; (5) or any act, however inno- cent, by means neither criminal nor unlawful, where the tendency of the object sought would be to wrongfully coerce or oppress either the public or an individual."-^ The definition of the Connecticut court is: "A criminal conspiracy is a combination of two or more persons to commit some crime ; whether the crime to be committed is the ob- " State V. Crowley, 41 "Wis. 271. -° Commonwealth v. Shedd, 7 Cush. ^''Commonwealth v. O'Brien, 12 (Mass.) 514; Commonwealth v. Cush. (Mass.) 84. Hunt, 4 Mete. (Mass.) Ill; Com- " Commonwealth v. Fuller, 132 monwealth v. Wallace, 16 Gray Mass. 563; State v. Straw, 42 N. H. (Mass.) 221. 393; People v. Sheldon, 139 N. Y. =^ .^tna Ins. Co. v. Commonwealth, 251, 265, 34 N. E. 785. 106 Ky. 864, 71 S. W. 624. § 2928.] CONSPIRACY. 193 ject of the conspiracy, or the means for the accomplishment of some other object, is immaterial. A combination to unlawfully inflict upon another some injury dependent for its successful accomplishment upon the force of combination, may also, in certain instances, be a criminal conspiracy, although no act to be done in its execution, or in the con- summation of its object, would be a crime if done independently of the combination by any one of the conspirators."^" Or, as otherwise defined, "Criminal conspiracy is a combination or a confederation of two or more persons to commit an illegal act, or to perform a legal act by illegal means or in an illegal way. The crime is effected the mo- ment the confederation is complete, though nothing be done pursuant to the conspiracy ."^^ On this question the Supreme Court of New York say : "But to make an agreement between two or more persons, to do an act innocent in itself, a criminal conspiracy, it is not enough that it appears that the act which was the object of the agreement wa.s prohibited. The confederation must be corrupt. The agreement must have been entered into with an evil purpose, as distinguished from a purpose simply to do the act prohibited in ignorance of the prohibi- tion. This is implied in the meaning of the word conspiracy."-* The Supreme Court of Massachusetts long ago recognized the common- law rule in regard to conspiracy, and admitted that it was in force in that commonwealth. But of this rule it said : "The general rule of the common law is that it is a criminal and indictable offense for two or more to confederate and combine together, by concerted means, to do that which is unlawful or criminal, to the injury of the public, or portions or classes of the community, or even to the rights of an in- dividual. This rule of law may be equally in force as a rule of the common law^ in England and in this commonwealth ; and yet it must depend upon the local laws of each country to determine whether the purpose to be accomplished by the combination, or the concerted means of accomplishing it be unlawful or criminal in the respective coun- tries."" §2928. Criminal conspiracy— Maryland rule.— Maryland fur- nishes a very old and leading case of this country on the subject of == State V. Gannon, 75 Conn. 206, "People v. Powell, 63 N. Y. 88; 52 Atl. 727. See also, State v. People v. Flack, 125 N. Y. 324, 26 Stockford, (Conn.) 58 Atl. 769. N. E. 267. ^ Commonwealth v. Bliss, 12 "-'' Commonwealth v. Hunt, 4 Mete. Phila. (Pa.) 580; State v. Straw, 42 (Mass.) 111. N. H. 393; United States v. Lan- caster, 44 Fed. 896. 193 MEANING OF TEIlM "UNLAWFUL." [§ 2929. criminal conspiracy. The points on which it was held that an indict- ment would lie at common law were collected and arranged in the syllabus as follows : "1. For a conspiracy to do an act not illegal, nor punishable if done by an individual, but immoral only. 3. For a con- spiracy to do an act neither illegal nor immoral in an individual, but to effect a purpose which has a tendency to prejudice the public. 3. For a conspiracy to extort money from another, or to injure his reputa- tion by means not indictable if practiced by an individual, as by verbal defamation, and that whether it be to charge him with an indictable offense or not. 4. For a conspiracy to cheat and defraud a third per- son, accomplished by means of an act which would not in law amount to an indictable cheat, if effected by an individual. 5. For a malicious conspiracy to impoverish or ruin a third person in his trade or pro- fession. 6. For a conspiracy to defraud a third person by means of an act not per se unlawful, and though no person be thereby injured. 7. For a bare conspiracy to cheat or defraud a third person, though the means of effecting it should not be determined on at the time. 8. A conspiracy is a substantive offense, and punishable at common law, though nothing be done in execution of it."-^ § 2929. "Unlawful" — Meaning. — The meaning of the word un- lawful in the definition of conspiracy is both important and control- ling. Its construction is reasonable for the suppression of crime on the one hand and with due regard for the rights of the criminal on the other. The rule generally asserted and maintained, except when changed by statute, is that it is not necessary to prove that the act for the commission of which the conspiracy or combination is formed was in itself criminal ; neither is it required to show that the means used or employed in the commission of the act are in themselves criminal. In either case it is sufficient if it is made to appear that the acts or the means are in fact unlawful. Such acts and means are regarded in law as unlawful when they are shown to be in the nature of torts or wrongs for the perpetration and commission of which the law permits the recovery of exemplary damages in civil actions." And it answers ^'^ State V. Buchanan, 5 H. & J. (Mass.) Ill; Alderman v. People, 4 (Md.) 317; Alderman v. People, 4 Mich. 414; Ellzey v. State, 57 Miss. Mich. 414, 431. 826; Hart v. Hicks, 129 Mo. 99, 31 =■' State V. Glidden, 55 Conn. 46, S. W. 351; .Tohnson v. State, 26 N. 70, 8 Atl. 890; Smith v. People, 25 J. L. 313; Green v. Tuchner, 87 App. 111'. 17; Cole v. People, 84 111. 21G; Div. (N. Y.) 314, 84 N. Y. S. 345; Commonwealth v. Hunt. 4 Mete. Cote v. Murphy, 159 Pa. 420, 28 Atl. Vol. 4 Elliott Ev. — 13 § 2930.] CONSPIRACY. 194 the test of unlawfulness where the combination is for the purpose of cheating or defrauding an individual or a private corporation, al- though the fraud alone may not be indictable.^^ And a conspiracy to cheat and defraud the public by means which common care and ordi- nary prudence are not sufficient to guard against, has been held to be sufficient within the meaning of the term unlawful.^^ As stated in an English case : "It is enough, if the acts agreed to be done, although not criminal are wrongful, i. e., amount to a civil wrong."^" It is no answer to a charge of conspiracy to assume or prove that the object was lawful. It is a fundamental proposition that where it appears- that the means used to effect a lawful purpose be unlawful the offense is established. The unlawfulness of the means employed in such a case must be fully shown by proper statements in the affidavit and established by proof on the trial. ^^ § 2930. "tTnlawful" — ^Wisconsin and New Hampshire rule. — On this question the Supreme Court of Wisconsin very aptly say: "The word 'unlawful' is not confined to criminal acts. It includes all wil- ful, actionable violations of civil rights. In any case the object of the combination is what gives it legal significance. If that object be to do an unlawful act in the sense of committing an actionable wrong, the means contemplated by the combination to effect such object are not material to the cause of action, whether such action be to punish the perpetrators for entering into such a combination or to recover of them the damages inflicted by carrying out its object. If the ol:)jec-t of the conspiracy be the use of unlawful means, whether such means 190; Payne v. Western &c. Co., 13 E. 620; State v. Dyer, 67 Vt. 690, 32 Lea (Tenn.) 507; Callan v. Wilson, Atl. 814; Dayton Mfg. Co. v. Metal 127 U. S. 540, 8 Sup. Ct. 1301; United Polishers &c. Union, 8 Ohio N. P. States V. Johnson, 26 Fed. 682; Reg. 574, 11 Ohio Dec. 643; Moores v. V, Parnell, 14 Cox Cr. Cas. 508. Bricklayers' Union, 10 Ohio Dec. ^See § 2933. (Reprint) 665, 23 Cin. L. Bui. 48; ^People V. Stephens, 71 N. Y. 527; Beck v. Railway &c. Union, 118 People V. Olson, 39 N. Y. St. 295, 15 Mich. 497, 77 N. W. 13; Rex v. Jones, N. Y. S. 778; People v. Stone, 9 4 B. & Ad. 345. Wend. (N. Y.) 188; Lambert v. Peo- ''"Reg. v. Warburton, L. R. 1 C. C. pie, 9 Cow. (N. Y.) 578; People v. 274. Willis, 24 Misc. (N. Y.) 537, 54 N. ''State v. Burnham, 15 N. H. 396; Y. S. 129; Commonwealth v. Mifflin, Rex v. Seward, 1 Ad. & E. 706; Rex 5 W. & S. (Pa.) 462; Commonwealth v. Eccles, 3 Doug. 337; 2 Russell T. Gallagher, 4 Pa. L. J. 58; Crump Crimes 569. See also. United States V. Commonwealth, 84 Va. 927, 6 S. v. Grunberg, 131 Fed. 137. 195 PUBLIC INJURY. [§ 3031. be the violation of the civil or criminal law, the unlawfulness of the end sought to be attained is not controlling either in a prosecution for the offense of so conspiring or an action to recover the damages suf- fered by the consummation of the wrongful purpose."^^ And the Su- preme Court of Xew Hampshire say on this subject : "When it is said in the books that the means must amount to indictable offenses, iu order to make the offense of conspiracy complete, it will be enough if they are corrupt, dishonest, fraudulent, immoral, and in that sense illegal, and it is in the combination to make use of such practices that the dangers of this offense consist. Conspiracies may be indictable where neither the object, if effected, nor the means made use of to accomplish it, would be punishable without the conspiracy. In the case of a con- spiracy among journe3anen to raise their wages, the object of the coa- spiracy is lawful, and the means by which the object is to be effected are not otherwise than as the conspiracy makes them so." § 2831. Public injuries. — The ruie established by the authorities in the preceding section very conclusively shows that a conspiracy is not necessarily a combination to commit a crime, or that the means to be used are in themselves criminal. Many offenses against society not in themselves criminal, become so if perpetrated by a combination of persons. There may be many offenses against society which might be considered unlawful but which the law does not punish criminally. But the test of criminality in offenses against the public must be de- termined largely if not solely from the influence and effect which the acts might produce upon society. This principle was stated by one court thus : "And in determining what sort of conspiracy may or may not be entered into without committing an offense punishable by the common law, regard must be had to the iniiuence, which the act, if done, would actually have upon society, without confining the question to the inquiry whether the act might itself subject the offender to criminal punishment."^* In an early Connecticut case it was conceded ^Martens v. Reilly, 109 Wis. 464, 12 Pick. (Mass.) 173; Beck v. Team- 84 N. W. 840. sters' &c. Union. 118 Mich. 497, 77 ^ State v. Burnham, 15 N. H. 396; N. W. 13; State v. Burnham, 15 N. State V. Buchanan, 5 H. & J. (Md.) H. 396: State v. Straw, 42 N. H. 317. 393; People v. Stephens, 71 N. Y. ^* Smith v. People, 25 111. 17; Ochs 527; Lambert v. People, 9 Cow. (N. v. People, 25 111. App. 379; Common- Y.) 578; People v. Tweed, 5 Hun wealth v. Ward. 92 Ky. 158, 17 S. (N. Y.) 353; People v. Stone, 9 W. 283; Commonwealth v. Manley, Wend. (N. Y.) 188; People v. Olson, § 2931.] CONSPIRACY 196 "that many acts which, if done by an individual, are not indictable, are punished criminally, when done in pursuance of a conspiracy among members, is too well settled to admit of controversy."^^ In a very recent case in the same court it was said : "The combination of numbers to accomplish a wrongful act is a special danger to public morals, rights of property, and the public peace, and for this reason it is treated as an independent ofEense whenever it is the first step toward the commission of a crime. It is then an attempt to commit a crime, but a joint attempt to commit a crime cannot be punished as a con- spiracy unless there is a combination of such a nature as to increase the danger to the public from the attempt. It is the special danger to the public from wrongful acts that are accomplished through the force of combination, which has induced the courts to treat an attempt to accomplish such acts through the force of combination as a criminal attempt, although the acts may not be criminal when committed or attempted otherwise than through a wrongful combination for that purpose."^^ Conspiracies against the public are made criminal for the purpose of affording protection to the weak as well as the strong, and to protect such persons so lacking in common care and ordinary pru- dence that they are unable to guard themselves against conspiracies to cheat and defraud. "The design of the law is to protect the weak and credulous from the wiles and stratagems of the artful and eun- 39 N. Y. St. 295, 15 N. Y. S. 778; 228; Rex v. Mott. 2 Car. & P. 521, 12 People V. Willis, 24 Misc. (N. Y.) E. C. L. 244; Reg. v. Gompartz, 9 537, 54 N. Y. S. 129; State v. Tram- Q. B. 824, 58 E. C. L. 824; Reg. v. mell, 2 Ired. L. (N. Car.) 379; Mif- Esdaile, 1 F. & F. 213; Reg. v. flin v. Commonwealth, 5 W. & S. Brown, 7 Cox Cr. Cas. 442; Reg. v. (Pa.) 461; Hazen v. Commonwealth, Gurney, 11 Cox Cr. Cas. 414; Reg. 23 Pa. St. 355; Crump v. Common- v. Warburton, 11 Cox Cr. Cas. 584. wealth, 84 Va. 620, 6 S. E. 620; State =' State v. Rowley, 12 Conn. 101. V. Young, 37 N. J. L. 184; Wood v. '"State v. Gannon, 75 Conn. 206, State, 47 N. J, L. 461, 1 Atl. 509; 52 Atl. 727; State v. Donaldson, 32 Madden v. State, 57 N. J. L. 324, 30 N. J. L. 151; State v. Young, 37 N. Atl. 541; Perkins v. Rogg, 11 Ohio J. L. 184; State v. Cole, 39 N. J. L. Dec. (Reprint) 585; Commonwealth 324; State v. Hickling, 41 N. J. L. v. Stambaugh, 22 Pa. Super. 386; 208; Noyes v. State, 41 N. J. L. 418; Clary v. Commonwealth, 4 Pa. St. Johnson v. State, 26 N. J. L. 313; 210; State v. DeWitt. 2 Hill (S. State v. De Witt. 2 Hill (S. Car.) Car.) 282; State v. Cardoza, 11 S. 282; State v. Shooter, 8 Rich. (S. Car. 195; State v. Dyer, 67 Vt. 690. Car.) 72; State v. Buchanan, 5 H. 32 Atl. 814; Rex v. De Berenger, 3 & J. (Md.) 317; State v. Burnham, M. & S. 57; Rex v. Roberts, 1 15 N. H. 396; State v. Parker, 43 N. Campb. 399; Rex v. Turner, 13 East H. 83. 197 PUBLIC INJURY. [§ 2932. ning, as well as those whose vigilance and sagacity enable them to pro- tect themselves."^^ This rule of the policy of the law to protect the public has been carried to the extent of holding that it is sufficient to state in the indictment that the purpose of the conspiracy was to cheat and defraud divers citizens of a particular locality or the public generally.^* On the same subject the Massachusetts court say: '"'It is said to be sufficient if the end proposed, or means to be employed, are by reason of the power of the combination, particularly dangerous to the public interests, or particularly injurious to some individual, although not criminal."^^ 2932. Public injuries — New Hampshire rule. — The Supreme Court of New Hampshire has given expression in favor of protecting against conspiracies to injure the public as follows: "Combinations against law or against individuals are always dangerous to the public peace and to public security. To guard against the union of individ- uals to effect an unlawful design, is not easy, and to detect and punish them is often extremely difficult. The unlawful confederacy is, chere- fore, punished to prevent any act in execution of it. This principle is the foundation of the adjudged cases upon this subject. But the law by no means intends to exclude society from the benefits of united effort for legitimate purposes, and such as promote the well being of individuals or of the public. It uses the word conspiracy in its bad sense. An act may be immoral without being indictable where the isolated acts of an individual are not so injurious to society as to re- quire the intervention of the law. But when immoral acts are com- mitted by numbers, in furtherance of a common object, and with the advantages and strength which determination and union impart to them, they assume the grave importance of a conspiracy, and the peace and order of societv require their repression."*" " McKee v. State, 111 Ind. 378, 12 Clary v. Commonwealth, 4 Pa. St. N. E. 510; Miller v. State, 79 Ind. 210; Commonwealth v. Judd, 2 Mass. 198; Smith v. State, 17 Am. L. Reg. 329; Reg. v. Peck, 9 Ad. & E. 686; 525, 16 Am. L. Reg. 321-325; 2 Rex v. De Berenger, 3 M. & S. 67; Wharton Cr. Law, §§, 1186, 1187, 2 Bishop Cr. Law, § 209; 2 Wharton 1188; 2 Bishop Cr. Law, §§ 433, 434. Cr. Law, § 1396. ''McKee v. State, 111 Ind. 378, 12 =" Commonwealth v. Waterman, N. E 510; People v. Arnold, 46 Mich. 122 Mass. 43. 268, 9 N. W. 406; Collins v. Com- '"State v. Burnham, 15 N. H. 396. monwealtb, 3 S. & R. (Pa.) 220; §§ 2933, 2934.] coxspiracy. 198 § 2933. Private injuries. — Some courts have carried tlie doctrine of indictable conspiracy to the extent of holding that it is sufficient to establish a conspiracy to show a combination to defraud an indi- vidual or a corporation. There is apparently no good reason for the rule that the conspiracy or combination should be so formidable as to be a menace to the public. Of this the New Jersey court say: "The great weight of authority, the adjudged cases, no less than the most approved elementary writers, sustain the position that a conspiracy to defraud individuals or a corporation of their property, may, in itself constitute an indictable offense, though the act done, or proposed to be done, in pursuance of the conspiracy, be not, in itself, indictable."*^ And it was said by the Supreme Court of North Carolina in an early case that "it has long been established that every conspiracy to injure individuals or to do acts which are unlawful, or prejudicial to the com- munity, is a conspiracy and indictable."*^ On the question of whether or not the combination to injure a private person is lawful or unlawful, it was held to be determined by whether or not the means by which the object was to be accomplished are lawful or unlawful.*^ § 2934. Order of proof. — The rule that some proof of a conspir- acy is necessary in order to justify the admission of acts and declara- tions of one of the co-conspirators does not necessarily control the order of proof. As previously seen, the admissibility of such evidence is largely within the discretion of the trial court, and he determines when the sufficient prima facie case has been made. For like reasons he may also control the order of proof. It has been held that the state may prove such acts and declarations of one of the conspirators done and made in the absence of the other, before any proof of the conspiracy is offered.** The trial court will frequently admit evi- ^ State V. Norton, 23 N. J. L. 33 ; " Commonwealth v. Hunt, 4 Mete. State V. Donaldson, 32 N. J. L. 151; (Mass.) 111. State V. Burnham, 15 N. H. 896; ** People v. Brotherton, 47 Cal. Clinton v. Estes, 20 Ark. 216; Lam- 388; 2 Green Crimes 444; People v. bert V. People, 9 Cow. (N. Y.) 578; Daniels, 105 Cal. 262, 38 Pac. 720; State V. Huegin, 110 Wis. 189. 85 N. State v. Thompson, 69 Conn. 720, 38 W. 1046; Alderman v. People, 4 Atl. 868; State v. Mushrush, 97 Iowa Mich. 414; State v. Stewart, 59 Vt. 444, 66 N. W. 746; Miller v. Dayton, 273, 9 Atl. 559; State v. Dyer. 67 57 Iowa 423, 10 N. W. 814; State v. Vt. 690, 32 Atl. 814; Callan v. Wil- Winner, 17 Kans. 298; State v. Rog- son, 127 U. S. 540, 8 Sup. Ct. 1301. ers, 54 Kans. 683, 39 Pac. 219; Peo- *» State V. Young, 12 N. Car. 257. pie v. Saunders. 25 Mich. 119; State 199 ORDER OF PROOF — TWO OR MORE ENGAGED. [§ 2935. dence of the acts and declarations of one of the conspirators before any proof of the conspiracy is offered, on the statement of counsel that sufficient or satisfactory evidence on the subject of the con- spiracy will thereafter be introduced.** § 2935. Two or more engaged. — The term conspiracy implies a <;ombination of two or more persons, and the rule is that to autliorize a conviction for conspiracy the proof must show that more than one person was engaged. Where one conspirator only is on trial the proof must show that some other person was also guilty.**' The rule as fo pleading has been stated thus: "An indictment for conspiracy cannot charge the offense against one only, for the very nature and essense of the crime exclude the idea of its commission by a single individual. But the indictment may allege that the defendant, to- gether with other persons, committed the offense."** Where more than two persons are charged as conspirators it has been held sufficient if the proof show that two of them were guilty, and that the charge as to the others was surplusage. It was held not essential that the proof show that all were guilty.*^ But in prosecutions for conspiracy V. Ross, 29 Mo. 32; State v. Daubert, 42 Mo. 239; State v. Walker, 98 Mo. 95, 9 S. W. 646, 11 S. W. 1133; State V. Melrose, 98 Mo. 594, 12 S. W. 250; State V. Flanders, 118 Mo. 227, 23 S. W. 1086; Hart v. Hicks, 129 Mo. 99, 31 S. W. 351; Lamar v. State, 63 Miss. 265; State v. Faulkner. 175 Mo. 546, 591, 75 S. W. 116; State v. Kennedy, 177 Mo. 98, 75 S. W. 979; State V. Nell, 79 Mo. App. 243; Place V. Minster, 65 N. Y. 89; State v. Jackson, 82 N. Car. 565; State v. Anderson, 92 N. Car. 732; Avery v. State, 10 Tex. App. 199, 211; 1 Greenleaf Ev., § 111; 3 Greenleaf Ev., § 92; 3 Rice Ev., § 581; 2 Whar- ton Cr. Law (8th ed.), §. 401; Un- derhill Cr. Ev., § 494. "= State V. Faulkner, 175 Mo. 546, 591, 75 S. W. 116; State v. Grant, 86 Iowa 216, 53 N. W. 120; Work v. McCoy, 87 Iowa 217, 54 N. W. 140; Place V. Minster. 65 N. Y. 89; Owens V. State, 16 Lea (Tenn.) 1; Arm- stead V. State, 22 Tex. App. 51, 2 S. W. 627; Hall v. State, 31 Fla. 176, 12 So. 449. "Evans v. People, 90 111. 384; Carl Corper &c. Co. v. Minwegen &c. Co., 77 111. App. 213; State v. Christian- bury, 44 N. Car. 46; People v. Rich- ards, 67 Cal. 412, 7 Pac. 828; State V. O'Donald, 1 McCord (S. Car.) 532; State v. Egan, 10 La. Ann. 698; People V. Olcott, 2 Johns. Cas. (N. Y.) 301; Gaunce v. Backhouse, 37 Pa. St. 350; Commonwealth v. Ir- win, 8 Phila. (Pa.) 380; Common- wealth V. Manson, 2 Ashm. (Pa.) 31; State v. Jackson, 7 Rich. (S. Car.) 283; United States v. Dunbar, 27 C. C. A. 488, 83 Fed. 151; United States V. Hirsch. 100 U. S. 33; United States v. Cassidy, 67 Fed. 698; 2 Wharton Cr. Law, §§ 755, 2339; 2 Russell Crimes 674. "1 Bishop Cr. Proc, §§ 225. 464; 2 Wharton Cr. Law, § 1388; People V. Richards, 67 Cal. 412, 7 Pac. 828. "Woodworth v. State. 20 Tex. App. 375 § 2936.] CONSPIRACY. 200 any one of the conspirators may be proceeded against alone, and may be tried and convicted ; the fact that other conspirators are named in the indictment does not render it bad.*" So one person may be indicted for a conspiracy with other persons to the grand jurors un- known.^'' For these reasons it has been held that a husband and wife, being regarded as one person by the common law, could not be indicted and prosecuted for a criminal conspiracy between them alone. And it seems tliat this rule has not been changed by statute.^^ § 2936. Proof of conspiracy. — No precise rule can be given either as to the nature or degree of proof sufficient to establish the fact of a conspiracy. The law recognizes the difficulty in making direct and positive proof of the unlawful agreement, and hence does not require the strictest possible proof of the fact of the conspiracy. It is usually established by proof of such facts and circumstances from which the unlawful combination may be inferred. Mr. Greenleaf states the rule as follows: "If it be proved that the defendants pur- sued by their acts the same object, often by the same means, one per- forming one part and another another part of the same so as to complete it, with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object."^^ The rule is stated by Mr. Wharton thus: "The actual fact of conspiring may be inferred, as has been said, from circumstances, and the concurring conduct of the defend- ants need not be directly proved. Any joint action on a material point, or a collection of independent but co-operative acts, by persons closely associated with each other, is held to be sufficient to enable *» People V. Richards, 67 Cal. 412, Archer v. State, 106 Ind. 426, 7 N. 7 Pac. 828; 2 Bishop Cr. Proc, § 225. E. 225; Tucker v. Hyatt, 151 Ind. =»2 Wharton Cr. L., § 1388. 332, 51 N. E. 469; State v. Walker, " People V. Miller, 82 Cal. 107, 22 98 Mo. 95, 9 S. W. 646, 11 S. W. 1133; Pac. 934; People v. Richards, 67 Cal. Hart v. Hicks, 129 Mo. 99, 31 S. W. 412, 7 Pac. 828; State v. Clark, 9 851; State v. Kennedy, 177 Mo. 98, Houst. (Del.) 536, 33 Atl. 310; State 75 S. W. 979; State v. Rogers, 54 V. Christianbury, 44 N. Car. 46 Kans. 683, 39 Pac. 219; United States "=3 Greenleaf Ev., § 93; People v. v. Cole, 5 McLean (U. S.) 513, 601; Bentley, 75 Cal. 407, 17 Pac. 436; Reg. v. Brittain, 3 Cox Cr. Cas. 76; State V. Thompson, 69 Conn. 720, 38 2 Bishop Cr. Proc, § 227; 2 Whar- Atl. 868; Ochs v. People, 124 111. ton Cr. Law. §§ 1398, 1401; Whar- 399, 16 N. E. 662; Redding v. God- ton Cr. Ev., § 698; 1 Taylor Ev. (Pt. win, 44 Minn. 355. 46 N. W. 563; 2), § 591; see § 2937. 201 PROOF OF CONSPIRACY. [§ 2937. the jury to infer concurrence of sentiment.''"'^ The rule has been very fairly stated by the Supreme Court of California as follows: "A conspiracy, like most other facts, may be proved by circumstantial evidence. Indeed, it is not often that the direct facts of a common design, which is the essence of a conspiracy, can be proven other- wise than by the establishment of independent facts, bearing more or less remotely upon the main central object, and tending to con- vince the mind reasonably and logically of the existence of the coa- spiracy."^* § 2937. Proof of conspiracy — Sufficiency. — To establish the of- fense there must be proof of an unlawful combination ; but this may be established by proof of concerted action which is in itself unlawful. It is not sufficient to establish the guilt of one of the conspirators to prove that he was merely present at the execution or consummation of the conspiracy ; but some word or act must be shown to have been said or done in furtherance of the conspiracy. It is sufficient, how- ever, to show that the accused either incited, procured or encouraged the act.^^ Nor is it necessary to show that the accused entered into the arrangement at the inception of the conspiracy; it is sufficient if the proof shows that he joined it at any time after its formation ; if he joins it at any time he thereby becomes a conspirator and adopts the acts of his associates.^*' '''2 Wharton Cr. Law (9tli ed.), Hauser v. Tate, 85 N. Car. 81; State § 1398. V. Anderson, 92 N. Car. 732; Com- " People V. Bentley, 75 Cal. 407, 17 monwealth v. Bartilson. 85 Pa. St. Pac. 436. 482; Raleigh &c. Bros. v. Cook, 60 '■'Martin v. State, 89 Ala. 115, 8 Tex. 438; Blain v. State, 33 Tex. Cr. So. 23; Gibson v. State, 89 Ala. 121, App. 236, 26 S. W. 63; Connaughty 8 So. 98; Crittenden v. State, 134 v. State, 1 Wis. 159; Holtz v. State, Ala. 145, 32 So. 273; Wright v. State, 76 Wis. 100, 44 N. W. 1107; 1 Whar- 42 Ark. 94; People v. Woodward, 45 ton Cr. Law, §§ 211b, 227; 2 Whar- Cal. 293; Evans v. People, 90 111. ton Cr. Law, § 1402. 384; Spies v. People, 122 111. 1, 12 '"United States v. Johnson, 26 N. E. 865, 17 N. E. 898; Clem v. Fed. 682; United States v. Cassidy, State, 33 Ind. 418; State v. King, 67 Fed. 698; United States v. Bab- 104 Iowa 727. 74 N. W. 691; Thomp- cock, 3 Dill. (U. S.) 586; Stewart v. son V. Commonwealth, 1 Mete. (Ky) State. 26 Ala. 44; State v. Clark. 9 13; Butler V. Commonwealth, 2 Duv. Iloust. (Del.) 536, 33 Atl. 310; Ochs (Ky.) 435; State v. Ripley, 31 Me. v. People, 124 111. 399, 16 N. E. 662; 386; State v. Cox, 65 Mo. 29; Kelley McKee v. State, 111 Ind. 378, 12 N. v. People, 55 N. Y. 565; Brannock E. 510; State v. Crab, 121 Mo. 554, V. Bouldin, 4 Ired. L. (N. Car.) 61; 26 S. W. 548; Den v. Johnson, 18 § -2938.] coxspiRACY. 202 § 2938. Proof of formal agreement not necessary. — The rule re- quiring proof to establish the existence of a conspiracy is a reason- able one for the guidance of practical men in the administration of justice. That the conspiracy must be established by proof is uni- formly conceded by the adjudicated cases. But the method of estab- lishing it is not the subject of a general rule. The law does not require the actual proof of a formal agreement nor does it require proof of the conspiracy by direct or positive evidence. The very nature of the crime is such as to render difficult and often unprac- tioable proof of a formal agreement or to establish the conspiracy by direct evidence. The law does not require the prosecution to prove that the alleged conspirators came together and actually agreed in terms to a common design and to pursue it by common means. The common intent or the joint assent of minds may be inferred from facts and circumstances, and the offense may be established by proof that the conspirators, by their acts, pursued the same object, using the same or different means, each performing some part and all working toward the accomplishment of the same object. Such proof is held sufficient to justify the inference that the parties so acting were engaged in the alleged conspiracy.^^ The conspiracy, or the agreement which constitutes the alleged conspiracy, is not required to be established by direct and positive evidence ; this fact, like others N. J. L. 87; Owens v. State, 16 Lea State, 106 Ind. 426, 7 N. E. 225; Mc- (Tenn.) 1; Smith v. State. (Tex.) Kee v. State, 111 Ind. 378, 12 N. K. 17 S. W. 560; Stevens v. State, 510; Tucker v. Hyatt, 151 Ind. 332, (Tex.) 59 S. W. 545; Hudson v. 51 N. E. 469; State v. King, 104 Iowa State, (Tex.) 66 S. W. 668; Sands 727, 74 N. W. 691; Commonwealth v. v. Commonwealth, 21 Gratt. (Va.) Eastman, 1 Cush. (Mass.) 189; Peo- 871; Holtz V. State, 76 Wis. 100, 44 pie v. Flack. 125 N. Y. 324, 26 N. E. N. W. 1107. 267; People v. Saunders, 25 Mich. '*■ Williams v. State, 81 Ala. 1, 1 119; Beebe v. Knapp, 28 Mich. 53; So. 179; Gibson v. State, 89 Ala. 121, People v. Butler, 111 Mich. 483, 69 8 So. 98; Tanner v. State, 92 Ala. 1, N. W. 734; United States v. Rinds- 9 So. 613; Pierson v. State, 99 Ala. kopf, 6 Biss. (U. S.) 259; United 148, 13 So. 550; Collins v. State, 138 States v. Nunnemacher, 7 Biss. (U. Ala. 57, 34 So. 993; State v. Thomp- S.) Ill; United States v. Doyle, 6 son, 69 Conn. 720, 38 Atl. 868; State Sawy. (U. S.) 612; United States v. v. Gannon, 75 Conn. 206, 52 Atl. Sacia, 2 Fed. 754; United States v. 727; Evans v. People, 90 111. 384; Prisbie, 28 Fed. 808; United States Spies V. People, 122 111. 1, 12 N. E. v. Cassidy, 67 Fed. 698; Drake v. 865, 17 N. E. 898; Ochs v. People, Stewart, 22 C. C. A. 104, 76 Fed. 124 111. 399, 16 N. E. 662; O'Donnell 140. See also, State v. Stockford, V. People, 41 111. App. 23; Archer v. (Conn.) 58 Atl. 769. 203 DECLARATIONS AND ADMISSIONS. [§ 2939. in criminal procedure, may be inferred. This rule has been stated thus: "The joint assent of the minds of the parties to a conspiracy may be found by the jury, like any other ultimate fact, as an infer- •ence from other facts.'"' ^ The prosecution is not required to prove that all the conspirators were present and participated either at the inception or at the consummation of the conspiracy.'^ Where the proof shows an unlawful combination, or a combination to do an un- lawful thing, and in the prosecution of the common design by one or more of the alleged conspirators a criminal result is accomplished, though different from the particular result intended, all are guilty.*'"' § 2939. Ikclajations of co-conspirator — Admissibility as evidence. It is perhaps the universal rule that any act done, or any declaration made, by any one of the conspirators in the furtherance or perpetra- tions of the alleged conspiracy may be given in evidence against him- Belf or his co-conspirators. This rule has been more aptly stated as follows : "The law undoubtedly is, that where two or more persons combine or associate together for the prosecution of some fraudulent or illegal purpose, any act or declaration made by one of them in furtherance of the common object, and forming a part of the res gestae, may be given in evidence against the other."^^ Of this rule ■^^ Drake v. Stewart, 22 C. C. A. 643; People v. Bentley, 75 Cal. 407. 104, 76 Fed. 140; Glaspie v. Keator, 17 Pac. 646; People v. Bentley, 77 5 C. C. A. 474, 56 Fed. 203; Archer Cal. 7, 18 Pac. 799; People v. Irwin, V. State, 106 Ind. 426, 7 N. E. 225; 77 Cal. 404, 20 Pac. 56; People v. Spies V. People, 122 111. 1, 12 N. E. Dixon, 94 Cal. 255, 29 Pac. 504; State 865, 17 N. E. 898. v. Thompson, 69 Conn. 720, 38 Atl. ="• Spies V. People, 122 111. 1, 12 868; Wilson v. People. 94 111. 299; N. E. 865. 17 N. E. 898; see § 2937, Wolfe v. Pugh, 101 Ind. 293; Card for additional authorities. v. State, 109 Ind. 415, 9 N. E. 591; «'• Spies V. People, 122 111. 1, 12 N. Moore v. Shields, 121 Ind. 267, 23 E. 865, 17 N. E. 898; Williams v. N. E. 89; State v. Westfall, 49 Iowa State, 81 Ala. 1, 1 So. 179; Gibson 328; Johnson v. Miller, 63 Iowa 529. v. State, 89 Ala. 121, 8 So. 98; Jolly 17 N. W. 34; State v. MeGee, 81 Iowa V. State, 94 Ala, 19, 10 So. 606; Ev- 17, 46 N. W. 764; State v. Johnson, ans V. State, 109 Ala. 11, 19 So. 535; 40 Kans. 266, 19 Pac. 749; People Bridges v. State, 110 Ala. 15, 20 So. v. Pitcher, 15 Mich. 397; People v. 348; People v. Holmes, 118 Cal. 444, Parker. 67 Mich. 222, 34 N. W. 720; 50 Pac. 675. State v. Faulkner, 175 Mo. 546, 591, " Phcenix Ins. Co. V. Moog, 78 Ala. 75 S. W. 116; State v. George, 7 284; Collins v. State, 138 Ala. 57, 34 Ired. L. (N. Car.) 321; Waterbury ■So. 993; Smith v. State, 133 Ala. 73, v. Sturtevant, 18 Wend. (N. Y.) 31 So. 942; People v. Geiger, 49 Cal. 353; Jones v. Hurlburt, 39 Barb. (N. § 2940.] CONSPIRACY. 204 the Supreme Court of Indiana said: "The principle on which the acts and declarations of other conspirators, and acts done at different times, are admitted in evidence against the persons prose- cuted is, that, by the act of conspiring together, the conspirators have jointly assumed to themselves, as a body, the attribute of individuality, so far as regards the prosecution of the common design, thus render- ing whatever is done or said by any one, in furtherance of that design, a part of the res gestae, and, therefore, the act of all."^^ Substantially the same rule applies in criminal as in civil cases as to the admissi- bility of the acts or declarations of one conspirator as original evi- dence against each member of the conspiracy.®^ § 2940. Declarations of co-conspirator — Preliminary proof. — Cer- tain preliminary proof is required before proof of the acts or declara- tions of an alleged co-conspirator can be given in evidence. Before these are admissible some proof from other sources must be given for the purpose of establishing or tending to establish the alleged conspiracy. The conspiracy itself cannot be established by proof of the mere acts and declarations of one of the conspirators. The rule on this subject has been stated thus : "To authorize such declarations to be received, however, so as to effect co-conspirators, it is clear that certain proof must first be made aliunde, in establishment of the conspiracy itself. Xothing is more certain than the proposition that the conspiracy cannot be proved merely by the declarations. The rule is precisely analogous to that governing the admissions and declarations of agents when offered in evidence against the prin- cipal."«* Y.) 403; Patton v. State, 6 Ohio St. kins v. State, 35 Fla. 737, 821, 18 467; Fouts v. State, 7 Ohio St. 471 Preston v. Bowers, 13 Ohio St. 1 Clawson v. State, 14 Ohio St. 234 Rufer V. State, 25 Ohio St. 464 Hunter's Case, 7 Gratt. (Va.) 641 So. 182; Owens v. State, 16 Lea (Tenn.) 1; Cortez v. State, 24 Tex. App. 511, 6 S. W. 546; Armstead v. State, 22 Tex. App. 51, 2 S. W. 627. « Card v. State, 109 Ind. 415, 9 N. Heine v. Commonwealth, 91 Pa. St. E. 591. 145; Owens v. State, 16 Lea (Tenn.) "Phoenix Ins. Co. v. Moog, 78 Ala. 1; Myers v. State, 6 Tex. App. 1; 284; People v. Geiger, 49 Cal. 643; 3 Greenleaf Ev.. § 94. Wolfe v. Pugh, 101 Ind. 293; Smith «^Ford V. State, 112 Ind. 373, 14 v. Freeman, 71 Ind. 85; Johnson v. N. E. 241; Moore v. Shields, 121 Miller, 63 Iowa 529, 17 N. E. 34; Ind. 267, 23 N. E. 89; State v. Burke v. Miller, 7 Cush. (Mass.) Thaden, 43 Minn. 253, 45 N. W. 447; 547; Exchange Bank v. Russell, 50 Clinton v. Estes, 20 Ark. 216; Jen- Mo. 531; State v. Walker, 98 Mo. 95, 205 DECLARATIONS OF CO-COXSPIKATOR. [§ 2941. § 2941. Declarations of co-conspirator — Prima facie case. — The rule requiring sojiie proof of a conspiracy in order to render the acts and declarations of a co-conspirator admissible is reasonable ; and while its purpose is to protect the accused against the admissibility of improper proofs, yet it is not intended to operate to the prejudice of the due administration of justice. The rule is not carried to the extent of holding that the conspiracy must be established beyond a reasonable doubt, or even to the satisfaction of the jury. The rule requires no more than proof sufficient to establish, in the opinion of the trial judge, a prima facie case on the proposition of the existence of the conspiracy. And when in the sound discretion of the trial judge he is satisfied that a sufficient prima facie case of the conspiracy has been made, he then admits the evidence of the acts and declara- tions of any one of the co-conspirators against the other. This rule has been thus stated: "If the evidence already offered aliunde in proof of the conspiracy, or tending to prove it, is sufficient, in the opinion of the presiding judge, to authorize the jury to find in favor of the ' fact of its existence, this makes out a prima facie case and lets in the declarations made by any co-conspirator during the pendency of the enterprise and in furtherance of its objects."*'^ This prima facie ease is not required to be established by positive or direct evidence, 9 S. W. 646; Hart v. Hopson, 52 Mo. 646; State v. Flanders, 118 Mo. 227, App. 177; Ormsby v. People, 53 N. 23 S. W. 1086; State v. Kennedy, 177 Y. 472; Helser v. McGrath, 58 Pa. Mo. 98, 75 S. W. 979; Ormsley v. St. 458. People, 53 N. Y. 472; Jones v. Hurl- «= Phcenix Ins. Co. V. Moog, 78 Ala. burt, 39 Barb. (N. Y.) 403; Car- 284; McAnally v. State, 74 Ala. 9; penter v. Shelden, 5 Sandf. (N. Y.) Williams v. State, 81 Ala. 1, 1 So. 77; State v. George, 7 I red. L. (N. 179; Hunter v. State, 112 Ala. 77. Car.) 321; Clawson v. State, 14 Ohio 21 So. 65; Smith v. State, 133 Ala. St. 234; Limerick v. State, 14 Ohio 73, 31 So. 942; Collins v. State, 138 C. C. 207; Coins v. State, 46 Ohio Ala. 57. 34 So. 993; People v. Kelly, St. 457, 21 N. E. 476; State v. Roach, 133 Cal. 1, 64 Pac. 1091; State v. 35 Ore. 224, 57 Pac. 1016; Pacific &c. Thompson, 69 Conn. 720, 38 Atl. 868; Co. v. Gentry, 38 Ore. 275, 61 Pac. Foster v. Thrasher, 45 Ga. 517; Card 422; State v. Moore, 32 Ore. 65, 48 v. State, 109 Ind. 415, 9 N. E. 591; Pac. 468; Roberts v. Briscoe, 1 Ohio Roberts v. Kendall, 3 Ind. App. 339, C. C. 577; Ditzler v. State, 4 Ohio C. 29 N. E. 487; State v. McGee, 81 C. 551; Owens v. State, 16 Lea Iowa 17, 46 N. W. 764; State v. Row, (Tenn.) 1; Myers v. State, 6 Tex. 81 Iowa 138. 46 N. W. 872; People v. App. 1; Baker v. State, 80 Wis. 416, Parker, 67 Mich. 222, 34 N. W. 720; 50 N. W. 518; 1 Greenleaf Ev., § 111; Browning v. State, 30 Miss. 656; 1 Wharton Cr. Ev., § 1205; State v. State v. Walker. 98 Mo. 95, 9 S. W. Stockford, (Conn.) 58 Atl. 769. §§ 2943, 2943.] conspiracy. 20G but may be made to appear by proof of circumstances from which it may be inferred. ^^ And the rule in some jurisdictions is that where there is any evidence at all supporting the decision of conspiracy the judgment will not be reversed.^'' § 2942. Prima facie case — Sufficiency. — Ko definite rule can be given as to what will constitute a sufficient prima facie case in order to render admissible the acts and declarations of a co-conspirator. While the admissibility of such evidence is for the trial court, its decision on this question is subject to review, and an appellate court will reverse the judgment where it appears that srch proof was ad- mitted when a prima facie case had not been established. The illus- trative cases to this point are safer to follow than any general rule that can be deduced and stated.^* § 2943. Declarations of co-conspirators — ^Limitations to rule. — The rule as to the admission of acts and declarations of a co-conspirator must not be misunderstood, and must not be extended beyond its legiti- mate limits. The authorities go to the proposition that the acts or statements competent to be proved must have been done or made in the prosecution of the criminal conspiracy, or in the furtherance «" Hunter v. State, 112 Ala. 77, 21 insufficient to establish prima facie So. 65. case: People v. Stevens, 68 Cal. 113, "Hunsinger v. Hofer, 110 Ind. 8 Pac. 712; People v. Kelly, 133 Ca!. 390, 11 N. E. 463; Doherty v. Holli- 1, 64 Pac. 1091; Foster v. Thrasher, day, 137 Ind. 282. 295, 32 N. E. 315. 45 Ga. 517; Belcher v. State, 125 »''(1) Proof held sufficient to Ind. 419, 25 N. E. 545; Henrich v. establish prima facie case: Hunter Saier, 124 Mich. 86, 82 N. W. 879; V. State, 112 Ala. 77, 21 So. 65; Mc- Hart v. Hicks, 129 Mo. 99, 31 S. W. Anally v. State, 74 Ala. 9; People 351; Hart v. Hopson, 52 Mo. App. V. Geiger, 49 Cal. 643; People v. 177; State v. Weaver, 165 Mo. 1, 65 Dixon, 94 Cal. 255, 29 Pac. 504; S. W. 308; Strange v. Common- State V. Thompson, 69 Conn. 720, 38 wealth, 23 Ky. L. R. 1234, 64 S. W. Atl. 868; Smith v. Freeman, 71 Ind. 980; People v. Bennett, 49 N. Y. 137; 85; Card v. State, 109 Ind. 415, 9 Ormsby v. People, 53 N. Y. 472; Car- N. E. 591; Tucker V. Hyatt, 151 Ind. penter v. Shelden, 5 Sandf. (N. Y.) 3S2, 51 N. E. 469; State v. Row, 81 77; State v. Roach, 35 Ore. 224, 57 Iowa 138, 46 N. W. 872; McMannus Pac. 1016; Girdner v. Walker, 1 V. Lee, 43 Mo. 206; State v. Walker, Heisk. (Tenn.) 186; Martin Brown ?8 Mo. 95, 9 S. W. 646, 11 S. W. 1133; Co. v. Perrill, 77 Tex. 199, 13 S. W. State V. Kennedy, 177 Mo. 98. 75 975; Young v. State, (Tex. Cr. App.) S. W. 979; People v. Parker, 67 69 S. W. 153; People v. Radt, 71 N. Mich. 222, 34 N. W. 720; Scott v. Y. S. 846; 1 Greenleaf Ev., § 111; State, 30 Ala. 403; (2) Proof held Wharton Cr. Ev., § 698. 2or DECLARATIONS AFTER CONSPIRACY. [§ 29-1-i.. of the object or common design of the conspiracy.*® So it has beert held that the admissibility of the acts and declarations of a conspir- ator are proper only when they are either in themselves acts or accom- pany and explain acts for which the others are responsible; but that they are not admissible when in the nature of narratives, descriptions or subsequent confessions^" § 2944. Declarations made after conspiracy terminated — Rule and exceptions. — There is another limitation on the rule admitting the declarations of a co-conspirator as evidence. This limitation is to the effect that declarations made by one of the conspirators after the conspiracy has been effected and the crime perpetrated, or the object of the conspiracy defeated, are not admissible in evidence against any except the person making them.''^ But the rule that dec- larations of a conspirator made after the conspiracy is terminated are not admissible is subject to some exceptions. These exceptions embrace the cases where the property obtained as a result of the con- ^ Hunter v. State, 112 Ala. 77, 21 So. 65; People v. Stanley, 47 Cal. 113; State v. Glldden, 55 Conn. 46, 8 Atl. 890; Spies v. People, 122 111. 1, 12 N. E. 865; Card v. State, 109 Ind. 415, 9 N. E. 591; State v. Mc- Gee, 81 Iowa 17, 46 N. W. 764; Peo- ple V. Kerr, 6 N. Y. Cr. 406, 6 N. Y. S. 674; State v. Row, 81 Iowa 138, 46 N. W. 872; Goins v. State, 46 Ohio 457, 21 N. E. 476; State v. Johnson, 40 Kans. 266; 19 Pac. 749; Wilson V. People, 94 111. 299; State v. Ar- nold, 48 Iowa 566; State v. Westfall, 49 Iowa 328; Patton v. State, 6 Ohio St. 467; Clawson v. State, 14 Ohio St. 234; Fonts v. State, 7 Ohio St. 471; Griffin v. State, 14 Ohio St. 55; Rufer V. State, 25 Ohio St. 464; Sharpe v. State, 29 Ohio St. 263; Searles v. State. 6 Ohio C. C. 331. "State v. Ross, 29 Mo. 32; State V. Cooper, 85 Mo. 256; State v. Mel- rose, 98 Mo. 594, 2 S. W. 250; Spies v. People, 122 111. 1, 12 N. E. 865; Powers v. Commonwealth, 22 Ky. L. R. 1807, 61 S. W. 735; State v. Lark- in, 49 N. H. 39; Clawson v. State, 14 Ohio St. 239; Rufer v. State, 25 Ohio St. 464; State v. Newport, 4 Har. (Del.) 567; State v. Thibeau, 30 Vt. 100; Dilcher v. State, 42 Ohio St. 173. "People v. Irwin, 77 Cal. 494, 20 Pac. 56; People v. Stanley. 47 Cal. 113, 118; People v. Aleck, 61 Cal. 138; Spies v. People, 122 111. 1, 12 N. E. 865; Samples v. People, 121 111. 547; Moore v. Shields, 121 Ind. 267, 23 N. E. 89; State v. Ross, 29 Mo. 32; State v. Melrose, 98 Mo. 594, 12 S. W. 250; State v. Johnson. 40 Kans. 266, 19 Pac. 749; Blue v. Peter, 40 Kans. 701, 20 Pac. 442; State V. Rogers, 54 Kans. 683, 39 Pac. 219; State v. Buchanan, 35 La. Ann. 89; Patton v. State, 6 Ohio St. 467; State v. Tice, 30 Ore. 457, 48 Pac. 367; State v. Magone, 32 Ore. 206, 51 Pac. 452; State v. Hinkle, 33 Ore. 33, 54 Pac. 155; Pacific &c. Co. V. Gentry, 38 Ore. 275, 61 Pac. 422; Helser v. McGrath, 58 Pa. St. 458;. 3 Greenleaf Ev., §§ 111, 233. § 2945.] CONSPIRACY. 208 spiracy remained to be disposed of to the common interest of all, or where such declarations were made with reference to a subsisting interest in the property acquired pursuant to the conspiracy." § 2945. Proof when co-conspirators are not named. — The ques- tion has arisen as to the admissibility of the acts and declarations of one of the conspirators where the indictment failed to allege a conspiracy, or failed to set out the names of the co-conspirators. On this question the authorities are not uniform. The weight of author- ity is in favor of their admissibility, but the better reasoning is cer- tainly with the cases holding against it. The rule in favor of the admissibility is thus stated by Mr. Wharton : "It makes no difference as to the admissibility of the act or declarations of a conspirator against a defendant, whether the former be indicted or not, or tried or not, with the latter ; for the making one a co-defendant does not make his acts or declarations any more evidence against another than they were before; the principle upon which they are admissible at all being that the act or declaration of one is the act or declaration of all united in one common design, a principle which is wholly unaffected by the consideration of their being jointly indicted."'^^ The Supreme Court of Missouri, in a recent case, after referring to the authorities on both propositions, concluded as follows: "While we are constrained to hold in accordance with the rule announced by Mr. Wharton, we do so very reluctantly, for certainly the better prac- tice is, to make all of the conspirators parties defendant to the indict- ment, or to aver therein the existence of such conspiracy, the parties thereto if known, and their purpose, for then the defendant upon trial will have reason to anticipate what evidence will, or may be, offered against him, and to prepare to meet the same ; otherwise he will not."^* On the contrary doctrine the Supreme Court of Louisiana say: "It is too elementary to require reasoning, that if the indictment did not charge a conspiracy, the conversations were not admissible."^^ "Scott v. State, 30 Ala. 503; Clin- Pac. 422; Baker v. State, 80 Wis. ton V. Estes, 20 Ark. 216; Card v. 416, 50 Pac. 518. State, 109 Ind. 415, 9 N. E. 591; "Wharton Cr. Ev., § 700; Bishop Commonwealth v. Smith, 151 Mass. New Cr. Proc, §§ 1248, 1249; 3 491, 24 N. E. 677; State v. Thaden, Greenleaf Ev., § 92. 43 Minn. 253, 45 N. W. 447; Pacific '* State v. Kennedy, 177 Mo. 98, 75 &c. Co. v. Gentry, 38 Ore. 275, 61 S. W. 979. " State V. Carroll, 31 La. Ann. 860. 209 OVERT ACT. [§§ 2946, 2947. § 2946. Overt acts — Proof of not required. — As the criminal con- spiracy consists in the corrupt agreement or combination to commit an illegal act, or to commit some act detrimental to others by unlawful means, it is therefore evident that the crime is complete when the unlawful purpose or agreement is consummated. It is the generally recognized rule that proof of any overt acts in furtherance of the com- mon design, is unnecessary; in seeking to establish the offense it is sufficient to prove the corrupt or the unlawful arrangement and combination without making or offering any proof whatever as to its completion or consummation. The rule is well stated as follows: "A conspiracy is in and of itself a distinct, substantive offense ; com- plete when the corrupt agreement is entered into; the agreement is the gist of the offense. It is not necessary that any act should be done in pursuance of the agreement ; nor is the offense purged because subsequent events may render the consummation of the agreement im- possible, or because the conspirators are entrapped in an attempt at its consummation."'^^ It is said "the essence of the offense is the criminal combination, and no overt act is necessary to constitute it."'^ This rule seems to be based on the theory that the conspirators pre- sume that their scheme will not be discovered or frustrated, and that it will proceed until the object is attained. When their purpose is thwarted they cannot escape on the ground of innocence because the scheme miscarried.''^ The rule that proof of overt acts is not required to establish the conspiracy is not intended to exclude such proof. It is competent and proper to prove such overt acts because of their bearing upon the evidence of the conspiracy itself, and for the further reason that such evidence is proper in considering the punishment to be in- flicted.'^" § 2947. Overt acts — ^When proof necessary. — There are cases holding that imder certain circumstances proof of overt acts is neces- sary in order to establish the crime of conspiracy. These cases are •» Thompson v. State, 106 Ala. 67, son v. State. 3 Tex. App. 590; Mar- 17 So. 512; Commonwealth v. Ward, tens v. Reilly, 109 Wis. 464, 84 N. 92 Ky. 158, 17 S. W. 283; Common- W. 840; United States v. Watson, 17 wealth V. Judd, 2 Mass. 329; People Fed. 145. v. Saunders, 25 Mich. 119; St. Louis "'State v. Wilson, 30 Conn. 500. V. Fitz, 53 Mo. 582; State v. Straw, "Musgrave v. State, 133 Ind. 297, 42 N. H. 393; People v. Mather, 4 32 N. E. 885. Wend. (N. Y.) 229; Commonwealth '^People v. Arnold, 46 Mich. 268, V. Bliss, 12 Phila. (Pa.) 580; John- 9 N. W. 406. Vol. 4 Elliott Ev. — 14 § 2948.] CONSPIRACY. 210 for the most part under particular statutes either giving a special definition for conspiracy and prescribing the proof to establish it, or where the conspiracy was to commit a misdemeanor.*" Where a statute changed the common law rule and required some proof of overt acts it was held that proof must show both the conspiracy and some overt act.*^ But it has been expressly held that such overt act. required to be proved need not be in itself criminal, or amount to a crime.*2 It is sufficient, however, if the overt act proved was done by any one of the alleged conspirators.* ^ Under this rule it has been held that a party who did not join in the original conspiracy cannot be con- victed.** § 2948. Overt acts and conspiracy merged. — There is a class of cases holding that where the proof shows that the conspiracy had been carried into execution, and the crime itself actually committed, the conspiracy is merged in the crime and there can be no conviction for the conspiracy as a separate ofEense. The authorities are not har- monious on this doctrine, but in a general way arrange themselves into three separate classes: (1) one class establishes the principle that, when the proof shows a conspiracy to commit a higher offense and the offense is actually commited, the conspiracy is merged;*^ (2) a second class holds that when the proof shows that the conspiracy and the crime are of the same grade there is no merger;*^ (3) and a third '"People V. Daniels, 105 Cal. 262, 218, 238; Commonwealtli v. Kings- 38 Pac. 720; People v. Flack, 125 N. bury, 5 Mass. 106; Commonwealtli Y. 324, 26 N. E. 267. v. O'Brien, 12 Cush. (Mass.) 84; =' People V. Sheldon, 139 N. Y. 251, People v. Richards, 1 Mich. 217; 34 N. B. 785; United States v. People v. Aronld, 46 Mich. 268, 9 N. Hirsch, 100 U. S. 33; United States W. 406; People v. Mather, 4 Wend. V. Smith, 2 Bond (U. S.) 323; United (N. Y.) 229, 265; State v. Noyes, 2S States V. Barrett, 65 Fed. 62; United Vt. 415; Lambert v. People, 9 Cow. States V. Cassidy, 67 Fed. 698. (N. Y.) 578; Elkin v. People, 28 N. '^United States v. Thompson, 12 Y. 177; People v. McKane, 7 Misc. Sawy. (U. S.) 151. (N. Y.) 478, 28 N. Y. S. 397; People- "United States v. Barrett, 65 Fed. v. Willis, 24 Misc. (N. Y.) 537, 54 62. N. Y. S. 129. "United States v. Hirsch, 100 U. **" State v Mayberry. 48 Me. 218; S_ 33. People v. Arnold, 46 Mich. 268, 9 N. «'Elsey V. State, 47 Ark. 572; Com- W. 406; People v. Mather, 4 Wend., mon wealth v. Blackburn, 1 Duv. (N. Y.) 229; Orr v. People, 63 IlL (Ky.) 4; State v. Mayberry, 48 Me. App. 305. 211 LABOR COMBINATIONS. [§§' 2949, 2950. class holds that if the proof shows the conspiracy itself is of a highci: grade than the crime actually committed then there is no merger.®^ § 2949. Labor combinations — When criminal. — In recent years much discussion and litigation have arisen on the proposition of the criminality of lahor combinations. It is generally conceded by law writers and courts that it is both lawful and commendable for men to associate themselves together for the purpose of bettering their condition as laborers or in a financial or social way. It has been stated that it is the genius of our free institutions that invites the citizens of the country to higher levels and better fortunes. The right is conceded to organize labor, to dictate in a way the wages for its members, and that its members may select their own associates, choose their own employers, and do whatever may be lawful or proper to advance their interests and accomplish their purposes. But on the other hand, the law, as stated by writers and recognized by courts is "that all conspiracies whatever wrongfully to prejudice a third person are wholly criminal at common law."^^ The rule is thus stated by another eminent writer on criminal law: "A combination is a conspiracy in law whenever the act to be done has a necessary tendency to prejudice the public, or oppresses individuals, by unjustly subjecting them to the power of the confederates and giving effect t^ the purposes of the latter, whether of extortion or mischief."^'' § 2950. Labor combinations — Vermont rule, — The Supreme Court of Vermont, after a review of the English and American cases, prac- tically forecloses the entire question in the following language : "The principle upon which the cases, English and American, proceed is, that every man has the right to employ his talents, industry and capital as he pleases, free from the dictation of others ; and if two or more persons combine to coerce his choice in his behalf, it is a criminal conspiracy. The labor and skill of the workman, be it of high or low degree, the plant of the manufacturer, the equipment of the farmer, the investments of commerce, are all in equal sense prop- erty. If men by overt acts of violence destroy either, they are guilty " Commonwealth v. Blackburn, 62 ^^ 2 Russell Crimes 674. Ky. 4; State v. Murray, 15 Me. 100; ''2 Wharton Cr. Law, § 2322; 2 People v. Richards, 1 Mich. 217; Bishop Cr. Law, § 172; Desty Cr. People V. Petheram, 64 Mich. 252, Law, § 11; 3 Chitty Cr. Law 1138; 31 N. W. 188; State v. Noyes, 25 Vt. Archibald Cr. Pr. & PI. 1830. 415. § 2951.] CONSPIRACY. 212 of crime. The anathemas of a secret organization of men combined for the purpose of controlling the industry of others by a species of in- timidation that works upon the mind rather than the body, are quite as dangerous, and generally altogether more effective, than acts of actual violence. And while such conspiracies may give to the individual directly affected by them a private right of action for damages, they at the same time lay a basis for an indictment on the grounds that the state itself is directly concerned in the promotion of all legitimate industries and the development of all its resources, and owes the duty of protection to its citizens engaged in the exercise of their callings. The good order, peace and general prosperity of the state are directly involved in the question. . . . The exposure of a legitimate business to the control of an association that can order away its employes and frighten away others that it may seek to employ, and thus be compelled to cease the further prosecution of its work, is a condition of things utterly at war with every principle of justice, and with every safeguard of protection that citizens under our system of government are entitled to enjoy. The direct tendency of such intimidations is to establish over labor and over all industries, a control that is unknown to the law, and that is exerted by a secret association of conspirators, that is actuated solely by personal consid- eration, and whose plans, carried into execution, usually result in violence and the destruction of property."^" Substantially the same rule, stated by an English court, and adopted by the courts of many jurisdictions, is as follows: "The whole law of conspiracy, as it has been administered at least for the last hundred years, has been thus called in question ; for we have sufficient proof that during that period any combination to prejudice another unlawfully has been considered as constituting the offense so called. The offense has been held to con- sist in the conspiracy, and not in the acts committed for carrying it into effect; and the charge has been lield to be sufficiently made in general terms describing an unlawful conspiracy to effect a bad pur- pose."®^ § 2951. Labor combinations — Strikes, boycott and picketing. The law recognizes that labor organizations become unlawful wlien their members unite or combine to accomplish an unlawful purpose, or when they by combination attempt to accomplish a lawful purpose ~ State V. Stewart, 59 Vt. 273, 9 «^ State v. Stewart, 59 Vt. 273, 9 Atl. 559. Atl. 559. 213 LABOR COMBIXATIOXS [§ 2951: by unlawful means. When the proof shows that the object or pur- pose is to be accomplished in either of these ways according to the rules of law the combination becomes a criminal conspiracy. The adjudicated cases show that relief may be had by a civil action for damages, by injunction, or by criminal prosecution. It is not within the scope of this chapter to give the rules governing the introduction of evidence, or the sutTiciency of the proof in establishing either the civil liability or the criminal offenses growing out of strikes, boycotts and picketings. It will be considered sufficient to refer to the cases generally involving civil actions for damages, injunctive relief and criminal prosecutions. °- »= Santa Clara &c. Co. v. Hayes, 76 Cal. 387, 18 Pac. 391; Vulcan &c. Co. V. Hercules &c. Co., 96 Cal. 510, 31 Pac. 581; State v. Glidden, 55 Conn. 46, 8 Atl. 890; Smith v. Peo- ple, 25 111. 17; People v. Chicago Gas &c. Co., 130 111. 268, 22 N. E. 798; More v. Bennett, 140 111. 69, 29 N. B. 888; Distilling &c. Co. v. Peo- ple, 156 111. 448, 41 N. E. 188; Dore- mus V. Hennessy, 176 111. 608, 52 N. E. 924, 54 N. E. 524; London Guar- antee &c. Co. V. Horn, 206 111. 493, 69 N. E. 526; Bruschke v. Furniture Makers' Union, 18 Chicago Leg. News 306; Jackson v. Stanfleld, 137 Ind. 592, 36 N. E. 345, 37 N. E. 14; Clemmitt v. Watson, 14 Ind. App. 38, 42 N. E. 367; Schulten v. Bavarian Brew. Co., 96 Ky. 224, 28 S. W. 504; Brewster v. Miller, 101 Ky. 368, 41 S. W. 301; Heywood v. Tillson, 75 Me. 225; Perkins v. Pendleton, 90 Me. 166; Kimball v. Harman, 34 Md. 407; Lucke v. Clothing Cutters" &c., 77 Md. 396, 26 Atl. 505; Common- wealth v. Hunt, 4 Mete. (Mass.) Ill; Bowen v. Matheson, 14 Allen (Mass.) 499; Carew v. Rutherford. 106 Mass. 1; Walker v. Cronin, 107 Mass. 555; Snow v. Wheeler, 113 INIass. 179; Sherry v. Perkins, 147 Mass. 212, 17 N. E. 307; Vegelahn V. Guntner, 167 Mass. 92, 44 N. E. 1077; Hartnett v. Plumbers' Supply Asso., 169 Mass. 229, 47 N. E. 1002; Plant V. Woods, 176 Mass. 492, 57 N. E. 1011; People v. Petheram, 64 Mich. 252, 31 N. W. 188; Richardson V. Buhl, 77 Mich. 632, 43 N. W. 1102; Lovejoy v. Michels, 88 Mich. 15, 49 N. W. 901; Beck v. Teamsters' &c. Union, 118 Mich. 497, 77 N. W. 13; United States &c. Co. v. Iron Mold- ers' Union, 129 Mich. 354, 88 N. W. 889; Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N. W. 1119; Ertz v. Produce Exchange, 79 Minn. 140, 81 N. W. 737; Ertz v. Produce Ex- change. 82 Minn. 173, 84 N. W. 743; American &c. Ins. Co. v. State, 75 Miss. 24, 22 So. 99; Hamilton-Brown &c. Co. V. Saxey, 131 Mo. 212, 32 S. W. 1106; Walsh v. Association Mas- ter Plumbers, 97 Mo. App. 280, 71 S. W. 455; Mapstrick v. Ramge, 9 Neb. 390, 2 N. W. 739; McCartney V. Berlin, 31 Neb. 411, 47 N. W. 1111; State V. Burnham, 15 N. H. 396; State V. Norton, 23 N. J. L. 44; State V. Donaldson, 32 N. J. L. 151; Van Horn V. Van Horn, 52 N. J. L. 284. 20 Atl. 485; Mayer v. Journeymen &c. Asso., 47 N. J. Eq. 519, 20 Atl. 492; Barr v. Essex &c. Council, 53 N. J. Eq. 101, 30 Atl. 881; Cumber- land &c. Co. V. Glass Bottle &c. Asso., 59 N. J. Eq. 49, 46 Atl. 208; Frank 2951.] CONSPIRACY. 214 V. Herold, 63 N. J. Eq. 443, 52 Atl. 152; Delaware &c. R. Co. v. Bowns, 58 N. Y. 573; Buffalo &c. Oil Co. v. Standard Oil Co., 106 N. Y. 669, 12 N. E. 826; Leonard v. Poole, 114 N. Y. 371, 21 N. E. 707; People v. Bar- ondess, 133 N. Y. 649, 31 N. E. 240; People V. Sheldon, 139 N. Y. 251, 34 N. E. 785; Reynolds v. Everett, 144 N. Y. 189, 39 N. E. 72; People v. Milk Exchange, 145 N. Y. 267, 39 N. E. 1062; Curran v. Galen, 152 N. Y. 33, 46 N. E. 297; Davis v. Zimmer- man, 91 Hun (N. Y.) 489, 36 N. Y. S. 303; Master &c. Asso. v. Walsh, 2 Daly (N. Y.) 1; Gilbert v. Mickle, 4 Sandf. Ch. (N. Y.) 357; People v. Fisher, 14 Wend. (N. Y.) 9; Jones V. Westervelt, 7 Cow. (N. Y.) 445; Johnston Co. v. Meinhardt, 60 How. Pr. (N. Y.) 168; Coons v. Chrystie, 24 Misc. (N. Y.) 296, 53 N. Y. S. 668; Reformes Club &c. v. Laborers' &c. Soc, 29 Misc. (N. Y.) 247, 60 N. Y. S. 388; Rogers v. Eberts, 17 N. Y. S. 264; People v. Smith, 10 N. Y. St. 730; People v. Walsh, 15 N. Y. St. 17; People v. Wilzig, 4 N. Y. Cr. 403; People v. Kostka, 4 N. Y. Cr. 429; Emery v. Ohio Candle Co., 47 Ohio St. 320, 24 N. E. 660; Moores V. Bricklayers' Union, 23 Cin. L. Bui. 48, 10 Ohio Dec. (Reprint) 665; Dayton Mfg. Co. v. Metal Pol- ishers' &c. Union, 8 Ohio N. P. 574; Richter v. Journeymen Tailors' Union, 24 Cin. L. Bui. 189; Perkins V. Rogg, 28 Cin. L. Bui. 32, 11 Ohio Dec. (Reprint) 585; New York &c. R. Co. v. Wenger, 17 Cin. L. Bui. 306; Longshore &c. Co. v. Howell, 26 Ore. 527, 38 Pac. 547; Morris Run Coal Co. V. Barclay Coal Co., 68 Pa. St. 173; Newman v. Commonwealth, 5 Cent. Rep. 497; Brace v. Evans, 3 Ry. & Corp. L. J. 561; Cook v. Do- lan, 19 Pa. Co. Ct. 401; Wildee v. McKee, 111 Pa. St. 335, 2 Atl. 108; Murdock v. Walker, 152 Pa. St. 595, 25 Atl. 492; Cote v. Murphy, 159 Pa. St. 420, 28 Atl. 190; Buchanan v. Kerr, 159 Pa. St. 433, 28 Atl. 195; Wick China Co. v. Brown, 164 Pa. St. 449, 30 Atl. 261; Macauley v. Tier- ney, 19 R. I. 255, 33 Atl. 1; Manufac- turers' &c. Co. v. Longley, 20 R. I. 86, 37 Atl. 535; Payne v. Western &c. R. Co., 13 Lea (Tenn.) 507; Delz v. Winfree, 80 Tex. 400, 16 S. W. Ill; Texas &c. Co. v. Adoue, 83 Tex. 650, 19 S. W. 274; People v. O'Loughlin, 3 Utah 133, 1 Pac. 653; State v. Stewart, 59 Vt. 273, 9 Atl. 559; State V. Dyer, 67 Vt. 690, 32 Atl. 814; Boutwell V. Marr, 71 Vt. 1, 42 Atl. 607, 43 L. R. A. 803; Crump v. Com- monwealth, 84 Va. 927, 6 S. E. 620; Murray v. McGarigle, 69 Wis. 483, 34 N. W. 522; Martens v. Reilly, 109 Wis. 464, 84 N. W. 840; State v. Huegin, 110 Wis. 189, 85 N. W. 1046; Callan v. Wilson, 127 U. S. 540. 8 Sup. Ct. 1301; Debs, In re, 158 U. S. 564, 15 Sup. Ct. 900; United States V. Trans-Missouri &c. Asso., 166 U. S. 290, 17 Sup. Ct. 540; United States V. Kane, 23 Fed. 748; Wabash R. Co., In re, 24 Fed. 217; Old Domin- ion &c. Co. V. McKenna, 24 Blatch. (U. S.) 244, 30 Fed. 48; Emac y. Kane, 34 Fed. 47; Casey v. Typo- graphical Union, 45 Fed. 135; Coeur d'Alene &c. Co. v. Miners' Union, 51 Fed. 260; Toledo &c. R. Co. v. Penn- sylvania Co., 54 Fed. 730; United States v. Workingmen's &c. Council, 54 Fed. 994; Waterhouse v. Comer, 55 Fed. 149; United States v. Pat- terson, 55 Fed. 605; Farmers' Loan &c. Co. V. Northern Pac. R. Co., 60 Fed. 803; Lake Erie &c. R. Co. v. Bailey, 61 Fed. 494; Southern &e. R. Co. V. Rutherford, 62 Fed. 796; Thomas v. Cincinnati &c. R. Co., 62 Fed. 803; Arthur v. Oakes, 11 C. C. A. 209, 63 Fed. 310, 25 L. R. A. 414; United States v. Elliott, 64 Fed. 27; Dueber &c. Co. v. Howard &c. Co., Hlo LABOR COMBIXATIOXS. [§ 2951. 66 Fed. 637; Continental Ins. Co. v. Board &c.. 67 Fed. 310; Oxley Stave Co. V. Coopers' &c. Union, 72 Fed. 695; Consolidated Steel &c. Co. v. Murray, 80 Fed. 811; Hopkins v. Oxley Stave Co., 83 Fed. 912; United States V. Weber, 114 Fed. 950; Reg. V. Rowlands, 17 Ad. & E. 67; Reg. v. Harris, 1 Car. & M. 661; Reg. v. Selsby, 5 Cox Cr. Cas. 495, note; Wood V. Barrow, 10 Cox Cr. Cas. 344; Reg. v. Druitt, 10 Cox Cr. Cas. 592; Reg. v. Shepherd. 11 Cox Cr. Cas. 325; Reg. v. Bunn, 12 Cox Cr. Cas. 316; Reg. v. Hibbert, 13 Cox Cr. Cas. 82; Reg. v. Bauld, 13 Cox Cr. Cas. 282; Rex v. Mawbey, 6 Term R. 619; Hilton v. Eckersley, 6 E. & B. 47; Walsby v. Anley, 3 E. & E. 516; Rex v. Eccles. 3 Doug. 337; Greggory v. Duke of Bruns- wick, 6 M. & G. 205; Tarlton v. Mc- Gawley. Peak N. P. 205 ; Rex v. Fer- guson, 2 Stark. 431; Reg. v. Aspi- nall. L. R. 2 Q. B. 48; Mogul &c. Co. V. McGregor, L. R. 21 Q. B. 544; Allen V. Flood, L. R. 23 App. Cas. 1; Springhead &c. Co. v. Riley, L. R. 6 Eq. Cas. 551. CHAPTER CXL. COUXTERFEITING. Sec. 2952. Generally. 2953. What must be proved — Bur- den — Presumptions. 2954. Knowledge — Intent — Similar offenses. 2955. Possession by accused. 2956. Existence of bank. Sec. 2957. Admissions. 2958. Accomplices. 2959. Expert evidence. 2960. Production of counterfeit at trial. 2961. Defenses. § 2952. Generally. — Counterfeiting coin is the making of false or spurious coin to imitate, or in the similitude of, the genuine coin.^ Counterfeiting the coin of the realm was a crime at common law, and so, it seems, was the passing of such counterfeit coin or the having it in possession with intent to pass it as the true coin. The possession of instruments for counterfeiting coin was also a crime. Passing a false note purporting to be that of a bank having no existence, or the like, was also punishable as a form of cheating. Under the laws of the United States and of the various states, the offense of counter- feiting has been much extended, and it includes the counterfeiting of other money as well as coin, and of various other securities, evi- dence of indebtedness and the like. The crime of counterfeiting is distinguished from forgery in that in the former there must be a similitude or resemblance to the coin or instrument counterfeited, while in the latter no such resemblance is required.- The similitude, it is said, must be such as would deceive a person exercising ordinary caution,^ but whether it is such in the particular case is generally a 1 Bishop New Cr. Law, § 289; see also, United States v. Abram, 18 Fed. 823. "Counterfeiting is a species of forgery. The term is usually applied to the making and uttering false money or forging bank notes which are the equivalent of money." People v. Molineux, 62 L. R. A, 257. note. ^ May Cr. Law, § 94; see also, Hale V. State, 120 Ga. 183, 47 S. E. 531. ^ United States v. Hopkins, 26 Fed. 443; United States v. Morrow, i Wash. (U. S.) 733; United States v. Kuhl, 85 Fed. 624: State v. Carr, 5 N. H. 367; Dement v. State, 2 Head (Tenn.) 505, 75 Am. Dec. 747; Reg. V. Byrne, 6 Cox Cr. Cas. 475; Rex V. Walsh, 1 East P. C. 87. 216 217 WHAT MUST BE PROVED. [§ 2953. question for the jury.* An essential element of the offense is the fraudulent intent, or intent to deceive.^ Counterfeiting may he a crime under the state statute as well as under the act of Congress, and the fact tliat it is a crime under the laws of the United States does not deprive the state courts of jurisdiction in so far as the act is a crime under the state law.® § 2953. What must be proved — Burden — Presumption. — It is evi- dent that what must be proved depends largely upon the particular offense charged and the particular statute upon which the prosecution is based. All the c&sential elements of the offense charged, or, in other words, all the facts necessary to constitute that offense must be proved.'^ Thus it has been held necessary in particular cases to prove guilty knowledge,^ circulation of the money counterfeited,^ and the existence of a genuine bank-bill such as is charged to have been counterfeited.^** So, it has been held that intent to defraud a particu- lar person must be proved when alleged.^^ And, as already stated, the similitude or resemblance to the genuine must generally be made to appear. But it has been held that it is not necessary to prove that the notes described in the indictment and those given in evidence are the same,^^ or that such genuine coin of the same country exists as the counterfeit purports to be in imitation of, as the courts will take * United States V. Hopkins, 26 Fed. 'Brown v. People, 9 111. 439; 443; United States v. Stevens, 52 United States v. Fitzgerald, 91 Fed. Fed. 120. 374. " United States v. King. 5 McLean * Wash v. Commonwealth, 16 (U. S.) 208, 26 Fed. Cas. No. 15535; Gratt. (Va.) 530; State v. Morton, Mattison v. State, 3 Mo. 421; People 8 Wis. 352; United States v. Rou- v. Molins, 7 N. Y. Cr. 51, 10 N. Y. denbiish, Baldw. (U. S.) 514. S. 130; People V. Page, 1 Idaho 189. 'State v. Shelton, 7 Humph. 191; People v. White, 34 Cal. 183; (Tenn.) 31. Gabe v. State, 6 Ark. 540; but see, "State v. Brown, 4 R. I. 528, 70 United States v. Russell, 22 Fed. Am. Dec. 168. 390. ''Wilkinson v. State, 10 Ind. 546; « People V. McDonnell, 80 Cal. 285, but see, Sasser v. State, 13 Ohio 22 Pac. 190, 13 Am. St. 159; Com- 453; United States v. Moses, 4 Wash, monwealth v. Fuller, 8 Mete. (U. S.) 725, 27 Fed. Cas. No. 15,- (Mass.) 313; Dashing v. State, 78 825; United States v. Kuhl, 85 Fed. Ind. 357; United States v. Cruik- 624. shank, 92 U. S. 542; Prigg v. Penn- '== United States v. Moses, 4 Wash, sylvania, 16 Pet. (U.S.) 625; United (U. S.) 726, 27 Fed. Cas. No. 15,- States V. Ar.lona, 120 U. S. 479, 7 825. Sup. Ct. 628. § 2954.] couxtekfp:itixg. 218 judicial notice of the coins of their own country ;^^ and the ingre- dients of counterfeiting coin need not be proved, even though alleged.^* It has been said that in prosecutions for counterfeiting there can be no presumption of guilty knowledge as a matter of law, but from the existence of facts there may be presumptions of fact.^^ Thus, the making of the conterfeit being proved, the intent to use it for an un- lawful purpose may and generally will be inferred or be presumed ;^^ ^nd the act of knowingly passing a counterfeit being proved, the con- clusion of intent to defraud necessarily follows,^^ or will, ordinarily at least, be presumed.^* So, in a prosecution for counterfeiting bank- notes or coins, evidence that the notes mentioned in the indictment, and others of like kind, together with plates and implements for mak- ing them, were found in the possession of defendant, has been held to constitute prima facie evidence that the defendant was the counter- feiter. ^^ § 2954. Knowledge — Intent — Similar offenses. — As already stated, there must be a criminal intent, and knowledge must also be shown, especially where the indictment is for uttering, passing, or having in possession a counterfeit with intent to pass it. But these elements may be infered from circumstances in evidence, and direct evidence is not essential.^" Evidence that the defendant was in com- pany with another person a number of times when the latter passed counterfeit bills,- ^ and evidence that the accused and some third "United States v. Burns, 5 Mc- v. King, 5 McLean (U. S.) 208, 26 Lean (U. S.) 23, 24 Fed. Cas. No. 14,- Fed. Cas. No. 15535. 691; United States v. King, 5 Mc- ""State v. Smith, 5 Day (Conn.) Lean (U. S.) 208, 26 Fed. Cas. No. 176, 5 Am. Dec. 132; State v. Brown, 15535; see also, United States v. 4 R. L 528, 70 Am. Dec. 168; Rex Williams, 4 Biss. (U. S.) 302. v. Fuller, Russ. & Ry. C. C. 308; "State V. Beeler, 1 Brev. (S. Car.) People v. Page, 1 Idaho 189; Mc- 482; State v. Griffin, 18 Vt. 198. Gregor v. State, 16 Ind. 9; State v. '^ Wash v. Commonwealth, 16 McPherson, 9 Iowa 53. Evidence Gratt. (Va.) 530. that the defendant has been em- ^^ State V. McPherson, 9 Iowa 53. ployed in printing genuine bank •^^ People V. Page, 1 Idaho 189, 190. bills of the kind in question has " United States v. Shellmire, been held admissible. Common- Baldw. (U. S.) 370, 27 Fed. Cas. wealth v. Hall, 4 Allen (Mass.) 305. No. 16271. "State v. Spalding, 19 Conn. 233; " Spencer v. Commonwealth, 2 see also, Finn v. Commonwealth, 5 Leigh (Va.) 751; United States v. Rand. (Va.) 701; United States v. Burns, 5 McLean (U. S.) 23, 24 Taranto, 74 Fed. 219. Fed. Cas. No. 14691; United States 219 POSSESSION BY ACCUSED. [§ 2955. person had conspired to pass counterfeit money, or that a counterfeit had been passed by some person resembling the defendant," or that the defendant had about the same time knowingly uttered other counterfeits," even though he may have been indicted or even tried another time for passing such other counterfeit,-* is admissible to show knowledge or criminal intent. And the defendant's declarations w^hen passing other counterfeit money may be proved against him for the same purpose." So, possession of other similar counterfeit money has been held admissible to show knowledge,^^ and it has likewise been held that the possession of instruments for making the counterfeit may be shown for the same purpose, under a charge of counterfeit- ing.^^ §2955. Possession by accused.— As stated in the preceding sec- tion, the possession by the defendant of the tools and instruments^'' for coining and counterfeiting the money, or of spurious coin,-» may " People V. Clarkson, 56 Mich. 164, 22 N. W. 258. "People V. Frank, 28 Cal. 507; State V. Twitty, 2 Hawks (N. Car.) 248; Langford v. State, 33 Fla. 233, 14 So. 815; State v. Cole, 19 Wis. 129, 134; Commonwealth v. Stearns, 10 Mete. (Mass.) 256; Common- wealth V. Bigelow, 8 Mete. (Mass.) 235, 236; Hendrick's Case, 5 Leigh (Va.) 707; Steele v. People, 45 111. 152; State v. Tindal, 5 Harr. (Del.) 488, 490; United States v. Noble, 5 Cranch (U. S.) 371. =* McCartney v. State, 3 Ind. 353; Commonwealth v. Stearns, 10 Mete. (Mass.) 256. 2= State V. Smith, 5 Day (Conn.) 175. 5 Am. Dec. 132; Commonwealth V. eCdgerly, 10 Allen (Mass.) 184. -» United States v. Noble, 5 Cranch {{]. S.) 371; United States v. Hin- man, Baldw. (U. S.) 292; People V. Molins. 7 N. Y. Cr. 51, 10 N. Y. S. 130; State v. "Williams, 2 Rich. L. (S. Car.) 418, 45 Am. Dec. 741; Commonwealth v. Price, 10 Gr,iy (Mass.) 472, 71 Am. Dec. 668; Hess V. State, 5 Ohio 5, 22 Am. Dec. 767; but see. Bluff v. State, 10 Ohio St. 547. =' State V. Antonio, 3 Brev. (S. Car.) 562; an abstract or synopsis of this case and of many others up- on the subject of this section is given in an elaborate note in, 62 L. R. A. 257-264. =" State v. Antonio, 3 Brev. (S. Car.) 562; Hess v. State, 5 Ohio 5, 22 Am. Dec. 767. But possession should not be too remote. State v. Odel, 3 Brev. (S. Car.) 552. =« Stalker v. State, 9 Conn. 341, 343; United States v. Hinman, Baldw. (U. S.) 292; People v. Thoms, 3 Park. Cr. Cas. (N. Y.) 256, 262. 270, 3 Abb. App. 571; State V. Twitty, 2 Hawks (N. Car.) 248; State V. Bridgman, 49 Vt. 202, 210; People V. White, 34 Cal. 183. It has been said that the counterfeit money found must be similar in kind to that for which he is on trial for uttering. Bluff v. State. 10 Ohio St. 547. § 2956.] COUNTEKFEITIXG. 220 generally be shown, and it is said that such possession, "even subse- quent to the act for which he is indicted,^" may always be proved for the purpose of showing guilty and criminal intent.^^ But the ac- cused must be allowed to explain his possession, in order to rebut any presumption that may arise against him/'^- And it has been held that the fact that counterfeiters' tools were found in the possession of the wife of the accused is not admissible where he exercised no control over them.^^ In many jurisdictions, as already stated, the possession of such tools and appliances, at least with criminal intent, is itself a crime,^* and under some of the statutes it seems that it is sufficient to constitute the offense if the defendant knowingly has them in his possession and secretly keeps them, regardless of his actual intent.^^ § 2956. Existence of bank. — It is sometimes necessary to prove the existence of a bank whose notes are alleged to have been coun- terfeited. This ma}^ of course, be done by its articles of incorpora- tion, or a duly authenticated copy made evidence of corporate exist- ence by the law.^"' But this is not absolutely necessary unless the statute so requires. It may be shown by evidence of a general char- acter, as that it was known and acted as such bank and issued genuine bills of the kind in question." So the fact that a certain person, ^Commonwealth v. Price, 10 wealth v. Bigelow, 8 Mete. (Mass.) Gray (Mass.) 472, 71 Am. Dec. 668; 235. Reg. V. Forster, 6 Cox Cr. Cas. 521; ^=Underhill Cr. Ev., § 433; United Bottomley v. United States, 1 Story States v. Burns, 5 McLean (U. S.) (U. S.) 136. 23, 24 Fed. Cas. No. 14,691; United ^'"The object of the testimony is States v. King, 5 McLean (U. S.) not to convict or accuse him of oth- 208, 26 Fed. Cas. No. 15535; United er crimes, but to establish the fact States v. Craig, 4 Wash. (U. S.) of such a knowledge, on his part, of 729. the true character of the bill uttered ^' People v. Thoms, 3 Park. Cr. by him, and which is proved to be Cas. (N. Y.) 256, 3 Abb. App. (N. counterfeit, as will justify the jury Y.) 571; but see, Reg. v. Parker, in inferring his guilt. So far as 2 Cox Cr. Cas. 274. this may be deemed a departure =* People v. White, 34 Cal. 183; from the technical rules of evidence. Commonwealth v. Morse, 2 Mass. it is a departure justified by the 138. peculiar nature of the crime of pass- ■''^ Sasser v. State, 13 Ohio 453; ing counterfeit money, which con- Sutton v. State, 9 Ohio 133. sists not in the fact of passing, '" See, People v. Chadwick, 2 Park which may be done by an innocent Cr. Cas. (N. Y.) 163; Stone v. State, person, but in the guilty knowledge 20 N. J. L. 401. connected therewith." Common- "People v. Davis, 21 Wend. (N, 221 ADMISSIONS. [§§ 2957, 2958. whose name appears on the bills as president, was, in fact, its presi- dent, may be shown by parol evidence. •'''* § 2957. Admissions. — As a general rule everything that the de- fendant said or did ot the time of the alleged offense, constituting part of the res gestae, may be shown by the state.^^ His admissions and declarations, though made to others and at other times, are likewise competent against him.*" But it has been held that the contents of a letter containing counterfeit money, received by him at the post- office and at once taken from him before he had opened the letter, cannot be shown.*^ The passing of the counterfeit being proved, the defendant's agency may be shown by his own confession without any violation of the rule against proving the corpus delicti by the con- fession of the accused.*^ So, where a conspiracy is shown, the ad- missions of one of the conspirators may be competent even against the others.*^ § 2958. Accomplices. — As stated in the last preceding section, the admissions of a co-conspirator may be shown in a proper case, after a conspiracy is proved. But it is a general rule that the evidence of an accomplice is not sufficient to sustain a conviction unless it is sup- ported by corroborating evidence.^'* It has been held, however, that a detective, or one vv-ho, in concert with the police, buys counterfeit money from the accused for the purpose of entrapping him, is not an accomplice within the meaning of the rule.*^ Y.) 309; People v. Ah Sam, 41 Cal. (U. S.) 729; State v. Ford, 2 Root 645; People v. McDonnell, 80 Cal. (Conn.) 93; Reg. v. Attwood, 20 285, 22 Pac. 190; Jennings V. People, Ont. (Can.) 574; Commonwealth v. 8 Mich 81; State v. Pierce, 8 Iowa Edgerly, 10 Allen (Mass.) 184. 231; Reed v. State, 15 Ohio 217. "Commonwealth v. Edgerly, 10 "" State V. Smith, 5 Day (Conn.) Allen (Mass.) 184. 175, 5 Am. Dec. 132. « United States v. Marcus, 53 Fed. '^ State v. Smith, 5 Day (Conn.) 784. 175, 5 Am. Dec. 132; State v. Phelps, "= Taylor v. United States, 32 C. C. 2 Root (Conn.) 87; McCartney v. A. 449. 89 Fed. 954. State, 3 Ind. 353, 56 Am. Dec. 510; "State v. Pepper, 11 Iowa 347. conflicting statements made by him " People v. Molins, 7 N. Y. Cr. 51, or silence when called upon to speak 10 N. Y. S. 130; People v. Farrell, may be shown; Commonwealth v. 30 Cal. 316; see also, Reg. v. Banneu, Starr, 4 Allen (Mass.) 301; United 2 Moody C. C. 309; as to sufficiency States V. Kenneally, 5 Diss. (U. S.) of corroboration see, People v. Da- 122. vis, 21 Wend. (N. Y.) 309. "United States v. Craig, 4 Wash. §§ 2959-2961.] counterfeiting. 222' § 2959. Expert evidence. — Expert evidence is usually resorted to in such cases. As a general rule, any person who is well acquainted with the genuine bills or coin of the kind alleged to be counterfeited, may testify upon the subject.*" Even where the alleged counterfeit is that of a note of a bank, other witnesses as well as the officers of the bank may be competent.*'^ But it has been held that certain pam- phlets known as bank note detectors are not admissible to prove the false or counterfeit character of a note.*^ § 2960. Production of counterfeit at trial. — The alleged counter- feit is the best evidence of its character, and it must generally be produced,*" unless out of the jurisdiction or in the defendant's pos- session,^" or the like, so that its absence is satisfactorily accounted for.^^ The same rule is generally applied in proving scienter by evi- dence of the possession or passing of other counterfeits.^^ But the contrary seems to have been held in Ohio.^^ § 2961. Defenses. — The defendant may introduce any proper evi- dence tending to disprove or rebut any essential fact in the case made by the state. He may explain his possession of the counterfeit or counterfeiting implements, shown by the state, and generally intro- duce any proper evidence to meet the inference of his guilt that might otherwise arise from the evidence on the part of the prosecution. He *' Watson v. Cresap, 1 B. Mon, 152; Commonwealth v. Bigelow, 8 (Ky.) 195, 36 Am. Dec. 572; State Mete. (Mass.) 235. V. Allen, 1 Hawks (N. Car.) 6, 9 Am. =» State v. Potts, 9 N. J. L. 26, 17 Dec. 616; Martin v. Commonwealth, Am. Dec. 449; State v. Ford, 2 Root 2 Leigh (Va.) 745; and authorities (Conn.) 93; Armitage v. State, 13 cited in following note. Ind. 441. " Commonwealth v. Carey, 2 Pick. " State v. Cole, 19 Wis. 129, 88 (Mass.) 47; Jones v. State, 11 Ind. Am. Dec. 678. 357; State v. Tutt, 2 Bail. L. (S. "See, Commonwealth v. Bigelow, Car.) 44, 21 Am. Dec. 508; State v. 8 Mete. (Mass.) 235; State v. Breck- Carr, 5 N. H. 367; Tharpe v. Gis- enridge, 67 Iowa 204, 25 N. W. 130; burne, 2 Car. & P. 21, 12 E. C. L. 8; Smith's Case, 4 N. Y. City H. Rec. Watson v. Cresap, 1 B. Mon. (Ky.) 166; People v. Lagrille, 1 Wheeler 195, 36 Am. Dec. 572; Atwood v. Cr. Cas. (N. Y.) 412; Rex v. Mil- Cornwall, 28 Mich. 336, 15 Am. R. lard, Russ. & Ry. C. C. 245. 219; but see. State v. Brown, 4 R. I. "Reed v. State, 15 Ohio 217; see 528, 70 Am. Dec. 168; Payson v. also, Kirk v. Commonwealth, 9 Everett, 12 Minn. 216. Leigh (Va.) 627; McGregor v. State,, " Payson v. Everett, 12 Minn. 216. 16 Ind. 9. ^ State v. Orsborn, 1 Root (Conn.) 223 DEFENSES. [§ 2961^ may show, for instance, that he believed the counterfeit bill passed by him to be genuine and had consulted an approved "counterfeit de- tector" to determine it.^* So, testimony that he received the money in the ordinary course of business is admissible on the trial of a charge for having it in his possession, and may be a good defense to such a charge. ^^ The defendant may also show that he was so drunk that he did not know what he was doing and could not tell that the bill was counterfeit.^*' He may also introduce evidence of his good char- acter.^^ "State V. Morton, 8 Wis. 167. States v. Roudenbush, Baldw. (U. ""United States v. Kenneally, 5 S.) 514. Biss. (U. S.) 122. "United States v. Kenneally, 5 "^Pigman v. State, 14 Ohio 555, 45 Biss. (U. S.) 122; Griffin v. State,. Am. Dec. 558; but compare. United 14 Ohio St. 55. CHAPTER CXLI. EMBEZZLEMENT. Sec. Sec. 2962. Generally. 2968. Written evidence. 2963. Distinguished from larceny. 2969. Evidence in general. 2964. Presumption. 2970. Demand. 2965. Burden of proof. 2971. Defences. 2966. Question of law or fact. 2972. "Weight and sufficiency of evi- 2967. Evidence of intent. dence. § 2962. Generally. — Embezzlement is said, in substance, to be the fraudulent appropriation by a clerk, agent, trustee, public officer, or other person acting m a fiduciary character, to his own use or benefit of property or money intrusted to him by another. It is the fraudu- lent appropriation of property by a person to whom it has been in- trusted. The term is applicable to cases of furtive and fraudulent appropriation by clerks, servants, or carriers of property coming into their possession by virtue of their employment. It is distinguished from "larceny," properly so called, as being committed as to property which is not at the time in the actual or legal possession of the owner.^ It is a statutory offense, and seems not to have been known as a dis- tinct crime at common law. As the various statutes differ consid- erably in their provisions it is difficult to give a definition that will be at the same time comprehensive and applicable in all jurisdictions. In addition, however, to what is said by Mr. Black, it may be said that the gist of embezzlement is the conversion or breach of trust, and there must be a fiduciary relation rather than that of a mere debtor and creditor.^ 1 Black Law Diet.; see also elabo- 4, 27 S. W. 811; State v. Johnson, rate note in 87 Am. St. 21, et seq. 21 Tex. 775; Mulford v. People, 139 The distinction is further consid- 111. 586, 28 N. E. 1096; see also, ered in §< 2963. Commonwealth v. Ryan, 155 Mass. = Commonwealth v. Moore, 16^6 523, 30 N. E. 364; State v. Covert, Mass. 513, 44 N. E. 612; Ennis v. 14 Wash. 652, 45 Pac. 304. Fraudu- State, 3 Green (Iowa) 67; People lent intent to convert is necessary v. Johnson, 91 Cal. 265, 27 Pac. 663; under most statutes. Robinson v. Commonwealth v. Clifford, 96 Ky. State, 109 Ga. 564, 35 S. E. 57, 77 224 225 DISTINGUISHED FROM LARCENY. [§§ 29G3, SOG-i. § 2963. Distinguished from larceny. — Although embezzlement is sometimes said to be a species of larceny, yet, technically, there is an essential distinction. As said iii a recent case: "Embezzlement, as distinguished from theft, is taking property of another in the pos- session of the accused with intent to defraud. The crimes are essen- tially the same, but most unfortunately are, for the purposes of prose- cution, entirely distinct. The one demands, as an essential element, a trespass — a breach of technical possession ; the other cannot be com- mitted unless the element of trespass or breach of technical possession is absent. The former is a crime at common law; the latter is a statutory offense.'"^ In larceny there must be a technical trespass and a felonious intent at the time of the taking, while in eml)ezzlement the property is usually in the possession of the accused and the original taking was lawful, or with the consent of the owner, and the felonious intent may, and usually must, be afterwards formed.^ § 2964. Presumptions. — Presumptions arise in cases of embezzle- ment as in all cases. But, as will be shown in the following section, the burden of proving the commission of the crime and the criminal •agency is always upon the state. The mere intentional doing of an act forbidden by law may give rise to a presumption, or at least jus- tify an inference of unlawful intent,^ and it has been held that an intent to embezzle may be inferred from a felonious conversion.*^ A Am. St. 392; People v. Hurst, 62 30 So. 582, 87 Am. St. 17, and note; Mich. 276, 28 N. W. 838; State v. Simco v. State, 8 Tex. App. 406; Eastman, 60 Kans. 557, 57 Pac. 109; People v. Gallagher, 100 Cal. 466, 35 State V. Schilb, 159 Mo. 130, 60 S. Pac. 80; People v. Salrose, 62 Cal. W. 82; Beaty v. State, 82 Ind. 228; 139; People v. De Coursey, 61 Cal. State V. Temple, 63 N. J. L. 375, 134; Commonwealth v. King, 9 Cash. 43 Atl. 697; Fleener v. State, 58 (Mass.) 284; Reeves v. State, 95 Ark. 98, 23 S. W. 1. Ala. 31, 11 So. 158; Levy v. State, 'State V. Hanley, 70 Conn. 265, 79 Ala. 259; State v. Harmon, 106 39 Atl. 148; see also, Commonwealth Mo. 635, 18 S. W. 128; see also, V. Berry, 99 Mass. 428, 96 Am. Dec. Chap. 146. 767; Commonwealth v. Ryan, 155 '^ State v. Silva, 130 Mo. 440, 32 Mass. 523, 30 N. E. 364; Common- S. W. 1007; United States v. Harper, wealth v. Barney, 115 Ky. 475, 74 S. 33 Fed. 471; Dotson v. State, 51 Ark. "W. 181; Commonwealth v. Clifford, 119, 10 S. W. 18; Spalding v. People, M Ky. 4, 27 S. W. 811; Secor v. 172 111. 40, 49 N. E. 993; State v. State, 118 Wis. 621, 95 N. W. 942; McGregor, 88 Minn. 77, 92 N. W. but compare, State v. Tabener, 14 458. R. I. 272, 51 Am. R. 382; State v. « State v. Schilb, 159 Mo. 130. 60 Shirer, 20 S. Car. 392. S. W. 82; State v. Noland, 111 Mo. *Eggleston v. State, 129 Ala. 80, 473, 19 S. W. 715. Vol. 4 Elliott Ev. — 15 § 2964.] EMBEZZLEMENT. 226 presumption has been held to arise that one has appropriated money to his own use when he can give no reasonable account of a pretended theft shown to have been committed while the money was in his pos- session.'^ And it has been held under some statutes that the failure or refusal of a retiring county treasurer to promptly pay over to his successor any of the public money in his hands as such officer, is prima facie evidence of embezzlement, and that under such circum- stances a presumption of embezzlement would arise. ^ But such a pre- sumption does not arise upon proof of mere failure to pay money when the accused is not a public officer and the accusation applies to private property, for in such case there must be the necessary criminal intent, and an adverse holding of the property depriving the owner of his pos- session^ must usually be shown, A presumption of fraudulent intent, however arises against a banker who took in money as a deposit after he was insolvent,^ *^ whereby the money was lost to the depositor, and the banker is presumed or bound to know of his own insolvency.^^ A presumption as to venue arises, or, more properly speaking, it may be inferred if it appears that the accused received the property in the county alleged, and that when it was last seen in his possession he was in that county.^^ But this may be rebutted by proof that the prop- erty was taken to another county and was there converted to the use of the accused.^^ Eligibility to office is presumed from an appoint- ment by proper authority in regular form, where the charge is against a public officer for embezzlement.^* And most of the statutes are construed to include officers de facto as well as officers de jure.^^ And ^ Riley v. State. 32 Tex. 763; see Ala. 104, 29 So. 799; People v. Bau- also. Smith v. State, 34 Tex. Cr. man, 105 Mich. 543, 63 N. W. 516. App. 265, 30 S. W. 236. '"Commonwealth v. Rockafellow, « Whitney v. State, 53 Neb. 287, 163 Pa. St. 139, 29 Atl. 757; Ameri- 73 N. W. 696; see also, United States can &c. Bank v. Gueder &c. Mfg. Co., V. Adams, 2 Dak. 305, 9 N. W. 718; 150 111. 336, 37 N. E. 227. People V. Warren, 122 Mich. 504, 81 " Meadowcroft v. People, 163 111. N. W. 360, 80 Am. St. 582; but com- 56, 45 N. E. 303, 35 L. R. A. 176, pare, Robinson v. State, 109 Ga. 564, 54 Am. St. 447. 35 S. E. 57, 77 Am. St. 392; State '=Wallis v. State, 54 Ark. 611, 16 V. Hunnicut, 34 Ark. 562; People v. S. W. 821; see also, Robson v. State, Westlake, 124 Cal. 452, 57 Pac. 465. 83 Ga. 166, 9 S. E. 610; State v. » Fitzgerald v. State, 50 N. J. L. Small, 26 Kans. 209. 475, 14 Atl. 746; Robinson v. State, "State v. New, 22 Minn. 76. 109 Ga. 564, 35 S. E. 57. 77 Am. St. " State v. Ring, 29 Minn. 78, 11 392; Chaplin v. Lee, 18 Neb. 440, N. W. 233. 25 N. W. 609; State v. Butler, 21 '= State v. Stone, 40 Iowa 547; S. Car. 353; Henderson v. State, 129 State v. Goss, 69 Me. 22; Bartley v. 227 BURDEX OF PROOF, [§ 2965. it has been held that in the absence of proof of a criminal intent, the act of a servant giving away old tools belonging to his master will raise a presumption that he did so as a matter of charity rather than with an intent to embezzle them.^® § 2965. Burden of proof. — The same rule as to burden of proof holds in embezzlement as in other criminal cases, that is, the burden of proving the commission of the crime and the criminal agency is upon the state. ^^ In general, under most of the statutes, it may be stated that the burden of proof is upon the prosecution to establish beyond a reasonable doubt four distinct propositions or elements of fact.^^ That is, it must be established, that the accused was the agent of the person or corporation, and that he, by the terms of his employ- ment, was charged Avith receiving the money or property of his prin- cipal. It must also be established that as a matter of fact he did come into the possession of the property. It must appear that he received it in the course of his employment. And lastly, it must he established that the accused, knowing that the property was not his, converted it to his own use or to the use of another who is not the true owner.^^ The burden of proof is on the state, under most of the statutes, to show that the thing embezzled came into the possession of the accused by virtue of his employment as an agent or bailee or the like.^° It has been held, however, that on a prosecution against an agent for embezzlement there is no burden on the state to prove that the money embezzled was the property of the defendant's State, 53 Neb. 310, 73 N. W. 744; App. 417; Webb v. State, 8 Tex. Fortenberry v. State, 56 Miss. 286; App. 310. Reg. v. Townsend. C. & M. 178, 41 -"Bartow v. People, 78 N. Y. 377; E. C. L. 102. State v. Cooper, 102 Iowa 146, 71 "State V. Fritchler, 54 Mo. 424. N. W. 197; State v. Mahan, 138 Mo. "State V. Fritchler, 54 Mo. 424; 112, 39 S. W. 465; McAleer v. State, Strong V. State, 18 Tex. App. 19; 46 Neb. 116, 64 N. W. 358; Hadley. State V. Foster, 1 Pen. (Del.) 289, Ex parte, 31 Cal. 108; see also, 40 Atl. 939. Wynegar v. State, 157 Ind. 577, 62 "Leonard v. State, 7 Tex. App. N. E. 38; Johnson v. Commonwealth, 417; People v. Cobler, 108 Cal. 538, 5 Bush (Ky.) 430; as to what is 41 Pac. 401. sufficient to show this, see, Ricord, Instate v. Blackley, (N. Car.) .'')0 Ex parte, 11 Nev. 287; Common- S. E. 310, 312; State v. Schingen, 20 wealth v. Clifford, 96 Ky. 4. 27 S. Wis. 79; Hedley, Ex parte, 31 Cal. W. 811; State v. Kortgaard, 62 Minn. 108; People v. Cobler, 108 Cal. 538, 7, 64 N. W. 51. 41 Pac. 401; Leonard v. State, 7 Tex. § 29GG,] EMBEZZLEMENT. 228 principal.-^ And it has been said that when a prima facie case of embezzlement is made out against one liandling the wares of another, it is incumbent on the former to prove, as he claimed, that he had in good faith sold them on credit.^^ So, where the prosecution has made a prima facie case of embezzlement, it becomes incumbent upon the defendant to adduce evidence in denial or explanation of the incrimi- nating circumstances.^^ And where the statute against embezzlement contains an exception or exemption, it has been held that one claim- ing to come under said provision has the burden of establishing that he comes under such exception or exemption. But, when necessary to be shown, the burden of proof is on the state to establish efforts of the accused to conceal or dispose of the property or money.^^ § 2966. Question of law or fact. — The ordinary rules as to ques- tions of law or fact apply in embezzlement. Thus, the interpreta- tion of a written contract, relied on by the state as establishing the relation of principal and agent, between the defendant and the prose- cuting witness, is for the court. ^'^ But it is a question for the jury to determine whether a relation of master and servant has existed between the prosecutor and the accused in the absence of any written contract when there is a dispute as to the facts. ^^ The question of the intent with which a party appropriated money or property is usually a ques- tion of fact.^^ So, where it was necessary to determine in an embezzle- ment case, whether a certain transaction was a pledge or pawn, this has been held to be a question for the jury under proper instructions.-^ Thus, where a stranger who had hired a horse and buggy in another county, went to a liveryman to borrow money, saying, "I will leave the horse and buggy here with you, and will return tonight or to- morrow and pay you the money," and, after getting the money, left « Willis V. State, 134 Ala. 429, 33 220. 15 S. W. 716; Fleener v. State, So. 226. 58 Ark. 98, 23 S. W. 1; State v. ^ Bridgers v. State, 8 Tex. App. Pierce, 77 Iowa 245, 42 N. W. 181. 145. ''State v. Brown, 171 Mo. 477, 71 ^ Riley v. State, 32 Tex. 763; S. W. 1031. Bridgers v. State, 8 Tex. App. 145; ^^Reg. v. Foulkes, 13 Cox Cr. Cas. Hemingway v. State. 68 Miss. 371, 63. 8 So. 317; but see, State v. McDon- "State v. Trolson, 21 Nev. 419, aid, 133 N. Car. 680, 45 S. E. 582; 32 Pac. 930. Lambeth v. State, 3 Tenn. Cas. 754. ^Wilson v. State, (Fla.) 36 So. '= State V. Tompkins, 32 La. Ann. 580. 620; Stallings v. State, 29 Tex. App. 229 INTENT. [§ 2967. the horse and buggy and never returned, the question of whether a pledge or pawn was thereby intended was held to be a question for the jury under i)ropcr instructions.^" And whether a claim of right to retain the fund was asserted by the accused in good faith has also been held to be a question for the jury.^^ §2967. Evidence of intent. — Intent from its very nature is not capable of being proved directly, and consequently the courts allow much latitude as to its proof ; almost any proper evidence is admitted which has the least tendency to establish fraudulent intent. So, on the other hand, the same latitude is allowed to show the good faith and intention of the one charged with embezzlement.^- As said in one case: "In embezzlement generally the very confidence and trust reposed furnish the most potent means for its accomplishment and effectual concealment, so that guilt can generally be established only by reasonable inferences drawn from the general course of conduct of such officer, agent, clerk or servant, with respect to the subject mat- ter of his trust, and from all the facts and circumstances surrounding his acts, which tend to throw light upon or illustrate their nature.""- Evidence that the accused has committed offenses similar to that in question is often admitted on the question of intent or motive.^* Where one intrusted with the keeping of property has fled carrying^ with him the proceeds of the sale thereof, such fact may be considered by the jury in determining whether the sale was felonious.^'^ It has been held that upon the trial of an indictment of a broker, evidence of a custom among brokers may be received to show the absence of fraudulent intent, if the custom be a legal one ; but that evidence of a custom which is not legal should not be admitted for any purpose.^*^ And as evidence of intent it has been held admissible to show that ^nVilson V. State, (Fla.) 36 So. tarn, 32 Wash. 137, 72 Pac. 1042; 580. Taylor v. Commonwealth, (Ky.) 75 =>' State V. Lewis, 31 Wash. 75, 71 S. W. 244; People v. Van Ewan, 111 Pac. 778. Cal. 144, 43 Pac. 520; State v. "People V. Pollock, 51 Hun (N. Holmes. 65 Minn. 230, 68 N. W. 11; Y.) 613, 4 N. Y. S. 297; Govatos v. People v. Hawkins, 106 Mich. 479, State, 116 Ga. 592, 42 S. E. 708; 64 N. W. 736; Rex v. Ellis, 6 Barn. People V. Tomlinson, 102 Cal. 19, 36 & C. 145. 13 E. C. L. 123. Pac. 506. ''Commonwealth v. Hurd, 123 '•■Reeves v. State, 95 Ala. 31, 11 Mass. 438. So. 158. '''Commonwealth v. Cooper, 130 '* Commonwealth v. Tuckerman, Mass. 285. 10 Gray (Mass.) 173; State v. Pit- § 2968.] EMBEZZLEMENT. 230 the books of the company whose funds were embezzled, and of which the defendant was president, had been falsified by fraudulent entries, made with a view to conceal the embezzlement, at the defendant's in- stance and with his knowledge, whether made at the time of the act charged or afterwards.^' An intent to restore the property is imma- terial if the property has been placed beyond the control of the ac- cused.^^ Thus, it has been stated, "to take from their place of de- posit the bonds of a depositor and send them out of the state to be used as collateral security for the defendant's own debt, was a fraud- ulent conversion. Intention to restore the bonds, and the agreement of the party who received them not to sell or dispose of them, cannot do away with the criminal nature of the transaction. A guilty intent is necessarily inferred from the voluntary commission of such an act, the inevitable effect of which is to deprive the true owner of his prop- erty and to appropriate it to the defendant's own use. Perhaps in a majority of cases the party who violates his trust in such a manner does not expect or intend that the ultimate loss shall fall upon the person whose property he takes and misuses. But no hope or expectation of replacing the funds abstracted can be admitted as an excuse before the law."3^ § 2968. Written evidence. — Written evidence is admissible in such cases and often is very important evidence. Thus, public rec- ords and transcripts and official statements may be admissible in evi- dence.^" In a proper case false entries made in books are often relevant and it need not be shown that they were made at the time of the embezzlement or that they were made by the accused, if it suffi- ciently shows that they were made at his instance and with his knowl- edge.*^ But entries in the books of the accused made by others should not ordinarily be received as evidence in the absence of preliminary proof that the attention of the accused was called to such entries.*^ =' Jackson v. State, 76 Ga. 551; 59 N. W. 237; State v. Ring, 29 see also, Willis v. State, 134 Ala. Minn. 78, 11 N. E. 233; Shivers v. 429, 33 So. 226. State, 53 Ga. 149; Tyler v. United 5^ Spalding v. People, 172 111. 40, States, 45 C. C. A. 247, 106 Fed. 137. 49 N, E. 993; Harris v. State, (Tex. « Jackson v. State, 76 Ga. 551; Cr. App.) 34 S. W. 922. People v. Wyman, 102 Cal. 552, 36 ^'Commonwealth v. Tenney, 97 Pac. 932. Mass. 50. " Lang v. State, 97 Ala. 41, 12 So. *»Bork V. People, 16 Hun (N. Y.) 183. 476: People v. Flock, 100 Mich. 512, 231 WRITTEN EVIDENCE. [§ 2968. And it has been said tliat before the ])ooks of a party can be admitted in evidence they shoukl be submitted to the inspection of the court, and if tliey do not appear to contain regular entries made in the course of the daily business of the party, and to liave been honestly and fairly kept, they are not admissible.** A check given by a state treasurer in his official capacity is admissible to show the manner of an alleged embezzlement by him, though the official seal was omitted therefrom.*^ And a draft to the accused is admissible to show receipt of tlie money alleged to have been embezzled.*^ So, the annual printed reports of the state treasurer are original official documents and are admissible in a proper case.*^ And the books of a savings bank, kept by the accused, who was the secretary, when in his handwriting are admissible in evidence to show the amounts received by the accused.*" Thus, a cash-book showing the receipts and disbursements, and kept in the bank under the supervision of the defendant as the manager of a bank, is admissible to show the balance of cash on hand at the time of the alleged embezzlement.*^ And stub duplicates of tax re- ceipts, made by a county treasurer as required by law, are evidence of the receipt of the taxes represented thereby, although they never have been returned by him to the auditor as he is required to do.^" And it has been held that letters to the accused are admissible on the question of agency.''^ And so letters written to the accused by the prosecutor, requesting a settlement and accounting have been held admissible.^- Also letters from the accused bearing upon his deal- ings with the funds alleged to have been embezzled are competent.'^^ And deposit slips have been held admissible, when in the handwriting of the accused for the purpose of showing that the accused properly accounted for the funds alleged to have been embezzled.^* So, en- tries in private books are often admissible. Thus, in a prosecution against an officer, or other agent, entries in books of account made "State v. Collins, 1 Marv. (Del.) =» State v. Ring, 29 Minn. 78. 11 536, 41 Atl. 144. N. W. 233. "State V. Noland, 111 Mo. 473, 19 "State v. Adams, 108 Mo. 208, 18 &. W. 715; see also, State v. Krug, S. W. 1000. 12 Wash. 288, 41 Pac. 126. "•- State v. Adams, 108 Mo. 208, 18 *" State V. Brooks, 85 Iowa 366, 52 S. W. 1000. N. W. 240. =^ State v. Halstead, 73 Iowa 376, " People V. McKinney, 10 Mich. 54. 35 N. W. 457. "" Humphrey v. People. 18 Hun "State v. Halstead, 73 Iowa 376, (N. Y.) 393. 35 N. W. 457. *"> People V. Leonard, 106 Cal. 302, 39 Pac. 617. g 2969.] EMBEZZLEMENT. 233 by the accused or under his direction, and statements of account, re- ceipts and checks given by him, are admissible, if made or given be- fore the finding of the indictment.^^ § 2969. Evidence in general. — The offense may be proved by cir- cumstantial evidence as well as direct evidence.^*' As a general rule, any proper facts or circumstances bearing upon the possession or cus- tody of the property by the accused or the manner of his holding or receiving such property may be introduced in evidence." And so it may be stated generally that the prosecution may show any facts which tend materially to prove the receipt by the accused of the money or property alleged to have been embezzled, and a conversion of it by the accused.^*^ Fraudulent vouchers and false statements in regard to the matter are relevant.^^ So when the accused is an agent, re- ceipts given by him to debtors of his principal over his own name are admissible in evidence against him.«° And on a trial for embezzling money, the draft for the money is competent evidence to show how defendant acquired its possession.^^ It has been held competent to show that the books kept by the accused have been falsified by fraudu- lent entries with a view to conceal the embezzlement, whether they were made at the time of the act charged or afterwards.^^ ^^^ where it was proved that the accused deposited money he was charged with embezzling in a bank, evidence that he checked out the money so deposited was admissible as tending to show conversion of the funds.^^ In order to establish embezzlement by a public officer it has been held ^Commonwealth v. Smith, 129 Md. 527, 26 Atl. 1022; People v. Van Mass. 104; Denton v. State, 77 Md. Ewan, 111 Cal. 144, 43 Pac. 520; 527, 26 Atl. 1022; Humphrey v. Peo- People v. Dorthy, 20 App. Div. (N. pie,' 18 Hun (N. Y.) 393. Y.) 308, 46 N. Y. S. 970; Stanley =^« State V. Porter, 26 Mo. 201; New v. State, 88 Ala. 154, 7 So. 273. York Ferry Co. v. Moore, 12 N. Y. ^ Carr v. State, 104 Ala. 43, 16 667, 6 N. E. 293; Territory V. Meyer, So. 155; Malcolmson v. State, 25 3 Ariz. 199, 24 Pac. 183; State v. Tex. App. 267, 8 S. W. 468. Foster, 1 Pen. (Del.) 289, 40 Atl. =» Commonwealth v. Moore, 166 939; Fleener v. State, 58 Ark. 98, Mass. 513, 44 N. E. 612. 23 S. W. 1; see also Robson v. State, ""People v. Van Ewan, 111 Cal. 83 Ga. 166, 9 S. E. 610; State v. 144, 43 Pac. 520. Cowan, 74 Iowa 53, 36 N, W. 886; "State v. Brooks, 85 Iowa 366, 52 Mills v. State, 53 Neb. 263, 73 N. W. N. W. 240. 761. «= Jackson v. State, 76 Ga. 551. "State V. Sienkiewiez, (Del.) 55 "^^ State v. Woodward, 171 Mo. 593,, Atl. 346; Commonwealth v. Smith, 71 S. W. 1015. 129 Mass. 104; Denton v. State, 77 233 EVIDENCE IN GENERAL. [§ 2969^.. not to be necessary to produce a written certificate of the appointment as an officer or to show that he has given an official bond.*'* If owner- ship of the property is hiid in a corporation the charter or certificate of incorporation need not be introduced in evidence. "^ The employer, it has been held, may give parol testimony as to the fact of agency or contract of employment and afterward he may be cross-examined as to the facts upon which he formed his conclusion.«« But this has been disputed in some jurisdictions.^' Evidence of usage and custom has been held to show that the money came into the custody of the accused through his employment.^^ And expert accountants may be permitted to give in evidence the result of their investigations of the accounts and the like kept by the accused in his trust capacity, where such are too voluminous to permit of an investigation of them in the court-room.'''* Testimony of expert accountants who have ex- amined the books and papers of the office of a county treasurer as to the totals of the amounts received and paid out by him, as shown by such books and records, is competent.'*' And a summary taken by an expert from the books kept by the accused for his employer is competent to show the condition of the employer's accounts.^^ Evi- dence of the pecuniary condition of defendant charged with embezzle- ment immediately prior to, and during the time the offense is alleged to have been committed, is competent. ^^ Evidence is competent which shows what disposition the accused made of the property'^ Admis- «* State v. Dierberger, 90 Mo. 369, «» State v. Findley, 101 Mo. 217, 2 S. W. 286; State v. Findley, 101 14 S. W. 185; Hollingsworth v. Mo. 217, 14 S. W. 185; see also. State, 111 Ind. 289, 12 N. E. 490; State v. Mims, 26 Minn. 183, 2 N. Willis v. State, 134 Ala. 429, 33 So. W. 494, 683. 226; Ritter v. State, 70 Ark. 472, 69 •■"Jackson v. State, 76 Ga. 551; S. W. 262; Woodruff v. State, 61 Commonwealth v. Dedham, 16 Mass. Ark. 157, 32 S. W. 102. 141; see also, Thalheim v. State, 38 ™ Hollingsworth v. State, 111 Ind. Fla. 169, 20 So. 938. 289, 12 N. E. 490. 6« State V. Brooks, 85 Iowa 366, 52 " State v. Reinhart, 26 Ore. 466, N. W. 240; the relation of agency 38 Pac. 822. or the like may be shown by circum- ''- United States v. Camp, 2 Idaho stantial evidence; State v. Ezzard, 215, 10 Pac. 226; see also, Boston 40 S. Car. 312, 18 S. E. 1025; People &c. Co. v. Dana, 1 Gray (Mass.) 33; v. Royce, 106 Cal. 173, 37 Pac. 630. Reeves v. State, 96 Ala. 33, 11 So. "People V. Bidleman, 104 Cal. 296. 608, 38 Pac. 502; see also. Thalheim "State v. Brooks, 85 Iowa 366, 52 V. State, 38 Fla. 169, 20 So. 938. N. W.. 240; Malcolmson v. State. 25 "*' State V. Silva, 130 Mo. 440, 32 Tex. App. 267, 8 S. W. 468; People. S. W. 1007. § 2969.] EMBEZZLEMENT. 234 sions by the accused are competent against him. Thus, an admission by the accused of any material fact in support of the indictment is competent against him when the fact itself and its admission occurred before the commission of the offense charged, and neither involves any criminal intent or conduct or any acknowledgment of guilt on his part.''* And the fact that the defendant does not reply to a letter which requests a settlement has been held in connection with the letter to be competent evidence as an admission.''^ So, upon the trial of a defendant under an indictment for embezzlement of moneys of his principal, a corporation, coming to his hands as an agent, letters found in the office recently occupied and vacated by the defendant, and in letter files kept by him, in the handwriting of the officers of such principal, and touching the matter of the agency of the defend- ant, such letters appearing to have been invited by other letters from the defendant, and to have been acted upon in the course of the agency, were held to be relevant upon the question of the agency of the defendant, and admissible in evidence against him.''*' Evidence may be introduced which shows a continuous series of conversions in pur- suance of a conspiracy.'''^ As said in one ease: "The trust and confi- dence reposed in the accused necessarily affords the amplest oppor- tunity to misappropriate the funds intrusted to his care, and makes it almost, if not quite, impossible to prove just when and how it was done, but the ultimate fact of embezzlement is susceptible of direct proof, and that is the act against which the statute is directed. The crime may, as in the case at bar, consist of many acts done in a series of years, and the fact at last be discovered that the employer's funds have been embezzled, and yet it be impossible for the prosecution to prove the exact time or manner of each or any separate act of con- version. In such case, if it should be compelled to elect, and rely for conviction upon any one single act, the accused, although he might be admitted guilty of embezzling large sums of money in the aggre- gate, would probably escape conviction. The law does not afford exemption from just and merited punishment on mere technical grounds, which do not in any way affect the guilt or innocence of the V. Bidleman, 104 Cal. 608, 38 Pac. "State v. Adams, 108 Mo. 208, 18 502. S. W. 1000. ^* State V. Mims, 26 Minn. 183. 2 ^=Thalheim v. State, 38 Fla. 169, N. W. 683; see also, State v. Car- 20 So. 938. rick, 16 Nev. 120; Commonwealth "Jackson v. State, 76 Ga. 551. V. Sawtelle, 141 Mass. 140, 5 N. E. 312. 235 DEMAND. [§ 2970. defendant, or the merits of tlie ease/''^ Although the value of several pieces of property is alleged in a lump sum, the value of each j)iece may be proved by itself.''^ The position and duties of the servant of a club may be shown by proof of his position and duties in another society, the predecessor of the club, the servant having retained the same position and performed the same services in the club as in the old society.**" On a trial for larceny in borrowing and converting a chattel, the owner's salesman may testify that he did not sell the chattel to defendant or charge it to him.^^ If the state treasurer omits to charge himself, in the county where his office is kept, with the receipt of money, or if he denies its receipt there, this has been "held to be evidence of an embezzlement in that county.®- As shown in tlie section on intent, it is held in a number of cases that the crim- inal intent may be shown by evidence of other like acts of embezzle- ment at about the same period.*^ § 2970. Demand. — As a general rule no demand is necessary to support a prosecution for embezzlement, unless the statute requires a demand.*** If an actual fraudulent conversion under such circum- stances as to constitute embezzlement is otherwise shown no demand is necessary.®^ But it is the rule under some statutes that there "State V. Reinhart, 26 Ore. 466, 47 Atl. 644; Alderman v. State, 57 38 Pac. 822. Ga. 367; Wallis v. State, 54 Ark. 611, "State V. Mook, 40 Ohio St. 588. 16 S. W. 821; State v. Porter, 26 ^''Grillo V. State, 9 Ohio C. C. 394. Mo. 201; Commonwealth v. Mead, *' State V. Kasper, 5 Wash. 174, 31 160 Mass. 319, 35 N. E. 1125. Pac. 636. ^ Commonwealth v. Hussey, 111 **- People V. McKinney, 1 Mich. 54. Mass. 432; State v. New, 22 Minn. '' People v. Gray, 66 Cal. 271, 5 76. Demand held unnecesary where Pac. 240; People v. Van Ewan, 111 the embezzler absconds; Kossakow- Cal. 144, 43 Pac. 520; Bulloch v. ski v. People, 177 111. 563, 53 N. E. State, 10 Ga. 47; Brown v. State, 115; People v. Carter, 122 Mich. 668, 18 Ohio St. 496; Stanley v. State, 81 N. W. 924; upon this subject it 88 Ala. 154, 7 So. 273; State v. Kort- has been said: "It is necessary to gaard, 62 Minn. 7, 64 N. W. 51; allege and prove a demand only Commonwealth v. Tuckerman, 10 where the statute makes it an ele- Gray (Mass.) 173; Commonwealth ment of the crime. As the statute V. Eastman, 1 Cush. (Mass.) 189, under consideration does not make a and other authorities cited, § 2968. demand such an element, no demand ** State V. Blackley, (N. Car.) 50 was necessary. The crime charged S. E. 310; State v. Mason, 108 Ind. was not a failure to pay over the 48, 8 N. E. 716; Hollingsworth v. money on demand, but simply State, 111 Ind. 289, 12 N. E. 490; a felonious conversion. If the de- State V. Reynolds, 65 N. J. L. 424, fendant had thv.s converted the § 2971.] EMBEZZLEMENT. 23(> should be a demand and refusal in order to show a conversion of the property.'*"' And it has been decided that even if a demand for the property by the true owner is not necessary, yet proof of such a demand may be relevant and competent if followed by a refusal since it would tend to show a fraudulent conversion." It has often been held that where property has been feloniously appropriated to the use of another, it is not necessary to show a demand.'"^ Thus, it would be unnecessary to make a demand for the property when the accused admits that he has sold it.^" And it has also been held that if the embezzler absconds so that it is impossible to make a demand, the conversion may be otherwise shown and proof of a demand is un- necessary under such circumstances.'"' § 2971. Defenses. — As already stated, an intent to restore the money or property embezzled is generally immaterial if it has been placed by the accused beyond his control.^^ Indeed, the fact that the accused intended to restore property embezzled by him,^^ qj. even that the loss had been made good^^ does not constitute a defense to money his crime was complete, and his response to a demand could not have absolved him; if he had not thus controverted it, he was not guilty." Wallis v. State, 54 Ark. 611, 16 S. W. 821. *" See, State v. Pierce, 7 Kans. App. 418, 53 Pac. 278; Wright v. People, 61 111. 382; 87 Am. St. 40, note. "Burnett v. State, 60 N. J. L. 255, 37 Atl. 622; State v. Reynolds, 65 N. J. L. 424, 47 Atl. 644; State V. Bryan, 40 Iowa 379; People v. Royce, 106 Cal. 173, 37 Pac. 630, 69 Pac. 524. -'» State V. New, 22 Minn. 76; State v. Tompkins, 32 La. Ann. 620; Kos- sakowski v. People, 177 111. 563, 53 N. E. 115; United States v. Sander, 6 McLean (U. S.) 598; Common- wealth V. Hussey, 111 Mass. 432. *" State V. Foley, 81 Iowa 36, 46 N. W. 746; United States v. Adams, 2 Dak. 305, 9 N. W. 718. ^' Kossakowski v. People, 177 111. 563, 53 N. E. 115; People v. Carter, 122 Mich. 668, 81 N. W. 924. ^1 Spalding v. People, 172 111. 40, 49 N. E. 993; Harris v. State, (Tex. Cr. App.) 34 S. W. 922; Common- wealth V. Tenney, 97 Mass. 50; see also, Commonwealth v. Butterick, 100 Mass. 1, 97 Am. Dec. 65. In some states, however, a restoration or the like may go in mitigation of the punishment. »- People V. De Lay, 80 Cal. 52. 22 Pac. 90; People v. Butts, 128 Mich 208, 87 N. W. 224; Vives v. United States, 34 C. C. A. 403, 92 Fed. 355. "^Fleener v. State, 58 Ark. 98. 23 S. W. 1; Thalheim v. State, 38 Fla. 169, 20 So. 938; Meadowcroft v. People, 163 111. 56, 45 N. E. 303. 3-3 L. R. A. 176, 54 Am. St. 447; State V. Tull, 119 Mo. 421, 24 S. W. 1010; in, Meadowcroft v. People, 163 111. 56, 45 N. E. 303, it is said: "The restitution of money that has been either stolen or embezzled, or a tender or offer to return the 237 DEFENSES — SUFFICIENCY OF EVIDENCE. [§ 2972. SL criminal prosecution for the embezzlement. It is not, ordinarily a good defense to show that the agency was illegal, or the money or property was obtained by the accused to transact, or in the transaction of an unlawful business;"* nor that the property taken was used as a decoy ;"^ nor that the accused worked on a commission or per- centage and was to pay over only what remained after deducting such commission or percentage, where he embezzled such remaining part."" But it has been held a good defense to show that he had an interest in"^ or lien upon"^ the property alleged to have been embezzled. So, of course, proper evidence is admissible on the part of the accused to rebut the evidence of the prosecution and to show the lack of any essential element or fact necessary to be established in order to sup- port a conviction. § 2972. Weight and sufficiency of the evidence. — As already stated, the same rule applies in prosecutions for embezzlement as in other criminal prosecutions, that is, the state must prove beyond a same or its equivalent to the party from whom it was stolen or em- bezzled, does not bar a prosecu- tion by indictment and conviction for such a larceny or embez- zlement. The effect of the tender and payment in court may be a dis- charge from the indebtedness for the deposit fraudulently received, so far as the depositor and his civil remedies are concerned; but the crimes having been fully consum- mated before indictment found, it is not within the power of the bank- er, or the depositor, or either of them, to compromise or take away the right of the state to insist upon a conviction for the crime commit- ted. It is not to be presumed that in creating the offense and in pro- viding for its punishment it was the intention of the legislature to make the criminal courts of the state col- lecting agencies for collecting the debts due to depositors from insolv- •ent banks and bankers." °* State V. Tumey, 81 Ind. 559; Woodward v. State, 103 Ind. 127, 2 N. E. 321; Commonwealth v. Smith, 129 Mass. 104; Commonwealth v. Cooper, 130 Mass. 285; People v. Hawkins, 106 Mich. 479, 64 N. W. 736; State v. O'Brien, 94 Tenn. 79. 28 S. W. 311; State v. Hoshor, 26 Wash. 643. 67 Pac. 386. ""Goode V. United States, 159 U. S. 663, 16 Sup. Ct. 136; Common- wealth V. Ryan, 155 Mass. 523, 30 N. E. 364. *" Territory v. Meyer, 3 Ariz. 199, 24 Pac. 183; Commonwealth v. Fish- er, 113 Ky. 491, 68 S. W. 855; Peo- ple V. Hanaw, 107 Mich. 337, 65 N. W. 231; Campbell v. State, 35 Ohio St. 70; Rex v. Hartley, Russ. & Ry. C. C. 139; Rex v. Carr, Russ. & Ry. C. C. 198. "Rose V. Innis, 35 111. 487, 85 Am. Dec. 373; Commonwealth v. Butter- ick, 100 Mass. 1. 97 Am. Dec. 65. "' Van Etten v. State. 24 Neb. 734, 40 N. W. 289, 1 L. R. A. 669. 2972.] EMBEZZLEMENT. 238 reasonable doubt every essential element of the offense.^^ Thus, the evidence must establish that the emplo}Tnent or relation of trust existed ;^^° and a felonious intent must be shown beyond a reasonable doubt ;^"^ that is, the evidence should establish an intent to defraud beyond a reasonable doubt."^ And the evidence must not only suffi- ciently establish the intent to defraud the owner, but also conversion of the property to one's own use, or to the use of some other person. That is, the intention to convert must also be established.^"^ The gist of embezzlement being the conversion or the breach of trust, the evidence must be sufficient to establish it.^"* But in many cases, as where the circumstances are sufficient to prove a wilful and unlawful conversion, an intent to convert may and usually should be in- ferred.^°^ In order to warrant a conviction, however, a conversion must usually be established which the agent, under his employment had no right to make.^'^^ It must be shown that the accused was in the employ of or held a relation of trust or confidence towards the person whose property he is alleged to have wrongfully taken for his own use; and any evidence which tends to prove these facts may in ^ See, § 2965, on burden of proof; State v. Baldwin, 70 Iowa 180, 30 N. W. 476. ^•^ Calkins v. State, 18 Ohio St. 366, 98 Am. Dec. 121; see also, Gri- der V. State, 133 Ala. 188, 32 So. 254; Bartlow v. People, 78 N. Y. 377; Wilbur V. Territory, 3 Wyo. 268, 21 Pac. 698; Rex v. Snowley, 4 Car. & P. 390, 19 E. C. L. 436. "' State V. McDonald, 133 N. Car. 680, 45 S. E. 582. "^ McElroy v. People, 202 111. 473, 66 N. E. 1058. But it may, of course, be inferred from circumstances. United States v. Harper, 33 Fed. 471; State v. Kortgaard, 62 Minn. 7, 64 N. W. 51. i°='Beaty v. State, 82 Ind. 232; State v. Lyon, 45 N. J. L. 272; People V. Page, 116 Cal. 386, 48 Pac. 326; People V. Hurst, 62 Mich. 276, 28 N. W. 838; Stalllngs v. State, 29 Tex. App. 220, 15 S. W. 716; State v. Kort- gaard, 64 Minn. 7, 54 N. W. 51; Mulford V. People, 139 111. 586, 28 N. E. 1096; State v. Pratt, 98 Mo. 482, 11 S. W. 977; State v. Hopkins, 56 Vt. 250; State v. Trolson, 21 Nev. 419, 32 Pac. 930. ^'^ Commonwealth v. Ryan, 155 Mass. 523, 30 N. E. 364; Common- wealth V. Moore, 166 Mass. 513, 44 N. E. 612; Commonwealth v. Clif- ford, 96 Ky. 4, 27 S. W. 811; Peo- ple V. Johnson, 91 Cal. 265, 27 Pac. 663; Ennis v. State, 3 Green (Iowa) 67. "^Commonwealth v. Moore, 166 Mass. 513, 44 N. E. 612; State v. Noland, 111 Mo. 473, 19 S. W. 715: State V. Cunningham, 154 Mo. 161, 55 S. W. 282; State v. Brame, 61 Minn. 101, 63 N. W. 250; People v. Wadsworth, 63 Mich. 500, 30 N. W. 99; see also, Dotson v. State, 51 Ark. 119, 10 S. W. 18; People v. Jackson, 138 Cal. 462, 71 Pac. 566. "'"State v. Hill, 47 Neb. 456, 66 N. W. 541; State v. Wallick, 87 Iowa 369, 54 N. W. 246. 239 WEIGHT AND SUFFICIENCY OF EVIDENCE. [§ 2972. general be received as relevant evidence.'"' So where the evidence shows the relation to be that of debtor and creditor it is not sufficient, for the evidence must show that a relation of trust existed between the accused and the owner of the property."^ ^Vhere the accused originally gained control of the property by trick or accident there can be no embezzlement for, as distinguished from larceny, it must appear that the accused at the time of his wrongful act was in lawful possession of the property. ^"^ But it is not always essential that the proof should show that the embezzler had physical or manual pos- session of the money or property, and it has been held that legal possession is all that is required.^'" It must, however, be establislied by the evidence that the property alleged to have been converted was the property of the employer of the accused or was secured by him in such a way as to be capable of being embezzled."^ And so if the evidence introduced by the prosecution is consistent wuth good faith on the part of the accused it may be insufficient to show such an intent to embezzle as is necessary under the statutes."^ To support a conviction of the accused as a public official, the evidence must show the official character of the accused and bring the act alleged within the statute under which proceedings were brought. ^^^ Where the charge is the embezzlement of property of a corporation, proof of the de facto existence of the corporation is generally sufficient."* Evidence was held sufficient to warrant a conviction of embezzlement where it showed that the accused received certain goods to sell for the owner and failed to account for them and that he had admitted that he had sold them and intended to keep the proceeds."'^ It has also been held that a person may be convicted on the uncorroborated "^Stanley v. State, 88 Ala. 154, "^ Brady v. State, 21 Tex. App. 8 So. 273; Thalheim v. State, 38 Fla. 659, 1 S. W. 642. 169, 20 So. 938. "-State v. Wallick, 87 Iowa 369, ^"^Mulford V. People, 139 111. 586, 54 N. W. 246. 28 N. E. 1096. "' State v. Mahan, 138 Mo. 112, 39 ^'«' Commonwealth v. Barry, 99 S. W. 465; People v. Page, 116 Cal. Mass. 428, 96 Am. Dec. 767; Phelps 386, 48 Pac. 326; State v. Mims, 26 V. People, 72 N. Y. 334; People v. Minn. 183, 2 N. W. 494; Robson v. Johnson, 91 Cal. 265, 27 Pac. 663; State, 83 Ga. 166, 9 S. B. 610; Hem- State V. Carrick, 16 Nev. 120; Com- ingway v. State, 68 Miss. 371, 8 So. monwealth v. O'Malley, 97 Mass. 317. 584; Lowenthal v. State, 32 Ala. "* State v. CoUens, 37 La. Ann. 589; Fulcher v. State, 32 Tex. Cr. 607; Thalheim v. State, 38 Fla. 169, App. 621, 25 S. W. C25. 20 So. 938. "0 State V. Krug, 12 Wash. 288, 41 "= State v. Foley, 81 Iowa 36, 46 Pac. 126. N. W. 746. ■^ -2972.] EMBEZZLEMENT. 240 evidence of the books kept ])y him for his employer and which he falsified to conceal his speculations. "« So, it has been held that facts showing a conversion are sufficient without showing liow the accused finally disposed of the property.^ i' And proof of embezzlement by cir- cumstantial evidence is sufficient. ^^•'* Proof of conversion of funds is sufficient without proof of the exact amount alleged ; in other words, the exact amount is immaterial. "» And it is generally held that any evidence tending to show that the property was of value is suf- ficient in this respect to sustain a verdict of conviction.^^o Where a bailee of a note is charged with its embezzlement, it is sufficient proof of its value that, being negotiable and not due at the time of its con- version, defendant was able to sell and dispose of it for its face.^-^ A confession or an admission which relates to the course of action of the accused during his entire employment in a certain service is competent evidence, as it necessarily has reference to and marks all the acts and matters alleged to have been done within that period.^'" Proof of a series of criminal acts resulting in the embezzlement of a sum of money is sufficient to sustain a finding that the aggregate amount as set out was embezzled. ^-^ A sliowing that money belong- ing to a minor was intrusted to the public administrator, and that he did not have the funds, and had not paid them to the ward or her creditors, or to his successor in office, has been held sufficient to sustain a conviction of embezzlement.^-* In a recent case it was held that there was a bailment and a sufficient conversion to authorize a Jackson v. People, 126 111. 139, Todd V. State, 31 Ind. 514; Common- 18 N. E. 286. wealth V. Jackson, 132 Mass. 16, and *' State v. Beaucleigh, 92 Mo. 490, the transactions must not be too re- 4 S. W. 666; see also, the somewhat mote; State v. Church, 43 Conn, similar case of, Grunson v. State, 471; Mayer v. People, 80 N. Y. 364; 89 Ind. 533, where the accused was Trogdon v. Commonwealth, 31 convicted of larceny. Gratt. (Va.) 862; see also. State v "State v. Montgomery, 56 Iowa Wilson, 72 Minn. 522, 75 N. W. 715. 195, 9 N. W. 120; People v. Winslow, And not, it has been held, subse- 39 Mich. 505. quent to the indictment; State v. ='12 Ency. of Law (2d ed.) 808; Letourneau, 41 R. I. 3, 51 Atl. 1048. compare, State v. Patillo, 4 Hawks -247 THE PRETENSE. u ja:8. nse of a false token was essential to constitute a cheat of a private nature under the old English statute against obtaining property by cheats effected by privy tokens.^* Something real and visible was required as distinguished from the mere words, as a ring, a key, or a writing or the like ; and it seems that even a writing would not suf- fice unless it was in the name of another, and of such a character as to afford more credit than the mere representation or assertion of the party defrauding.^^ And under a statute at one time in force in Indiana, somewhat different from the statute now in force, it was held that the false use of a genuine writing was not the use of a false token or writing.^® But, under most statutes the false pretense may be either in words or in acts, or in both.^^ § 2978. The pretense. — The false pretense is an essential element of the offense, and it must relate to an existing or past fact, and not merely to a future event.^^ So, it must amount to more than the mere expression of an opinion.^^ Thus, a mere promise or statement (N. Car.) 348, and State v. Grooms, 5 Strobb. L. (S. Car.) 158, and see, 2 Bishop New Cr. Law, §§ 151, 152. ^ See, People v. Johnson, 12 Johns. (N. Y.) 292; State v. Phifer, 65 N. Car. 321; State v. Vanderbilt, 27 N. J. L. 328. ^ See, Rex v. Lara, 6 Term R. 365, 2 East P. C. 827; 3 Chitty Cr. Law 997; People v. Gates, 13 Wend. (N. Y.) 311 (somewhat extending the rule under the English statute). « Shaffer v. State, 82 Ind. 221; but compare, Jones v. State, 50 Ind. 473; Wagoner v. State, 90 Ind. 504, 507; Lefler v. State, 153 Ind. 82, 54 N. E. 439; in. State v. Henn. 39 Minn. 464, 40 N. W. 564, it is held that if the false token is a writing it need not be such as, if genuine, would be of legal validity. For ex- amples of false tokens, see, 10 L. R. A. 304, note. "State v, Dowe, 27 Iowa 273, 1 Am. R. 271; State v. Grant. 86 Iowa 216, 222, 53 N. W. 120; Musgrave v. State, 133 Ind. 297, 32 N. E. 885; State v. Dixon, 101 N. Car. 741-743, 7 S. E. 870; Commonwealth v. Wal- lace, 114 Pa. St. 405, 412, 6 Atl. 685, 60 Am. R. 353; Blum v. State, 20 Tex. App. 578, 592, 54 Am. R. 530; see also, Greenough, In re, 31 Vt. 290; Reg. v. Murphy, 10 Ir. C. L. R. 508, 13 Cox Cr. Cas. 298; Rex v. Barnard, 7 Car. & P. 784, 32 E. C. L. 736; Rex v. Story, Russ. & Ry. C. C. 80; 25 Am. St. 379, note. =» State v. Whidbee, 124 N. Car. 796, 32 S. E. 318; State v. Matthews, 121 N. Car. 604, 28 S. E. 469; State V. Magee, 11 Ind. 154; Redmond v. State, 35 Ohio St. 83; McKenzie v. State, 11 Ark. 594; People v. Blau- chard, 90 N. Y. 314; State v. Kings- ley, 108 Mo. 135, 18 S. W. 994; Com- monwealth V. Warren, 94 Ky. 615, 23 S. W. 193. =» Woodbury v. State. 69 Ala. 242, 44 Am. R. 515; State v. Dowe, 27 Iowa 275, 1 Am. R. 271; State v. Webb, 26 Iowa 262; People v. Jacobs, 35 Mich. 36. 2978.] FALSE PRETENSES. 248 of intention as to the future is usually insufficient to constitute a false pretense within the meaning of the law,^° and expressions of opinion as to the desirability or value of a thing are not, ordinarily, sufficient to constitute false pretenses.^^ But under a statute against fraudulently obtaining goods under false color or pretense of carry- ing on business and dealing in the ordinary course of trade, a false and fraudulent representation by the purchaser that he wants them for resale in the ordinary course of business has been held to be a representation of fact within the statute rather than a mere promise or expression of intention as to the future.^^ And although a false pretense is coupled with a promise, if the former is relied on and is an inducing cause it is generally sufficient.^ ^ The pretense must be false, and it is for the jury to determine whether the representation is false,^* and, in certain cases, whether it is a continuing one.^^ The pretense may consist in acts and conduct^^ as well as in words, and ^"Reg. V. Johnson, 2 Moo. C. C. 254; Glackan v. Commonwealth, 3 Mets. (Ky.) 232; Commonwealth v. Burdick, 2 Pa. St. 163, 44 Am. Dec. 186; Reg. v. Woodman, 14 Cox Cr. Cas. 179; State v. De Lay, 93 Mo. 98, 5 S. W. 607. ^'Commonwealth v. Wood, 142 Mass. 459, 8 N. E. 432; Common- wealth V. Stevenson, 127 Mass. 446, 448; State v. Daniel, 114 N. Car. 823, 19 S. E. 100; Rothschild v. State, 13 Lea (Tenn.) 294, 300; Peo- ple v. Gibbs, 98 Cal. 661, 33 Pac. 630; but compare, People v. Jordan, 66 Cal. 10, 4 Pac. 773, 56 Am. R. 73; People V. Peckens, 153 N. Y. 576, 47 N. E. 883. ^^Commonwealth v. Walker, 108 Mass. 309, 312; see also. Common- wealth V. Drew, 153 Mass. 588, 593, 27 N. B. 593. ^ Commonwealth v. Murphy, 96 Ky. 28, 27 S. W. 859; People v Win- slow, 39 Mich. 507; Reg. v. Bates, 3 Cox Cr. Cas. 201; Rex v. Asterley, 7 Car. & P. 191, 32 E. C. L. 490; see also. State v. Gordon, 56 Kans. 64, 67, 42 Pac. 346; Donohoe v. State, 59 Ark. 377, 27 S. W. 226; Thomas v. State, 90 Ga. 437, 16 S. E. 94; Commonwealth v. Wallace, 114 Pa. St. 413, 6 Atl. 685, 60 Am. R. 353; Boscow V. State, 33 Tex. Cr. App. 390, 26 S. W. 625. But not, it seems, where the entire reliance is on the promise. People v. Tompkins, 1 Park. Cr. Cas. (N. Y.) 238; Ranney V. People, 22 N. Y. 413. '*See, Jackson v. People, 18 111. App. 513; People v. Reynolds, 71 Mich. 348, 38 N. W. 923; State v. Hurley, 58 Kans. 668; People v. Cole, 65 Hun (N. Y.) 624, 20 N. Y. S. 505, aff'd in, 137 N. Y. 530, 33 N. E. 336. ==^ Reg. V. Martin, L. R., 1 C. C. 56, 10 Cox Cr. Cas. 383; see also, Roths- child V. State, 13 Lea (Tenn.) 294. '"Musgrave v. State, 133 Ind. 297, 32 N. E. 885; State v. Grant, 86 Iowa 222, 53 N. W. 120; Commonwealth v. Wallace, 114 Pa. St. 412, 6 Atl. 685, 60 Am. R. 353; Rex v. Story, Russ. & Ry. C. C. 80; Reg. y. Bull, 13. Cox Cr. Cas. 608. 249 PRETENSE CALCULATED TO DECEIVE. [§ 2979. it may be made to the agent of the defrauded party/ cases, even by advertisement.^^ or, m some § 2979. The pretense — ^Whether it must be calculated to deceive. It is usually said that the pretense must be such as is calculated to deceive/" and it is laid down by some of tlie courts and text-writers that it must be such as is calculated to deceive persons of ordinary prudence and discretion, or as would have been guarded against by such persons.*" But the better rule seems to be that this is not an absolute requisite and that it is sufficient, in this respect, if it was calculated to and did impose upon and deceive the person to whom it was made. Thus, in a recent case, overruling several earlier decisions in the same jurisdiction, it is said: "In England, and many of the states, the rule is that any pretense which deceives the person de- frauded is sufficient to sustain an indictment, although it would not have deceived a person of ordinary prudence.*^ "^ State v. Turley, 142 Mo. 403, 44 S. W. 267; Perry v. State, (Tex. Cr. App.) 46 S. W. 816; Commonwealth V. Call, 21 Pick. (Mass.) 509, 523, 32 Am. Dec. 284, 324; Reg. v. God- frey, 7 Cox Cr. Cas. 392; Reg. v. Dent, 1 Car. & Kir. 249, 47 E. C. L. 349. ^"^ Jackson v. People, 126 111. 139, 18 N. E. 286; State v. Sarony, 95 Mo. 349, 8 S. W. 407; Reg. v. Cooper, 1 Q. B. Div. 19, 13 Cox Cr. Cas. 123. ^"Meek v. State, 117 Ala. 116, 23 So. 155; Watson v. People, 87 N. Y. 561, 566; Bowen v. State, 9 Baxt. (Tenn.) 45, 40 Am. R. 71; Canter v. State, 7 Lea (Tenn.) 349; State v. Estes, 46 Me. 150; Higler v. People, 44 Mich. 299, 6 N. W. 664; Common- wealth V. Moore, 99 Pa. St. 570. *° Commonwealth v. Grady, 13 Bush (Ky.) 285, 26 Am. R. 192; Commonwealth v. Haughey, 3 Mete. (Ky.) 223; People v. Williams, 4 Hill (N. Y.) 9, 40 Am. Dec. 258; State V. Young, 76 N. Car. 258; State V. Simpson, 3 Hawks (10 N. Car.) 620; Underhill Cr. Ev., § 440. Several Indiana cases to the same effect are overruled in the decision referred to in the next note. "Lefler v. State, 153 Ind. 82, 83, 54 N. E. 439; 2 Russell Crimes (9th Am. ed.) 619-700; Roscoe Cr. Ev. (7 Am. ed.) 487, 488; 2 Bishop Cr. Law, § 433-436; Reg. v. Woolley, 1 Den. C. C. 559, 4 Cox Cr. Cas. 193, 3 Car. & Kir. 98, 2 East P. C, § 8, pp. 827, 831; Reg. v. Jessop, Dears & B. 442, 7 Cox Cr. Cas. 399; Reg. v. Giles, L. & C. 502, 10 Cox Cr. Cas. 44; Johnson v. State, 36 Ark. 242; State V. Fooks, 65 Iowa 196, 452, 21 N. W. 561, 773; State v. Montgom- ery, 56 Iowa 195, 9 N. W. 120; Peo- ple V. Pray, 1 Mich. N. P. 69; State V. Williams, 12 Mo. App. 415; Col- bert V. State, 1 Tex. App. 314; Green- ough, In re, 31 Vt. 279-290; Watson V. People, 87 N. Y. 561, 41 Am. R. 397; People v. Oyer & Terminer, 83 N. Y. 436-449; People v. Cole, 65 Hun (N. Y.) 624, 20 N. Y. S. 505, aff'd in, 137 N. Y. 530, 33 N. E. 336; People V. Rice, 128 N. Y. 649. 29 N. E. 146; State v. Mills, 17 Me. 211; 2980.] FALSE PRETENSES. 250 § 2980. Evidence to prove the pretense. — Unless otherwise pro- vided by statute*- the false pretense may be proved in the same manner as any other fact in similar cases. The burden is upon the prosecution to show its falsity;" but this may be done by circum- stantial evidence." Admissions of the defendant are competent for this purpose.*^ If the false pretense is in writing the writing is usu- ally the best evidence, but if it is lost, or there is other ground for the admission of secondary evidence, such evidence is admissible after laying the proper foundation.**^ And it has been held that the mere fact that there is a writing, embodying some of the false representa- tions, will not exclude parol evidence of other oral representations not contained therein.*^ Illustrative cases showing the extent to which the courts go in admitting evidence to show the falsity of the pretense are cited below.-*^ The defendant may, in general, introduce Smith V. State, 55 Miss. 513; Watson V. State, 16 Lea (Tenn.) 604; Bowen V. State, 9 Baxt. (Tenn.) 45, 40 Am. R. 71; Commonwealth v. Henry, 22 Pa. St. 253; Thomas v. People, 113 111. 531; Cowen v. People, 14 111. 348; Bartlett v. State, 28 Ohio St. 669, 670; see also, 16 Am. L. Reg. (N. S.) 321, 325; 25 Am. St. 380, note. ^ See as to California statute. Peo- ple V. Martin, 102 Cal. 558, 36 Pac. 952. *^ People y. Hong Quin Moon, 92 Cal. 41, 27 Pac. 1096; Babcock v. People, 15 Hun (N. Y.) 347; Morris V. People, 4 Colo. App. 136, 35 Pac. 188; Bowler v. State, 41 Miss. 570, 576; Brown v. State, 29 Tex. 503; but see, Reg. v. Sampson, 49 J. P. 807, 52 L. T. N. S. 772. " Commonwealth v. Hershell, Thach. Cr. Cas. (Mass.) 70; People T Pinckney, 67 Hun (N, Y.) 428, 22 N. Y. S. 118; People v. Sully, 5 Park. Cr. Cas. (N. Y.) 142, 169; Smith V. State, 55 Miss. 521; State V. Hulder, 78 Minn. 524, 81 N. W. 532. "State V. Lewis, 45 Iowa 20; State V. Gordon, 56 Kans. 64, 42 Pac. 346; Maddox v. State, 41 Tex. 205, 208; but see as to corroboration, State v. Penny, 70 Iowa 190, 30 N. W. 561; see also, Sherman v. People, 13 Hun (N. Y.) 575. " Commonwealth v. Jeffries, 7 Allen (Mass.) 561, 83 Am. Dec. 712; Rex V. Chadwick, 6 Car. & P. 181. 25 E. C. L. 244; see also, State v. Penny, 70 Iowa 191, 30 N, W. 561, (holding that no sufficient founda- tion had been laid). *'Reg. V. Adamson, 1 Car. & Kir. 192, 47 E. C. L. 192; see also, Jack- son V. People, 126 111. 139, 18 N. E. 286; Commonwealth v. Alsop, 1 Brews. (Pa.) 328, 331; for letters and other documents held admis- sible see. Territory v. Ely, 6 Dak. 128, 50 N. W. 623; Rafferty v. State, 91 Tenn. 655, 16 S. W. 728; Jackson V. People, 126 111. 139, 18 N. E. 286; Commonwealth v. Blood, 141 Mass. 571, 6 N. E. 769; Trogdon v. Com- monwealth, 31 Gratt. (Va.) 862, 869; but compare, Jones v. State, 8 Tex. App. 648, 652. ^* Commonwealth v. Lundberg, 18 Phila. (Pa.) 482; Abbott v. People, 15 Hun (N. Y.) 437; People v. Wieger, 100 Cal. 357, 34 Pac. 826; 251 RELIANCE ON PRETENSE. [§ 2981. any proper evidence to show that he did not make the alleged false representation, or that it is true.*'* It is essential, as a rule at least, that the defendant should have known of the falsity of the pretense,°° but this, too may be shown by circumstantial evidence, and the de- fendant's admissions or declarations either before or after the offense are usually competent for this purpose.^^ Indeed, it is sometimes said that knowledge of the false pretense will be presumed under certain circumstances. In a recent case, on a trial for obtaining goods under false pretenses, a paper taken from defendant's person was held admissible in evidence both for the purpose of showing guilty knowledge and for the purpose of showing that the defendant had devised a scheme to obtain goods whenever and from whomsoever he could, where the paper was in his own handwriting, and was ad- dressed "to all whom it may concern," and contained the same false statements he was charged with in the indictment, though it was not used in obtaining the goods in the particular case, and was dated subsequent thereto. ^- § 2981. Reliance on pretense. — The false pretense alleged mun^t have been relied on by the defrauded party and must have been an Jordan v. Osgood, 109 Mass. 457, == State v. Haines, 23 S. Car. 170; 464, 12 Am. R. 731; Smith v. People, Jackson v. People, 126 111. 139, 18 47 N. Y. 303. N. E. 286; Pinter, In re. 66 L. T. N. ^»See, Rainforth v. People, 61 111. S. 324; Carnell v. State. 8.5 Md. 1, 365; State v. Lurch, 12 Ore. 95, 6 36 Atl. 117. In the course of the Pac. 405. opinion the court said: "The repre- =" People V. Behee, 90 Mich. 356, sentation made in the letter, being, 51 N. "W. 515; Johnson v. State, 75 according to its purport, subsequent Ind. 553, 556; State v. Bradley, 68 in date to a similar statement set Mo. 140, 142; Sharp v. State, 53 N. forth in the bill of particulars, may J. L. 511, 21 Atl. 1026; State v. not prove that the latter was in Hurst, 11 W. Va. 54, 59. It has been fact made; yet the letter was admis- held no offense where it appeared sible for the purpose of showing that the defendant in good faith guilty knowledge. * * * But, in believed the representation true, addition to this, the letter was ad- State v. Alphin, 84 N. Car. 745; missible under the exception to the Ketchell v. State, 36 Neb. 324, 54 N. general rule which is well recog- W. 564. nized, namely, for the purpose of " Fowler v. People, 18 How. Pr. showing that the traverser had de- (N. Y.) 493, 499; State v. Long, vised a scheme to obtain goods 103 Ind. 481, 3 N. E. 169; see also, wherever and from whomsoever he People V. Hamberg, 84 Cal. 468. 473, could by falsely representing that 24 Pac. 298; People v. Pinckney. 67 he had money on deposit in the Hun (N. Y.) 428, 22 N. Y. S. 118. People's Bank of Hagerstown." 2981.] FALSE PRETENSES. 252 inducing cause of his parting with his property." The evidence, it has been said must show beyond a reasonable doubt that he believed that the representations were true, and that, relying and acting upon them, he parted with his property upon the faith of such representa- tions.'** But they need not be shown to have been the sole, and ex- elusive cause or inducement. He may have been influenced by con- sideration of friendship, or the desire of gain, or other causes as well as the false pretenses and whether he was so influenced, and by what and to what extent, are questions for the jury.'''* It has been held that the prosecuting witness may testify directly that he believed in the false pretenses;^® but even though he does not testify upon the subject,®'^ it may be inferred from the circumstances in evidence that he was induced to part with his property by the false pretenses of the defendant.^ ^ "Meek V. State, 117 Ala. 116, 23 So. 155; Morgan v. State, 42 Ark. 131, 138, 48 Am. R. 55; State v. Connor, 110 Ind. 469, 471, 11 N. E. 454; Ladd v. State, 17 Fla. 215, 219; State V. Stone, 75 Iowa 215, 39 N. W. 275; State v. Moore, 111 N. Car. 669, 672, 16 S. E. 384; State v. Bloodsworth, 25 Ore. 83, 34 Pac. 1023; Bowler v. State, 41 Miss. 570, 578; Reg. v. Gemnell, 26 U. C. Q. B. 312; Reg. v. Jones, 1 Cox Cr. Cas. 105; Reg. v. Mills, 7 Cox Cr. Cas. 263; State v. Crane, 54 Kans. 384, 38 Pac. 270; 2 Bishop New Cr. Law, § 159. "Underbill Cr. Ev., §, 442; Trog- don V. Commonwealth, 31 Gratt. (Va.) 862, 884; Reg. v. Mills, 7 Cox Cr. Cas. 263. '=• State V. Thatcher, 35 N. J. L. 445; Therasson v. People, 20 Hun (N. Y.) 55, 67; Van Buren v. Peo- ple, 7 Colo. App. 136, 42 Pac. 599; People V. Haynes, 14 Wend. (N. Y.) 546; People v. Baker, 96 N. Y. 340, 348; Berry v. State, 97 Ga. 202, 23 S. E. 833; Skiff v. People, 2 Park. Cr. Cas. (N. Y.) 139; State v. Wil- liams, 103 Ind. 235, 237, 2 N. E. 585; Woodbury v. State, 69 Ala. 242, 246; Wax V. State, 43 Neb. 18, 61 N. W. 117; State v. Dunlap, 24 Me. 77; Commonwealth v. Stevenson, 127 Mass. 446; Fay v. Commonwealth, 28 Gratt. (Va.) 912; Cowen v. Peo- ple, 14 111. 348; Britt v. State, 9 Humph. (Tenn.) 30; State v. Fooks, 65 Iowa 196, 452, 21 N. W. 561, 773; Snyder, In re, 17 Kans. 542; State V. Cowdin, 28 Kans. 270; State v. Tessier, 32 La. Ann. 1227; Smith r. State, 55 Miss. 513; People v. Gibbs, 98 Cal. 662, 663, 33 Pac. 630; Dono- hoe v. State, 59 Ark. 375, 27 S. W. 226; but see, Bryant v. Common- wealth, 104, Ky. 593, 47 S. W. 578. ^People V. Herrick, 13 Wend. (N. Y.) 87; Snyder, In re, 17 Kans. 542. "People V. Hong Quin Moon, 92 Cal. 42, 27 Pac. 1096; State v. That- cher, 35 N. J. L. 449. "** Commonwealth v. Coe, 115 Mass. 501; Therasson v. People, 82 N. Y. 238; Reg. v. Burton, 16 Cox Cr. Cas. 62; Jones v. United States, 5 Cranch (U. S.) 647, 652. 253 DEFENSES. [§ 2982. § 2982. Defenses. — A mere intention to repay money obtained by false pretenses, or the ability of the defendant to repay it, is not a good defense;'^ and it has been held that it is no defense that the party defrauded had himself misrepresented the value of the goods obtained by the defendant by false pretense,^" or, in other words, that the illegal purpose of the person from whom money or property is obtained by false pretenses is no defense to an indictment against the person who so obtained it."^ But upon this last proposition the authorities are conflicting and the contrary doctrine is maintained in several apparently well considered cases.^^ The fact that the of- fense was committed for a purposed meritorious object or for the benefit of another, as for instance, where parties conspired to obtain money by false pretenses from an insurance company for the benefit of the insured rather than for tliemselvcs, is no defense.''^ The de- fendant may, however, introduce proper evidence to repel or rebut the inference of an intent on his part to defraud. It has been held that he may do so by his own direct testimony,''* or he may do so by other legitimate evidence tending to show that there was no false pretense on his part or that no fraud was designed or could have re- sulted.^^ So, in a complicated transaction, he may generally show the "^Buntain v. State, 15 Tex. App. 66; Cunningham v. State, 61 N. J. 515; Commonwealth v. Coe, 115 L. 67, 38 Atl. 847; Reg. v. Hudson, Mass. 481; see also. Territory v. Ely, 8 Cox Cr. Cas. 305, 6 Jur. N. S. 566. 6 Dak. 128, 50 N. W. 623; People v. «= People v. Stetson, 4 Barb. (N. Bryant, 119 Cal. 595, 51 Pac. 960, Y.) 151; McCord v. People, 46 N. Y. holding the fact that defrauded 470 (with a vigorous dissenting party might ultimately have recov- opinion, however, by Peckham, J.); ered no defense. Nor does an offer State v. Crowley, 41 Wis. 271. to refund or even a restoration "^^ Musgrave v. State, 133 Ind. 297, purge the offense. Donohoe v. State, 32 N. E. 885; People v. Lennox, 106 59 Ark. 378, 27 S. W. 226; Carlisle Mich. 625, 64 N. W. 488; see also, V. State, 77 Ala. 71; People v. Oscar, Willis v. People, 19 Hun (N. Y.) 105 Mich. 704, 63 N. W. 971. 84; but see, Reg. v. Garrett, 6 Cox *" Commonwealth v. Morrill, 8 Cr. Cas. 260; Commonwealth v. Cush. (Mass.) 571. Langley, 169 Mass. 89, 47 N. E. 511; "Cummins, In re, 16 Colo. 451, Bracey v. State. 64 Miss. 26, 8 So. 27 Pac. 887, 13 L. R. A. 752; Com- 165. mon wealth v. Henry, 22 Pa. 253; 2 ** Babcock v. People, 15 Hun (N. Bishop Cr. Law (7th ed.), § 469; see Y.) 347, 355. also, People v. Martin, 102 Cal. 558, "^ See, People v. Getchell, 6 Mich. 36 Pac. 952; People v. Watson, 75 496; it is held in many jurisdictions Mich. 582, 42 N. W. 1005; Common- that if the other party is merely in- wealth V. O'Brien, 172 Mass. 248, 52 duced by a false pretense to pay a N. E. 77; easily v. State, 32 Ind. 62, debt or perform a duty which he § 2983.] FALSE PRETENSES. 254 course of dealing between himself and the prosecuting witness f^ but the evidence must be relevant and material,*'^ It has also been held on the trial of an indictment for obtaining goods by false representa- tions, where the terms of a chattel mortgage were introduced in evi- dence against the defendant, that parol evidence was admissible to show his relationship to the mortgage transaction and that he acted under a misapprehension.^® So, it has been held that the defendant may introduce evidence of his character and reputation with respect to the traits involved, but not specific instances and their details;^' and evidence of his good financial standing at the time has been held inadmissible.'** § 2983. Declarations and admissions — Co-conspirators. — Declara- tions and admissions made by the defendant, relating to the transac- tion charged, are admissible against him as in other cases.'^^ So, where the defendant, when arraigned upon an indictment for obtain- ing money by false pretenses that he was a man of means, obtained counsel at the expense of the state by pleading his poverty to the court, his statement thus made was held admissible to prove the falsity of the pretense made to his victim.''^ So, too, the acts and declarations of his co-conspirator relating to the same crime, and in furtherance thereof, though not made in his presence, are admissible against owed to the defendant this will gen- State, 86 Ga. 197, 12 S. E. 746; Com- erally negative an intent to defraud monwealth v. Howe, 132 Mass. 250; and constitute a defense. Rex. v. Van Buren v. People, 7 Colo. App. Williams, 7 Car. & P. 354, 32 E. C. 136, 42 Pac. 599. L. 540; Commonwealth v. McDuffy, -^ State v. Garris, 98 N. Car. 733, 126 Mass. 467; People v. Thomas, 4 S. E. 633. 3 Hill (N. Y.) 169; Jamison v. State, ""State v. Dexter, 115 Iowa 678, 37 Ark. 445, 40 Am. R. 103; State v. 87 N. W. 417; see also. State v. Pen- Hurst, 11 W. Va. 54, 71; but see, ley, 27 Conn. 587. People V. Smith, 5 Park. Cr. Cas. '"State v. Penley, 27 Conn. 587; (N. Y.) 490; Commonwealth v. but see post, § 2984. Leisy, 1 Pa. Co. Ct. R. 50. "State v. Long, 103 Ind. 481, 3 "" State V. Rivers, 58 Iowa 102, 108, N. E. 169; Commonwealth v. Castles, 12 N. W. 117, 43 Am. R. 112; Lutton 9 Gray (Mass.) 121, 69 Am. Dec. V. State, 14 Tex. App. 518; but see, 278; State v. Wilkerson, 72 N. Car. People V. Genung, 11 Wend. (N. Y.) 376; see also. State v. Wilson, 72 18, 25 Am. Dec. 594, as to books of Minn. 522, 75 N. W. 715; People v. account. Shelters, 99 Mich. 333, 58 N. W. 362. «' State V. Wilson, 143 Mo. 334, " State v. Fooks, 65 Iowa 196, 452, 44 S. W. 722; People v. Lennox, 106 21 N. W. 561, 773. Mich. 625, 64 N. W. 488; Culver v. 255 SUFFICIENCY OF EVIDENCE — VARIANCE. [§ 2984. him,'^ It is held, however, that such evidence is not sufficient to convict, unless corroborated,'* and to admit the acts and declarations of those claimed to be co-conspirators the fact of combination or con- spiracy should be shown, "^ § 2984. Sufliciency of evidence — ^Variance — Miscellaneous. — The evidence must establish a false representation or pretense substantially as charged in the indictment.''® But, although the defendant is charged with making a number of false pretenses in accomplishing the one fraudulent purpose, it is not necessary that all of them should be proved.''^ So, if the substance of the false representation is proved, it is not a fatal variance that it is not proved in the exact words.'"" But a substantial variance in this respect or in any other material respect may be fatal. ''^ The place where the owner parts with his property and the crime is consummated generally determines the venue. This is an important matter in many cases, as where the accused has written to the owner of property in another jurisdiction and it is sent to the former upon the faith of the false representations " State V. Montgomery, 56 Iowa 195, 9 N. W. 120; see also, State v Davis, 56 Iowa 202, 9 N. W. 123; Commonwealth v. Clancy, (Mass.) 72 N. E. 842. '♦ State V. Penny, 70 Iowa 190, 30 N. W. 561. "Jones V. Commonwealth, 2 Duv. (Ky.) 554. "O'Connor v. State, 30 Ala. 9; Commonwealth v. Pierce, 130 Mass. 31; Commonwealth v. Davidson, 1 Cush. (Mass.) 33; Todd v. State, 31 Ind. 514; Rex v. Plestow, 1 Campb. 494; but see. People v. Herrick, 13 Wend. (N. Y.) 87. " People V. Wakely, 62 Mich. 297, 28 N. W. 871; Todd v. State, 31 Ind. 514; State v. Dunlap, 24 Me. 77; Cowen V. People, 14 111. 348; Com- monwealth V. Morrill, 8 Cush. (Mass.) 571; People v. Blanchard, 90 N. Y. 314; State v. Vorback, 66 Mo. 168. " State V. Vanderbilt, 27 N. J. L. 328; Commonwealth v. Coe, 115 Mass. 481. * See, Commonwealth v. Howe, 132 Mass. 250; Commonwealth v. Jeffries, 7 Allen (Mass.) 548, 83 Am. Dec. 712; Baker v. State, 31 Ohio St. 314; Prehn v. State, 22 Neb. 673, 36 N. W. 295; People v. Reed. 70 Cal. 529, 11 Pac. 676; Kirtley v. State, 38 Ark. 543; State v. Horn, 93 Mo. 190, 6 S. W. 96. It must in some jurisdictions, at least, appear be- yond a reasonable doubt that the property obtained by the false pre- tenses had some value. State v. Lewis, 26 Kans. 123; Morgan v. State, 42 Ark. 131 ; State v. Shaeffer, 89 Mo. 271; 1 S. W. 293; Rosales v. State, 22 Tex. App. 673, 3 S. W. 344. And that the other party was pre- judiced or injured. Snyder, In re, 17 Kans. 542; People v. Herrick, 13 Wend. (N. Y.) 87; but see, Sim- mons v. People, 88 111. App. 334; Commonwealth v. Harley, 7 Mete. (Mass.) 462. § 2984.] FALSE PRETENSES. 256 contained in the letter. It must, therefore, generally be proved where the false pretenses were acted upon and the property obtained-^" Where one procures money or goods from another knowing that the latter believes him to be solvent and financially responsible, the insolvency of the former may well be considered as showing, with the other circumstances, an intent to defraud, and this is certainly true where he represents that he is solvent. Hence, evidence to show the solvency or insolvency of the defendant has often been admitted in prosecutions for false pretenses." In a recent case, which was a prosecution for larceny by obtaining money from different persons at different times by false pretenses in the sales of business establish- ments, there being evidence of a conspiracy in pursuance of which defendants had acted throughout the transactions, it was held that the jury, if they found there was such a conspiracy, might consider the acts of either or both of defendants in any of the transactions, at least on the question of the knowledge of each of the falsity of the representations made, and of the intent of each to cheat each pur- chaser by means of them; and that they might also consider the fact that the volume of business was much less immediately after the sale than it had been represented to be before the sale.^^ In a recent case in Winconsin it is held that the evidence must show the obtaining of the very property alleged in the indictment or information, or some part of it, but that proof of obtaining part of the money described is sufficient.^3 Where the defendant, in a horse trade, agreed to pay »» State V. Shaeffer, 89 Mo. 271, monwealth v. Drew, 153 Mass. 588, 278, 1 S. W. 393; State v. House, 27 N. E. 593; Reg. v. Howarth, 11 55 Iowa 466, 472, 8 N. W. 307; Nor- Cox Cr. Cas. 588; see also, State v. ris V. State,' 25 Ohio St. 217; Com- Call, 48 N. H. 126; State v. Long, 103 monwealth v. Van Tuyl, 1 Mete. Ind. 481, 3 N. E. 169; State v. Fooks, (Ky.) 1; People v. Adams, 3 Denio 65 Iowa 196, 452, 21 N. W. 561, 773; (N. Y.) 190; Commonwealth v. Kar- State v. McCormlck, 57 Kans. 440, pouski, 15 Pa. Co. Ct. R. 280; see 46 Pac. 777; as to how insolvency also, Stewart v. Jessup, 51 Ind. 413. may be proved, see. Commonwealth The printed matter at the head of v. Jeffries, 7 Allen (Mass.) 548, 83 the letter may be relevant as indi- Am. Dec. 712; Hathcock v. State eating the false character which the 88 Ga. 91, 13 S. E. 959. accused has assumed in order to ef- ^^ Commonwealth v. Clancy feet his criminal designs. Taylor (Mass.) 72 N. E. 842. The court V. Commonwealth, 94 Ky. 281, 284, held that the latter fact was rele 22 S. W. 217. vant upon the question of the fal "State V. Hill, 72 Me. 238; Wood sity of the representations. V. People, 53 N. Y. 511; Brosn v. « Bates v. State, (Wis.) 103 N. W State, (Tex.) 38 S. W. 1008; Com- 251; see also, Schleisinger v. State 257 SUFFICIENCY OF EVIDENCE — VARIANCE. [§ 2984. the prosecuting witness a certain sum and for that purpose handed him a confederate bill for a larger sum and asked for the change, and the prosecuting witness received the confederate bill, believing it United States currency, the defendant was held guilty under the Kentucky statute.** So, where the defendant, by falsely personating another, obtained a check payable to the latter, it was held that a con- viction mifjht be had under the Vermont statute.*^ 11 Ohio St. 669; Baker v. State, 31 Ohio St. 314; Commonwealth v. Howe, 132 Mass. 250; Common- wealth V. Wood, 142 Mass. 459, 8 N. E. 432; People v. Haynes, 14 Wend. (N. Y.) 546, 28 Am. Dec. 530. " Commonwealth v. Beckett, (Ky.) 84 S. W. 758. The court said that the bill was a false token and that it was immaterial whether it was calculated to deceive ordinarily careful and prudent persons or not, as the statute was designed to pro- tect the unwary and foolish as well as the wary and prudent. «^ State V. Marshall, (Vt.) 59 Atl. 916; see also, 2 Bishop New Cr. Law 152; Commonwealth v. Drew, 19 Pick. (Mass.) 179. Vol. 4 Elliott Ev.— 17 CHAPTEE CXLIII. FORGERY. Sec. 2985. Definition — Essential ele- ments. 2986. Presumptions. 2987. Burden of proof. 2988. Question of law or fact. 2989. Who competent to testify. 2990. Proof of intent and knowledge. 2991. Proof of handwriting. 2992. Production of forged instru- ment. Sec. 2993. Secondary evidence of forged instrument. 2994. Other forged instruments. 2995. Evidence in general. 2996. Evidence in defense. 2997. Weight and suflBciency of evi- dence. 2998. Variance. § 2985. Definition — Essential eleni€nts. — Forgery may be defined as the falsely making or materially altering of a writing, with intent to defraud where such writing, if genuine, would apparently be of legal efficacy or the foundation of legal liability. In other words, it is the fraudulent making or alteration of a writing to the prejudice of another man's right.^ The essential elements of the crime, in general, are the false making or alteration of some writing, guilty knowledge and intent, and the apparent legal efficacy of the instru- ment, or, in other words, its capacity or apparent capacity to effect a fraud and work injury to some one.^ § 2986. Presumptions. — Among the presumptions that have been held to arise in cases of forgery are the following: A presumption arises that one forged or procured an order to be forged who has such forged order in his possession if it is drawn in his favor. ^ So, it has ^See, People v. Fitch, 1 Wend. (N. Y.) 198, 19 Am. Dec. 477, where definitions by a number of jurists and writers are given. See also, United States v. Long, 30 Fed. 678; State V. Rose, 70 Minn. 403, 73 N. W. 177; Arnold v. Cost, 3 Gill & J. (Md.) 219, 22 Am. Dec. 302, and note; Black L. Diet.; note in 8 Am. Cr. 273; Hughes Cr. L. & Proc, § 896, note in 10 L. R. A. 779. ''See, 22 Am. Dec. 306, note, and, 8 Am. St. 466, note. ^Hobbs V. State, 75 Ala. 1; State v. Britt, 14 N. Car. 122. 258 259 PRESUMPTIONS. [§ 2086. frequently been held that a presumption or inference of guilt may arise from the unexplained possession of a forged writing by one who is a beneficiary.* But if one is not necessarily the beneficiary this pre- sumption may not arise. Thus, it is held that a presumption does not arise that one made a forged indorsement on an instrument upon proof that he had it in his possession, and uttered and published it as true, where such indorsement was the blank indorsement in the name of the payee on such instrument.^ But it has been held that the possession of the forged instrument, and claim of title thereunder, is evidence, and raises a presumption that the defendant was the forger.*' Mere proof of possession of forged paper, however, does not create or raise a conclusive presumption of a fraudulent intent.'' If a paper is shown to be a forgery, and has passed through the defendant's hands and he uttered it as true, there may be a presumption of knowl- edge on his part that it was forged.^ A presumption of intent may arise from the circumstances of the accused doing an act which he knows the law forbids as making a false entry to conceal a previous defalcation.^ It has been held that a presumption that a forgery was committed in a certain county does not necessarily arise from the fact that the instrument was uttered in that county.^" But it is gen- erally held to be presumptive evidence,^^ or at least to justify the in- ference that the forgery was committed in that county.^^ The passing of a forged instrument does not necessarily raise the presumption that the person passing the same forged an indorsement appearing thereon. ^^ And there is no presumption of guilt from the mere fact that the party charged with a crime had the ability to commit it.^* But the fact that the seal upon an instrument is false has been held to raise a presumption that the signature is forged. ^^ * Barnes v. Commonwealth, 101 '° Commonwealth v. Parmenter, 5 Ky. 556, 41 S. W. 772; Common- Pick. (Mass.) 279. wealth V. Talbot, 2 Allen (Mass.) "State v. Poindexter, 23 W. Va. 161; Williams v. State, 126 Ala. 50, 805. 28 So. 632; State v. Carter, 129 N. "State v. Morgan, 2 Dev. & B. Car. 560. 40 S. E. 11. L. (N. Car.) 348; Bland v. People, "Miller v. State, 51 Ind. 405. 4 111. 364; State v. Morgan, 35 La. « State v. Pyscher, 179 Mo. 140, Ann. 293. 77 S. W. 836. " Miller v. State, 51 Ind. 405. ' Pox v. People, 95 111. 71. " State v. Hopkins, 50 Vt. 316. " Hagar v. State. 71 Ga. 164. " People v. Marion, 29 Mich. 31. •Phelps v. People, 72 N. Y. 365, 6 Hun (N. Y.) 401, 428. \% 2987, 2988.] forgery. 2 GO §2987. Burden of proof. — The burden of proof is generally on the prosecution to establish three facts ; namely, that a false writing has been made, that it was apparently capable of accomplishing a fraudulent purpose, and that there was a fraudulent intent.^*^ The mere fact of signing another's name does not, it has been held, raise a presumption that it was fraudulent, and when the defendant admits the making of the signature, but claims that he had authority to so sign, the burden is on the state to prove that it was without author- ity.'^ If the indictment describes the writing with minuteness the burden of proof is on the prosecution to establish the writing some- what strictly as pleaded in the indictment." In prosecutions for forgery, as in other criminal cases, the burden is on the prosecution to establish the guilt of the accused beyond a reasonable doubt. §2988. Questions of law or fact.— Whether an instrument im- ports a pecuniary obligation, so as to be the subject of forgery, is a question for the court.'» And whether a forged instrument is or is not a public record has also been held to be a question of law for the court.^o Indeed, it is generally a question for the court as to whether or not the paper is such an instrument as to be capable of being made the subject of forgery. 2' And the question as to the existence or location of the instrument is a preliminary question for the court to determine before secondary evidence is received.22 But it is for the jury to determine whether or not the instrument was forged.^^* And when Instate V. Maxwell, 47 Iowa 454; Car. 143; but see, State v. Hastings, Haynes v. State, 15 Ohio St. 455; 53 N. H. 452; Agee v. State, 117 Ala. Rembert v. State, 53 Ala. 467; see 169, 21 So. 486; Shope v. State, 106 also, I 2985, note 2. Ga. 226, 32 S. E. 140. " Romans v. State, 51 Ohio St. " Overly v. State, 34 Tex. Cr. App. 528, 37 N. E. 1040; see also, State v. 500, 31 S. W. 377; Lampkin v. State, Pine, (W. Va.) 48 S. E. 206, to the 105 Ala. 1, 16 So, 575. same effect where a city clerk was ^ State v. Anderson, 30 La. Ann. charged with forging an order bear- 557. ing the genuine signature of him- ^ Overly v. State, 34 Tex. Cr. App. self and the mayor. 500, 31 S. W. 377; People v. Smith, ''Haslip V. State, 10 Neb. 590, 7 112 Mich. 192, 70 N. W. 466; Espalla N. W. 331; State v. Smith, 31 Mo. v. State, 108 Ala. 38, 19 So. 82; 120; State v. Fleshman, 40 W. Va. State v. Gryder, 44 La. Ann. 962, 726, 22 S. E. 309; McDonnell v. State, 11 So. 573. 58 Ark. 242; State v. Handy, 20 Me. == State v. Lowry, 42 W. Va. 205, 81; Wilson v. State, 70 Miss. 595, 24 S. E. 561; Morton v. State. 30 13 So. 225; People v. Marion. 29 Ala. 527. Mich. 31 ; State v. Harrison, 69 N. "' Mosher v. State, 14 Ind. 261. 261 WHO COMPETENT TO TESTIFY. [§ 2989. the issue is whether a certain writing, as the alleged false document, was even in existence, it is a question for the jury to determine from all the evidence. 2* So, for the reason that it is for the jury to determine whether the instrument in question is a forgery, it has been held that it may be given to the jury without previously being proved to be forged. ^^ If a writing is ambiguous, the jury may in a proper case infer its real meaning from all the evidence. ^^ The weight of evidence, including credibility of witnesses, is also for the jury." And the intent to damage or defraud is to be determined by the jury.^^ It has also been held that where no one but the payee had possession of a check after its delivery by the maker until it was paid, and during that time it was altered, the question as to who committed the forgery should be submitted to the jury, though there was no direct evidence against the payee.-" So, generally, the question of in- tent is one for the jury and they may infer fraudulent intent from the statements and conduct of the accused and from all the surrounding circumstances.^'' § 2989. Who competent to testify. — As a general rule, all persons are competent to testify as to a forgery who would be competent to testify as to any other fact. The former rule was that a person in- terested in the instrument that had been forged was not a competent witness to testify as to the forgery. Statutes in some jurisdictions and judicial decisions in many others have changed the early rule, however, so that today the rule is generally as stated above.^^ Thus, one whose name had been forged as a maker^^ or an indorser^^ is competent to testify. So, a subscribing witness may testify that his signature is forged.^* But the subscribing witness to the instrument "•Garrett v. Gonter, 42 Pa. St. 4 S. E. 766; State v. Williams, 66 143; Mosher v. State, 14 Ind. 261. Iowa 573, 24 N. W. 52. ="Mosher v. State, 14 Ind. 261; "Anson v. People, 148 111. 494, 35 Hess V. State, 5 Ohio 5, 22 Am. Dec. N. E. 145; Hess v. State, 5 Ohio 5, 767; see also. State v. Hauser, 112 22 Am. Dec. 767; Commonwealth v. La. Ann. 313, 36 So. 396. Waite, 5 Mass. 261; People v. How- "McGarr v. State, 75 Ga. 155. ell, 4 Johns. (N. Y.) 296. "State v. Stephen, 45 La. Ann. == Anson v. People, 148 111. 494, 702, 12 So. 883; Allgood v. State, 87 35 N. E. 145; State v. Henderson, Ga. 668, 13 S. E. 569. 29 W. Va. 147. =* Kotter v. People, 150 111. 441, 37 "^ Respublica v. Keating, 1 Ball. N. E. 932. (Pa.) 110. ® Commonwealth v. Hide, 15 Ky. "' People v. Sharp, 53 Mich. 523, L. R. 264, 23 S. W. 195. 19 N. W. 168. ^Timmons v. State, 80 Ga. 216, §2990.] FORGERY. 2C,2 alleged to be forged need not be produced, and proof by the person whose name is charged to be forged is held to be sufficient.^^ So, the obligor or person whose name appears on a forged instrument is now generally a competent witness in behalf of the prosecution as well as in behalf of the defense.^" And a person whose name appears as that of the officer taking a supposed acknowledgment to a forged instru- ment may testify that his signature is forged." It is stated in some of the cases that there is a duty on the part of the prosecution to call the obligor on a forged instrument.^^ But the person whose signature is alleged to be forged is not an indispensable witness to establish the forgery, where there is no uncertainty as to his identity.^^ Many jurisdictions hold that other witnesses by their testimony may establish the falsity of the instrument.*** § 2990. Proof of intent and knowledge. — Proof of guilty knowl- edge and intent to defraud is essential.*^ But the intent to defraud may be inferred from the circumstances, and hence the surrounding circumstances bearing on the question of fraud are competent evi- dence.*^ In proving a charge of uttering a forged instrument, it must be established that the accused knew it was forged.*^ There ^Simmons v. State, 7 Ohio 116; State v. Williams, 66 Iowa 573, 24 Garrett v. Hanshue, 53 Ohio St. 482, N. W. 52; People v. Caton, 25 Mich. 42 N. E. 256. 388; Carver v. People, 39 Mich. 786; ='^ State V. Phelps, 11 Vt. 116; Com- State v. Williams, 152 Mo. 115, 53 monwealth v. Waite, 5 Mass. 261; S. W. 424, and authorities cited in Simmons v. State, 7 Ohio 116; State following note. V. Tull, 119 Mo. 44, 24 S. W. 1019; *^ Burdge v. State, 53 Ohio St. 512, Anson v. People, 148 111. 494, 35 N. 42 N. E. 594; State v. Henderson, 29 E. 145; People v. Swetland, 77 Mich. W. Va. 147; Parker v. People, 97 111. 53, 43 N. W. 779. 32; People v. Phillips, 70 Cal. 61, 11 "People V. Sharp, 53 Mich. 523, Pac. 493; State v. Williams, 66 Iowa 19 N. W. 168. 573, 24 N. W. 52; People v. Swet- •■« Simmons v. State, 7 Ohio 116. land, 77 Mich. 53, 43 N. W. 779 ; =■' Anson v. People, 148 111. 494, 35 State v. Morton, 27 Vt. 310, 65 Am. 'N. E. 145. Dec. 201; see also, Lascelles v. State, '"Commonwealth v. Smith, 6 S. 90 Ga. 347, 16 S. E. 945, 35 Am. St. & R. (Fa.) 568; State v. Farrington, 216. 90 Iowa 673, 57 N. W. 606; State v. " State v. Lowry, 42 W. Va. 205, 24 Hooper. 2 Bailey (S. Car.) 37. S. E. 561; Miller v. State, 51 Ind. "McGuire v. State, 37 Ala. 161; 405; Commonwealth v. Searle, 2 Elsey v. State, 47 Ark. 572, 2 S. W. Binn. (Pa.) 332; United States v. 337; Couch v. State, 28 Ga. 367; Mitchell, 1 Baldw. (U. S.) 367; Kotter V. People, 150 111. 441, 37 N. Grooms v. State, 40 Tex. Cr. App. E. 932; Miller v. State, 51 Ind. 405; 319, 50 S. W. 370. 263 KNOWLEDGE AND IXTENT. [§ 2990. was some conflict among the common law authorities as to whether there must be a fraudulent intent to defraud a particular person, but in most jurisdictions at tlie present time, proof of a general in- tent to defraud is sufficient without proof of an intent to defraud a specified person.** The accused may sliow by evidence that he was so intoxicated at the time of making the writing that he was incapable of forming tlie criminal intent.*^ The following have l)oen admit- ted as evidence showing intent and knowledge: The manner in which the forger read the instrument to the witness, to wliom he offered it ;**' that the defendant previously forged another instrument for tlie same article, but subsequently destroyed it;*^ and that certain state- ments were made by the defendant in obtaining money on the instru- ment.*'^ It is competent to show that the defendant forged instru- ments similar to the one he is now charged with forging,*" and that at about the time the forged check was uttered, he passed other forged checks.^" An acquital under an indictment for forging or uttering a particular forged instrument will not preclude the prosecution from proving the fact of the possession or uttering of such forged paper in another prosecution against the same party for a crime of the same character.-'^ On the question of intent evidence of uttering the instrument alleged to be forged is admissible. °^ But before evidence of uttering the instrument is admissible on the question of intent the act claimed to be a forgery must first be established. It has been said : "The forgery not being in any sense established, and there being no count in the indictment against the defendant for ^*See, Sneel v. State, 2 Humph. 166, 51 Pac. 553; State v. Hahn, 38 (Tenn.) 347; McClure v. Common- La. Ann. 169. wealth, 86 Pa. St. 353; State v. Hall, "Butler v. State, 22 Ala. 43. 108 N. Car. 776, 13 S. E. 189; State *' Ptobinson v. State, 66 Ind. 331. V. Keneston, 59 N. H. 36; Roush v. ^ Chahoon v. Commonwealth, 20 State, 34 Neb. 325, 51 N. W. 755; Gratt. (Va.) 733. State V. Patch, 21 Mont. 534, 55 Pac. ^» Harding v. State, 54 Ind. 359; 108; Bennett v. State, 62 Ark. 516, Fonville v. State, 17 Tex. App. 368; 532, 36 S. W. 947; People v. Turner, Smith v. State, 29 Fla. 408, 10 So. 113 Cal. 278, 45 Pac. 331; Common- 894. Avealtn v. Henry, 118 Mass. 460; but =" Steele v. People, 45 HI. 152. see, Reg. v. Hodgson, 7 Cox Cr. Cas. " State v. Robinson, 16 N. J. L. 122, 36 Eng. L. & Eq. 626; Barnes v. 507; Bell v. State, 57 Md. 108; Mc- Commonwealtb, 101 Ky. 556, 41 S. Cartney v. State, 3 Ind. 354, 56 Am. W. 772. Dec. 510. "People V. Ellenwood, 119 Cal. "Fox v. People, 95 111. 71; Cohen V. People, 7 Colo. 274, 3 Pac. 385. § 2991.] FORGERY. 264 passing or offering to pass a forged paper, it was error to admit proof that defendant did sell and transfer the paper alleged to have been forged."^^ On a trial for passing counterfeit bank notes or forged instruments, the state may prove the passing, by defendant, of other counterfeit notes or forged instruments for the purpose of showing a guilty intent.^* Evidence that the party whose name was forged had no legal capacity to sign an instrument is not relevant if an intent to defraud is established.^^ It is not error to admit in evidence other forged instruments found in the possession of the accused, as bearing upon the question of guilty knowledge.^® It has been held that where one is charged with forgery by the unauthorized filling out of a check signed by the defendant's employers in blank, that evidence of a shortage in defendant's accounts is not competent as proof as to fraudulent intent. ''' § 2991. Proof of handwriting. — In determining whether or not an instrument has been forged, and who committed the forgery, if any, proof of handwriting is usually not only relevant, but is also necessary in many cases. In general it may be stated that the rules as to the proof of handwriting, as to the use of expert and non-expert testi- mony and as to standards of comparison are the same as in civil cases,^* and the rules upon the subject, elsewhere considered,^'' are usually applicable. The fact that the forged instrument is in the handwriting of the defendant is not only relevant but, unexplained, is usually strong evidence of his guilt.®" It is held that a signature which is admittedly genuine or clearly proved to be genuine may be compared with the disputed signature, and under modern statutes and decisions this is the rule in many jurisdictions.**^ But at common "^Luttrell V. State, 85 Tenn. 232, 4 Thomas v. State, 103 Ind. 419, 2 N. Am. St. 760. E. 808. =^ Harding v. State, 54 Ind. 359; ^^ See, Vol. I, § 676, Vol. II, §§ 1053, Card V. State, 109 Ind. 415, 9 N. E. 1055, 1059, 1100-1105; 12 L. R. A. 591. 456, note; 62 L. R. A. 817, note; 63 °= State V. Eades, 68 Mo. 150; Fox L. R. A. 163, 427, 937. 963, notes. V. People, 95 111. 71. "o Allgood v. State, 87 Ga. 668, 13 ^"Lindsey v. State, 38 Ohio St. S. E. 569; Langdon v. People, 133 507. 111. 382, 24 N. E. 874. " People V. Dickie, 62 Him (N. Y.) "^ See, State v. Nettleton, 1 Root 400, 17 N. Y. S. 51. (Conn.) 308; State v. Brunson, 1 ^Birmingham Nat. Bank v. Brad- Root (Conn.) 307; Tyler v. Todd, 36 ley, 108 Ala. 205, 19 So. 791; State Conn. 218; Heard v. State, 9 Tex. V. Minton, 116 Mo. 605. 22 S. W. 808; App. 1; Williams v. State, 27 Tex. 265 HANDWRITING. [§ 2991. law, before the act of 1854, although there was some vaccillation, and in many jurisdictions in this country, it was held, in the absence of a statute, that a paper or document shown to be in the handwriting of the accused, which had no relation to or connection with the document forged, was not admissible in evidence to prove, by comparison of the handwriting, that the forged document is in the handwriting of the accused.*^ Thus, it has been held that notes, mortgages, wills or other papers bearing the signature of one whose name is alleged to have been forged to a deed, unless they are a part of the files in the case, or already in evidence for other purposes, cannot, on a trial for forgery, be introduced for the sole purpose of making a comparison of signatures.®^ It has also been held that the hand- writing in an alleged forged instrument cannot be proved by com- parison with writings admitted in evidence over the defendant's objec- tion, and which are not admitted or affirmatively shown to be in the defendant's handwriting, though he does not deny them.®* On the other hand, it has been held that the testimony of the defendant alone that he had written a letter is sufficient to authenticate the letter, so as to render it admissible for the purpose of comparison to prove forgery.®^ And it has been held that for the purposes of comparison, a hotel register in which defendant had written his name about the time of the alleged forgery, is competent evidence,®" App. 466, 11 S. W. 481; Bradford v. 8 So. 670; Jumpertz v. People, 21 111. People, 22 Colo. 157, 43 Pac. 1013; 375; Jones v. State, 60 Ind. 241; Boggus v. State, 34 Ga. 275; State State v. Miller, 47 Wis. 530, 3 N. W. V. Calkins, 73 Iowa 128, 34 N. W. 31 (but see, Wis. Rev. St. 1898, 777; Commonwealth v. Andrews, 143 § 4189a); Rose v. First Nat. Bank. Mass. 23, 8 N. E. 643; Morrison v. 91 Mo. 399, 3 S. W. 876 (but see, Porter, 35 Minn. 425, 29 N. W. 54, 59 Mo. Rev. St. 1899, § 4679) ; State v. Am. R. 331; State v. Zimmerman, Koontz, 31 W. Va. 127, 5 S. E. 328. 47 Kans. 242, 27 Pac. 999; State v. '^^ People v. Parker, 67 Mich. 222. Stegman, 62 Kans. 476, 63 Pac. 746; 34 N. W. 720, 11 Am. St. 578; in. Garvin v. State, 52 Miss. 207; State People v. Marion, 29 Mich. 31. it is V. Brown, 4 R. I. 528, 70 Am. Dec. held that a seal may be shown to be 168; Sprouse v. Commonwealth, 81 false by comparison with one that Va. 374; and see review of authori- is genuine. ties by states in, 62 L. R. A. 817-874, "* State v. Ezekiel, 33 S. Car. 115, note. 11 S. E. 635. «= State V. Fritz, 23 La. Ann. 55; •«> Mallory v. State, 37 Tex. Cr. United States v. Prout, 4 Cranch App. 482, 36 S. W. 751; but see, (U. S.) 301; United States v. Jones, Jones v. State, 60 Ind. 241; Hazzard 10 Fed. 469; Curtis v. State, 118 Ala. v. Vickery, 78 Ind. 64. 125, 24 So. Ill; Bishop v. State, 30 * State v. Farrington. 90 Iowa 673, Ala. 34; Griffin v. State, 90 Ala. 596, 57 N. W. 606; see also, State v. Shin- § 2992.] FORGERY. 266 And so it has been held that the use of defendant's signature to an application for a continuance as a standard of comparison cannot be objected to on the ground that it is not sufficiently proved to be his signature, since he is estopped from denying its genuineness.*'^ And it is generally held, no matter which view is taken as to the admissibility of other writings for the mere purpose of comparison, that papers already in evidence and admitted to be in the handwriting of the defendant may be compared by the jury with the paper in dispute in determining the handwriting of the latter.^^ On a trial for forgery of a mortgage, the persons whose names appear as acknowl- edging officer and subscribing witness may testify that they did not sign the instrument, though the subscribing witness was not named in the information.^^ It has also been held immaterial that the writ- ing alleged to have been forged is badly written, for if it can be made out it is good evidence.'*' And the fact that the alleged forger imitated the handwriting of the party whose name is signed to the instrument is a circumstance that may be considered by the jury even though the accused admits that he signed it and claims that he had authority to do so.'^ But it is not, ordinarily relevant to show that the accused was skilled in imitating writing, and thus had the capacity or ability to commit the crime, where he has introduced no evidence upon the subject.'^ ^ § 2992. Production of forged instrument. — The instrument al- leged to have been forged is, of course, admissible, '^^ and as a general rule, at least, it must be introduced in evidence at the trial if pos- born, 46 N. H. 497, 88 Am. Dec. ^ People v. Sharp, 53 Mich. 523, 19 224. N. W. 168. " State v. Farrington, 90 Iowa 673, ™ McGarr v. State, 75 Ga. 155. 57 N. W. 606; see also. State v. " State v. Lurch, 12 Ore. 99, 6 Pac. Thompson, 132 Mo. 301, 34 S. W. 31; 408; see also. Walker v. Logan, 75 Tucker v. Hyatt, 144 Ind. 635, 41 N. Ga. 759; West v. State, 22 N. J. L. E. 1047, 43 N. E. 872. 212; Riley v. State, (Tex. Gr. App.) •^Stokes V. United States, 157 U. 44 S. W. 498; Neall v. United States, S. 187, 15 Sup. Ct. 617; Moore v. 118 Fed. 699. United States, 91 U. S. 270; Hickory '^ State v. Hopkins, 50 Vt. 316; V. United States, 151 U. S. 303, 14 Dow v. Spenny, 29 Mo. 386; but see, Sup. Ct. 334; McDonnell v. State, 58 Groom v. Sugg, 110 N. Car. 259, 14 Ark. 242, 24 S. W. 105, and authori- S. E. 748. ties cited in the preceding notes to "' People v. Dole, 122 Gal. 486, 55 this section. Pac. 581. 267 SECONDARY EVIDENCE. [§ 2993. sible.'^* Thus, it is generally held that the prosecution must produce the false writing, or it must be accounted for by showing that the accused has possession of it, or that it has been destroyed, or the like.'''' And it is also held that the accused must be given notice to bring to the trial the false writing when the same is in his posses- sion.'^*' So, it has been held that it is error to admit evidence of other similar forged notes in the defendant's possession, without pro- ducing such other notes in court, or giving the defendant notice, if they are in his possession. '^^ § 2993. Secondary evidence of forged instrument. — In case the non-production of an instrument is satisfactorily accounted for, and the foundation properly laid, secondary evidence of its contents is admissible,"*^ in a proper case. As a general rule the contents of an alleged forged writing may be proved by secondary evidence under the same circumstances that the contents of any other writing may be so proved."® If there is a copy which can be sworn to, it should generally be introduced, and if there is not such a copy then proof by parol evidence is sufficient.^'' That is, the prevailing rule as to the best evidence being produced exists as to the production of the writing alleged to have been forged. Thus, if a copy exists, oral proof is not admissible and the copy should be introduced.'*^ Sec- ondary evidence is admissible where it is shown that the instrument "People v. Swetland, 77 Mich. 53, ,Cross v. People, 192 111. 291, 61 N. E. 43 N. W. 779; 2 Bishop Cr. Proc. 400; State v. Potts, 9 N. J. L. 26. 17 387; Hughes Cr. Law, § 964. Am. Dec. 449; Dovalina v. State, 14 "People v. Kingsley, 2 Cow. (N. Tex. App. 312; see also, Common- Y.) 522, 14 Am. Dec. 520; State v. wealth v. Snell, 3 Mass. 82; Thorn- Callendine, 8 Iowa 288; Manaway v. ley v. State, 36 Tex. Cr. App. 118, 34 State, 44 Ala. 375; People v. Swet- S. W. 264; State v. Davis, 69 N. Car. land, 77 Mich. 53, 43 N. W. 779: 313. State V. Lowry, 42 W. Va. 205, 24 S. "Mead v. State, 53 N. J. L. 601, 23 E. 561; Cross v. People, 192 111. 291, Atl. 264; Henderson v. State, 14 Tex. 61 N. E. 400. 503. ''" State v. Kimbrough, 13 N. Car. *" Commonwealth v. Snell, 3 Mass. 431; State v. Lowry, 42 W. Va. 205, 82; State v. Lowry, 42 W. Va. 205. 24 S. E. 561; Rollins v. State, 21 24 S. E. 561; Mead v. State, 53 N. J. Tex. App. 148, 17 S. W. 466; State L. 601, 23 Atl. 264. V. Cole, 19 Wis. 142. ^^» Commonwealth v. Snell, 3 Mass. '^ State v. Breckenridge, 67 Iowa 82; Thompson v. State, 30 Ala. 28; 204, 206, 25 N. W. 130; State V. Cole, see also. State v. Ford, 2 Root 19 Wis. 129, 88 Am. Dec. 678. (Conn.) 93. "Manaway v. State. 44 Ala. 375; § 2994.] FORGERY. 268 was destroyed for the purpose of protecting the forger, though with- out his privity.®^ So also, where it appears that the instrument has been destroyed or suppressed by the forger.*^ And also, in some cases where it has been mutilated.*** Where it is shown that an instrument is beyond the jurisdiction of the court secondary evidence is admissible if notice has been given to produce the original on the trial.^^ And it is held that if the instrument is in the forger's hands, secondary evidence is admissible, but that notice to produce it must be given to him before evidence of its existence, contents and char- acter will be received in evidence.^® But it would not be altogether unreasonable, nor entirely without precedent, to hold that the indict- ment itself is sufficient notice and that if the forged writing is shown to be in the possession of the defendant, and he does not produce it, he ought not to be allowed to complain of the admission of secondary evidence.*^ At all events, if forged instruments are in the possession of the defendant, and not produced, the next best evidence of their contents may be given, even though it is parol, after service of notice to produce them.'*^ And photographic copies are admissible, in a proper case, together with the testimony of the photographer as to their accuracy, where the accused refuses to produce the original in his possession, or where they constitute the best evidence obtain- able. «« § 2994. Other forged instruments. — Testimony as to other forger- ies, or of the possession of forged papers about the same time, has generally been held admissible to establish a uniform course of acting ^- Pendleton v. Commonwealth, 4 *' See, United States v. Doebler, Leigh (Va.) 694, 26 Am. Dec. 342. Baldw. (U. S.) 519, 25 Fed. Cas. No. '=Ross V. Bruce, 1 Day (Conn.) 14,977; People v. Swetland, 77 Mich. 100. 53, 43 N. W. 779, 780; McGinnis v. "" Thompson v. State, 30 Ala. 28. State, '24 Ind. 500, 503; see also, "^ Thornley v. State, 36 Tex. Cr. State v. Wilkerson, 98 N. Car. 696, 3 App. 118, 34 S. W. 264. S. E. 683; People v. Holbrook, 13 *^ Rollins V. State, 21 Tex. App. Johns. (N. Y.) 90. 148, 17 S. W. 466; State v. Kim- '" Armitage v. State, 13 Ind. 441; brough, 13 N. Car. 431; State v. Williams v. State, 16 Ind. 461, and Flander, 118 Mo. 227, 23 S. W. 1086; authorities cited in preceding notes. State v. Lowry, 42 Va. 205, 24 S. E. ■" Duffin v. People, 107 111. 113, 47 561; State v. Cole, 19 Wis. 142; Rex Am. R. 431; United States v. Ortiz, v. Haworth, 4 Car. & P. 254; see also, 176 U. S. 422, 20 Sup. Ct. 466; see State V. Saunders, 68 Iowa 370, 27 also. Grooms v. State, 40 Tex. Cr, N. W. 455; but see, Ross v. Bruce, 1 App. 319, 50 S. W. 370. Day (Conn.) 100. 269 OTHER FOiiGED IXSTRUMENTS. [§ 2994. from which guilty knowledge and criminal intent may be inferred.®" But evidence of the declarations of the defendant in respect to alleged forged instruments which are not produced to the jury or proved to be forgeries should not be admitted. '^^ So, statements as to other instruments of the same kind as the one alleged to have been forged are not usually admissible.®- But facts showing that the accused uttered other false writings under similar circumstances are admis- sible in a proper case.®^ Proof of possession and of use of forged papers, whether by the accused or by an accomplice, has been held admissible, whether before or after the time of tlie forgery for wliich the accused is being tried.®* But when other writings found on de- fendant's person were admitted in evidence without proof that they were also forgeries it was considered reversible error.®" And, in general, other similar papers are not admissible unless it is first shown that such papers were forged, and the accused had guilty con- nection therewith.®^ So, it has been held error to allow a witness to answer a question as to whether there was ever any question about a certain otlier note he had signed with defendant, such note not being produced, nor its absence accounted for.®^ But evidence that at the time of the arrest of the alleged forger he had with him checks, and about that time had passed others, all of which were forgeries, is admissible as tending to show his guilty knowledge as to the check set out in the indictment as that his purpose in the forgery and the ^People V. Everhardt, 104 N. Y. 148 111. 494, 35 N. E. 145; Robinson 591, 11 N. E. 62; Fox v. People, 95 v. State, 66 Ind. 331; Carver v. Peo- 111. 71; Commonwealth v. Russell, pie, 39 Mich. 786; People v. Ever- 156 Mass. 196, 30 N. E. 763; State v. hardt, 104 N. Y. 591. 11 N. E. 62; Minton, 116 Mo. 605, 22 S. W. 808; State v. Hodges, 144 Mo. 50, 45 S. W. Card V. State, 109 Ind. 415, 9 N. B. 1093. 591; People v. Bibby, 91 Cal. 470, 27 "Harding v. State, 54 Ind. 359; Pac. 781; Davis v. State, 58 Neb. 465, Commonwealth v. Price, 10 Gray 78 N. W. 930; State v. Allen, 56 S. (Mass.) 472; Commonwealth v. Car. 495, 35 S. E. 204; Bell v. State, White, 145 Mass. 392. 6 N. E. 611. 57 Md. 108; Lindsey v. State, 38 '^^ People v. Altman, 147 N. Y. 473, Ohio St. 107; State v. Prins, 117 42 N. E. 180. Iowa 505, 91 N. W. 758. "^ State v. Lowry, 42 W. Va. 205, "Anson v. People, 148 111. 494, 35 24 S. E. 561; People v. Whiteman, N. E. 145. 114 Cal. 338, 46 Pac. 99; People v. »=Fox V. People, 95 111. 71; Reg. v. Bird, 124 Cal. 32, 56 Pac. 639; State Cooke, 8 Car. & P. 582. v. Rose. 70 Minn. 403. 73 N. W. 177. *» Commonwealth v. White, 145 "^ State v. Saunders, 68 Iowa 370, Mass. 392, 14 N. E. 611; People v. 27 N. W. 455. Frank, 28 Cal. 507; Anson v. People, § 2995.] PORGERY, 270 uttering was to defraud.'® And evidence as to an indictment for another forgery has been held admissible even though the accused was acquitted of such other crime, since the acquittal does not neces- garily prove that he was innocent of the charge.®' § 2995. Evidence in general. — Circumstantial evidence is admis- sible in proving the crime of forgery, and usually it is necessary to make out the crime by circumstantial evidence.^"" Thus, proof of the place where the forgery was committed may be made by circum- stantial as well as by direct evidence.^"^ So, it is not necessary that the intent to defraud be established by direct proof; it may be inferred from the facts and circumstances.^**^ And it has been held that evi- dence of the pecuniary condition of the accused at or about the date of the receipt alleged to have been forged is admissible, as tending to show that the receipt had been forged."^ But on the prosecution of a person for forging his mother's name on a note as surety for himself, evidence of the relative property interests of defendant and his mother has been held incompetent.^"* Although obtaining money on a forged deed is not of itself proof of forgery, yet it is a circum- stance in relation to the uttering and the intent which the jury may take into consideration in reaching their decision.^ "^ So, inculpatory acts of the accused are often admissible for the purpose of proving the forgery.^"® The general rule as to confessions applies to con- fessions in case of forgery. A confession induced by threats or im- proper promises is not admissible.^**^ But it was held competent and not compelling one to furnish evidence against himself where he was asked by the magistrate on examination to write the name of *« Commonwealth v. Russell, 156 19 Am. R. 673; State v. Hahn, 38 La. Mass. 196, 30 N. E. 763; Bishop v. Ann. 169. State, 55 Md. 138; but see. Joiner v. "^ State v. Henderson, 29 W. Va. State, (Tex. Cr. App.) 80 S. W. 531. 147, 1 S. E. 225. «« Commonwealth v. White, 145 ^"^ State v. Tull, 119 Mo. 421, 24 S. Mass. 392, 14 N. E. 611; Bell v. W. 1010. State, 57 Md. 108; State v. McAllis- "«^ United States v. Brooks, 3 Mac- ter, 24 Me. 139; McCartney v. State, Arth. (D. C.) 315. 3 Ind. 353; State v. Robinson, 16 N. ^"« People v. King, 125 Cal. 369, 58 J. L. 507. Pac. 19; State v. Williams, 27 Vt. '•^ Commonwealth v. Bargar, 2 724; Burdge v. State, 53 Ohio St. Law T. (N. S.) (Pa.) 161. 512, 42 N. E. 594; Riley v. State, ^" State V. Chamberlain, 89 Mo. (Tex, Cr. App.) 44 S. W. 498. 129. >«' State v. Walker, 34 Vt. 296, 301 ; ^ Fletcher v. State, 49 Ind. 124. see. Vol. I, § 217, et seq. 271 EVIDENCE IN GENERAL. [§ 291)."). the person whose name had been forged, which, without threat or promise, he did, misspelling it as it was misspelled in the forged instru- ment."^ And confessions relative to other forged instruments of the same character found in the defendant's possession when arrested and shown to be forgeries have been held admissible."^ But, ordinarily, statements as to other instruments, at least when they are not pro- duced or otherwise shown to be forgeries, are not admissi1)le."" The state may prove in a proper case, that a name partially obliterated by wear and tear was, at the time of the execution of the note, written plainly upon it.^^^ So, the chemical effect of a powder in the posses- sion of defendant may be shown to the jury as bearing on the manner in which the alteration was effected."^ In a prosecution for forgery of a note, evidence tending to show that the note was used to secure a valuable benefit from the person to whom it was delivered, has been held admissible, though it was of facts taking place after the delivery of the note."^ Evidence is admissible in a proper case to show that the forged name is fictitious."* So, generally, evidence is admissible, which shows or tends to show the existence or non-existence of the person who is supposed, or pretended to be indicated by the name, since forgery is committed when a fictitious name or the name of a dead person is attached to a paper with a fraudulent intent."-"' Eecords of former proceedings in which such forgery was the subject of litigation have been admissible in evidence."^ And on a trial for forging an order for merchandise, evidence is admissible that de- fendant declared when he presented it that it was an order from the person whose name it bore."^ When the matter at issue is as to the "^Sprouse v. Commonwealth, 81 Mass. 64, 27 N. E. 997; People v. Va. 374. Sharp, 53 Mich. 523, 19 N. W. 168; '»» Commonwealth v. Russell, 156 People v. Jones, 106 N. Y. 523, 13 N. Mass. 196, 30 N. E. 763. E. 93. ""See, Fox v. People, 95 111. 71; "'Commonwealth v. Costello, 120 Reg. V. Cooke, 8 Car. & P. 582; Mass. 358; Brewer v. State, 32 Tex. Jonier v. State, (Tex. Cr. App.) 80 Cr. App. 74, 22 S. W. 41; State v. S. W. 531. Baumon, 52 Iowa 6S; State v. Cov- 1" Inman v. State, 35 Tex. Cr. App. ington, 94 N. Car. 913, and authori- 36, 30 S. W. 219. ties cited In last note, supra. "'People V. Brotherton, 47 Cal. ""State v. Henderson, 29 W. Va. 388; People v. Dole, 122 Cal. 486, 55 147, 1 S. E. 225; State v. Calkins, 73 Pac. 581. Iowa 128, 34 N. W. 777; Perkins v. "'People v. Phillips, 70 Cal. 61, People, 27 Mich. 380. 11 Pac. 493. "' Gardner v. State, 96 Ala. 12, 11 "* State V. Hahn, 38 La. Ann. 169; So. 402. Commonwealth v. Meserve, 154 § 2996.] FORGERY. 272 uttering of a forged promissory note, evidence tending to show that the note had been paid is immaterial and should be excluded.^^^ And in an indictment for the forgery of a note, the letter of the cashier of a bank, to whom the note was sent for collection, making sug- gestions as to the residence of the parties to the note, is not admis- sible in evidence.^^** But evidence has been held admissible to show that defendant, at the time of negotiating an alleged forged note represented that the maker thereof lived at a certain place, and that the note would be paid when due, while in fact no such person lived at that place.^-" It has also been held that evidence that the de- fendant had forged the same signature to a chattel mortgage given to secure the note is material. ^^^ It is generally held that since the forged instrument is void there can be no subsequent ratification so as to bar a prosecution for the crime.^^^ It is not necessary to produce all the persons through whose hands the instrument had passed.^^' But it must appear that the instrument was a forged instrument when it left defendant's hands.^^* Testimony of the husband of one who is alleged to have secured a loan and given a note to cover the same that he did not know or hear of her having that amount of money at or about the time of the execution of the note is not ad- missible.^^^ But it is held that the meaning of the writing alleged to have been forged may be ascertained when necessary by parol evi- denced^*' § 2996. Evidence in defense. — The accused may show that intem- perance had so far impaired his mind as to render him incapable of having a fraudulent intent.^^^ So, he may, of course, show by proper evidence, that he did not forge the writing in question, or that he had authority to sign the name, or the like.^^® It has also been held "* People v. Brown, 72 N. Y. 571; ^=^ Bank of Pennsylvania v. Hal- see also. Joiner t. State, (Tex. Cr. derman, 1 Pen. & W. (Pa.) 161. App.) 80 S. W. 531. "* McDonnell v. State, 58 Ark. 242, "» Farrington v. State, 10 Ohio 24 S. W. 105. 354. '^People v. Stoddard, 64 Hun (N. '=» Commonwealth v. Norris, 9 Y.) 633, 19 N. Y. S. 937. Montg. Co. (Pa.) 143. '^-^ McGarr v. State, 75 Ga. 155. ^^ People v. De Kroyft, 49 Hun '=" Williams v. State, 126 Ala. 50, (N. Y.) 71, 1 N. Y. S. 692. 28 So. 632; People v. Blake, 65 Cal. '^McHugh v. Schuylkill Co., 67 275, 4 Pac. 1; People v. Ellenwood, Pa. St. 391, 5 Am. R. 445; Workman 119 Cal. 166, 51 Pac. 553; State v. V. Wright, 33 Ohio St. 405, 31 Am. Hahn, 38 La. Ann. 169. R. 546; Howell v. McCrie, 36 Kans. '^And even though he had no au- 636, 14 Pac. 257. thority, it may not be forgery if he 273 DEFENSES — SUFFICIENCY OF EVIDENCE. [§ 2997. that evidence tending to show that the instrument forged could not hurt any one is competent evidence for the defendant.^-" But if the accused altered tlie instrument witli intent to defraud, and it was capable of having that elfect, it is no defense that the alterations were plain and that no special attempt was made to conceal them."" Nor does tlie fact that the person whose name is forged was indebted to the defendant justify the forgery."^ And lack of vigilance on the part of the one defrauded will not excuse the accused."- So, the fact that the accused intended to repay the party defrauded, or did repay him, is not a good defense."^ § 2997. Weight and sufficiency of evidence. — Evidence is suf- ficient to sustain a charge of uttering forged paper when there is proof that the paper, capable of defrauding, was delivered to one for value by the defendant, knowing it to be false, and with an intent to pass it as a valid subsisting instrument, or it was used, under such circumstances, to obtain money or credit.^^* But there must appear to have been in effect a statement or representation by word or conduct, that the signature was valid and the instrument genuine. "° The mere possession of a false instrument is not sufficient proof of the crime in the absence of a guilty intent or knowledge."" But possession of a forged instrument in favor of the person holding it supposed he had. State v. Taylor, '=^ Commonwealth v. Henry, 118 46 La. Ann. 1332, 16 So. 190. Mass. 460; Green v. State, 36 Tex. ^■^Barnum v. State, 15 Ohio 717, 45 Cr. App. 109, 35 S. W. 971; Reg. v. Am. Dec. 601; see also, Roode v. Beard, 8 Car. & P. 143. Nor is ratifi- State, 5 Neb. 174; Terry v. Com- cation. Howell v. McCrie, 36 Kans. monwealth, 87 Va. 672, 13 S. E. 104. 636, 14 Pac. 247; State v. Tull, 119 i=»Rohr V. State, 60 N. J. L. 576, 38 Mo. 421, 24 S. W. 1010; Countee v. Atl. 673; see also. State v. Robinson, State, (Tex. Cr. App.) 33 S. W. 127. 16 N. J. L. 507, 510. Nor is similar- '"' Thurmond v. State, 25 Tex. App. ity in name a good defense in such 366, 8 S. W. 473; State v. Redstrake, a case. People v. Rushing, 130 Cal. 39 N. J. L. 365; People v. Ah Woo, 449, 62 Pac. 742; Barfield v. State, 28 Cal. 205; People v. Rathbun, 21 29 Ga. 127, 74 Am. Dec. 49; People Wend. (N. Y.) 509. V. Peacock, 6 Cow. (N. Y.) 72. "^ Folden v. State, 13 Neb. 328, 14 '» Curtis V. State, 118 Ala. 125, 24 N. W. 412; People v. Brigham, 2 So. 111. Mich. 550; Couch v. State. 28 Ga. "'United States v. Turner, 7 Pet. 367. (U. S.) 132; Commonwealth v. Fos- '-"People v. Dole, 122 Cal. 486, 55 ter, 114 Mass. 311, 19 Am. R. 353; Pac. 581; Millsaps v. State, 38 Tex. Garmire v. State. 104 Ind. 444, 4 N. Cr. App. 570, 43 S. W. 1015. E. 54; Lawless v. State, 114 Wis. 189, 89 N. W. 891. Vol. 4 Elilott Ev. — 18 § 2997.] FORGERY. 274 has been sufficient to raise a presumption that he forged it or caused it to be forged. ^^■^ And when one passes a forged instrument, repre- senting himself to be the payee, such representation is sufficient with- out other evidence to indicate a knowledge of the forgery. ^^® The possession of forged writings, or the passing of them in the county where the indictment was found, is considered of great weight as tend- ing to show that the forgery was committed in that county.^^^ And some Jurisdictions hold that proof of venue in a prosecution for forgery is sufficient if it appears that the offer to pass the forged instrument by the accused, with full knowledge of its character, was made in the parish or county where the charge is brought, though it did not purport on its face to have been executed in such parish or county.^*^ Where the defendant, in an action on an in- surance policy, claimed that the plaintiff was not the owner of the premises on which the burned buildings were located, and plaintiff claimed title through a deed from his wife made in a certain year, and there was evidence that the printed blank on which the deed was written was not printed until four years later, and that his wife died in the year he claimed the deed was made, it was held that the finding that the deed was a forgery was properly supported.^*^ It is generally held that the accused may commit a forgery by procuring another to do the writing.^*^ And where one was present, knowing of and asserting to the commission of a forgery, of which he was to derive the benefit, it was held that the jury might infer that it was done by his procurement.^*^ But evidence showing that the accused acted for another, although the authority so to act was falsely and fraudu- lently assumed, is of itself insufficient to establish a forgery by the accused.^** There is sufficient evidence of intent to defraud by the '" Hobbs v. State, 75 Ala. 1; Com- 293; see also authorities cited in last monwealth v. Talbot, 2 Allen note, supra. (Mass.) 161; State v. Britt, 3 Dev. "^ Ryan v. Rockford Ins. Co., 85 L. (N. Car.) 122. Wis. 573, 55 N. W. 1025. ^=^ State v. Beasley, 84 Iowa 83, 50 '*= Commonwealth v. Foster, 114 N. W. 570. Mass. 311, 19 Am. R. 353; Koch v. "» State V. Rucker, 93 Mo. 88, 5 S. State, 115 Ala. 99, 22 So. 471. W. 609 ; Spencer v. Commonwealth, "^ Commonwealth v. Stevens, 10 2 Leigh (Va.) 751; Bland v. People, Mass. 181. 4 111. 364; State v. Poindexter, 23 ^"Commonwealth v. Baldwin, 11 W. Va. 805; but see. Commonwealth Gray (Mass.) 197; Mann v. People, V. Parmenter, 5 Pick. (Mass.) 279. 15 Hun (N. Y.) 155; People v. Ben- "" State v. Morgan, 35 La. Ann. dit, 111 Cal. 274, 43 Pac. 901; Kegg 275 VARIANCE. [§ 2998. defendant where an instrument in question was forged and was made payable to him and he indorsed iV*^ But where all the evidence against the accused was given by an expert on handwriting, who by a comparison with the genuine writing of the accused stated that in his opinion the face of the check was written by the accused, it was held that such testimony was not sufficient to sustain a conviction, even if the words, "face of the check" included the signature.^*° A charge of an intent to defraud generally is sustained by proof that the name signed to the forged instrument was that of a fictitious person.^*^ On a prosecution for having in possession, with intent to pass them, bank notes purporting to have been issued by a foreign banking corporation, proof of a general character of the existence of the bank is sufficient and it is not necessary to put the original charter in evidence or to produce the law under which the bank is incorpo- rated, but it may be shown by parol evidence.^** Proof of the crime is sufficient without any proof as to actual damages."^ As already shown, the credibility of witnesses is for the jury and it is for the jury to weigh the evidence. But the jury must, of course, have some sufficient legal evidence to act on before a verdict of guilty can be sustained. It is held that the interest of an obligor on a forged instrument may be shown to affect the credibility of his testimony.^^" . § 2998. Variance. — The general rule is that the proof as to the contents and description of the instrument forged must correspond in material respects to the description given in the indictment, and while a slight variance is not always fatal and something may depend V. State, 10 Ohio 75; State v. Mill- "'People v. Fitch, 1 Wend. (N. ner, 131 Mo. 432, 33 S. W. 15. Y.) 198, 19 Am. Dec. 477; Common- '"Timmons v. State, 80 Ga. 216, 4 wealth v. Ladd, 15 Mass. 526; Ar- S. E. 766. nold v. Cost, 3 Gill & J. (Md.) 219, ""People V. Mitchell, 92 Cal. 590, 22 Am. Dec. 302; People v. Brigham, 27 Pac. 597. 2 Mich. 550; see also, Scott v. State, "^Johnson v. State, 35 Tex. Cr. 40 Tex. Cr. App. 105, 48 S. W. 523; App. 271, 33 S. W. 231. State v. Duffield, 49 W. Va. 274, 38 i« People V. Davis, 21 Wend. (N. S. E. 577, but it has been held error Y.) 309; People V. Chadwick, 2 Park, to admit such evidence. People v. Cr. Cas. (N. Y.) 163; People v. D'Ar- Phillips, 70 Cal. 61, 11 Pac. 493; Ar- gencour, 95 N. Y. 624; State v. Wil- nold v. Cost, 3 Gill & J. (Md.) 219, liams, 152 Mo. 115, 53 S. W. 424; see 22 Am. Dec. 302. also. People v. Ah Sam, 41 Cal. 645; ""State v. Henderson, 29 W. Va. Commonwealth v. Carey, 2 Pick. 147. (Mass.) 47. § 2998.] FORGERY. 276 upon the manner in which the instrument is pleaded in the indictment or information, yet if there is a material variance between the plead- ing and the proof in this respect it will generally be fatal.^" There is some conflict, however, as to what constitutes a material variance, and some of the courts have, perhaps, been too much inclined to hold a very slight variance material. Thus, it has been held that the misspelling of the alleged forged name as proved or reversing the order of names are material variances and are fatal when the writings were pleaded according to their tenor.^^^ So, also, omission of a final letter from the alleged forged name as proved has been held a material and fatal variance between the alleged forged writing as proved and as set forth in the indictment.^^^ So, likewise, has the omission of a single figure from the amount.^ ^* Many cases, however, disregard such seemingly unimportant variances and hold the evidence sufficient notwithstanding such a variance appears.^^^ So it has been held that the fact that the writing proved was acknowledged while that set out in the indictment was not, is not a material and fatal variance such as to make the proof insufficient.^^^ It has also been held that an allegation of an intent to defraud several persons is sustained by proving an intent to defraud any one of them.^^' "1 State V. Pease, 74 Ind. 263, and authorities cited in following notes. '^'Westbrook v. State, 23 Tex. App. 401, 5 S. W. 248; McClellan v. State, 32 Ark. 609; State v. Wood- row, 56 Kan. 217, 42 Pac. 714; State V. Lane, 80 N. Car. 407; State v. Harrison, 69 N. Car. 143. ii3 Burress v. Commonwealth, 27 Gratt. (Va.) 934. '" Burress v. Commonwealth, 27 Gratt. (Va.) 934. ^=»Garmire v. State, 104 Ind. 444, 4 N. E. 54; Roush v. State, 34 Neb. 325, 51 N. W. 755; State v. Gryder. 44 La. Ann. 962, 11 So. 573; State v. Lane, 80 N. Car. 407; State v. Davis, 69 N. Car. 313; Cross v. People, 47 111. 152; State v. Hastings, 53 N. H. 452; Agee v. State, 117 Ala. 169, 23 So. 486; Commonwealth v. Woods, 10 Gray (Mass.) 477. "« People V. Baker, 100 Cal. 188, 34 Pac. 649; Lassiter v. State, 35 Tex. Cr. App. 540, 34 S. W. 751. '" McDonnell v. State, 58 Ark. 242, 24 S. W. 105; see also. State v. Da- vis, 69 N. Car. 313. CHAPTEK CXLIV. GAMBLING. Sec. Sec. 2999. Generally. 3005. 3000. The wager or stake. 3001. Publicity of the game. 3006. 3002. Manner of playing. 3007. 3003. Statutes as to prima facie evi- 3008. dence. 3009. 3004. Circumstantial e v i d e n c e — 3010. Other offenses. 3011. Gambling instruments in evi- dence. Accomplices and accessories. Variance. Common gamblers. Keeping gambling house. Minors playing. Lotteries. § 2999. Generally. — Gaining or gambling has been defined as "an unlawful agreement between two or more persons to risk money or property on a contest or chance of any kind where one must be the gainer and the other the loser."^ There is said to be a distinction be- tween the terms "betting" and "gaming ;" the former being broader, and including the laying of a wager on any event, whereas the latter applies technically only to the paying of a wager upon some game.- Gaming in itself, when not such as to constitute a nuisance, was not a crime at common law.^ But keeping a gaming house was indictable at common law, and there are statutes in many of the states making it a ^Hughes Cr. L. & Proc, § 2193; see also, Ansley v. State, 36 Ark. 67, 38 Am. R. 29; Portis v. State, 27 Ark. 360; State v. Shaw, 39 Minn. 153, 39 N. W. 305; Harrison v. State, 4 Coldw. (Tenn.) 198; Bubanks v. State, 3 Heisk. (Tenn.) 488, 490; Bell V. State, 5 Sneed (Tenn.) 507; "gaming is the act of persons who engage in playing a game for stakes." 1 Abbott L. Diet. 529. "Gambling is the risking of money or anything of value between two or more persons on a contest of chance of any kind, where one must be the loser and the other the gainer." State v. Grimes, 74 Minn. 2R7, 77 N. W. 4, 5. "But it has been held unnecessary that both parties should "stand to lose" as well as to win. Lang v. Merwin, (Me.) 59 Atl. 1021; Horner v. United States, 147 U. S. 449, 13 Sup. Ct. 409. = People V. Weithoff. 51 Mich. 203, 210. 16 N. W. 442, 47 Am. R. 557. ^Bell V. Norwich. 3 Dyer 254b; Sherbon v. Colebach. 2 Vent. 175; Greenhuff's Case. 2 Swinton 236; 1 Bishop Cr. Law, § 504; Bishop Stat. Cr., § 847. 277 2999.] GAMBLING. 278 criminal offense to bet on elections, horse racing and the like, and to keep or rent houses for the purpose of gaming.* To constitute gaming in the technical sense, it is necessary that there should be a game upon which the wager is laid.^ A wager of some kind is an essential element of the offense" and so is the element of chance or hazard.'^ Betting on an election has been held not to be gaming,* although it is punishable as an offense under specific statutes in many states. Betting on a horse-race has also been held not to be gaming in some jurisdictions," but the weight of authority, at least under many of the statutes, is probably to the contrary.^" "A game of chance," it is said, "^may be defined as one in which the result is determined by luck or lot, and not by adroitness, practice, skill, or judgment in play, such as, for example, cards, dominoes," bagatelle,^^ bowls,^^ ^^.^gg ball," dice throwing,^^ or keno.^" Such games are gambling when played for money or other valuable thing." ^^ It is doubtful, however, if all of ^ See, Bishop Stat. Cr., §§ 844-881, 934, et seq. So as to lotteries. Bistiop Stat. Cr., § 951, et seq.; see also, Horner v. United States, 147 U. S. 449, 13 Sup. Ct. 409. = People V. Weithoff, 51 Mich. 203, 16 N. W. 442, 47 Am. R. 557; Smoot V. State, 18 Ind. 18. « Reg. V. Ashton, 1 El. & Bl. 286, 72 E. C. L. 286; Ansley v. State, 36 Ark. 67, 38 Am. R. 29; State v. Hope, 15 Ind. 474; Carr v. State, 50 Ind. 178; People V. Carroll, 80 Cal. 153, 22 Pac. 129; State v. Quaid, 43 La. Ann. 1076, 10 So. 183; Martin v. State, 71 Miss. 87, 14 So. 530. "Lee Tong, In re, 18 Fed. 253; Scate V. Quaid, 43 La. Ann. 1076, 10 So. 183; Wortham v. State, 59 Miss. 179; Harris v. White, 81 N. Y. 539; State V. Smith, Meigs (Tenn.) 99, 33 Am. Dec. 132; but see under Iowa statute. State v. Miller, 53 Iowa 154, 4 N. W. 900. ^ State V. Smith, Meigs (Tenn.) 99, 33 Am. Dec. 132; Hickerson v. Benson, 8 Mo. 11, 40 Am. Dec. 118; State V. Henderson, 47 Ind. 127; M'Hattan v. Bates, 4 Blackf. (Ind.) 63; but see, Frazee v. State, 58 Ind. 8; Sharkey v. State, 33 Miss. 353; Commonwealth v. Wells, 110 Pa. St. 463, 1 Atl. 310. "State V. Rorie, 23 Ark. 726; Cheek v. Commonwealth, 79 Ky. 359; Commonwealth v. Shelton, 8 Gratt. (Va.) 592. " Stone V. Clay, 10 C. C. A. 147, 61 Fed. 889; Cheesum v. State, 8 Blackf. (Ind.) 332, 44 Am. Dec. 771: State V. Shaw, 39 Minn. 153, 39 N. W. 305; Edwards v. State, 8 Lea (Tenn.) 411. " Harris v. State, 31 Ala. 362. " Neal v. Commonwealth, 22 Gratt. (Va.) 917, 919. '' Commonwealth v. Coding, 3 Mete. (Mass.) 130. "Mace V, State, 58 Ark. 79, 22 S. W. 1108; People v. Weithoff, 51 Mich. 203, 209, 212. 16 N. W. 442, 47 Am. R. 557. " State V. DeBoy, 117 N. Car. 702, 23 S. E. 167; Jones v. State, 26 Ala. 155. ^o Miller v. State, 48 Ala. 122. " Underhill Cr. Ev., § 471. 279 WAGER OB STAKE. [§ 3000. these things would be held to be gambling in all jurisdictions. Much depends upon the particular statutes. § 3000. The wager or stake. — The prosecution must prove that a bet or wager was made, whether the game be one of chance or skill,^® and that the stake had some value intrinsically, or, by agreement of the parties, represented value.^^ But if the defendant made the wager it is not essential that he should have been one of the players of the game where the statute prohibits wagering or betting on such a game,-" and the amount and character of the things wagered are immaterial.2^ Thus, it may bo for chips or checks,^^ to determine who shall treat or for the price of refreshments,-^ or, in some juris- dictions, for the hire of the table or the like.^* But the contrary has been held in some jurisdictions as to playing merely where tlie loser i:^ to pay for the use of the table.-^ The wager may be inferred from au offer and acceptance, and neither of these need be proved to have been made in express terms, but may be inferred from conduct and circum- stances.-^ Thus, it "may be inferred by the jury from evidence that the accused placed money or chips upon a table where a game was in progress, without objection from other players," or stated he would "Middaugh v. State, 103 Ind. 78. 2 Swan. (Tenn.) 287, 290, 291; 80, 2 N. E. 292; Jackson v. State, Commonwealtli v. Taylor, 14 Gray (Tex. Cr. App.) 25 S. W. 773. (Mass.) 26; Brown v. State, 49 N. J. '« Oder v. State, 26 Fla. 520, 522, L. 61, 7 Atl. 340. 7 So. 856; State v. Bishel, 39 Iowa =*Hall v. State, (Tex. Cr. App.) 42. 34 S. W. 122; Alexander v. State, 99 =°See, Bone v. State, 63 Ala. 185; Ind. 450, 451; Hamilton v. State, 75 Flynn v. State, 34 Ark. 441; Quarles Ind. 586, 587; Bachellor v. State, 10 T. State, 5 Humph. (Tenn.) 561; Tex. 258, 261; State v. Book, 41 Commonwealth v. Shelton, 8 Gratt. Iowa 550, 20 Am. R. 609; Ward v. (Va.) 592. State, 17 Ohio St. 32. =^Marston v. Commonwealth, 18 B. =^ Harbaugh v. People, 40 111. 294; Mon. (Ky.) 485; Walton v. State, 14 State v. Quaid, 43 La. Ann. 1076, Tex. 381; Cain v. State, 13 Smed. & 10 So. 183; State v. Hall, 32 N. J. L. M. (Miss.) 456; Hitchins v. People, 158, 165; People v. Forbes, 52 Hun 39 N. Y. 454; Ford v. State, (Miss.) (N. Y.) 30, 22 N. Y. St. 278, 4 N. Y. 38 So. 229. S. 757; Blewett v. State, 34 Miss. 2= Porter v. State, 51 Ga. 300, 301; 606. Ransom v. State, 26 Fla. 364, 7 So. =» Emmons v. State, 34 Tex. Cr. 860. App. 98, 29 S. W. 474, 475; State v. 2» State V. Wade, 48 Ark. 77, 51 Welch, 7 Port. (Ala.) 463. Am. R. 560; People v. Cutler, 28 "Thompson v. State, 99 Ala. 173, Hun (N. Y.) 465, 466; Hitchins v. 13 So. 753. State, 39 N. Y. 454; Walker v. State, §• 3001.] GAMBLING. 280 pay the amount wagered after the game was ended,^^ and even from evidence that the accused was sitting and playing at a table upon which money and gambling devices, such as cards and a faro box, were lying."'^ But it has been held that a charge of winning an article of value upon a game or wager is not sustained by evidence merely to the effect that the defendant played a game of pool with another and that the latter lost the game and paid for it.^" § 3001. Publicity of the game. — Publicity must be shown in prose- cutions under some of the statutes. It has been held that the court cannot take notice that certain places are public, under a statute which forbids gambling in public places.^^ Whether a game or sport is pub- lic, is usually a question for the jury to determine from the circum- stances, but much depends upon the meaning of that term as used in the particular statute. "Evidence that a game was carried on in a shop,^^ or public road,^^ in the office of a physician,^* magistrate,^** or broker,^" aboard a steamer in a navigable stream,^'' or in a barn,^^ will sustain an allegation that a game was played in public."^^ So, evidence that it was carried on in the jury room in a court house,*" in a road or path in common use,*^ or the like,*- has been held sufficient. But in other cases, places similar in most respects to some of those mentioned have been held not to be public within the meaning of the statute.*^ =« State v. Leicht, 17 Iowa 28. ^* Williams v. State, (Tex.) 34 S. ^Underbill Cr. Ev., § 473; State W. 271; Redditt v. State, 17 Tex. V. Andrews, 43 Mo. 470, 471; State 610. V. Boyer, 79 Iowa 330, 44 N. W. 558; ^Burnett v. State, 30 Ala. 19. St. Louis v. Sullivan, 8 Mo. App. '"Wilson v. State, 31 Ala. 371. 455, 457, 458; Cohen v. State, 17 ^Dickey v. State, 68 Ala. 508. Tex. 142. Evidence that other per- '^ Huffman v. State, 29 Ala. 40. sons, present with the accused in ^ Underhill Cr. Ev., § 473; Nuek- the room where gambling is alleged ols v. State, 109 Ala. 2, 19 So. 504; to have taken place, were playing or see also, Downey v. State, 110 Ala. betting, is relevant; and perhaps in- 99, 20 So. 439; Gomprecht v. State, dispensable, as the defendant could 36 Tex. Cr. App. 434, 37 S. W. 734. not play a game alone or bet with *" Wilcox v. State, 26 Tex. 145. himself. Thompson v. State, 99 Ala. ^' Mills v. State, 20 Ala. 86; Hen- 173, 13 So. 753, 754. derson v. State, 59 Ala. 89. ""Middaugh v. State, 103 Ind. 78, « Langrish v. Archer, L. R. 10 Q. 2 N. E. 292. B. 44, 15 Cox Cr. Cas. 194; Skin- '1 Grant v. State, 33 Tex. Cr. App. ner v. State, 30 Ala. 524; Dennis v. 527, 27 S. W. 127. State, 139 Ala. 109, 35 So. 651. '" Bentley v. State, 32 Ala. 596. " Windsor v. Commonwealth, 4 ''Mills v. State, 20 Ala. 86. Leigh (Va.) 680; McCauley v. State, V 281 JUDICIAL NOTICE — EXPERT EVIDENCE. [§§ 3002, 3003. § 3002. Manner of playing — Expert evidence.— Tlie courts will not, as a general rule, take judicial notice of the character of a par- ticular game and the manner in which it is played,** and a jury can- not well be presumed to know how an unlawful game is played. But where the game is specifically prohibited by statute, the courts will usually take judicial notice of the meaning of the terms used, or the unlawful nature of such games.*^ The manner of playing may be ex- plained to the jury by professional players as expert witnesses.*^ But such testimony is not indispensable. Any witness may describe a game he has seen, though he has played or seen it played only a few times." The extent of his knowledge and experience goes to the weight of his testimony rather than to his competency, and is relevant to lessen or increase the weight of his evidence.*^ But it has been held that a book on such games is not admissible, although a witness could use it to illustrate his testimony.*^ § 3003. Statutes as to prima facie evidence. — Statutes exist in many states declaring that certain facts shall be prima facie evidence of gaming or keeping or renting a house for the purpose of gaming. Such statutes have generally been upheld as constitutional.^" Thus, a statute declaring that the fact of gaming being carried on in the house, 26 Ala. 135; Burdine v. State, 25 '* In one case it was held that a Ala. 60; ClarKe v. State, 12 Ala. 492; witness may testify he saw the de- Bledsoe v. State, 21 Tex. 223; see fendant conduct a game for money, also. State v. Kyer, (W. Va.) 46 S. describing it in detail, and that an- W. 694. other witness may then state it was " Commonwealth v. Monarch, 6 a certain game, though the latter Bush (Ky.) 298; State v. Sellner, 17 may have seen the game played only Mo. App. 39. a few times. People v. Sam Lung, 70 «Lohman v. State, 81 Ind. 15; Cal. 515, 11 Pac. 673; but see. People State v. Burton, 25 Tex. 420; State v. Gosset, 93 Cal. 641, 29 Pac. 246; V. Price, 12 Gill & J. (Md.) 260. People v. Carroll, 80 Cal. 153, 22 "Commonwealth v. Adams, 160 Pac. 129. Mass. 310, 35 N. W. 581; Hall v. ""People v. Gosset, 93 Cal. 641. 29 State, 6 Baxt. (Tenn.) 522; State v. Pac. 246. Behan, (La.) 37 So. 607. ""Voght v. State, 124 Ind. 358. 24 "Nuckolls V. Commonwealth, 32 N. E. 680; Commonwealth v. Smith. Gratt. (Va.) 884; see also. Hall v. 166 Mass. 370, 44 N. E. 503; People State, 6 Baxt. (Tenn.) 522; People v. Adams, 176 N. Y. 351, 68 N. E. V. Gosset, 93 Cal. 641, 645, 29 Pac. 636, 63 L. R. A. 406, aff'd in, 192 U. 246; Miller v. Commonwealth, 25 S. 585, 24 Sup. Ct. 372. Ky. L. R. 1236, 1931, 77 S. W. 682, 79 S. W. 250. § 3004.] GAMBLING. 383 and knowledge thereof on the part of the lessee or owner without tak- ing any steps to prevent it, shall constitute sufficient evidence that it was rented for such purpose, has been held constitutional. -'^ So, a statute proving that if any of the implements, devices or apparatus commonly used in games of chance usually played in gambling houses, or by gamblers, are found in the house, it shall be prima facie evi- dence that such house is kept for gaming, has been held constitu- tional. ^^ § 3004. Circumstantial evidence — Other offenses. — Circumstantial as well as direct evidence is admissible in prosecutions under the va- rious gaming statutes, and, indeed, it often happens that the guilt of the accused can be shown in no other way.^^ Other offenses, such as gambling in the place in question at other times or the like, may be shown upon the question of knowledge and intent, design or purpose for which the establishment is kept, and to illustrate its nature.^* Thus, it is held in a recent case that in the trial of a prosecution for keeping a banking game, the state may prove that the defendant dealt faro in the same place within two weeks immediately preceding the date charged in the information, for the purpose of showing the character of the house and the guilty knowledge of defendant.^^ It is not necessary to prove a winning or losing by direct evidence of actual observation, but gaming may be inferred from circumstances,^^ and it has been held that evidence that persons with money and "chips" on a table before them behaved in the manner of persons engaged in a well-known gambling game will justify their conviction for gaming." So, evidence that the room in which gambling was conducted and in " Morgan v. State, 117 Ind. 569, 17 111. 465, 469; Miller v. Common- N. E. 154. wealth, 13 Bush (Ky.) 737; Clark =^Wooten V. State, 24 Fla. 335, 1 v. State, 47 N. J. L. 556, 4 Atl. 327. L. R. A. 819. But, otherwise, the general rule ap- =^ See, State v. Boyer, 79 Iowa 330, plies that independent offense can- 44 N. W. 558; State v. Andrews, 43 not be shown. Wickard v. State, Mo. 470; St. Louis v. Sullivan, 8 Mo. 109 Ala. 45, 19 So. 491; Goldstein v. App. 455; Robbins v. People, 95 111. State, (Tex. Cr. App.) 35 S. W. 289. 175; Hamilton v. State, 75 Ind. 586; =>=^ State v. Behan, (La.) 37 So. 607. McAlpin V. State, 3 Ind. 567. '^'^ McAlpin v. State, 3 Ind. 567; ^Toll V. State, 40 Fla. 169, 23 So. Voght v. State, 124 Ind. 358, 24 N. E. 942; Commonwealth v. Ferry, 146 680; Hamilton v. State, 75 Ind. 586. Mass. 203, 209, 15 N. E. 484; State =' Neeld v. State, 25 Ind. App. 603, V. Czarnikow, 20 Ark. 160; see also, 58 N. E. 734. But see Fallwell v. as to lotteries, Dunn v. People, 40 State, (Tex. Cr. App.) 85 S. W. 1069. 283 GAMBLIXG INSTRUMENTS. [§ 3005. which the defendant stored goods was connected with the main room of the building which the defendant leased for his store ; that a door opened from the store into the room, of which the defendant alone had the key ; that he opened it when requested ; that it was necessary to ask permission of him to enter ; was sufficient to show that defendant was the lessee and occupant of the room, within the Mississippi statute, forbidding owners, lessees, or occupants of any building to permit gaming to be carried on therein.^** § 3005. Gambling instruments in evidence. — Gambling instru- ments and devices employed in playing illegal games arc admissible, if properly identified and connected with the accused.^'^ As shown in another section, they are sometimes made prima facie evidence by stat- ute. So, by statute in some jurisdictions the seizure of articles used for gambling purposes, as tables, cards, and the like, is authorized.*'" It is generally held that they cannot be confiscated or destroyed with- out due notice to their owner and an opportunity for him to be heard and to prove their lawful character in judicial proceedings,''^ but the method by which the prosecution has acquired them does not prevent their use as evidence in a proper case upon the grovmd that the accused is protected by the constitution from being compelled to furnish evi- dence against himself.^^ In a recent case, where the defendant was charged with keeping a gaming house, there was evidence that at the time of his arrest he was in possession of gambling devices, and they were held properly admitted in evidence, the court having instructed that this testimony should be considered only to show that the property in question was in defendant's possession, and that he could not be con- victed on testimony that he was the keeper of the place after the time of the issuing of the warrant, or on any testimony showing that the place described in the information was a gaming house after the time of issuing the warrant.®^ But on a prosecution under the New York stat- " Ford V. State, (Miss.) 38 So. 229. (Neb.) 99 N. W. 505, 65 L. R. A. °» People V. Sam Lung, 70 Cal. 515, 610. 517, 11 Pac. 673. " Commonwealth v. Smith, 166 •"Ridgeway v. West, 60 Ind. 371; Mass. 370, 44 N. E. 503; State v. Commonwealth v. Gaming Imple- Pomeroy, 130 Mo. 489, 32 S. W. 1002; ments, 119 Mass. 332, 65 L. R. A. see also, Woods v. Cottrell, 55 W. Va. 611, 616. 476, 47 S. E. 275, 65 L. R. A. 616. "State V. Robbins, 124 Ind. 308, «^ State v. Harmon, (Kans.) 78 24 N. E. 978; Lowry v. Rainwater, Pac. 805. 70 Mo. 152; McConnell v. McKillip, §§ 3006, 3007.] GAMBLING. 284 ■Qte for receiving and recording money on a bet on a horse race, where the prosecuting witness testified that at the place where the offense occurred there were placards on the wall stating the name of the horses which were to compete in certain races, it was held that placards taken from defendant at the time of his arrest, containing what might be inferred to be the names of race horses, were not admissible against the defendant, without proof as to whether the cards were used or to be used upon a race course, even though they were similar to the placards on the wall of the alleged poolroom, and were intended to be used in the registration of bets.®* § 3006. Accomplices and accessories. — The question as to whether a conviction may be had in criminal cases upon the uncorroborated evidence of an accomplice or accessory has already been considered. But the rules governing such evidence in gambling cases depend largely upon the statute in the particular jurisdiction. Thus, in some jurisdictions a conviction may be had upon the uncorroborated evi- dence of an accomplice,®^ and under some statutes he is not to be ex- cused from testifying because his evidence may tend to incriminate him,®" where he is granted immunity therefrom. But in some other jurisdictions there are or have been statutes providing that no con- viction shall be had on the uncorroborated testimony of an accom- plice.®^ § 3007. Variance. — It is not essential, as a rule, that the state should prove that the offense was committed on the precise date charged.®^ But it must be shown to have been committed before the indictment and within the period of limitations.®® It is not necessary to prove that all the money or property charged in the indictment was "People V. Ebel, 98 App. Div. (N. "Davidson v. State, 33 Ala. 350; Y.) 270, 90 N. Y. S. 628. There was State v. Light, 17 Ore. 358, 21 Pac. no evidence, however, of the latter 132. fact. "'State v. Czarinkow, 20 Ark. 160; "'Wright v. State, 22 Tex. App. Cohen v. State, 32 Ark. 226; Robin- 670, 3 S. W. 346. son v. State, 77 Ga. 101; Spratt v. "■Cheesum v. State, 8 Blackf. State, 8 Mo. 247; Ramey v. State, 14 (Ind.) 332, 44 Am. Dec. 771; War- Tex. 409; see also, Dennis v. State, ner v. State, 13 Lea (Tenn.) 52; 139 Ala. 109, 35 So. 651. Kneeland v. State, 62 Ga. 396; Ken- ™ Winans v. State, (Tex. App.) 19 drick V. Commonwealth, 78 Va. 490; S. W. 676; State v. Waters, 1 Strob. see, Moore v. State, 97 Ga. 759, 25 (S. Car.) 59; see also, Cochran v. S. E. 362. State. 30 Ala. 542. 285 COMMON GAMBLERS, [§ 30U8. lost or won/'' but it must generally be sbown that some money, article, or thing of the kind charged was wagered or won or lost.'^^ It has been held that a charge that the defendant lost money on a wager is not supported by evidence that he and another lost a joint bet/- and the same court has held that where the charge is that the defendant lost a bet with two or more persons, evidence that the winning or losing was by the defendant alone and with only one of such persons is insuf- ficient. '^^ But under a charge of keeping a room for gaming it has been held that the names of the persons who gambled therein were immaterial.'^* § 3008. Common gamblers. — In some of the states frequenting gaming houses is a criminal offense, and statutes exist for the punisli- ment of those who habitually frequent gaming houses, or engage in gambling as a livelihood, as common gamblers. It has been held under such a statute that the evidence must show that the defendant engaged in gambling in the county where he was indicted, and that evidence that he had earned his living by gambling at other places is not suffi- cient if the evidence shows that he came on lawful business into the county where he is being prosecuted, and does not show the commission or attempt to commit any unlawful act there. '^^ Evidence of a single visit to a gambling house is generally insufficient to sustain a convic- tion on the charge of frequenting a place where gambling is per- mitted.'^^ But it seems that it may be sufficient in some cases, along with other evidence or under particular circumstances.'^^ The evidence '"Parsons v. State, 2 Ind. 499; Al- held inadmissible without account- exander v. State, 99 Ind. 450; Bishop ing for the absence of the writing. Stat. Cr., §§ 898, 899. Frazee v. State, 58 Ind. 8. "Tate V. State, 5 Blackf. (Ind.) "= Iseley v. State, 8 Blackf. (Ind.) 174; Horton v. State, 13 Ark. 62; 403; see also, Hany v. State, 4 Eng. Williams v. State, 12 Smed. & M. (Ark.) 193. (Miss.) 58; Bishop Stat. Cr., § 901; "State v. Dole, 3 Blackf. (Ind.) as to proving the particular device 294; for variance in the description alleged, see, Pemberton v. State, 85 of the building held not to be fatal. Ind. 507; see also. Commonwealth see, Commonwealth v. Coleman, 184 V. Coleman, 184 Mass. 198, 68 N. E. Mass. 198, 68 N. E. 220. 220; Commonwealth v. Hodgkins, '■■ Bowe v. State, 25 Ind. 415. 170 Mass. 197, 49 N. E. 97. ""Green v. State. 109 Ind. 175. 9 "Jackson v. State, 4 Ind. 560; N. E. 781; De Haven v. State. 2 Ind. Wilcox V. State, 7 Blackf. (Ind.) App. 376, 28 N. E. 562. 456; in one case where a written "'Commonwealth v. Hopkins, - memorandum of a bet was made Dana (Ky.) 418. parol evidence of its contents was § 3009.] GAMBLING. 28(> should show that the defendant frequented the house for the purpose of gambling. '^^ Proof that he actually gambled while he was there is evidence of his purpose in frequenting the place. '^'^ But when the fact that he frequented it and his purpose in doing so are otherwise proved, it is not necessary to prove that the defendant actually engaged in gambling.^" His purpose of gaming may be inferred from circum- stances/^ and evidence that during the period in question he visited and gambled with cards at other gaming houses in the same neighbor- hood has been held admissible as tending to prove his purpose in visit- ing the particular gambling house.^^ It has also been held that a man may be convicted of being a common gambler upon evidence that he followed that occupation in a room kept by himself, although it is also proved that he has previously been convicted of keeping a gambling room at such place.^^ But it has been held that one cannot be con- victed of being a common gambler on mere evidence of his reputation as such.^* § 3009. Keeping gambling house. — Keeping a common gaming house was a criminal offense at common law, and it is now a statutory offense in most jurisdictions. Some of these statutes are far more comprehensive than the common law. Evidence that the defendant had actual custody or possession of a public gambling house, or that he derived gain or profit from it, is relevant and may justify an infer- ence that he was keeping it in the statutory sense.^^ It has been said that proof of a single act of possession or supervision may not be enough to sustain a conviction of keeping, for the offense is continu- ous.®^ But under many of the statutes no particular time is required, and so keeping it for a single day or part of a day may be sufficient.®^ '« Howard v. State, 64 Ind. 516; ^ Lettz v. State, (Tex. Cr. App.) De Haven v. State, 2 Ind. App. 376, 21 S. W. 371; Harman v. State, (Tex. 28 N. E. 562. Cr. App.) 22 S. W. 1038; Wren v. "Howard v. State, 64 Ind. 516. State, 70 Ala. 1; Robbins v. People, ^° Green v. State, 109 Ind. 175, 9 N. 95 111. 175; Commonwealth v. Clan- E. 781; Howard v. State, 64 Ind. cy, 154 Mass. 128, 27 N. E. 1001; 516. Douglass v. State, 18 Ind. App. 289, «i Howard v. State, 64 Ind. 516. 48 N. E. 9. «2 Courtney v. State, 5 Ind. App. ^'^ Underbill Cr. Bv., § 475; United 356, 32 N. E. 335. States v. Smith, 4 Craneh (U. S.) «'De Haven v. State, 2 Ind. App. 659; Jessup v. State, 14 Ind. App. 376, 28 N. E. 562. 230, 42 N. E. 948; contra. State v. ** Commonwealth v. Hopkins, 2 Crogan, 8 Iowa 523, 524. Dana (Ky.) 418. «' State v. Cooster, 10 Iowa 453; 287 KEEPING GAMBLING HOUSE. [§ 3009. It has been held that the particular game which was played need not be alleged^^ or proved/" It has also been said that the reputation of the house as a gambling or disorderly house is incompetent.®" But it may be admissible in some cases to show knowledge or the like,®^ and the reputation of those who frequent the house as being gamblers may be shown/-'^ and so, in some cases, may their conduct and declarations.®^ Specific acts of gambling have been held admissible in evidence to prove the keeping of a gambling house,®* and evidence denying that such acts were committed is also competent.®'^ It is not necessary to directly prove a winning or losing from actual observation, but gaming and the keeping of the place for that purpose may be inferred from circumstances.®® Some evidence that the defendant knew that gam- bling was carried on in his house or room is generally necessary to sustain a conviction," but it has been held that his knowledge that it was used for gaming may be inferred from proof that it was generally reputed to be used as a gambling room, that the tenant had pleaded guilty to a charge of keeping a gaming establishment in such room, and that the defendant collected his own rent from other tenants in the same building and neighborhood, and mingled with the citizens of the community.®* Evidence that gaming was regularly permitted upon tables in defendant's saloon, which belonged to him, of which his bar- State v. Markham, 15 La. Ann. 498; 307, 37 Atl. 619; see also, Lowe v. McAlpin V. State, 3 Ind. 567; Arm- State, 86 Ala. 47, 5 So. 435. strong V. State, 4 Blackf. (Ind.) "Armstrong v. State, 4 Blackf. 247. (Ind.) 247; Gaylor v. McHenry, 15 *» State V. Dole, 3 Blackf. (Ind.) Ind. 383; Stefani v. State, 124 Ind. 294. 3, 24 N. E. 254. «» Commonwealth v. Lampton, 4 '=* Stefani v. State, 124 Ind. 3, 6, Bibb. (Ky.) 261; State v. Dole, 3 24 N. E. 254. Blackf. (Ind.) 294. But it has been =* Simms v. State, 60 Ga. 145; Cox held that when alleged it must be v. State, 95 Ga. 502, 20 S. E. 269; strictly proved. Dudney v. State, 32 State v. Boyer, 79 Iowa 330, 44 N. W. Ark. 251, 252. 558; Commonwealth v. Adams, 160 ""Wharton Cr. Ev., § 260. Mass. 310, 35 N. E. 851; Robbins v. "1 Voght v. State, 124 Ind. 358, 24 People, 95 111. 175; McAlpin v. State, N. E. 680. 3 Ind. 567; Hamilton v. State, 75 "= State v. Mosby, 53 Mo. App. 571; Ind. 586; Voght v. State, 124 Ind. Anderson v. State, (Tex. App.) 12 358, 24 N. E. 680; Neeld v. State, 25 S. W. 868. But the contrary has Ind. App. 603, 58 N. E. 734. been held as to reputation of the de- »^ Padgett v. State, 68 Ind. 46; fendant. Lettz v. State, (Tex. Cr. Harris v. State, 5 Tex. 11. App.) 21 S. W. 371. »« Voght v. State, 124 Ind. 358, 24 »^ Bindernagle v. State, 60 N. J. L. N. E. 680; see also, State v. Hand, 7 Iowa 411. § 3010.] GAMBLING. 288 keeper had charge, and that defendant was frequently present in the saloon during a period of two years, although inattentive, but able to see what was going on if he chose, is sufficient to justify his conviction for permitting his house to be used for gambling.^^ His presence in the room at any time is not an essential element in the offense of keep- ing a gaming house,^*^" but evidence that a gambling room in charge of another person was situated over defendant's saloon, in a rented building, from which it could be reached by a stairway, and that per- sons reached it by passing through his saloon, has been held insufficient of itself to prove that defendant kept the gambling room.^"^ It is gen- erally for the jury to determine what inference shall be drawn from the facts proved,"^ and whether or not the keeping of a gambling house by the defendant is proved beyond a reasonable doubt or should be inferred from the evidence. ^**^ § 3010. Minors playing. — In some of the states there are specific statutes directed against gambling, and even the mere playing or per- mitting the playing of certain forbidden games, in certain places by minors. Proof of a wager by the minor upon the result of such a game has been held unnecessary under statutes of the latter class.^"* But some of the courts have been strict in requiring the proof to correspond with the charge in regard to the parties playing,^"^ the kind of game,"« and even the kind of table used.^**'^ Evidence that the defendant had the general management and control of the room and of the table on which the game was played, and that he was present and saw the minor play, has been held sufficient to sustain a charge against him for per- mitting a minor to play thereon, although he is not shown to have controlled and managed the table in person.^^^ The minority of the prosecuting witness being established, together with other facts making <« Crawford v. State, 33 Ind. 304; N. J. L. 61, 7 Atl. 340; Campbell v. Hamilton v. State, 75 Ind. 586; see State, 55 Ala. 89; Winemiller v. also, Stoltz V. People, 5 111. 168; State, 11 Ind. 516; Hamilton v. Robinson v. State, 24 Tex. 152. State, 75 Ind. 586. !«> Hazen v. State, 58 Ind. 197. "^ Ready v. State, 62 Ind. 1 ; Bond '»> Barnaby v. State, 106 Ind. 539, v. State, 52 Ind. 457. 7 N. E. 231 ; see also, Commonwealth ''^ Moore v. State, 65 Ind. 214. V. Dean, 1 Pick. (Mass.) 387; Scott ""Squire v. State, 66 Ind. 317; Y. State,' 29 Ga. 263. Sumner v. State. 74 Ind. 52. ""Voght V. State, 124 Ind. 358, "'Bartender v. State, 51 Ind. 73, 24 N. E. 680. 76. "^ Bindernagle v. State, 60 N. J. L. '°' Hipes v. State, 73 Ind. 39. 307, 37 Atl. 619; Brown v. State, 49 289 LOTTERIES. [§ 3011. out a prima facie case, it has been held that the defendant has the bur- den of proof to show that he acted in good faith under an honest be- lief, which was justified by the appearance of the minor and other facts within defendant's knowledge that the minor was of full age.^°^ But it has been held that the state must show the guardian's want of consent where that is an essential element of tlie offense.^^" § 3011. Lotteries. — Lotteries constitute a species or kind of gam- ing.^^^ Laws against lotteries and providing, under certain circum- stances and proceedings, for the seizure of lottery tickets and the like have very generally been upheld as constitutional."- It has also been held that the court will take judicial notice of the meaning of the term "gift enterprise" as a scheme for the division or distribution of articles, to be determined by chance, among those who have taken shares in the scheme."^ On the trial of an indictment for selling lot- "" Taylor v. State, 107 Ind. 483, 8 N. E. 450; Swigart v. State, 99 Ind. 111. 'i°Conyers v. State, 50 Ga. 103, 106, 107. It has been held that the accused may show in such case that he used care to ascertain the age of the player, and for this purpose may prove facts descriptive of his personal appearance and his replies to questions put to him. Stern v. State, 53 Ga. 229; Goetz v. State, 41 Ind. 162; see also. Commonwealth v. Emmons, 98 Mass. 6. "1 Bishop Stat. Cr., § 951; Thomas v. People, 59 111. 160; Bell v. State, 5 Sneed (Tenn.) 507; for defini- tion of the term see. Bishop Stat. Cr., § 951, and the opinion in, United States v. Olney, 1 Abb. (U. S.) 275, where several definitions are quoted and commented on. See also. State v. Kansas &c. Co., 45 Kans. 351, 23 Am. St. 727; Yellow- stone Kit v. State, 88 Ala. 196, 16 Am. St. 38; State v, Boneil, 42 La. Ann. 1110, 8 So. 298, 21 Am. St. 413; People V. Elliott, 74 Mich. 264, 41 N. W. 916, 3 L. R. A. 403, and note; also notes in, 7 L. R. A. 799; 8 L. R. Vol. 4 Elliott Ev. — 19 A. 671, and 10 L. R. A. 60; Lynch v. Rosenthal, 144 Ind. 86, 90. 42 N. E. 1103, 55 Am. St. 171. The authori- ties and notes treat very fully the question as to what are or are not lotteries, and furnish many exam- ples and illustrations. "- See, Stone v. Mississippi, 101 U. S. 814; Boyd v. Alabama, 94 U. S. 645; Commonwealth v. Dana, 2 Mete. (Mass.) 329; Salomon v. State, 27 Ala. 26; People v. Noelke, 94 N. Y. 137, 46 Am. R. 128 (forbidding sale of tickets, although the lottery is in another state in which it is lawful) ; Wong Hane, In re, 108 Cal. 680, 41 Pac. 693, 49 Am. St. 138; Common- wealth V. Gorman, 164 Mass. 549, 42 N. E. 94; Ford v. State, 85 Md. 465, 60 Am. St. 337. In several of these cases statutes making it unlawful or at least prima facie evidence of guilt to have lottery tickets in possession were upheld. "' Lohman v. State, 81 Ind. 15; see also as to the meaning of this term, Winston v. Beeson, 135 N. Car. 271, 47 S. E. 457, 65 L. R. A. 167, and authorities cited. § 3011.] GAMBLING. 290 tery tickets, it has been held that they should be produced unless good cause is shown for not producing them.^^* Printed envelopes for such tickets and handbills advertising them, found on the defendant's desk or counter and bearing his name, are competent evidence against him.^^^ Evidence of the sale of "policies" has also been held admissible under an indictment for selling lottery tickets,^^® and it has been held that although the alleged lottery ticket set out in the indictment is not clearly such a ticket upon its face, it may be averred and proved to be such."'^ And evidence that tlie defendant sold a ticket or paper bearing certain numbers representing the purchaser's title to a prize to be drawn by such numbers in a lottery, or game of chance in the nature of a lottery, has been held sufficient to support a conviction."^ "* Whitney v. State, 10 Ind. 404. "■ State v. Willis, 78 Me. 70, 2 Atl. ^■'Dunn v. People, 40 111. 465; see 848. also, Collins v. Lean, 68 Cal. 284, "•* State v. Rothschild, 19 Mo. App. 9 Pac. 173. 137. "''Smith v. State, 68 Md. 168, 11 Atl. 758. CHAPTER CXLV. HOMICIDE. Sec. 3012. 3013. 3014. 3015. 3016. 3017. 3018. 3019. 3020. 3021. 3022. 3023. 3024. 3025. 3026. 3027. 3028. 3029. 3030. Sec. Definition and classification. 3031. Presumption of innocence. 3032. Presumptions — As to intent. Presumptions — Not conclusive. 3033. Presumption of malice — From deliberation or want of prov- 3034. ocation. 3035. Presumptions as to malice. Presumptions — When not pre- sumed — Conflicting views. 3036. Presumptions as to degree of offense. 3037. Other presumptions. 3038. Burden of proof — As to mal- ice. 3039. Burden of proof — As to self- defense and insanity. 3040. Burden of proof — In general. Questions of law or fact. 3041. Evidence as to physical condi- 3041a tion and the body. Evidence as to motive. 3042. Means used and cause of 3043. death. 3044. Articles in evidence. Attendant circumstances — Res 3045. gestae. Attendant circumstances — Dec- 3046. larations. Dying declarations. Dying declarations — When ad- missible. Dying declarations — When not admissible. Confessions. Previous circumstances — Threats, preparation and previous attempts. Previous circumstances — Some others. Proceedings at inquest. Evidence as to character — Of deceased. Evidence as to character — Of accused. Evidence of habits and dispo- sition. Evidence as to self-defense. , Evidence as to self-defense — Justification or excuse. Evidence as to other defenses. Evidence in general. Evidence in general — Admissi- ble. Evidence in general — Not ad- missible. Weight and sufficiency — Vari- ance. § 3012. Definition and classification. — Homicide in the most com- prehensive meaning of the term is the killing of any human being.^ It is the killing of one human being by another human being. "The term, in its largest sense/' says Chief Justice Shaw, "is generic, em- bracing every mode by which the life of one man is taken by the act * Standard Diet. ; 1 Bouvier L. Diet. 291 (Rawle's ed.) 958. § 3013.] HOMICIDE. 293 of another. Homicide may be lawful or unlawful ; it is lawful when done in lawful war upon an enemy in battle; it is lawful when done by an officer in the execution of justice upon a criminal, pursuant to a proper warrant. It may also be justifiable, and of course law- ful, in necessary self-defense. By the existing law, as adopted and practiced on, unlawful homicide is distinguished into murder and manslaughter. Murder, in the sense in which it is now understood, is the killing of any person in the peace of the commonwealth, with malice aforethought, either express, or implied by law. Malice, in this definition, is used in a technical sense, including not only anger, hatred and revenge, but every other unlawful and unjustifiable mo- tive. It is not confined to ill-will toward one or more individual persons, but it is intended to denote an action flowing from any wicked and corrupt motive, a thing done with malo animo, where the fact has been attended with such circumstances as carry in them the plain indications of a heart regardless of social duty, and fatally bent on mischief. And therefore malice is implied from any deliberate or cruel act against another, however sudden. Manslaughter is the unlawful killing of another without malice; and may be either vol- untary, as when the act is committed with a real design and purpose to kill, but through the violence of sudden passion, occasioned by some great provocation, which in tenderness for the frailty of human nature the law considers sufficient to palliate the criminality of the offense; or involuntary, as when the death of another is caused by some unlawful act not accompanied by any intention to take life."^ Murder is also divided by statute in many jurisdictions into murder in the first degree and murder in the second degree. Unlawful or criminal homicide, such as we have to do with in this chapter, may, therefore, bo murder in the first degree, murder in the second degree, or manslaughter.^ § 3013. Presumption of innocence. — The presumption of inno- cence is one of the most important of all presumptions. It has its place in civil actions, but it is particularly applicable in prosecutions for crime ; and in no class of cases, perhaps, is it more important than in prosecutions for murder or manslaughter. The accused starts out = Commonwealth v. Webster, 5 'See, 18 Am. Dec. 774, note; 2 Cush. (Mass.) 295, 52 Am. Dec. 711, Bouvier L. Diet. (Rawle's ed.) 459, 716, 717, and note; see also, 1 Rus- 460; 1 McClain Cr. Law, § 335. sell Crimes 421; 1 Hale P. C. 466; 1 East P. C. 218. 393 PRESUMrxiONS — intent. [§ 3014. -with this presumption in his favor, and the burden remains upon the prosecution, according to the better view, to ultimately establish his guilt beyond a reasonable doubt." It is also said, in some cases and by some writers, that this presumption operates and is to be weighed as evidence in his favor throughout the trial, but, as elsewhere shown, this doctrine seems questionable.^ It has been held that the presumption of innocence is no stronger where the relation between the accused and the deceased was that of parent and child, husband and wife, or the like,« and, in a strict sense, this would seem to be correct, but the opposite view seems to have been taken in some cases.'^ § 3014. Presumptions— As to intent. — An intent to kill may, of course, be inferred from circumstantial evidence, and it is some- times said that such an intent is presumed from the act of killing by using a deadly weapon or the like because one is presumed to intend the actual consequences of his act.^ Thus it has been held that an intent to kill by striking a mortal blow may be presumed from the circumstances of the killing.^ But a presumption of in- tention cannot arise from the previous character of the prisoner, for his intentions can only be determined by his acts.^'' A presumption of intent to commit murder has been held to arise from the defend- ant's act of shooting into a crowd, because every man is supposed to ^Ogletree v. State, 28 Ala. 693; « Hawes v. State, 88 Ala. 37, 7 So. Bird V. State, 43 Pla. 541, 30 So. 302; State v. Soper, 148 Mo. 217, 49 655; State v. Young, 99 Mo. 666, 12 S. W. 1007. S. W. 879; Jones v. State, 13 Tex. ''State v. Green, 35 Conn. 203; see App. 1; Vol. I, § 95; see also. State also, People v. Greenfield, 23 Hun V. Earnest, 56 Kans. 31, 42 Pac. 359; (N. Y.) 454; State v. Hossack, 116 Peyton v. 'state, 54 Neb. 188. 74 N. Iowa 194, 89 N. W. 1077. W. 597; Gravely v. State, 38 Neb. « State v. Smith, 12 Rich. L. (S. 871, 57 N. W. 751; Ford v. State, 73 Car.) 430; Harrison v. Common- Miss. 734, 19 So. 665, 35 L. R. A. 117; wealth, 79 Va. 374; State v. Shep- State v. Hudspeth, 159 Mo. 178, 60 pard, 49 W. Va. 582, 39 S. E. 676; S. W. 136; Jones v. State, 51 Ohio see also. Weaver v. People, 132 111. St. 331, 38 N. E. 79; Wilkerson v. 536, 24 N. E. 571; State v. Grant, 144 Commonwealth, 25 Ky. L. R. 780, 76 Mo. 56, 45 S. W. 1102; State v. S. W. 359. Doyle, 107 Mo. 36, 17 S. W. 751; ^'See, Vol. I, §§ 92, 93, 95; State v. Chalk v. State, 35 Tex. Cr. App. 116, Linhoff, 121 Iowa 632, 97 N. W. 77; 32 S. W. 534. People v. Moran, 144 Cal. 48, 77 Pac. ^ State v. Walker, 37 La. Ann. 560. 777. " People v. Milgate, 5 Cal. 127. § 3014.] HOMICIDE. 294 intend the necessary consequences of his own acts.** So it has been held that where one purposely fired into a crowd without intending to kill any particular person, but did kill one, the law presumes the killing intentional.^^ And it has even been held that a presumption arises that a killing was intentional where the mere act of killing is proved, since every homicide is presumed unlawful." That is, one is presumed to intend to do that which in fact he actually does do.^* It has also been held that a presumption of intent to kill may arise where the evidence shows that, had death ensued from the assault, the crime would have been murder.^^ A presumption does not arise that a certain assault was without intent to take life from the fact that the defendant had his assailant in his power, and could have killed him but did not.*® So a presumption of intent to kill may arise from the means or weapon used and the manner of its use. Thus, a presumption of intent to kill arises where a party does an act with a dangerous or deadly weapon, which, from its nature and the way it is done, would naturally, probably, or reasonably produce death." It has also been said that the law infers from the use of a deadly weapon an intent to kill or to do grievous bodily harm, and the presumption of malice is conclusive, unless excuse, justification, or immediate provocation are shown ;*« and that killing with a deadly weapon is prima facie evidence that the design to kill was formed in "Walker v. State, 8 Ind. 290; and need not be alleged, or, if al- Brown v. Commonwealth, 13 Ky. L. leged in the indictment, is a formal R. 372, 17 S. W. 220; Bailey v. State, averment, which need not be proved. 133 Ala. 155, 32 So. 57; Austin v. Chelsey v. State, 121 Ga. 340, 49 S. State, 110 Ga. 748, 36 S. E. 52, 78 E. 258. Am. St. 134; State v. Young, 50 W. » Parrish v. State, 14 Neb. 60, 15 Va. 96, 40 S. E. 334, 88 Am. St. 846. N. W. 357. ^ State V. Edwards, 71 Mo. 312; i= Cole v. State, 10 Ark. 318. see also, notes in 63 L. R. A. 353, ^"Jackson v. State, 94 Ala. 85, 10 660, 902. So. 509. "State V. Brown, 12 Minn. 538; "Hill v. People, 1 Colo. 436; Moon State V. Smith, 12 Rich. L. (S. Car.) v. State, 68 Ga. 687; Voght v. State, 430; Wilson v. State, 69 Ga. 224; but 145 Ind. 12, 43 N. E. 1049; State v. see. People v. Downs, 56 Hun (N. Gassert, 4 Mo. App. 44; State v. Mu- Y.) 5, 8 N. Y. S. 521; Connell v. sick, 101 Mo. 260, 14 S. W. 212; Hen- State, (Tex. Cr. App.) 81 S. W. 746. son v. State, 112 Ala. 41, 21 So. 79; Where there has been a completed People v. Wolf, 95 Mich. 625, 55 N. murder, the law supposes that the W. 357; Bishop v. State, 62 Miss. person intends the natural conse- 289; Kilpatrick v. Commonwealth,, quences of his act, and in such cases 31 Pa. St. 198. the evil intention will be presumed, '" Sylvester v. State, 72 Ala. 201. 295 PRESUMPTIONS — NOT CONCLUSIVE. [§ 3015. the mind of the party committing the act, and that the killing was the consequence of such design.^'' And where the accused fired a loaded pistol at one and killed him it was said that the law presumed that he intended so to do.'** So, a shotgun fired within killing distance, and aimed at a vital part, there being no proof to the contrary, shows intent to kill.^^ And a presumption of an intent to kill has been held to arise where there was an assault with a gun.-- So intent may be inferred from the deliberate use of any deadly weapon." A pre- sumption arises in the absence of other proof that an act was volun- tarily done where a party without necessity kills another with a deadly weapon.-* And it has been said that nothing affords more con- clusive evidence of the intent to take life than the weapon used.^^ § 3015. Presumptions — Not conclusive. — Some of the authorities cited in the last preceding section seem to us to go to the extreme, if not beyond. On the other hand, some courts hold that there is no necessary legal presumption of intent to kill even from the use of a deadly weapon, although it may justify an inference of such intent.-*' And the presumption of intent to kill, from the use of a deadly weapon or the like, is not conclusive, but may be rebutted.-^ It has also been held that the intent to kill may be presumed from the use of a deadly weapon only where it was deliberately used in a deadly manner.-^ So, it has been held that in the absence of other facts, " Bivens v. State, 11 Ark. 455. forth v. State, 44 Tex. Cr. App. 105, -"People V. Langton, 67 Cal. 427, 7 69 S. W. 159; People v. Batting, 49 Pac. 843. How. Pr. (N. Y.) 392; People v. =^ State V. Dill, 9 Houst. (Del.) Downs, 56 Hun (N. Y.) 5, 8 N. Y. S. 495, 18 Atl. 763. 521. " State V. Musick, 101 Mo. 260, 14 "Clem v. State, 31 Ind. 480; S. W. 212. Thomas v. People, 67 N. Y. 218; =^ Walker v. State, 136 Ind. 663, 36 State v. Brooks, 1 Ohio Dec. (Re- N. E. 356; Coolman v. State, (Ind.) print) 407, 9 Wkly. L. J. 109; in the 72 N. E. 568. first case above cited the statement =* Oliver v. State, 17 Ala. 587. in 1 Greenleaf Ev., § 18, that the pre- -^ Commonwealth v. Green, 1 Ash. sumption is conclusive is said to be (Pa.) 289. a "great inaccuracy," and is severely -^See, Fitch v. State, 37 Tex. Cr. criticised. App. 500, 36 S. W. 584; Cross v. ^-^ State v. Walker, 1 Ohio Dec. (Re- State, 55 Wis. 261, 12 N. W. 425; print) 353, 8 Wkly. L. J. 145; Simp- State V. McKinzie, 102 Mo. 620, 15 son v. State, 56 Ark. 8, 19 S. W. 99; S. W. 149; State v. Tabor. 95 Mo. Cross v. State, 55 Wis. 261, 12 N W. 585, 8 S. W. 744; see also, Simpson 425. V. State, 56 Ark. 8, 19 S. W. 99; Dan- § 2016.] HOMICIDE. IdQ the intent to kill cannot, as a matter of law, be presumed from a kill- ing with a stick four feet long and two inches in diameter.^^ It has likewise been held that an intent to kill cannot be presumed from the mere fact that a pistol was discharged with criminal negligence.^" So, it is generally held that where a specific intent is essential, as in prosecutions for assault with intent to murder, or the like, wdiere death does not result, it is not presumed by the law from the mere use of a dangerous weapon or the like.^^ § 3016. Presumption of malice — From deliberation or want of provocation. — There is some conflict among the authorities upon the subject of the presumption of malice. It may undoubtedly be in- ferred, in a proper case, from the circumstances of an unlawful kill- ing, and it is often said that in the absence of anything to the con- trary the law presumes malice from such a killing,^^ at least where a deadly weapon"^ is deliberately used.^"* Thus, it is said, that malice being a necessary ingredient of the crime of murder, the law infers it wherever the killing is deliberate and premeditated.^^ And it is ^ Fitch V. State, 37 Tex. Cr. App. 500, 36 S. W. 584. ==" Bryant v. State, 5 Wyo. 376, 40 Pac. 518; see also, Johnson v. State, 66 Ohio St. 59, 63 N. E. 607, 90 Am. St. 564, and note; but see, 63 L. R. A. 660, note; Bailey v. State, 133 Ala. 155, 32 So. 57; Brown v. Com- monwealth, 13 Ky. L. R. 372, 17 S. W. 220. ^-^ Morgan v. State, 33 Ala. 413; Lane v. State, 85 Ala. 11, 4 So. 730; Simpson v. State, 56 Ark. 8, 19 S. W. 99; Chrisman v. State, 54 Ark. 283, 15 S. W. 889, 26 Am. St. 44; Crosby V. People, 137 111. 325, 27 N. E. 49; State V. Taylor, 70 Vt. 1, 39 Atl. 447, 42 L. R. A. 673; State v. Dolan, 17 Wash. 499, 50 Pac. 472; see also. People V. Mize, 80 Cal. 41, 22 Pac. 80; Gallery v. State, 92 Ga. 463, 17 S. E. 863; but compare. People v. Odell, 1 Dak. 197, 46 N. W. 601; State V. Musick, 101 Mo. 260, 14 S. W. 212. ^= State V. Brown, 12 Minn. 538; Green v. State, 28 Miss. 687; Davis V. State, 51 Neb. 301, 70 N. W. 984; State V. Knight, 43 Me. 11; Brown V. State, 62 N. J. L. 666, 42 Atl. 811; State V. Lambert, 93 N. Car. 618; Lewis V. State, 90 Ga. 95, 15 S. E. 697; Boyd v. State, 28 Tex. App. 137, 12 S. W. 737. '^ Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711; State V. Hockett, 70 Iowa 442, 30 N. W. 742, 4 L. R. A. 298; Hadley v. State, 55 Ala. 31; Harkness v. State, 129 Ala. 71, 30 So. 73; State v. Da- vis, 9 Houst. (Del.) 407, 33 Atl. 55; Jackson v. State, 53 Ga. 195; Hanye v. State, 99 Ga. 212, 25 S. E. 307. ^*See, State v. Curtis, 70 Mo. 594; State V. Evans, 124 Mo. 397, 28 S. W. 8; McDermott v. State, 89 Ind. 187; Friederich v. People, 147 111. oiO, 35 N. E. 472; Murphy v. State, 31 Ind. 511; Holland v. State, 12 Fla. 117. ^= Dejarnette v. Commonwealth, 75 Va. 867. 297 PRESUMPTIONS — MALICE. [§ 3017. likewise said that malice is implied by law from any deliberate aod cruel act committed by one person against another.^*' That is, malice is presumed in all cases of deliberate homicide not done in the heat of passion.^^ And a presumption of malice arises upon proof that a killing was wilful, premeditated and deliberate.^® So where no ex- press malice is shown, yet, if the killing was done under circumstances of cruelty and malignity, it is said that the law presumes malice.^^ Again, it is said that malice is presumed from a deliberate injury to another, or from tlie use of a deadly weapon, resulting in another's death.**' And where there is a lack of provocation malice may be pre- sumed. Thus where two persons are fighting, and a third, uncon- nected with either, without any apparent provocation, stabs one of the parties, it is held that the law will imply malice." And malice is ordinarily inferred from a premeditated killing without sufficient provocation or excuse.*^ Thus a presumption of malice arises ; that is, the law, it is said, will imply malice from the fact of the absence of apparent, well-founded danger of great bodily harm, or such provo- cation as is calculated to excite irresistible passion.*^ § 3017. Presumption as to malice — In general. — A presumption as to malice and premeditation may arise from the circumstances cf the case.^* So it is held that a presumption of malice may arise upon proof of the mere fact of killing."^ And it is held that every unex- plained homicide is presumptively malicious until the contrary ap- pears.**' Thus it has been said that where the fact of killing a human ^^ Kilpatrick v. Commonwealth, 3 f erred from circumstances; Cool- Phila. (Pa.) 237. man v. State, (Ind.) 72 N. E. 568; " People v. Kirby, 2 Park. Cr. Cas. see also, Crosby v. People, 137 111. (N. Y.) 28. 325, 27 N. E. 49; State v. Woodard, 5« State v. Curtis, 70 Mo. 594. 84 Iowa 172, 50 N. W. 885; Lane v. ^^McDaniel v. State, 16 Miss. 401, State, 85 Ala. 11, 4 So. 730. 47 Am. Dec. 93; State v. Coleman, « Epperson v. State, 73 Tenn. 291; 20 S. Car. 441; see also, Kota v. Peo- State v. Douglass, 28 W. Va. 297; pie, 136 111. 655, 27 N. E. 53; People from intentional killing, in absence V. McDonald, 2 Idaho 14, 1 Pac. 345. of anything to show want of malice; *" Davison v. People, 90 111. 221. State v. McDaniel, 68 S. Car. 304, "Conner v. State, 12 Tenn. 137, 47 S. E. 384, 102 Am. St. 661; see 26 Am. Dec. 217. also, first and third notes to last pre- *- State v. Brooks, 1 Ohio Dec. (Re- ceding section, print) 407, 9 Wkly. L. J. 109. *" McDaniel v. State, 16 Miss. 401, "Peri V. People, 65 111. 17. 47 Am. Dec. 93; State v. Brown. 12 " Hicks V. State, 25 Fla. 535, 6 So. Minn. 538; Clements v. State, 50 441; malice may, of course, be in- Ala. 117; State v. Testerman, 68 Mo. § 3017.] HOMICIDE. 298 being has been clearly established, and has not been shown to be the result of accident, or to have been done under such circumstances as will in law mitigate, excuse or justify the act, the law implies malice without further proof, and makes the killing murder.*^ It has also been held that a presumption of malice arises where the act is com- mitted while the accused is engaged in the perpetration of some other felonious or unlawful act.*^ And a presumption of malice may arise upon proof of the intentional use of a deadly weapon.*^ And where the reckless use of a dangerous weapon resulted in injury, it was held that malice would be implied.^" Thus, it has been held that a pre- sumption arises that a shot was fired maliciously, where the defend- ant recklessly fired his pistol into a crowded room and killed deced- ent.''^ And it has been held that malice arises from the use of a knife causing death, though it was only a pocket-knife.^^ So, generally, a presumption of malice may well arise where an act is unlawful, and is of such a character as that the known consequences of it would nat- urally be to produce great bodily harm or to endanger the life of the person.^^ And so when it is shown that the act was done with a deadly weapon, and no circumstances of mitigation, justification or excuse appear, it is said that the law implies malice.^* Malice may be reasonably presumed from the wilful administration of poison in a quantity sufficient to cause death under ordinary circumstances. ^'^ And it has been held that where the existence of deliberate malice in the slayer is once ascertained, its continuance down to the perpetra- tion of the meditated act must be presumed until there is evidence to repel it, and to show that the wicked purpose has been aban- doned.^'' 408; Preuit v. People, 5 Neb. 377; " Brown v. Commonwealth, 13 Ky. Davis V. State, 25 Ohio St. 369; L. R. 372, 17 S. W. 220. Lewis V. State, 90 Ga. 95, 15 S. E. "Webb v. State, 100 Ala. 47, 14 697. So. 865. « Brown v. State, 4 Tex. App. 275. " Boyle v. State, 105 Ind. 469, 5 N. ^^ State V. Thomas, Houst. Cr. Cas. E. 203, 55 Am. R. 218. (Del.) 511; see notes in 63 L. R. A. =' McAdams v. State, 25 Ark. 405; 355 and 660. State v. Walker, 9 Houst. (Del.) ^^ State V. Curtis, 70 Mo. 594; War- 464, 33 Atl. 227; State v. Decklotts, rick. Ex parte, 73 Ala. 57; State v. 19 Iowa 447. Bertrand, 3 Ore. 61; Head v. State, == People v. Sanchez, 24 Cal. 17. 44 Miss. 731; State v. Ward, 5 Har. =^« State v. Tilly, 3 Ired. (N. Car.) (Del.) 496. 424; Potsdamer v. State, 17 Fla. 895; ^^"Dunaway v. People, 110 111. 333, Holland v. State, 12 Fla. 117; but 51 Am. R. 686. compare, State v. Brown, 64 Mo. 299 PRESUMPTIONS. [§ 3018. § 3018. Presumptions — When not presumed — Conflicting views. The general rule is that even though malice may be presumed from the mere fact of killing when the killing is proved, and no more, yet when all the facts and circumstances of the killing are in evidence, and the jury must say from the testimony what was the intention with which the act was committed then malice becomes a matter of proof and is not presumed as a matter of law.^^ Thus where all the cir- cumstances attending the homicide are in evidence, there is no pre- sumption of malice from the mere fact of the killing,^* although it may, of course, be inferred. It is said by Mr. Underbill that: "A rebuttable presumption of law of a malicious intention always arises as soon as a homicide with a deadly weapon is proved. This may become conclusive if no defense is made. But it may be rebutted by evidence coming from the state. If this does not happen the accused may offer evidence to show he did the killing in self-defense or while insane. The presumption of malice thus removed, it is for the jury to find whether malice existed on all the facts and not merely from the use of a deadly weapon alone. If malice is ascertained to have ex- isted before the killing, as, for example, from evidence of threat, its •continuance down to the homicide will be presumed, as matter of law, in the absence of evidence to the contrary."^^ Where the evi- dence which proves the killing excludes a presumption of malice from the use of a deadly weapon, malice must be established by other evi- dence.®" And it has been held that malice is implied from the fact that a deadly weapon was used in the killing of another, unless it first ap- pears that the killing was wilfully or intentionally done." And it is also held that a presumption of malice does not necessarily arise from an intent to inflict a personal injury, since an act, to be ma- 367; Copeland v. State, 7 Humph. Baxt. (Tenn.) 67; State v. Robin- (Tenn.) 479; Cannon v. State, 57 son, 20 W. Va. 713, 43 Am. R. 799. Miss. 147; McCoy v. State, 25 Tex. =^ State v. Jones, 29 S. Car. 201, 7 33, 78 Am. Dec. 520. S. E. 296; State v. Ariel, 38 S. Car. "State V. Alexander, 30 S. Car. 221, 16 S. E. 779; Godwin v. State, 74, 8 S. E. 440, 14 Am. St. 879; Peo- 73 Miss. 873, 19 So. 712. pie V. West, 49 Cal. 610; Eiland v. »» Underbill Cr. Ev. § 320; see. State, 52 Ala. 322; Fitch v. State, Riggs v. State, 30 Miss. 635. 90 Ga. 472, 16 S. E. 102; Common- «° Compton v. State, 110 Ala. 24, wealth v. Hawkins, 3 Gray (Mass.) 20 So. 119. 463; Vollmer v. State, 24 Neb. 838, "^ State v. Cross, 42 W. Va. 253, 24 40 N. W. 420; Bryant v. State, 7 S. E. 996; see also, Godwin v. State, 73 Miss. 873, 19 So. 712. §• 3019.] HOMICIDE. 300 licious, must either be wicked or wrongful.^- So, it has been held that intentional killing merely, does not establish "malice afore- thought," as such killing may be in self-defense, or amount only to manslaughter,*'^ and that proof of deadly intent does not justify an inference of malice aforethought.^* It will be seen by comparing the cases cited in the last two preceding sections with those cited in this section that there is some conflict among the decisions. Some of them, perhaps, go too far in one direction and some in the other; but it seems to us that the tendency is too much toward treating the presumption of malice that may arise in such cases as a presump- tion of law, when, in some, if not most instances, it would seem to be that the presumption, if any, is one of fact, or in others a rule of substantive law is involved rather than a presumption of law.®^ § 3019. Presumptions as to degree of offense. — It is held that where the defendant deliberately and intentionally shot the deceased, the presumption arises that it was an act of murder.^^ And it is gen- erally held that a presumption arises that the offense is murder in the second degree where the proof amounts to the mere fact of kill- ing, unaccompanied by circumstances of Justification, excuse or miti- gation.*''^ Most jurisdictions hold that the mere fact of killing raises *=^ Field V. State, 50 Ind. 15. State, 83 Ala. 5, 3 So. 525; People v. «^ State V. Vaughan, 22 Nev. 285, Conroy, 97 N. Y. 62; State v. 39 Pac. 733. Swayze, 30 La. Ann. 1323. <^ Seals V. State, 3 Baxt. (Tenn.) «« State v. SMppey, 10 Minn. 223, 459. 88 Am. Dec. 70. ''^See, Vol. I, § 98, cited with ap- "Harris v. State, 8 Tex. App. 90; proval in. Territory v. Gutierez, (N. Preuit v. People, 5 Neb. 377; State Mex.) 79 Pac. 716, 718; see also, v. Miller, 9 Houst. (Del.) 564, 32 Fitch V. State, 37 Tex. Cr. App. 500, Atl. 137 ; Commonwealth v. Cook, 36 S. W. 584; Danforth v. State, 44 166 Pa. St. 193, 31 Atl. 56; State v. Tex. Cr. App. 105, 69 S. W. 159; Payne, 10 Wash. 545, 39 Pac. 157; State V. Earnest, 56 Kans. 31, 42 Commonwealth v. Drum, 58 Pa. St. Pac. 359; Farris v. Commonwealth, 9; State v. Foster, 61 Mo. 549; 14 Bush (Ky.) 362; State v. McDon- Stokes v. People, 53 N. Y. 164, 13 nell, S2 Vt. 491; to the effect that no Am. R. 492; Dukes v. State, 14 Fla. legal presumption of malice arises 499; note in, 18 Am. Dec. 784; see from the mere killing, see. United also. State v. Carver, 22 Ore. 602, 30 States v. Armstrong, 2 Curt. (U. S.) Pac. 315; State v. Hobbs, 37 W. Va. 446; Newton v. State, 21 Fla. 53; 812, 17 S. E. 380; Simpson v. State, State v. Vaughan, 22 Nev. 285, 39 56 Ark. 8, 19 S. W. 99; Williams v. Pac. 733; State v. Greenleaf, 71 N. State, 83 Ala. 16, 3 So. 616. H. 606, 54 Atl. 38; see also, Fallin v. 301 DEGREE OF OFFENSE. [§ 3019. a presumption of intention to kill sufficient to constitute murder, but not to constitute murder in the first degree.*'^ That is, the fact of killine: being proved, the law presumes only murder in the second degree.'''' In some jurisdictions the mere fact of killing is held to raise no presumption as to the degree of murder.^'' It is generally lield, however, that the presumption against the defendant arising from a killing with a deadly weapon rises no higher than murder in the second degree until it is shown by the prosecution to be murder in the first degree.''^ In some jurisdictions it is held that in case the jury is satisfied that the accused did the killing, the burden is on the defendant in order to reduce the grade of the offense lower than murder in the second degree, and on the prosecution to raise it to murder in the first degree." And so it is held that where the proof shows merely an unlawful intentional killing, the homicide cannot be deemed more than murder in the second degree." In Wis- consin and a few other states, however, it is held that from the tak- ing of the life of a human being by an act of such a nature as is naturally and probably calculated to cause death, the law presumes that the perpetrator intended the result which followed and is guilty of murder in the first degree, in the absence of evidence showing that the homicide was justifiable or excusable, or so rebutting the presump- tion of intent as to raise a reasonable doubt.'^* And in some jurisdic- tions it is held that the prosecution must first overcome the pre- sumption of innocence, and then show beyond any reasonable doubt the degree of the offense." "' Milton V. State, 6 Neb. 136, and ""■ Cupps v. State, 120 Wis. 504, 97 authorities cited in last preceding N. W. 210, 98 N. W. 546, 102 Am. St. note. 996; the court in this case calls at- •"Witt V. State, 6 Cold. (Tenn.) 5. tention to the difference in the stat- '"' People V. Belencia, 21 Cal. 544. utes and criticizes several textwrit- " Commonwealth v. Drum, 58 Pa. ers for failing to note the distinc- 9; and authorities cited in note 67 of tion. See also, State v. Lautenschla- this chap. ger, 22 Minn. 514; State v. Brown, ■= Commonwealth v. Mika, 171 Pa. 41 Minn. 319, 43 N. W. 69; State v. St. 273, 33 Atl. 65; Longley v. Com- Lentz, 45 Minn. 177, 47 N. W. 720; monwealth, 99 Va. 807, 37 S. E. 339; 2 Bishop Cr. Proc, § 602. Myers v. Commonwealth, 90 Va. 705, "* State v. Meyer, 58 Vt. 457, 3 Atl. 19 S. E. 881; State v. Hertzog, 55 195. In other words it is held that W. Va. 74, 46 S. E. 792. the presumption is first of inno- "McCue v. Commonwealth, 78 Pa. cence, and then of the lower degrees St. 185, 21 Am. R. 7; Brown v. State, in their order. 109 Ala. 70, 20 So. 103; Hamby v. State, 36 Tex. 523. § 3020.] HOMICIDE. 30^ § 3020. Other presumptions. — As intimated in the last preceding section, it is tlie rule in most jurisdictions that where the homicide has been proved without more, there is no presumption that it was done with premeditation, and the presumption usually is that it is murder in the second degree.'*' So the use of a deadly weapon only raises a presumption of malice, and not of premeditation and de- sign. '^^ But deliberation, premeditation and malice may be inferred from the circumstances connected with the killing.'^ It has been held that a presumption does not arise that a gun was loaded with a bullet or other substance likely to produce death simply from a threat to shoot being immediately followed by the discharge of a gun.'^ But other cases hold that a gun or pistol discharged or at- tempted to 1)0 discharged at another under such circumstances will be presumed to have been loaded with a deadly charge,^" or at least that such an inference may be drawn. It has been held that where the decased made a certain threat to kill a certain person in case a certain thing was consummated a presumption does not necessarily arise that in going to that place he went to carry his threat into ex- ecution.*^^ Until the prosecution establishes that the death was the result of a criminal act, death is generally presumed to have resulted from natural causes. ^^ And it has been held that on a trial for the '« State V. Adin, 7 Ohio Dec. (Re- v. Walker, 98 Mo. 95, 9 S. W. 646, print) 25, 1 Wkly. L. B. 38; and au- 11 S. W. 1133; Adams v. State, 28 thorities cited in note 67 of this f la. 511; People v. Kennedy, 159 N. chap.; see also. Fields v. State, 52 Y. 346, 54 N. E. 51, 70 Am. St. 557; Ala. 348; Brown v. State, 109 Ala. State v. Booker, 123 N. Car. 713, 31 70, 20 So. 103; State v. Lane, 64 Mo. S. E. 376; People v. Neary, 104 Cal. 319; State v. Bowles, 146 Mo. 6, 47 373, 37 Pac. 943; Commonwealth v. S. W. 892, 69 Am. St. 598; O'Mara Birriolo, 197 Pa. St. 371, 47 Atl. 355; V. Commonwealth, 75 Pa. St. 424. Waggoner v. State, (Tex. Cr. App.) "North Carolina v. Gosnell, 74 55 S. W. 491; State v. Anderson, 10 Fed. 734; see also, Fallin v. State, Ore. 448. 83 Ala. 5; 3 So. 525; State v. " Fastbinder v. State, 42 Ohio St. Stoeckli, 71 Mo. 559, 8 Mo. App. 598; 341. State V. Herrell, 97 Mo. 105, 10 S. W. '" State v. Munco, 12 La. Ann. 625; 387, 10 Am. St. 289; State v. Hicks, see also, Mullen v. State, 45 Ala. 43, 12o'n. Car. 636, 34 S. E. 274; Dains 6 Am. R. 691; Porter v. State, 57 V. State, 2 Humph. (Tenn.) 438; but Miss. 300; Bedford v. State, 44 Tex. compare. State v. Brown, 41 Minn. Cr. App. 97, 69 S. W. 158. 319, 43 N. W. 69; Cupps v. State, "State v. Brown, 64 Mo. 367. 120 Wis 504, 97 N. W. 210, 98 N. W. ^' State v. Moxley, 102 Mo. 374, 14 546, 102 Am. St. 996. S. W. 969, 15 S. W. 556. " Green v. State, 13 Mo. 382 ; State 303 BURDEN OF PROOF. [§§ 3021, 3022. murder of an officer while attempting to arrest defendant for un- lawfully carrying a weapon, the law will presume that the citizens who informed deceased that defendant had been so carrying a weapon were credible witnesses.^' § 3021. Burden of proof — As to malice. — Proof of malice, express or implied, is necessary to a conviction for murder.^* And the bur- den of proving malice is on the prosecution when all the attending circumstances appear in evidence.^ ^ And it has been held that the burden of proof is on the prosecution to show that defendants brought on the difficulty with deceased in which the killing occurred.^*' But in many jurisdictions where there has been a killing with a deadly W'Capon, or the presumption of malice otherwise arises, the burden of proving excuse or mitigation is held to be on the defendant.^^ § 3022. Burden of proof — As to defenses of self-defense and in- sanity. — In some jurisdictions the burden of proof as to self-defense and to insanity is said to be on the defendant.'^* There is a large number of cases to the effect that the burden of proving self-defense is on the defendant.^^*^ Thus, it is held that when the state has estab- lished the charge beyond a reasonable doubt, and defendant pleads self-defense, the burden is on him to show it by a preponderance of testimony;^'' and that on a trial for the malicious shooting of a per- *^ Miller v. State, 32 Tex. Cr. App. prosecution of ultimately convincing 319, 20 S. W. 1103. the jury of the defendant's guilt be- *• State V. Walker, 9 Houst. (Del.) yond a reasonable doubt. 464, 33 Atl. 227. ^'Weaver v. State, 24 Ohio St. ^^Commonwealth v. Hawkins, 3 584; State v. Baber, 11 Mo. App. Gray (Mass.) 463; Godwin v. State, 586; United States v. Crow Dog, 3 73 Miss. 873, 19 So. 712; People v. Dak. 106, 14 N. W. 437; State v. Bal- West, 49 Cal. 610; Vollmer v. State, lou, 20 R. I. 607, 40 Atl. 861; State 24 Neb. 838, 40 N. W. 420; State v. v. Manns, 48 W. Va. 480, 37 S. E. Alexander, 30 S. Car. 74, 8 S. E. 440, 613; State v. Johnson, 49 W. Va. 684. 14 Am. St. 879. 39 S. E. 665; People v. Tidwell, 5 ^« Gibson .V. State, 89 Ala. 121, 8 Utah 88, 12 Pac. 638; People v. So. 98, 18 Am. St. 96. Schryver, 42 N. Y. 1; State v. Ber- "' State v. Whitson, 111 N. Car. trand, 3 Ore. 61. 695, 16 S. E. 332; and authorities ■*» Silvus v. State, 22 Ohio St. 90; cited in next two sections. But, as Roden v. State, 97 Ala. 54, 12 So. already stated, when the circum- 419, and authorities cited in last stances are shown this presumption, note, supra. if any, may be overcome, and we '"' State v. Welsh, 29 S. Car. 4, 6 think the burden remains upon the S. E. 894. § 3022.] HOMICIDE. 304 son with intent to kill, the burden of proving that the act was done in self-defense rests on the defendant.®^ So, in a very recent case where it appears that defendant killed the deceased by the intentional use of a deadly weapon, it was held that the burden was on defendant to show that such use of the weapon was in self-defense or otherwise excusable, or occurred on sudden heat caused by adequate provoca- tion.**- But where the -defendant has made out a case of self-defense, the burden of proving that he was at fault in bringing about the diffi- culty has been held to be upon the state.®^ In some jurisdictions it is held that the burden is on the state to prove beyond a reasonable doubt that a killing was not excusable by reason of self-defense.^* And in some others, although the burden is said to be upon the de- fendant, it is sufficient for him to remove it by creating a reasonable doubt.^^ Indeed, even where the burden is held to be upon the de- fendant to show self-defense beyond a reasonable doubt, it seems that this relates to the facts tending to establish that defense, and that if there is still a reasonable doubt upon the evidence, he should be ac- quitted.^*^ As to the defense of insanity it is held that the absence of any known cause or apparent motive to commit a homicide can- not of itself raise a presumption of insanity.^^ There is much con- flict among the authorities as to the burden of proof upon the ques- tion of insanity, a few courts holding that it must be proved beyond a reasonable doubt, others holding that it must be proved by a pre- ponderance of the evidence, or to the satisfaction of the jury, and still others holding that there should be an acquittal if there is a rea- sonable doubt upon all the evidence. This question, however, is fully discussed elsewhere.^* Although the distinction is seldom noted in the decisions, we think that when the burden is said to be upon the de- ''1 Weaver v. State, 24 Ohio St. 584. S. E. 13; State v. Prater, 52 W. Va. »='Coolman v. State, (Ind.) 72 N. 132, 43 S. E. 230. E. 568. «» Brown v. State, 62 N. J. L. 666, °= Holmes v. State, 100 Ala. 80, 14 42 Atl. 811; State v. Jones, 78 Mo. So. 864. 278; King v. State, 74 Miss. 576, 21 ^ State v. Donahoe, 78 Iowa 486, So. 235; State v. Pierce, 8 Nev. 291; 43 N. W. 297. State v. McGarry, 111 Iowa 709, 83 ^^Henson v. State, 112 Ala. 41, 20 N. W. 718 (so held as to alibi); So. 79; People v. Bushton, 80 Cal. People v. Callaghan, 4 Utah 49, 6 160, 22 Pac. 549; People v. Neary, Pac. 49. 104 Cal. 373, 37 Pac. 943; McKenna "Carter v. State, 12 Tex. 500, 62 v. State, 61 Miss. 589; People v. Am. Dec. 539. Downs, 123 N. Y. 558, 25 N. E. 988; "' See Vol. IV, Chap. 127, and Vol. State v. Hutto, 66 S. Car. 449, 45 I, § 126. 305 BURDEN OF PROOF. [§ 3023. fendant to prove justification, mitigation or excuse, or the like, the burden of going forward or producing evidence is usually meant, and that the burden of ultimately convincing the jury of the defendant's guilt on the whole evidence beyond a reasonable doubt rests and re- mains upon the prosecution. § 3023. Burden of proof — In general. — The burden of proof is on the state to establish the death of a human being and the crim- inal agency producing it. Indeed, the burden of proof is upon the prosecution to establish all the essential elements of the crime and prove the defendant's guilt beyond a reasonable doubt.®^ The usual order is to first prove the corpus delicti, which is done by proving the death and identifying the dead body as that of the person alleged to have been killed, and showing the criminal agency causing such death. The accused may then be identified and the crime brought liome to him, and the other essential elements of the crime shown. There can be no conviction in the absence of satisfactory proof of the corpus delicti, but the order of proof is largely within the discretion of the trial court, and, as shown in the first chapter of this volume, even the corpus delicti may be proved, in a proper case, by circum- stantial evidence. So, while we think it is true that the burden is upon the prosecution to establish the defendant's guilt beyond a rea- sonable doubt, the presumptions already considered often exert an important influence when facts are proved from which they arise, and in some jurisdictions the burden is said, in a sense at least, to shift to the defendant as to certain matters thereafter. It has been held that the burden of proof is on the state to prove beyond a reason- able doubt that the death of the deceased occurred before the indict- ment was returned."" So, it is held that the burden of proof is on the prosecution to satisfy the jury of the guilt of the accused where the defense is based on facts and circumstances growing out of the charge itself;"^ and that the burden of proof is on the prosecution to clearly show that the weapon was of the character charged in order to sus- tain an indictment charging the commission of an assault with intent to commit murder by the use of a weapon likely to produce death."- «« Wharton v. State, 73 Ala. 366; son v. People, 4 Park. Cr. Cas. (N. Maher v. People, 10 Mich. 212, 81 Y.) 619. Am. Dec. 781; Commonwealth v. "« Power v. People, 17 Colo. 178, Hawkins. 3 Gray (Mass.) 463; Kent 28 Pac. 1121. V. People. 8 Colo. 563, 9 Pac. 852; '"Hill v. People, 1 Colo. 436. Jones v. State. 13 Tex. App. 1 ; Wil- "= Paschal v. State, 68 Ga. 818. Vol. 4 Elliott Ev.— 20 § 3023.] HOMICIDE. 306 But it has also been held that the burden is not on the prosecution to show absence of justification or legal excuse ;^°^ nor to prove that the deceased was without arms.^"* The burden has been held to be on the defendant to rebut the presumption of malice arising from the use of a deadly weapon.^°^ It has also been held that the burden of proving matters of mitigation rests upon the defendant.^"® Thus, it is held that the burden of proving facts which authorize the tak- ing of life to preserve life is upon the defendant ;^'''^ and that when a defendant relies upon mitigating circumstances to reduce a homicide from murder to manslaughter, the burden rests upon him, after the killing is shown, to prove the mitigating facts.^"^ So, if a man pre- sents a gun at anotlier within shooting distance, it has been said to be a legal presumption that the gun was loaded; and it devolves on the accused to prove that it was not loaded, and that he knew it was not."^ The burden of proof has also been held to be on the accused to show that a person alleged to have been murdered is still alive when the death of such person is prima facie established by the identifica- tion of a dead body as his ;"° and that the burden of proof is also on the accused to show by a preponderance of the testimony that the killing was justifiable when the fact of the homicide is once estab- lished."^ So, it has been held proper to instruct that the burden is on the defendant to establish his claim that he was so intoxicated at the time of the killing as to be incapable of forming any intent.^^^ In line with the cases already cited, if not indeed beyond that line, it is said in a recent text-book : "As a general rule it may be stated that all homicide is malicious, and, of course, amounts to murder, unless when justified, excused or alleviated. All these circumstances of justification, excuse or alleviation must be shown by the prisoner.""^ "=" State v. Brown, 64 Mo. 367. "' People v. Raten, 63 Cal. 421. 1"* State V. "Wright, 41 La. Ann. '"State v. Corrivau, (Minn.) 100 605, 6 So. 137. N. W. 638. "^ State v. Peo. 9 Houst. (Del.) "== Hughes Cr. Law & Proc, § 82; 488, 33 Atl. 257; People v. March, 6 O'Mara v. Commonwealth, 75 Pa. St. Cal. 543. 424, 430; State v. Tommy, 19 Wash. '""State v. Mazon, 90 N. Car. 676. 270, 53 Pac. 157; State v. Mason, 54 '"^ Lewis V. State, 88 Ala. 11, 6 So. S. Car. 240, 32 S. E. 357; State v. 755. Byrd, 121 N. Car. 684, 28 S. E. 353; "» State V. Jones, 98 N. Car. 651, 1 McClain Cr. Law, § 333; 4 Black- 3 S. E. 507. stone Comm. 201; Davis v. State, 51 ">» Caldwell v. State, 5 Tex. 18. Neb. 301, 70 N. W. 984; Linehan v. ''"State v. Vincent, 24 Iowa 570, State, 113 Ala. 70, 21 So. 497; People 95 Am. Dec. 753. v. Marshall, 112 Cal. 422, 44 Pac. 307 QUESTIONS OF LAW OR FACT. [§ 3024. But it is held in several cases that the burden is not on the defendant to prove that the homicide was accidental, and in a recent case it is said: "The rule has been established in this state that where self- defense is pleaded to an indictment, the defendant must establish it by the preponderance of the evidence, but at the same time the guilt of the accused must be made to appear beyond a reasonable doubt."* Whether such a rule as applied to self-defense is sound or practically useful, we need not now inquire. But we do not think that a defense that the homicide was accidental is in any sense an affirmative de- fense. It is distinguishable from self-defense as a plea, which admits an intentional killing, and sets up as justification a necessity to kill in order to save the accused from death or serious bodily harm; whereas a defense of homicide by accident denies that the killing was intentional." ^^^ § 3024. Questions of law or fact. — It is frequently important to know whether the court or jury should determine what is a deadly 718; Territory v. Lucero, 8 N. Mex. 543, 46 Pac. 18; 3 Greenleaf Ev., § 144; we have already expressed the opinion that the burden of ulti- mately establishing the defendant's guilt remains upon the prosecution throughout, and when it is said that the burden shifts or is upon the de- fendant, we think that this can only mean in the sense of going forward or producing evidence. For a state- ment of a distinction between ex- trinsic defenses requiring to be affirmatively proved and those relat- ing to the res gestae, see, Kent v. People, 8 Colo. 563, 9 Pac. 852; also see, Jones v. State, 13 Tex. App. 1. "* Citing, State v. Welsh, 29 S. Car. 4, 6 S. E. 894; State v. Bodie, 33 S. Car. 117, 11 S. E. 624. "^ State V. McDaniel, 68 S. Car. 304, 47 S. E. 384, 102 Am. St. 661, 672. The court also said: "In, Com- monwealth V. McKie, 1 Gray (Mass.) 61, 61 Am. Dec. 410, the logical rule is thus stated: 'Where the defendant sets up no separate independent fact in answer to a criminal charge, but confines his defense to the original transaction charged as criminal, with its accompanying circumstan- ces, the burden of proof does not change, but remains on the govern- ment to satisfy the jury that the act was unjustifiable and unlawful.' In the case of. State v. Cross, 42 W. Va. 253, 24 S. E. 996, the court held that the defense of accidental killing is a denial of the criminal intent, and throws upon the state the burden of proving such intent beyond a reason- able doubt, and the accused is not required to sustain such defense by a preponderance of testimony. It was error, therefore, to instruct the jury to disregard the plea of acci- dental homicide, if the defendant failed to establish it by the prepond- erance of the evidence." But see. State V. Bonds, 2 Nev. 265; Rex v. Morrison, 8 Car. & P. 22, 34 E. C. L. 587; United States v. Schneider, 21 D. C. 381. § 3024.] HOMICIDE. 308 weapon, and there is some conflict upon the question. It has been held that whether a pocket-knife is a deadly weapon, so as to author- ize the inference of malice from the use thereof, is a question for the jury;^^'' and that a piece of wood three feet long, three inches wide, and one inch thick cannot be said, as matter of law, not to be a deadly weapon; but the question whether it is or not should be left to the jury to determine.^^^ So, whether a knife or a brick-bat is a deadly weapon has been held to be a question of fact for the jury.^^^ But some jurisdictions hold that as a general rule, at least where the weapon appears capable of inflicting death or great bodily injury, the question whether a particular weapon is deadly or not is one of law for the court, and not of fact for the jury.^^'' Many articles, not ordinarily used as deadly weapons may, however, be used as such,^^'' and in doubtful cases the question is usually for the jury, under all the circumstances.^" And the question as to what was the instrument used to occasion death is a question of fact.^^^ Whether a killing was premeditated is a question of fact for the jury.^-^ Hence, it is held that the questions of deliberation and premeditation are peculiarly within the province of the jury i^^* and that whenever death is caused by the use of a deadly weapon, it is for the jury to say, under the evidence, whether or not there existed "a wilful, deliberate and pre- meditated intention" to kill.^^^ It is also for the jury to determine whether there was any motive for the crime,^^® and whether the kill- ing was in a passion roused by an adequate provocation has been held to be a question for the jury.^" The reasonableness of defendant's apprehension that deceased was about to commit a felony is also a "« Sylvester v. State, 71 Ala. 17; Nicholls v. State, 24 Tex. App. 137, but see, Connell v. State, (Tex. Cr. 5 S. W. 661; State v. Brown, 67 Iowa App.) 81 S. W. 746; Webb v. State, 289, 25 N. W. 248; State v. Smith, 100 Ala. 47, 14 So. 865; State v. 164 Mo. 567, 65 S. W. 270; Danforth Roan, 122 Iowa 136, 97 N. W. 997. v. State, 44 Tex. Cr. App. 105, 69 S. 1" State v. Brown, 67 Iowa 289, 25 W. 159. N. W. 248. '" State v. Speaks, 94 N. Car. 865. "« State V. Harper, 69 Mo. 425. i== Lovett v. State, 30 Fla. 142, 11 "» State V. Rigg, 10 Nev. 284; State So. 550, 17 L. R. A. 705. V. Craton, 6 Ired. L. (N. Car.) 164; "* People v. Valencia, 43 Cal. 552. Krchnavy v. State, 43 Neb. 337, 61 "'Abernethy v. Commonwealth, N. W. 628; see also, Hamilton v. 101 Pa. St. 322. People, 113 111. 34. ''' People v. Johnson, 139 N. Y. 358, ^"Birdwell v. State, (Tex. Cr. 34 N. E. 920. App.) 48 S. W. 583. i" Mackey v. State, 13 Tex. App. ^^Tesney v. State, 77 Ala. 33; 360. 309 QUESTIONS OF LAW OR FACT. [§ 3024. question for the jury."« Thus, it is a question of fact for the jury to determine whether the prisoner, at the time he slew the deceased, had reasonable ground to believe his own life to be in danger from the deceased.^-'' So where a plea of self-defense is set up, it is a ques- tion of fact for the jury as to whether or not defendant could have safely retreated.''** And the question whether an injury was acci- dentally self-inflicted is also for the jury.'^' Whether a shot would or would not have produced death, under certain circumstances is a ques- tion for the jury."- ^Yliether the name of the deceased mentioned in an indictment for murder was his true name is a question for the jury.'^'^^ And when the charge is the killing with a knife, and all the evidence taken together tends to identify the knife used in evidence as the one used by the defendant, the question of the identity of the knife is exclusively for the jury.''* It is for the jury to determine the degree of the crime.'^n rpj^^^ -^^ ^^ -g ^|^g province of the jury, under proper instructions from the court, to determine the degree of defendant's guilt.'^e ^^^ [^ j^as been held that the court has no authority on trial for homicide to require the jury to render a verdict for any particular degree of the crime.'" For it is for the jury to find from all the evidence whether a killing is murder; and, if so, whether in the first or second degree."^ And so the question whether a manslaughter committed by the accused was voluntary or invol- untary, is one of fact for the jury.'^'^ The conclusiveness of circum- stantial evidence to establish the fact of the death of the person al- "» State v. Harris, 46 N. Car. 190. So. 92; State v. Cleveland, 58 Me. '=»Pfomer v. People, 4 Park. Cr. 564; Parrish v. State, 18 Neb. 405, Cas. (N. Y.) 558. 25 N. W. 573; State v. Gray, 19 Nev. '^"De Arman v. State, 77 Ala. 10. 212; 8 Pac. 456; People v. Conroy, "^ State v. Bradley, 34 S. Car. 136, 97 N. Y. 62; State v. Lucas, 124 N. 13 S. E. 315. Car. 825, 32 S. E. 962; State v. "== People v. McFadden, 65 Cal. 445, Grant, 7 Ore. 414; Commonwealth v. 4 Pac. 421. Sheets, 197 Pa. St. 69, 46 Atl. 753; "^ State V. Angel, 7 Ired. L. (N. State v. Boyce, 24 Wash. 514, 64 Pac. Car.) 27. 719; State v. Welch, 36 W. Va. 690, '"* State V. Chee Gong, 17 Ore. 635, 15 S. E. 419. 21 Pac. 882. ""People v. Martinez, 66 Cal. 278, "' State v. Moran, 7 Clarke (Iowa) 5 Pac. 261. 236; Gafford v. State, 125 Ala. 1, "" Adams v. State, 29 Ohio St. 412; 20 So. 406; Washington v. State, 125 see also. State v. Gadberry, 117 N. Ala. 40, 28 So. 78; Carpenter v. Car. 811, 23 S. E. 477. State, 58 Ark. 233; 24 S. W. 247; ^"* State v. Carr, 53 Vt. 37. Marshall v. State, 32 Fla. 462; 14 '^ Bruner v. State, 58 Ind. 159. § 3025.] HOMICIDE. 310 leged to have been murdered is solely for the jury.^*° And whether an officer is guilty of criminal negligence in shooting one whom he is attempting to arrest, and who he has reason to believe has committed a felony, has been held to be a question for the jury."^ So, what constitutes negligence on the part of an engineer of a steamboat in case of an explosion resulting in loss of life has been held to be a question for the jury."^ It is also held that an expert may not tes- tify that the deceased would, after receiving a fatal blow, have suffi- cient strength to inflict a blow with the effect specified as this is a question for the jury;^*^ and that when death does not result from the unlawful use of a deadly weapon, intention to kill is not a matter of legal presumption, but is a question for the jury.^** So, it has been held that the question how much less weight a threat made by an excited man is entitled to than one made by a cool man is not a subject for a charge by the court, but a question for the jury.^^^ But it has been said that murder is a conclusion of law drawn from cer- tain facts,^*^ and that what facts would be sufficient to justify or ex- cuse a killing is a question of law.^*'^ So, it has been held that whether certain facts would amount to a sufficient provocation to re- duce the crime of killing from murder to manslaughter is also a ques- tion of law.^^^ That is, what, as a matter of law, is a sufficient provo- cation to make what would otherwise be murder a less offense, is a question of law,^*® for, as above stated, the sufficiency of provocation to excuse or extenuate murder is a question of law,^^" But it is for the jury to determine whether the necessary facts exist in the par- ticular case, and in most instances, where the law prescribes no stand- ard, or they are judges of the law as well as the facts, the whole ques- tion is for the jury. § 3025. Evidence as to the physical condition and the body. — The physical condition of the deceased prior to, or at the instant of his i« Johnson v. Commonwealth, 81 i" Gallery v. State, 92 Ga. 463, 17 Ky. 325. S. E. 863. ^"People V. Kilvington. 104 Cal. "' McPherson v. State, 22 Ga. 478. 86, 37 Pac. 799, 43 Am. St. 73. "'= People v. Aro, 6 Cal. 207, 65 "-United States v. Taylor, 5 Mc- Am. Dec. 503. Lean (U. S.) 242. "^Gladden v. State, 12 Fla. 562. >" People v. Rector, 19 Wend. (N. ^^^ State v. Craton, 6 Ired. L. (N. Y.) 569; citing. Self ridge's Trial, 23 Car.) 164. Ed., 1806, pp. 60, 61. "" State v. Dunn, 18 Mo. 419. I''" State V. Jones, 20 Mo. 58. 311 MOTIVE. [§ 3026. death may be shown,^^^' in a proper case. And evidence of the condition of the body of the deceased when found, and as to the num- ber and character of his wounds, is admissible.^^- So, a non-expert witness may testify as to the wounds he saw on the body.^^^ It has been held that the prosecution may prove statements made by the deceased as to his physical peculiarities in a proper case. Thus, a statement by the deceased that he had a peculiar tooth in his mouth has been held admissible. ^^* So, as the identification of the body of the deceased may often be accomplished by means of the testimony of a witness familiar with the teeth of the deceased, such evidence is held admissible.^^^ And after witnesses have testified as to the teeth, the jury may then determine as an inference from the points of similarity, if any, the identity of the remains with the person whose death is under consideration.^^® It is also held the state may prove the declarations of the deceased as to his physical condition made to a physician or to a non-professional person.^^^ And that a physician may give an opinion of a person's sex based upon his ex- amination of a skeleton. ^^^ §■ 3026. Evidence as to motiv«. — Proof of a motive for the crime is not indispensable where the defendant's guilt is otherwise estab- lished.^^* Proper evidence as to motive, however, is usually admis- sible, since it has an important bearing upon the probability of the guilt of the accused. ^^'^ But in a prosecution for homicide, where self- ^51 State V. Baldwin, 36 Kans. 1, 12 Cush. (Mass.) 295; Rehfuss Dental Pac. 318; Phillips v. State, 68 Ala. Jurisprudence, § 9, 17-32. 469. "' State v. Moxley, 102 Mo. 374, 14 »« Commonwealth v. Holmes, 157 S. W. 969, 15 S. W. 556; State v. Mass. 233, 32 N. E. 6, 34 Am. St. Fournier, 68 Vt. 262, 35 Atl. 178. 270; McConnell v. State, 22 Tex. 1=^* Wilson v. State. 41 Tex. 320. App. 354. 3 S. W. 699, 58 Am. R. "' Cupps v. SUte, 120 Wis. 504, 647; Terry v. State, 118 Ala. 79, 23 97 N. W. 210, 98 N. W. 546, 102 Am. So. 776; Davidson v. State, 135 Ind. St. 996, and note; State v. Adams, 254, 34 N. E. 972; People v. Wright, (N. Car.) 50 S. E. 765; Johnson v. 89 Mich. 70, 50 N. W. 792; Billings United States, 157 U. S. 320, 15 Sup. V. State, 52 Ark. 303, 12 S. W. 574. Ct. 614; People v. Johnson, 139 N. Y. 1" Smith v. State, 43 Tex. 643; 358, 34 N. E. 920; Commonwealth v. Everett v. State, 62 Ga. 65; Batten Hudson, 97 Mass. 565; State v. Da- V. State, 80 Ind. 394. vid, 131 Mo. 380, 33 S. W. 28; Horns- ^* Edmonds v. State, 34 Ark. 720. by v. State. 94 Ala. 55, 10 So. 522; "'Udderzook v. Commonwealth, Powell v. State, 67 Miss. 119, 6 So. 76 Pa. St. 340; see, Rehfuss Dental 646. Jurisprudence, § 9, 17-32. >"» Kelsoe v. State, 47 Ala. 573; i5» Commonwealth v. Webster, 5 People v. Ah Fung, 17 Cal. 377; § 3026.] HOMICIDE. 31^ defense was relied on by the defendant, evidence tending to show im- proper relations between defendant and the divorced wife of the de- ceased was held inadmissible to show motive.^®^ And ordinarily, at least, the facts, which it is sought to introduce as to motive, must have been known to the accused at the time of the killing.^^^ The prosecution, as a general rule, has the right to offer any evidence tend- ing to prove a motive for the commission of the crime.^*'^ And testi- mony as to the finding in the defendant's trunk of certain personal property belonging to deceased has been held competent as tending to show motive, and form links in the chain of evidence.^*'* Evidence tending to show defendant's feeling toward the person killed is ad- missible to show a motive for the crime.'''^ Evidence that the accused had quarreled with decedent's wife shortly before the commission of State V. West, Houst. Cr. Cas. (Del.) 371, 382; Stafford v. State, 55 Ga. 591; Farris v. People, 129 111. 521, 21 N. j:. 821, 16 Am. St. 283; Jones V. State, 64 Ind. 473; State v. Sey- mour, 94 Iowa 699, 63 N. W. 661; Jackson v. Commonwealth, 100 Ky. 239, 38 S. W. 422, 66 Am. St. 336; State V. Edwards, 34 La. Ann. 1012; McBride v. Commonwealth, 95 Va. 818, 30 S. E. 454; State v. Tettaton, 159 Mo. 354, 60 S. W. 743; People v. Benham, 160 N. Y. 402, 55 N. E. 11. ^" People v. Wright, 144 Cal. 161, 77 Pac. 877. ^'^^Gillum v. State, 62 Miss. 547; Son V. Territory, 5 Okla. 526, 49 Pac. 923; People v. Morgan, 124 Mich. 527, 83 N. W. 275; Cockerell v. State, 32 Tex. Cr. App. 585, 25 S. W. 421. 1"^ State V. Larkin, 11 Nev. 314; see also, note 161 of this chap. J« Morris v. State, 30 Tex. App. 95, 16 S. W. 757; in a prosecution for murder, in which it appeared that defendent and deceased had, on the day before the killing, been gam- bling, in the course of which de- ceased had obtained defendant's watch, evidence that, on the evening before the killing, deceased wore a cord with the defendant's watch at- tached thereto, and that, when the body was found, the cord was on it, but the watch was gone, was prop- erly admitted to show motive: Bowen v. State, 140 Ala. 65, 37 So. 233. ^» People V. Kern, 61 Cal. 244; People V. Barthleman, 120 Cal. 7, 52 Pac. 112; State v. Reed, 50 La. Ann. 990, 24 So. 131; so, it has been held that "evidence that during the after- noon preceding the evening of the killing a third person had told one of the defendants of a statement which deceased had made concern- ing him, and that this defendant had then said that he would kill de- ceased, was, when restricted in its application to the defendant con- cerned, properly admitted to show animus."; Tipton v. State, 140 Ala. 39, 37 So. 231. But evidence of hos- tile feelings on the part of defend- ant toward a class of persons whom he deemed "spotters," was held not to be admissible where the only evi- dence of the cause of his difficulty with the deceased was that the lat- ter was a "prohibitionist." Harri- son V. State, (Tex. Cr. App.) 83 S. W. 699. 313 MOTIVE. [§ 3026. the murder has been held admissible to show motive.^ ®^ Where one is on trial for the murder of his wife, evidence of his recent acts of personal violence is admissible.^ ®^ So, also, are e\adence of ill treat- ment and previous assaults by the husband on the wife,^®^ and for the same purpose evidence that a wife had applied for a divorce has been held admissible to show motive.^ ^^ So, where a murder is committed in an attempt to conceal stolen goods, evidence tending to connect the murder with the previous crime of burglary has been held ad- missible to show motive."" And it has been held that statements of the deceased before the killing, implicating defendant in a larceny, may be admitted to show the motive of the homicide ; but his guilt or innocence thereof cannot be entered into."' And evidence that the accused had stolen money from deceased is admissible as showing mo- tive where the deceased accused defendant of the stealing."- So, on a prosecution for murder, evidence of an indictment procured by de- ceased against the accused for a prior larceny is admissible to show motive."^ So, evidence of a desire to be rid of one's husband or wife and infatuation or unlawful relations with another is admissible for the purpose of proving a motive for the homicide."^ Thus, where the accused is charged with killing his wife, the state may prove an im- proper intimacy between the accused and a woman other than his wife."^ And letters from defendant to two other women, showing his relations to them, he being engaged to be married to one, and in- timate with the other, who was a prostitute, have been held admis- sible to show motive for desiring to be rid of his wife."^ So infatua- '"« Gravely v. State, 45 Neb. 878, i™ McConkey v. Commonwealth, 64 N. W. 452. 101 Pa. St. 416. ^«^ Carroll v. State, 45 Ark. 539; I'MVllliams v. State, 69 Ga. 11. see also. State v. Seymour, 94 Iowa ^'- Roberts v. Commonwealth, 10 699, 63 N. W. 661; Painter v. People, Ky. L. R. 433, 8 S. W. 270. 147 111. 444, 35 N. E. 64; People v. ^'^^ Kiinde v. State, 22 Tex. App. 65, Decker, 157 N. Y. 186, 51 N. E. 1018; 3 S. W. 325; Gillum v. State, 62 State V. Bradley, 67 Vt. 465, 32 Atl. Miss. 547; Turner v. State. 70 Ga. 238. 765; see also. Smith v. State, (Fla.) i«« State V. O'Neil, 51 Kans. 651, 33 37 So. 573. Pac. 287, 24 L. R. A. 555; see also, "* Hall v. State, 40 Ala. 698; Wil- Phillips V. State, 62 Ark. 119, 34 S. kerson v. State, 31 Tex. Cr. App. 86, W. 539; Thiede v. Territory, 159 U. 19 S. W. 903. S. 510. 16 Sup. Ct. 62, and authori- ^"^ Hall v. State, 40 Ala. 698; John- ties cited in last note supra. son v. State. 94 Ala. 35, 10 So. 667. "'■'■' Pinckord v. State, 13 Tex. App. ^^ O'Brien v. Commonwealth, 89 468. Ky. 354, 12 S. W. 471. § 3026.] HOMICIDE. 314 tions or unlawful relations with the husband or wife of the deceased is admissible to prove motive. Thus, evidence of the illicit relation between defendant and the wife of the deceased is admissible."^ But evidence that five days after the murder the wife of the deceased committed adultery with the defendant is inadmissible to show mo- tive,"^ The motive may be shown to have been pecuniary gain. Thus, the state may show, in a proper case, that shortly before his death the deceased was in possession of a large amount of money or other property, and that this fact was known to the accused."^ So, a statement to a fellow prisoner by one accused of murder that he knew that deceased had a large sum of money in a belt on his person has been held admissible to show motive.^*" Evidence of the receipt of a considerable sum of money by the deceased a few months pre- vious to the murder when the defendant is properly connected with the matter, is competent for the purpose of showing a motive for the commission of the murder.^*^ And evidence that soon after the mur- der, the prisoner had much more money in his possession than he had previously has been held competent as tending to show motive.^*^ So, it has been held that the state of defendant's bank account, and applications to others for loans, are admissible to show his strait- ened financial circumstances as a motive for murder.^^^ Evidence may be introduced to show that the motive was for the collection of life insurance on the deceased.^^* For this purpose evidence of the existence of a life insurance policy payable to the accused is compe- tent.^*^ And evidence showing that the defendant is the heir at ^"Pate V. State, 94 Ala. 14, 10 So. "^Kennedy v. People, 39 N. Y. 245. 665; Johnson v. State, 24 Fla. 162, 4 '»= State v. Wintzingerode, 9 Ore. So. 535. 153. m Traverse v. State, 61 Wis. 144, ^'^ Commonwealth v. Twitchell, 1 20 N. W. 724. Brewst. (Pa.) 551. "' State v. Donnelly, 130 Mo. 642, '"** State v. Rainsbarger, 74 Iowa 32 S. W. 1124; Ettinger v. Common- 196, 37 N. W. 153; Commonwealth v. wealth, 98 Pa. St. 338; Lancaster Robinson, 146 Mass. 571, 16 N. B. V. State, 9 Tex. App. 393; Davidson 452. V. State, 135 Ind. 254, 34 N. E. 972; ^^^ State v. Rainsbarger, 71 Iowa State V. Crowley, 33 La. Ann. 782; 746, 31 N. W. 865; Commonwealth v. State v. Lucey, 24 Mont. 295, 61 Pac. Robinson, 146 Mass. 571, 16 N. E. 994; Kennedy v. People, 39 N. Y. 452; State v. Shackelford, 148 Mo. 245; see also. Dean v. State, (Miss.) 493, 50 S. W. 105; Commonwealth v. 37 So. 501. Clemmer, 190 Pa. St. 202, 42 Atl. 675. ^'*° State V. Jackson, 95 Mo. 623, 8 S. W. 749. 315 MEANS USED CAUSE OF DEATH. [§ 3027. law, legatee, or devisee of the deceased may be competent.^ '*^ The motive may have been to remove an obstacle to improper relations, and so the state may show that the deceased interfered with or pre- vented the defendant's establishing or maintaining improper rela- tions with some person of the opposite sex.^*^ It has also been held competent to bring out any facts tending to show that the defendant was jealous of the deceased.^ ^^ The suppression of evidence may also be shown to be the motive."^ But it is held that the mere fact that some one else might have had a motive to commit the crime is not competent evidence, since there must be some other facts showing proximity and opportunity in addition to the motive.^^** § 3027. Means used and cause of death. — Evidence is admissible in a murder case to show the condition of deceased's weapon when found after the homicide.^" And the state may show the condition of the pistol, with which the killing was done, on the morning after the homicide.^^- So, on the other hand, testimony that deceased's pistol had only two loads in it is admissible in rebuttal, as tending to overthrow the theory sought to be established by defendant that deceased first shot at accused.^^^* Evidence in relation to the ex- amination of guns in the neighborhood, to ascertain whether any of them carried a ball of the size of the one found in the body of the murdered man, has likewise been held admissible.^^^ Testimony as to the character of the wound on the body of deceased is admis- sible.^^* A physician may testify that an injury discovered upon a ""People v. Buchanan, 145 N. Y. 1, 2 Ark. 229, 35 Am. Dec. 54; Hodge 39 N. E. 846. v. State. 97 Ala. 37, 12 So. 164, 38 '■*• State V. Reed, 53 Kans. 767, 37 Am. St. 145. Pac. 174, 42 Am. St. 322; State v. »» State v. Perry, 51 La. Ann. 1074, Abbatto, 64 N. J. L. 658; State v. 25 So. 944; Ogden v. State, (Tex. Cr. John, 8 Ired. L. (N. Car.) 330, 49 App.) 58 S. W. 1018. Am. Dec. 396; State v. Chase, 68 Vt. ^" State v. Chevallier, 36 La. Ann. 405, 35 Atl. 336. 81. ^'^ State V. Reed, 50 La. Ann. 990, "= State v. Pritchett, 106 N. Car. 24 So. 131; People v. Place, 157 N. 667, 11 S. E. 357. Y. 584, 52 N. E. 576; State v. Larkin, "=* State v. Cooper, 83 Mo. 698. 11 Nev. 314. "=Dean v. Commonwealth, 32 1^' State v. Patza, 3 La. Ann. 512; Gratt. (Va.) 912. State v. Welch, 22 Mont. 92, 55 Pac. '"^ People v. Wright, 89 Mich. 70, 927; State v. Ingram, 23 Ore. 434, 50 N. W. 792; O'Mara v. Common- 31 ipac. 1049; Hudson v. State, 28 wealth, 75 Pa. St. 424; Batten v. Tex. App. 323. 13 S. W. 388; Turner State, 80 Ind. 394; Everett v. State, V. State, 70 Ga. 765; Dunn v. State, 62 Ga. 65; Smith v. State, 43 Tex. § 3028.] HOMICIDE. 31G dead body was inflicted before death. "^ And a physician may testify as to the cause of the death in his opinion.^^® So a surgeon may give opinion evidence as to the probable cause of the death.^^^ And a surgeon may testify in his opinion that a death was not suicidal.^®''* So it has been held that a person familiar by experience with the ap- pearance or treatment of wounds may give an opinion as to the man- ner in which a mortal wound was probably inflicted.^®^ So, also, as to the degree of force employed/ ^^ and also as to the direc- tion of a blow.^*"' Evidence of the health of the deceased im- mediately before the infliction of the wound has been held ad- missible as showing whether death was caused by the wound.^"^ It has also been held competent for a witness to state how deceased acted at the time he was said to be poisoned.^"- And it has been held not necessary to the admission of testimony regarding the analysis of the stomach of deceased that the stomach should be so preserved as to preclude the possibility of its being tampered with.^"^ Nor is it necessary that an analysis or microscopical examination should be made in order for one to testify as to blood stain.^°* § 3028. Articles in evidence. — When properly identified the fol- lowing articles have been held admissible in evidence: bullets taken from the body of the deceased, or from trees or walls near the scene 643; Basye v. State, 45 Neb. 261, 63 erful blow it may be shown that the N. W. 811. defendant is strong and powerful. ^'^ State v. Clark, 15 S. Car. 403; Thiede v. Utah Ter., 159 U. S. 510, State v. Harris, 63 N. Car. 1. 16 Sup. Ct. 62. ^'"' State V. Jones, 68 N. Car. 443; ^''» People v. Fish, 125 N. Y. 136, State V. Merriman, 34 S. Car. 16, 12 26 N. E. 319; Thiede v. Utah Ter., S. E. 619. 159 U. S. 510, 16 Sup. Ct. 62. '"' Commonwealth v. Thompson, ^^ Commonwealth v. Sturtivant, 159 Mass. 50, 33 N. E. 1111; People 117 Mass. 122, 19 Am. R. 401; Ken- v. Barker, 60 Mich. 277, 27 N. W. nedy v. People, 39 N. Y. 245; Simon 539, 1 Am. St. 501; Boyle v. State, v. State, 108 Ala. 27, 18 So. 731. 61 Wis. 440, 21 N. W. 289. ^^ Phillips v. State, 68 Ala. 469. "■* Everett v. State, 62 Ga. 65. '"'- State v. David, 131 Mo. 380, 33 "' Lemons v. State, 97 Tenn. 560, S. W. 28. 37 S. W. 552; Rash v. State, 61 Ala. ^^^ State v. Cook, 17 Kans. 392. 89; People v. Fish, 125 N. Y. 136, =°^ People v. Gonzales, 35 N. Y. 49; 26 N. E. 319; State v. Asbell, 57 State v. Welch, 36 W. Va. 690, 15 S. Kans. 398, 46 Pac. 770; Williams v. E. 419; People v. Smith, 112 Cal. State, 64 Md. 384, 1 Atl. 887; Hopt 333, 44 Pac. 663; State v. Bradley, V. Utah, 120 U. S. 430, 7 Sup. Ct. 614. 67 Vt. 465, 32 Atl. 238. And if shown to be caused by a pow- :3ir ARTICLES IX EVIDENCE. [§ 3028. of the killing ;205 parts of the hody of the deceased, such as the ver- tebra? and ribs;2'>6 a door of the room in which the killing occurred, for the purpose of showing the location of bullets.^" Articles found on the body of the deceased f'^^ articles found at the place of the kill- ing, which are shown to be the property of the accused ;2"* and the weapon which was used in committing the homicide.- ^<> And so, also, clothing identified as having been worn either by the deceased-^ ^ or by the defendant-^^ at the time of the homicide. So, in a recent case where it appeared that deceased and another, as oflEicers, were at- tempting to arrest the defendant after night, and that he shot through a tin lantern held by one of the officers, hitting the deceased and killing him, it was held proper to admit in evidence the bullet taken from the body of the deceased, accompanied by a small piece of tin.-^^ A Avitness familiar with firearms may testify that a gun or pistol be- longing to the defendant had or had not been recently used.^" But it has been held improper to allow experiments with weapons in the presence of the jury.-^^ And testimony of witnesses as to certain ^'^ Crawford v. State, 112 Ala. 1, 21 So. 214; Williams v. Common- wealth, 85 Va. 607, 8 S. E. 470; State V. Tippet, 94 Iowa 646, 63 N. W. 445. -"" Turner v. State, 89 Tenn. 547. =°' State V. Goddard, 146 Mo. 177, 48 S. W. 82. =« People V. Irwin, 77 Cal. 494, 20 Pac. 56; King v. Commonwealth, 35 Pa. L. J. 127. =»" Thornton v. State, 113 Ala. 43, 21 So. 356, 59 Am. St. 97; Ruloff v. People, 45 N. Y. 213; Williams v. Commonwealth, 85 Va. 607, 8 S. E. 470. ^"Ezell v. State, 103 Ala. 8, 15 So. 818; People v. Cox, 76 Cal. 281, 18 Pac. 332; Wynne v. State, 56 Ga. 113; Siberry v. State, 133 Ind. 677, 33 N. E. 681; State v. Jones, 89 Iowa 182, 56 N. W. 427; State v. Gushing, 17 Wash. 544, 45 Pac. 145, 53 Am. St. 883; State v. Roberts. 63 Vt. 139, 21 Atl. 424; Rodiquez v. State, 32 Tex. Cr. App. 259, 22 S. W. 978. =" Burton v. State, 107 Ala. 108, 18 So. 284; People v. Durrant, 116 Cal. 179, 48 Pac. 75; Davidson v. State, 135 Ind. 254, 34 N. E. 972; State V. Winter, 72 Iowa 627, 34 N. W. 475; People v. Wright, 89 Mich. 70, 50 N. W. 792; State v. Symmes, 40 S. Car. 383, 19 S. E. 16; Head v. State, 40 Tex. Cr. App. 265, 50 S. W. 552; Venters v. State, (Tex. Cr. App.) 83 S. W. 832; State v. Gush- ing, 14 Wash. 527, 45 Pac. 145, 53 Am. St. 883. -'= State v. Stair, 87 Mo. 268, 56 Am. R. 449; People v. Neufeld, 165 N. Y. 43, 58 N. E. 786; State v. Ba- ker, 33 W. Va. 319, 10 S. E. 639; see generally. Vol. II, § 1223. ='■■ People V. Morales, 143 Cal. 555. 77 Pac. 470. -"Meyers v. State, 14 Tex. App. 35; People v. DriscoU, 107 N. Y. 414, 14 N. E. 305; see also, as to opinions as to poison and blood stains and cause of death generally, Vol. II, §§ 1087, 1090. -'" United States v. Ball, 163 U. S. 662. 16 Sup. Ct. 1192; Polin v. State, 14 Neb. 540, 16 N. W. 898. § 3029.] HOMICIDE. 318 holes in the clothing of deceased is not incompetent on the ground that the clothing is the best evidence.^^^ § 3029. Attendant circumstances — ^Res gestae. — Evidence of the attendant circumstances is admissible in so far at least as they are part of the res gestae, and, sometimes, such evidence has been per- mitted to take a very wide range. It is held to be competent in a case of homicide to put in evidence the conduct, actions and general be- havior of the accused immediately before the killing, in order to show that he was armed and in a vicious humor, even though such testi- mony discloses another offense.^^^ And it has been held that one who met the accused three-quarters of an hour after a murder, may testify that he appeared excited.^^^ So testimony that when the witness entered the defendant's house, soon after the killing, the defendant was perspiring freely, has been held admissible.^^^ And so evidence is admissible that when deceased was killed two persons ran rapidly away in the same direction, and that one said, as they ran past a by- stander, "Will, you have killed him."^^" It has been held that evi- dence that defendant, immediately after the crime with which he was charged, shot and killed another person, is admissible as part of the res gestae.-^^ So evideijce of the disturbances prior to the killing, and out of which it resulted, is also admissible.^^^ And a witness for the state may be questioned on cross-examination as to whether he agreed to meet the deceased at a certain place and assist him in driving the accused off certain land.--^ And notes that passed be- tween the accused and the deceased on the day of the homicide, show- ing the beginning of the difficulty, have been held pertinent and ad- missible.-^'' But the facts and details of a civil suit between deceased and other parties are not competent evidence on a trial for homi- cide.^^^ It has been held that testimony as to where deceased was supposed to have been killed is admissible if merely for the purpose ''" Underwood v. Commonwealth, -^ Wilkerson v. State, 31 Tex. Cr. (Ky.) 84 S. W. 310. App. 86, 19 S. W. 903. ="Kernan v. State, 65 Md. 253, 4 -= People v. Curtis, 52 Mich. 616, Atl. 124. 18 N. W. 385. ='* Miller v. State, 18 Tex. App. =" People v. Furtado, 57 Cal. 345. 232. "*Spivey v. State, 58 Miss. 858. "-'" Prince v. State, 100 Ala. 144, 14 =-■' State v. Brooks, 39 La. Ann. So. 409, 46 Am. St. 28. 817, 2 .So. 498. "" Briggs v. Commonwealth, 82 Va. 554. 319 ATTENDANT CIRCUMSTANCES — DECLARATIONS. [§ 3030. of locating the spot as a foundation for further examination.^e rpj^^ state may also show as a part of the res gestae that deceased on the day of her death, was on her way to a neighbor's house, near which her body was found."^ Evidence that defendant's hands and knife, soon after the killing, were smeared with blood, is admissible, without proof of a chemical analysis of the substance on the hands and knife."^ The condition in which the body and clothing were found is admissible, being part of the res gestae."" It is held tliat the state may show the condition of things at the house immediately after deceased's body is found.-^*' And evidence that the witness, soon after the shooting, saw blood on the ground, has been held admissible to identify the place of the murder."^ But evidence that the accused repented the next day of his act and was forgiven by the deceased is inadmissible.^^- It has been held, however, that any acts showing a desire on the part of the accused to hide evidence of a crime, as by washing his hands or clothing to remove blood stains, or by hiding or destroying weapons, or his attempts to escape or his conduct when charged with the homicide are admissible and the jury may properly infer that they show a consciousness of his own guilt.'^ 233 § 3030. Attendant circumstances — Declarations. — Declarations forming a part of the res gestae are admissible. Thus, statements by the deceased made before or immediately after the homicide, but connected with and explanatory of an act which led up to and pre- pared for it, are competent, usually for the purpose of showing his mental state and motives.-^* So they may be admissible to show where he was going about the time of the homicide i^^^ and also to identify the defendant.-^*' So, where the day before deceased was killed at a "« People v. McDowell, 64 Cal. 467, =^ Morris v. State, 30 Tex. App. 95, 3 Pac. 124. 16 S. W. 757; Batten v. State, 80 -^ Tllley V. Commonwealth, 89 Va. Ind. 394. 136, 15 S. E. 526. ==^ Boyle v. State, 97 Ind. 322; "'Barbour v. Commonwealth, 80 Harris v. State, 96 Ala. 24, 11 So. Va. 287. 255; State v. Harris, 63 N. Car. 1; ==» People V. Majors, 65 Cal. 138, 3 Commonwealth v. Werntz, 161 Pa. Pac. 597, 52 Am. R. 295. St. 591, 29 Atl. 272; People v. Hawes, =5° Davidson v. State, 135 Ind. 254, 98 Cal. 648, 33 Pac. 791; State v. 34 N. E. 972. Ridgely, 2 Har. & McH. (Md.) 120, =«i People V. Minisci, 12 N. Y. St. 1 Am. Dec. 372. 719. ^'^ State v. Vincent, 24 Iowa 570. -■- Murphy v. People, 9 Colo. 435, "'' Cox v. State, 8 Tex. App. 254. 13 Pac. 528. § 3030.] HOMICIDE. 320 particular place, and while on his way to that place, he stated that he was going there, and also stated his object in going, such statements have been held admissible as part of the res gestae.^^^ And declara- tions of the deceased made just before starting out, of his object and purpose in going to the house where he was killed, are admissible as part of the res gestae.^^^ Evidence as to the declarations made by the accused at the time the act was committed is admissible as part of the res gestae.^^^ But a statement made by the deceased fifteen min- utes before the homicide and in the absence of defendant as to threats made by defendant, has been held not to be admissible as part of the res gestae.-*" It has been held, however, that declarations made by the deceased immediately after the shooting are admissible as part of the res gestae. They are instinctive words, and are words of narration.'*^ So declarations made by deceased during the affray in which he was killed are admissible as part of the res gestae.^*- But evidence of statements by deceased as to who inflicted the wound is not admissible, unless it forms a part of the res gestae, or is ad- missible as a dying declaration.-*^ So, a witness will not be allowed to testify as to declarations of deceased made some time after the fatal blow is given, unless the circumstances are such as to admit them as dying declarations.-*'* So, the declarations of the defendant, di- rectly after the shooting, as to why he had shot deceased, have been held not part of the res gestae and not admissible.-*" And statements made by the accused to third persons after the homicide had been com- mitted are not admissible in evidence of his own behalf.^*^ And declarations of the accused made an hour after the time, and a mile from the place, of the homicide, are not admissible as part of the res gestae.^*'^ Neither are statements of the accused made subsequent to the killing, after walking three or four miles, admissible as part of the res gestae.^* ^ And declarations of a witness made half an hour "'Kirby v. State, 7 Yerg. (Tenn.) =" Lambright v. State, 34 Fla. 564, 259. 16 So. 582. "* Harris v. State, 96 Ala. 24, 11 "'-* State v. Wyse, 32 S. Car. 45, 10 So. 255. S. E. 612. =^'' State v. Walker, 77 Me. 488, 1 =^^King v. State, 65 Miss. 576, 5 Atl. 357. So. 97, 7 Am. St. 681. =" Montag v. People, 141 111. 75, 30 "" State v. Talbert, 41 S. Car. 526, N. E. 337. 19 S. E. 852. **^ State V. Euzebe, 42 La. Ann. ^" State v. Johnson, 35 La. Ann. 727, 7 So. 784. 968. '" State v. Henderson, 24 Ore. 100, -'^ People v. Callaghan, 4 Utah 49, 32 Pac. 1030. 6 Pac. 49. 321 DYIXG DECLARATIONS. [§ 3031. before the commission of the crime, are not a part of the res gestae, unless they are part of one continuous quarrel, culminating in the crime.^'"' And threats of the deceased towards the accused, made after the fatal wound, constitute no part of the res gestae.^^** But some jurisdictions hold that declarations made by the deceased im- mediately after he was shot, although in the absence of the defendant, are admissil)le as part of the res gestae.-^^ Thus, declarations of the deceased that accused shot him, made fifteen or twenty minutes after the shooting, and as soon as the accused could speak, are ad- missible as part of the res gestae.^^^ But declarations of the deceased's wife, who witnessed the killing, made one hour thereafter, to the •effect that she recognized defendant as the person who killed de- ceased, are not admissible as a part of the res gestae."^ And evidence of what defendant said to a witness about the shooting three hours after it occurred is not admissible as a part of the res gestae.-^* The outcries of a person murdered during the same burglary at which de- ceased was killed have, however, been held admissible as part of the res gestae.-^^ Declarations of a bystander at the time of the killing have been held admissible as part of the res gestae.-^'' So, evidence of the shouts of the crowd with whom defendant was acting at the time of the shooting of deceased have been held admissible in some jurisdictions.-" But other jurisdictions hold that the remarks or threats of the crowd present at the killing are not any part of the res gestae.^^* § 3031. Dying declarations. — The subject of dying declarations is treated at considerable length in another part of this work.-^" It is there shown that the rule admitting dying declarations applies only in criminal cases, and, generally, only in cases of homicide, that such declarations are really secondary or hearsay evidence, but are ad- mitted in such cases under a limitation or qualification of the hear- say rule. The circumstances and marks of competency and tlie limita- «' Wood V. State, 92 Ind. 269. ^' State v. Wagner, 61 Me. 178. ""Caw v. People, 3 Neb. 357. ==« United States v. Schneider, 21 ''' State v. Talbert, 41 S. Car. 526, D. C. 381. 19 S. B. 852. ^' Combs v. Commonwealth, 15 === Irby v. State, 25 Tex. App. 203, Ky. L. R. 659, 25 S. W. 592. 7 S. W. 705. '"^ Holt V. State, 9 Tex. App. 571. ==' State v. Petty, 21 Kans. 54. =^' See, Vol. I. Chap. XV, 443. et ■"* Evans v. State, 58 Ark. 47, 22 seq., §§ 332, 359. S. W. 1026. Vol. 4 Elliott Ev. — 21 § 3033.] HOMICIDE. 322 tions upon their use are fully stated in the chapter to which reference has already been made. It will he sufficient, therefore, in this con- nection to call attention to some of the more recent decisions and to review some of the illustrative cases showing what dying declara- tions are admissible and when and under what circumstances they are or are not admitted. § 3032. Dying declarations — When admissible. — Statements made by deceased as to how the accused shot him after he had stated to the witness that he was satisfied that the wound would kill him, are admissible as dying declarations.^'''' So, a statement made by the de- ceased shortly after he was shot, that he had been shot to death, and that a negro shot him and a white man gave him the gun, has been held admissible as a dying declaration.-"^ As elsewhere shown, dying declarations may be impeached, and statements made by the deceased after he was wounded, tending to contradict his dying declarations to others, given in evidence, are admissible for this purpose.-®^ It has also been held that where the defendant did not do the killing, but was present with the one who did do it at the time, and there was evidence of a conspiracy connecting him therewith, dying declara- tions of deceased as to who did the shooting were admissible against such defendant. 2 ''^ But it is held in Georgia and many other states that although two persons killed were shot in the same fight, the dy- ing declarations of the one are not, as such, admissible in evidence on'' the trial of the slayer for the murder of the other.^'^'' The fact =<=» Gregory v. State, 140 Ala. 16, 37 but compare, State v. Taylor, 56 S. So. 259; see also, Gibson v. State, Car. 360, 34 S. B. 939; Wroe v. State. 126 Ala. 59, 28 So. 673; Jordan v. 20 Ohio St. 460. State. 82 Ala. 1, 2 So. 460; State v. =°^ People v. Moran, 144 Cal. 48, 77 Bowies, 146 Mo. 6, 47 S. W. 892, 69 Pac. 777. Am. St. 598; Commonwealth v. =°^ Taylor v. State, 120 Ga. 857, 48 Roddy, 184 Pa. St. 274, 39 Atl. 211; S. E. 361; see also. State v. Westfall, Comiaonwealth v. Matthews, 89 Ky. 49 Iowa 328; Mora v. People, 19 287, 12 S. \V. 333. Colo. 255, 35 Pac, 179; Brown v. ="' State v. Bordelon, 113 La. Ann. Commonwealth, 73 Pa. St. 321, 13 690, 37 So. 603. Am. R. 740; State v. Fitzhugh, 2 ^"'^ Gregory v. State, 140 Ala. 16, 37 Ore. 227; Radford v. State, 33 Tex. !S0. 259; Dunn v. People, 172 111. 582, Cr. App. 520, 27 S. W. 143; but com- 50 N. E. 137; Nordgren v. People, pare. State v. Wilson, 23 La. Ann. 211 111. 425, 71 N. E. 1042; State v. 558; State v. Terrell, 12 Rich. L. Charles, 111 La. Ann. 933, 36 So. 29; (S. Car.) 321; Rex v. Baker, 2 Mood, carver v. United States, 164 U. S. & R. N. P. 53. 694, 17 Sup. Ct. 228; Vol. I, § 346; 323 DYING DECLARATIONS — WHEN NOT ADMISSIBLE. [§ 3033. that there were eye-witnesses, or that there is other evidence as to the facts, does not render dying declarations inadmissible.^^' § 3033. Dying declarations — When not admissible. — Dying decla- rations, it is said in a recent case, are hearsay evidence, and are taken out of the rule excluding such evidence because of reasons of necessity, and because it is supposed that a realization on the part of the de- clarant of the certain and speedy approach of death affords as power- ful incentive to tell the truth as does the administration of an oath.^*^^ It is also held in the same case that in order to render them ad- missible, it must be first shown that the declarant was not only in articulo mortis, but under the sense of impending death without hope of recovery, at the time such declarations were made, and that statements made by the deceased that he had to die of the whipping he had received from the defendant, that any hour or any day he might die, do not sufficiently show his sense of impending death to render his statements competent as dying declarations."^ But in another recent case where a witness testified that the person making the dying declarations afterwards sought to be introduced, realized that he was mortally wounded, an objection that it was not shown that he knew at the time of making the declaration that he was in ex- tremis-^^ was held to be without merit. A proper predicate must, however, be laid for the admission of such declarations when they are not admissible as part of the res gestae.-*'^ Dying declarations are, in "'^'Lyles v. State, (Tex. Cr. App.) La. Ann. 463, 37 So. 30; Rex v. Ab- 86 S. W. 763; People v. Beverly, 108 bott, (1903) 67 J. P. 151. Mich. 509, 66 N. W. 379; State v. ^'^ Davis v. State, 120 Ga. 843, 48 Yee Wee, 7 Idaho 188, 61 Pac. 588; S. E. 305; see also, Pitts v. State, 140 Vol. I, §( 359. For other cases of dy- Ala. 70, 37 So. 101; Fuqua v. Com- ing declarations held admissible, monwealth, 26 Ky. L. R. 420, 81 S. see, Boyd v. State, (Miss.) 36 So. W. 923; Connell v. State, (Tex. Cr. 525; Zipperian v. People, (Colo.) 79 App.) 81 S. W. 746; Crockett v. Pac. 1018 (both oral and written); State, (Tex. Cr. App.) 77 S. W. 4; Lane v. State, 151 Ind. 511, 51 N. E. Hawkins v. State, 98 Md. 355, 57 Atl. 1056 (same); Shenkenberger v. 27; State v. Gray, 43 Ore. 446, 74 State, 154 Ind. 630, 57 N. E. 519. Pac. 927. =*" State V. Knoll, (Kans.) 77 Pac. ^^^ Wilson v. State, 140 Ala. 43, 37 580. The fact that there were eye- So. 93; Sutherland v. State, (Ga.) witnesses does not, however, pre- 48 S. E. 915; as to whether the vent the reception of dying declara- question of the sufficiency of the tions. Lyles v. State, (Tex. Cr. predicate is for the judge or jury, App.) 86 S. W. 763. see and compare, Sims v. State, 139 ""See also. State v. Gianfala, 113 Ala. 74, 36 So. 138; Commonwealth § 3034.] HOMICIDE. 324 general, admissible only as to such facts as the declarant could have testified to if he had been living and testified at the trial."'' It has been held error to permit a witness to testify that the deceased stated that "they murdered me without cause,""^ or that "Bill Harris is my friend, and I don't want nothing done to him."-'^ §'3034. Confessions. — The subject of confessions, like that of dying declarations, has already been fully discussed in another part of this work.2" All that is necessary in this connection, therefore, is to review some of the more recent decisions, applying the rules already considered, in cases of homicide. In a prosecution for mur- der, a confession freely and voluntarily made by the defendant is admissible as in other criminal cases.-'* The following rules upon the subject are laid down in a recent case.-" When the proof of. death is direct and positive and the circumstances are such as to leave no room for doubt that the deceased was murdered, any extra- judicial confession by the accused may be admitted in evidence to establish his connection with the crime ; where the whole of a written confession admitting the crime charged and other crimes, is offered in evidence and objected to by the defendant, it is not error to allow the whole confession to go to the jury under instructions that it is admitted only to prove the killing of the person named in the indict- ment and that the jury should not permit the statements in the con- V. Lawson, 25 Ky. L. R. 2187, 80 S. 292, 36 Pac. 139; Sullivan v. State, W. 206; Bateson v. State, (Tex. Cr. 102 Ala. 135, 15 So. 264, 48 Am. St. App.) 80 S. W. 88; see generally, 22; declarations of the deceased to Vol. I, §§ 355, 356. the effect that the defendant had 2'oConnell v. State, (Tex. Cr. given her some medicine, and that App.) 81 S. W. 746; Montgomery v. it had killed her, and that she was State, 80 Ind. 338, 41 Am. R. 815; bound to die, made while she was Vol. I, §§ 339, 350. Evidence held going about, and evidently not in admissible as part of res gestae in, a realization that she was in ex- People V. Glover, 141 Cal. 233, 74 tremis, were held inadmissible as Pac. 745. dying declarations in. Brown v. "1 Bateson v. State, (Tex. Cr. Commonwealth, 26 Ky. L. R. 1269, App.) 80 S. W. 88. 83 S. W. 645. "= State V. Harris, 112 La. Ann. =" See, Vol. I, §§ 271-296. 937, 36 So. 810; for other illustrative "* Plant v. State, 140 Ala. 52, 37 cases, see. People v. Schievi, 96 App. So. 159; Wilson v. United States, 162 Div. 479, 89 N. Y. S. 564; State v. U. S. 613, 16 Sup. Ct. 895; see also. Wood, 53 Vt. 560; State v. Moody, Vol. I, §§ 273-287. 18 Wash. 165, 51 Pac. 356 (prior =" State v. Knapp, 70 Ohio St. 380, threats); State v. Eddon, 8 Wash. 71 N. E. 705. 325 CONFESSIONS — PREVIOUS CIRCUMSTANCES. [§ 3035. fession to prejudice them against the defendant; and where facts proved by the state corroborate the confession of the accused, direct and positive evidence of the corpus delicti is not indispensable to the admission of the confession, and if extrinsic corroborative facts, considered with the confession, persuade the jury beyond a reason- able doubt of the prisoner's guilt, the evidence will support a ver- dict of guilty. The mere fact that the defendant was under arrest or in custody wlien he made the confession does not render it in- admissible.^^" And in the absence of any statutory provision upon the subject, it seems that failure to caution a prisoner, when he appears before a magistrate and makes incriminating statements in answer to questions, does not operate to exclude them where they were volun- tary, and not the product of hope or fear, incited by some word or act of those in' authority .^^^ But no improper inducement must be used, and the confession must be freely and voluntarily made.-'^ Confessions of defendants, induced by hanging them and threatening their lives unless they confess, are, of course, incompetent.-'^ But a voluntary confession of the accused was held admissible in a recent ease, notwithstanding he was a negro and a prisoner at the time in a *'calaboose" which was surrounded by a crowd of white men.^*^ In another recent case a homicide had been committed, and the husband of the deceased was arrested for the crime and brought to the police station, and his son, four years old, was brought to the station house, and in the presence of his father, on being asked as to the circum- stances of the killing, he said that his father struck his mother with scissors. The court held evidence of such statement was inadmissible to show that the father by his silence at the time confessed the guilt.'^^ The accused is usually entitled, when an alleged confession is introduced, to have the entire statement admitted. ^^^ § 3035. Previous circumstances — Threats, preparations and previ- ous attempts. — The threats of the accused made previous to tlie liomi- ='" State V. Worthen, (Iowa) 100 ='^ Edmonson v. State, (Ark.) 82 N. W. 330; Calloway v. State, 103 S. W. 203. Ala. 27, 15 So. 821; Commonwealth "» Hilburn v. State, (Ga.) 49 S. E. V. Sheehan, 163 Mass. 170, 39 N. E. 318. 791; Vol. I, § 287. =^^ Geiger v. State, 70 Ohio St. 400, "'State V. Hand, (N. J.) 58 Atl. 71 N. E. 721. 641; see also. Vol. I, § 279. ="= State v. Busse, (Iowa) 100 N. ™Vol. I, § 273, et seq. W. 536; Williams v. State, 103 Ala. 33, 15 So. 662; Vol. I, § 295. § 3035.] HOMICIDE. 326 cide are admissible against liim,^^^ in a proper case. And, even though they had not been communicated to the deceased, threats made by the defendant previous to the homicide, are competent for the purpose of showing malice.^^* Thus the threats made by the de- fendant against the deceased are admissible as tending to prove the malice charged in the indictment,^^^ or as showing the defendant's disposition and feeling towards the deceased.^^** And where the de- ceased had instituted a criminal prosecution against the accused and the latter had used threats against the former, evidence thereof was held admissible to show malice and premeditation.^" So, in another case threatening language used was held competent to prove that the intent was premeditated.^^® And threats running through many months down to a time just prior to the killing are competent on the question of malice.^^s But the defendant's threat against a cer- tain person with whom he had been quarreling are not competent 283 layers V. State, 62 Ala. 599; Painter v. People, 147 111. 444, 35 N. E. 64; Cluck v. State, 40 Ind. 263; State v. McKinney, 31 Kans. 570, 3 Pac. 356; State v. Harrod, 102 Mo. 590, 15 S. W. 373; Commonwealth v. Crossmire, 156 Pa. St. 304, 27 Atl. 40; Bryant v. State, 35 Tex. Cr. App. 394, 33 S. W. 978; see also. Vol. I, §§ 163, 164. =»* Wilson V. State, 110 Ala. 1, 20 So. 415, 55 Am. St. 17; Phillips v. State, 62 Ark. 119, 34 S. W. 539; People v. Dice, 120 Cal. 189, 52 Pac. 477; Moore v. People, 26 Colo. 213, 57 Pac. 857; State v. Hoyt, 46 Conn. 330; Milton v. State, 40 Fla. 251, 24 So. 60; McDaniel v. State, 100 Ga. 67, 27 S. E. 158; State v. Davis, 6 Idaho 159, 53 Pac. 678; McCoy v. People, 175 111. 224, 51 N. E. 777; Cluck V. State, 40 Ind. 263; State v. Sullivan, 51 Iowa 142, 50 N. W. 572; Nichols V. Commonwealth, 11 Bush (Ky.) 575; State v. Pain, 48 La. Ann. 311, 19 So. 138; Commonwealth V. Holmes, 157 Mass. 233, 32 N. E. 6, 34 Am. St. 270; People v. Curtis, 52 Mich. 616, 18 N. W. 385; Burt v. State, 72 Miss. 408, 16 So.. 342, 48 Am. St. 563; State v. Wright, 141 Mo. 333, 42 S. W. 934; State v. Sloan, 22 Mont. 293, 56 Pac. 364; State v. Bonds, 2 Nev. 265; State v. Palmer, 65 N. H. 216, 20 Atl. 6; Peo- ple V. Decker, 157 N. Y. 186, 51 N. E. 1018; State v. Matthews, 80 N. Car. 417; Stewart v. State, 1 Ohio St. 66; State v. Powers, 10 Ore. 145, 45 Am. R. 138; Commonwealth v. Major, 198 Pa. St. 290, 47 Atl. 741, 82 Am. St. 803; State v. Lee, 58 S. Car. 335, 36 S. E. 706; Rea v. State, 8 Lea (Tenn.) 356; Strange v. State, 38 Tex. Cr. App. 280, 42 S. W. 551; State V. Bradley, 67 Vt. 465, 32 Atl. 238; White v. Territory, 3 Wash. Ter. 397, 19 Pac. 37. "^= Babcock v. People, 13 Colo. 515, 22 Pac. 817; State v. Pain, 48 La. Ann. 311, 19 So. 138. -^"^ State v. Sullivan, 51 Iowa 142, 50 N. W. 572; State v. Stackhouse, 24 Kans. 445. =" State V. Birdwell, 36 La. Ann. 859. =85 People V. Brunt, 11 N. Y. St. 59. =8^ Rains v. State, 88 Ala. 91, 7 So. 315. 327 ' THREATS. [§ 303.J. on liis trial for killing another person in another quarrel, there being no connection between the two.^^" In some jurisdictions it is held that a threat to kill "some one" is sufficient,2»i although not expressly directed against the deceased. Thus, the statements of the accused made shortly before tlic killing, to the effect that he was going to kill "somebody," without designating whom, have been held ad- missible.-"- A threat need not name the person threatened, where the other facts adduced give "individuation" to it.^^^ Thus, evidence is admissible of threats of violence made by the accused shortly before the homicide against "policemen," though not particularly against the deceased,-'''* who was a policeman. And so evidence that the accused stated, a short time before the alleged killing, that he intended to get even or square with somebody, without naming the person, has been held competent.^"^ And evidence of a statement by the accused a few hours before the homicide that he intended to have satisfaction before he slept that night, has also been held admissible against him.-"*^ But the true rule as deduced from the decisions seems to be that in order for threats to be admissible they must either show a determination to injure some particular person or must be statements of ill-will or hate towards a class of which the person killed is one, and must be capable of being construed to refer to the deceased.^''^ Evidence that, a week before the homicide, de- fendant said to a third person that he would "fix" deceased has been held competent.^''^ And it has been held that the prosecution may show that the accused was looking and inquiring for deceased a short =»" Abernethy v. Commonwealth, =°» State v. Harlan, 130 Mo. 381, 32 101 Pa. 322. S. W. 997. ='' Hopkins v. Commonwealth, 50 ="" State v. Russell, 91 N. Car. 624. Pa. St. 9, 88 Am. Dec. 518; Benedict =" Jordan v. State, 79 Ala. 9; Bill- V. State, 14 Wis. 423; see also. State ings v. State, 52 Ark. 303, 12 S. W. V. Hoyt, 47 Conn. 518, 36 Am. R. 89. 574; People v. Gross, 123 Cal. 389, 55 ^"^ Benedict v. State, 14 Wis. 423; Pac. 1054; Parker v. State, 136 Ind. Hopkins v. Commonwealth, 50 Pa. 284, 35 N. E. 1105; State v. Pierce, St. 9, 88 Am. Dec. 518; but compare, 90 Iowa 506, 58 N. W. 891; State v. Abernethy v. Commonwealth, 101 Fitzgerald, 130 Mo. 407, 32 S. W. Pa. St. 322, 328, distinguishing the 1113; State v. Hymer, 15 Nev. 49; last case above cited. Hardy v. State, 31 Tex. Cr. App. 289, =™^ Hardy v. State, 31 Tex. Cr. App. 20 S. W. 561; Snodgrass v. Common- 289, 20 S. W. 561; Wharton Cr. Ev., wealth, 89 Va. 679, 17 S. E. 238. (9th ed.) § 756. -« White v. State, 32 Tex. Cr. App. =«* Dixon v. State, 13 Fla. 636; 625, 25 S. W. 784. State v. Grant, 79 Mo. 113, 49 Am. R. 218. § 3036.] HOMICIDE. 328 time Ijefore the killing, and what he said at the time in regard to de- ceased. ^^^ The probative force of threats is a question for the jury, depending upon the circumstances under which they were made, whether or not repeated, the intervening time, whether or not there was an opportunity for carrying them into effect and other such cir- cumstances.^°° And whether or not such threats refer to the de- ceased is a question for the jury, to he considered with the other evidence.^^^ But the question of the remoteness of the threats is held to be a question for the court in the exercise of a sound discretion.^"^ It has been held proper to show that, a few days before the killing, defendant bought a gun and some shot like those taken from the wound which killed deceased. ^°^ And evidence that the accused and his accomplice practiced shooting at a mark before the murder has likewise been held competent.^"* So evidence was held competent that the accused bought some strychnine the previous year where the charge was for murder by poisoning with strychnine.^"^ But it has been held that mere threats to kill another, not connected with any other evidence joining the party with the commission of the homi- cide he threatened to commit, do not constitute a sufficient basis upon which the jury may find a verdict of guilty.^^'^ And it has also been held that declarations by the deceased of peaceful intent, communi- cated to defendant, are admissible in rebuttal of evidence of previous threats by the deceased against the defendant.^"^ § 3036. Previous circumstances — Some others. — Evidence as to previous quarrels and ill feelings is usually competent, and an ad- mission by the accused that he had a previous difficulty with deceased has been held competent against him as tending to establish malice =»» State v. Home, 9 Kans. 119. Mass. 233, 32 N. E. 6, 34 Am. St. 270. 2°" Beavers v. State, 103 Ala. 36, 15 '"' McLean v. State, 1 Tenn. Cas. So. 616; People v. Hong Ah Duck, 61 478. Cal. 387; State v. Hoyt, 46 Conn. ^^ People v. McGuire, 135 N. Y. 330; Harris v. State, 109 Ga. 280, 34 639, 32 N. B. 146. S. E. 583; Bolzer v. People, 129 HI. ^'^ State v. Cole, 94 N. Car. 958. 112, 21 N. E. 818; Goodwin v. State, ^^ Bailey v. State, 104 Ga. 530, 30 96 Ind. 550; State v. Wright, 141 S. E. 817; Jones v. State, 57 Miss. Mo. 333, 42 N. W. 934. 684; State v. Glahn, 97 Mo. 679, 11 ""■ State V. Belton, 24 S. Car. 185, S. W. 260. 58 Am. R. 245; State v. Crabtree, 111 ^"^ Taylor v. State, (Ga.) 49 S. E. Mo. 136, 20 S. W. 7. 303. 3"2 Commonwealth v. Holmes, 157 329 PREVIOUS CIRCUMSTANCES. [§ 3036. or motive.^"* And evidence of a previous difficulty between the ac- cused and deceased has been held admissible to show express mal- ice, whether it be proved that the ill feeling continued until the homi- cide or not.^°^ So testimony of a pre-existing enmity or a previous quarrel or grudge may be admissible to prove malice,^^" as is evidence that the accused had bad feelings against the deceased on account of some disputed account.^^^ So evidence of a meeting and altercation between the parties earlier in the evening of the killing is admissi- ble.^^^ The nearness or remoteness of the difficulty and its apparent connection or lack of connection as a cause or with the cause of the homicide may, however, largely determine the question of the ad- missibility of evidence concerning it. Thus, on a murder trial evi- dence of a difficulty between the deceased and the defendant three weeks before the killing, was held admissible as bearing upon the question of malice ;^^^ while a quarrel occurring several months be- fore the homicide, and not connected with the cause occasioning it, was held not to be admissible.^^* Upon the question of motive or malice, however, the line is not very closely drawn, and something is left to the discretion of the court in admitting evidence of the char- acter under consideration, notwithstanding it goes back for a consid- erable time. Thus, it has been held that the admission in evidence in a murder case of ill-feeling on the part of defendant, extending back two years before the homicide, cannot be said to exceed the limits of the court's discretion.^^^ So, where one was charged with murdering his wife, evidence of quarrels between them, two or more years be- fore, was held admissible.^^® In many other cases evidence of previous menaces,^ ^^ and previous assaults and threats to kill or the like has been held admissible in order to prove malice or intent.^ ^* Thus, evidence of assaults and threats by the prisoner on the prosecutor prior to the one for which the prisoner is indicted has been held admissible to show intent in a prosecution for ""^ Finch V. State, 81 Ala. 41, 1 So. also, State v. Baker, 30 La. Ann. 565. 1134. ^o' Starke v. State, 81 Ga. 593, 7 S. •='= People v. Bemis, 51 Mich. 422, E. 807. 16 N. W. 794. "" State V. D'Angelo, 9 La. Ann. ^"' Sayres v. Commonwealth, 88 Pa. 46. St. 291; Koerner v. State, 98 Ind. 7. =>" State V. Gooch, 94 N. Car. 987. ''" Anderson v. State, 15 Tex. App. ='= White V. State, 30 Tex. App. 447. 652, 18 S. W. 462. ^''^ Painter v. People, 147 111. 444, 35 "5 Brown v. State, 51 Ga. 502. N. E. 64. ^" Pound V. State, 43 Ga. 88; see 3036.] HOMICIDE. 330 assault with intent to murder j^^** and so has evidence of the conduct and feelings of defendant towards his victim, and that he had made previous threats to kill his victim.^ ^"^ And the fact that the de- fendant on the morning of the murder had his knife pointed with which he afterwards committed the crime, is competent evidence upon the question of deliberation and intent.^ ^^ So evidence that the de- fendant purchased a gun a few weeks before the homicide, and prac- ticed with it, is admissible as showing the condition of his mind, and the animus with which the act was done.^^- It has been held that evidence that defendant started towards deceased without a gun and went back and got it on the advice of his brother, who stated that he was satisfied that deceased had a pistol, is admissible to overcome the state's theory that defendant, when he started, intended to kill deceased.^^^ There is a long line of decisions to the effect that evi- dence of the relations and feelings existing between the accused and the deceased is admissible.^-* Likewise there is a line of decisions to the effect that the state may introduce evidence of previous ill-treat- ment, quarrels and difficulties, for the purpose of determining the existence of malice or motive.^-^ But it may be stated as a general "» Gray v. State, 63 Ala. 66. ==» People v. Jones, 99 N. Y. 667, 2 N. E. 49. =" Walsh v. People, 88 N. Y. 458. ^-- Boiling v. State, 54 Ark. 588, 16 S. W. 658; People v. McGulre, 135 N. Y. 639, 32 N. E. 146. =*=" Simmons v. State, 31 Tex. Cr. App. 227, 20 S. W. 573. "^ Allen V. State, 111 Ala. 80; 20 So. 490; Phillips v. State, 62 Ark. 119, 34 So. 539; People v. M'Kay, 122 Cal. 628, 55 Pac. 594; Shaw v. State, 60 Ga. 246; Simons v. People, 150 111. 66, 36 N. E. 1019; Pettit v. State, 135 Ind. 393, 34 N. E. 1118; State v. Helm, 97 Iowa 378, 66 N. W. 751; O'Brien v. Commonwealth, 89 Ky. 354, 12 S. W. 471 ; State v. Font- enot, 48 La. Ann. 305, 19 So. 113; State V. Savage, 69 Me. 112; Garlitz V. State, 71 Md. 293, 18 Atl. 39; Commonwealth v. Holmes, 157 Mass. 233. 32 N. E. 6, 34 Am. St. 270; Peo- ple v. Parmelee, 112 Mich. 291, 70 N. W. 577; State v. Lentz, 45 Minn. 177, 47 N. W. 720; Webb v. State, 73 Miss. 456, 19 So. 238; State v. Tetta- ton, 159 Mo. 354, 60 S. W. 743; Peo- ple v. Benham, 160 N. Y. 402, 55 N. E. 11; State v. Gooch, 94 N. Car. 987; State v. Ingram, 23 Ore. 434, 31 Pac. 1049 ; Commonwealth v. Krause, 193 Pa. St. 306, 44 Atl. 454; State v. Senn, 32 S. Car. 392, 11 S. E. 292; Burnett v. State, 14 Lea (Tenn.) 439; Turner v. State, 33 Tex. Cr. App. 103, 25 S. W. 635; Boyle v. State, 61 Wis. 440, 21 N. W. 289. '"-' Finch v. State, 81 Ala. 41, 1 So. 565; People v. Chaves, 122 Cal. 134, 54 Pac. 596; State v. Green, 35 Conn. 203; Starke v. State, 81 Ga. 593, 7 S. E. 807; Painter v. People, 147 111. 444, 35 N. E. 64; Koerner v. State, 98 Ind. 7; State v. Helm, 97 Iowa 378, 66 N. W. 751; State v. O'Neil, 51 Kans. 651, 33 Pac. 287; Thomas v. Commonwealth, 14 Ky. L. R. 288, 20 S. W. 226; Williams v. State, 64 Md. •331 PROCEEDINGS AT INQUEST. [§ 3037. rule that the defendant will not be allowed in the first instance to bring in testimony concerning previous quarrels and troubles/-'' at least where there is no question of self-defense or the like. Yet such testimony will be admitted when it tends to show self-defense, and there is doubt as to which of the parties commenced the fatal quar- rel.^^' It is held everywhere that inquiries into the particulars, details or merits of previous quarrels or difficulties are not competent. ^-^ And evidence as to the relations and feelings, or the occurrence of a previous difficulty between the defendant or the deceased and some other person is as a general rule incompetent ; that is, only facts con- cerning difficulties between the defendant and the deceased are usually competent. ^-^ § 3037. Proceedings at inquest. — The proceedings before the coro- ner are not in most jurisdictions admissible in evidence*^" on the trial 384, 1 Atl. 887; Commonwealth v. Storti, 177 Mass. 339, 58 N. E. 1021; Herman v. State, 75 Miss. 340, 22 So. 823; State v. Dettner, 124 Mo. 426, 27 S. W. 1117; People v. Ben- ham, 160 N. Y. 402, 55 N. E. 11; State V. Rash, 12 Ired. L. (N. Car.) 382, 55 Am. Dec. 420; Common- wealth V. Crossmire, 156 Pa. St. 304, 27 Atl. 40; Stone v. State, 4 Humph. (Tenn.) 27; State v. Bradley, 67 Vt. 465, 32 Atl. 238; Nicholas v. Commonwealth, 91 Va. 741, 21 S. B. 364; State v. Ackles, 8 Wash. 462, 36 Pac. 597; Boyle v. State, 61 Wis. 440, 21 So. 289. ^-"Kilgore v. State, 124 Ala. 24, 27 So. 4; Foster v. State, 70 Miss. 755, 12 So. 822; State v. Sullivan, 51 Iowa 142, 50 N. W. 572; State v. Cooper, 32 La. Ann. 1084. ""'' Holley V. State, 39 Tex. Cr. App. 301, 46 S. W. 39; State v. Peterson, 24 Mont. 81, 60 Pac. 809; State v. borter, 52 Kans. 531, 34 Pac. 1036; People V. Hecker, 109 Cal. 453, 42 Pac. 307; Coxwell v. State, 66 Ga. 309; Gunter v. State, 111 Ala. 23, 20 So. 632; State v. Seymour, 94 Iowa 699, 63 N. W. 661; Austin v. Com- monwealth, 19 Ky. L. R. 474, 40 S. W. 905; Marnoch v. State, 7 Tex. App. 269. ^-' Rutledge v. State, 88 Ala. 85, 7 So. 335 People v. Thomson, 92 Cal. 506, 28 Pac. 589; People v. Yokum, 118 Cal. 437, 50 Pac. 686; State v. Anderson, 45 La. Ann. 651, 12 So. 737; State v. Sorter, 52 Kans. 531, 34 Pac. 1036. ^-^ Bird v. United States, 180 U. S. 356, 21 Sup. Ct. 403; Dabney v. State, 113 Ala. 38, 21 So. 211, 59 Am. St. 92; People v. Mitchell, 100 Cal. 328, 34 Pac. 698; Hirschman v. Peo- ple, 101 111. 568; Pettit v. State, 135 Ind. 393, 34 N. E. 1118; Caskey v. Commonwealth, 15 Ky. L. R. 257, 23 S. W. 368; State v. Bowser, 42 La. Ann. 936, 8 So. 474; People v. Simp- son, 48 Mich. 474, 12 N. W. 662; Ma- bry v. State, 71 Miss. 716, 14 So. 267; State v. Anderson, 4 Nev. 265; People v. Larubia, 140 N. Y. 87. 35 N. E. 412; Dorsey v. State, 34 Tex. 651. ""State V. Row, 81 Iowa 138, 46 N. W. 872; Whitehurst v. Common- wealth, 79 Va. 556; Colquit v. State, 107 Tenn. 381, 64 S. W. 713; State § 3038.] HOMICIDE. 332 of an indictment for homicide. Thus it has been held that the min- utes kept b}' a coroner of an inquest held by him are not competent evidence, and it is said that the facts contained in them should be proved by the testimony of the coroner.^^^ And it has also been held that a written statement of the testimony of a witness given before the coroner cannot be received, although the witness has removed from the state.^^- But it has been held that the deposition of a wit- ness taken at the coroner's inquest is admissible on behalf of the ac- cused, when the witness has died since the inquest. ^^^ And that a deposition of a witness at the coroner's inquest is admissible, on the trial of another person for the murder, to contradict such witness. ^^* So, the coroner's inquest held on the body of the deceased has been held competent evidence of the physical facts as to the death.^^^ And a deposition or statement made and signed by the accused before the coroner or committing magistrate may be competent against him as an admission or a confession, or at least to contradict him.^^^ § 3038. Evidence as to character — Of deceased. — There is some conflict of authority as to whether evidence of the character of the person killed or assaulted is admissible on behalf of the accused. The weight of authority would seem to be that such evidence is not v. Turner, Wright (Ohio) 20; »' State v. McNeil, 33 La. Ann. Wheeler v. State, 34 Ohio St. 394, 1332. 398; but see. People v. Devine, 44 ^^* Wormeley v. Commonwealth, 10 Cal. 452; Haines v. State, 109 Ga. Gratt. (Va.) 658. 526, 35 S. E. 141; State v. Jones, =^=^ State v. Parker, 7 La. Ann. 83; 29 S. Car. 227, 7 S. E. 296; there is but not as to recital of facts as considerable conflict upon the gen- to the cause of death and the guilt eral subject of receiving coroners' of the accused. State v. Melville, 10 records and verdicts, and a distinc- La. Ann. 456; State v. Tate, 50 La. tion is sometimes made between the Ann. 1183, 24 So. 592. verdict and the other proceedings ^^^ See, Rex v. Chappel, 1 Mood. & or records. Much depends upon the R. N. P. 395; Rex v. Hopes, 7 Car. & statute of the particular jurisdic- P. 136; Lambe's Case, 2 Leach Cr. tion. See generally. Vol. II, § 1291, Law (3d ed.) 625, 630; see also, and Vol. Ill, §. 2012. Sage v. State, 127 Ind. 15, 26 N. E. ="Bass V. State, 29 Ark. 142; 667; Epps v. State, 102 Ind. 539, 1 Payne v. State, 66 Ark. 545, 52 S. N. E. 491; Davidson v. State, 135 W. 276; State v. Hayden, 45 Iowa Ind. 254, 34 N. E. 972; Woods v. 11. State, 63 Ind. 353; but compare, ^^'-Dupree v. State, 33 Ala. 380, 73 Dunn v. State, 2 Ark. 229, 35 Am. Am. Dec. 422. See also. Smith v. Dec. 54. See generally. Vol. II, State, (Tex. Civ. App.) 85 S. W. § 1291, and note in 68 L. R. A. 285„ 1153. 333 CHARACTER OF DECEASED. [§ 3038. usually admissible in the first instance.^='' Thus, it is held that evi- dence is not admissible on the part of the accused as to the character of the deceased for peace and quietness.^^^^ Nor can such evidence or- dinarily be introduced by the state in the first instance.^^® Yet while evidence of the quiet, peaceable disposition, or sober and industrious habits of the deceased, or of his general reputation as a good man cannot be proved in the first instance, such evidence may be introduced by the state to rebut evidence attacking the character of the deceased presented by the accused.^*" But where the general character of de- ceased was not attacked or put in issue by defendant it is held error to admit evidence on behalf of the state to sustain it.^" Where the evidence tends to show that the accused acted in self-defense and was acquainted with the bad and quarrelsome character of the deceased, then such character of deceased may be shown in evidence.^^*^ Sucli evidence is admissible to show the defendant's state of mind and the reasonableness of his apprehension of violence,^'*^ and when admissible =^' Gardner v. State, 90 Ga. 310, 17 S. E. 86, 35 Am. St. 202; State v. McCarthy, 43 La. Ann. 541, 9 So. 493; Commonwealth v. Ferrigan, 44 Pa. St. 386; Gandolfo v. State, 11 Ohio St. 114; Garner v. State, 28 Fla. 113, 9 So. 835; Underhill Cr. Ev., § 324; Fields v. State, 47 Ala. 608, 11 Am. R. 771. ^=* People V. Munn, (Cal.) 7 Pac. 790. ".23 Parker v. Commonwealth, 96 Ky. 212, 28 S. W. 500; Roten v. State, 31 Fla. 514, 12 So. 910; Lem- ons v. State, 97 Tenn. 560, 37 S. W. 552; Ben v. State, 37 Ala. 103; Peo- ple v. Garbutt, 17 Mich. 9, 97 Am. Dec. 168; State v. McCarthy, 43 La. Ann. 541, 9 So. 493; Moore v. State, (Tex. Cr. App.) 79 S. W. 565; State V. Eddon, 8 Wash. 292, 36 Pac. 139. =*" Lemons v. State, 97 Tenn. 560, 37 S. W. 552; Hussey v. State, 87 Ala. 121, 6 So. 420; People v. Powell, 87 Cal. 348, 25 Pac. 481; State v. Nash, 45 La. Ann. 974, 13 So. 732, 734; Ben v. State, 37 Ala. 103; Thrawley v. State, 153 Ind. 375, 55 N. E. 95; Martin v. State, 44 Tex. Cr. App. 279, 70 S. W. 973; Pettis v. State, (Tex. Cr. App.) 81 S. W. 312; Davis v. People, 114 111. 86, 29 N. E. 192. But it is held that this should go to his reputation rather than to the actual fact that he was a dan- gerous man. Stalcup v. State, 146 Ind. 270, 45 N. E. 334; People v. An- derson, 39 Cal. 703. ^" Parker v. Commonwealth, 96 Ky. 212, 28 S. W. 500; State v. Ed- don, 8 Wash. 292, 36 Pac. 139. "-People v. Lamb, 2 Keyes (N. Y.) 360; State v. Rollins, 113 N. Car. 722, 18 S. E. 394; People v. Powell, 87 Cal. 348, 25 Pac. 481. ==" Smith v. United States, 161 U. S. 85, 16 Sup. Ct. 483; Riley v. Com- monwealth, 94 Ky. 266, 22 S. W. 222; Perry v. State, 94 Ala. 25, 10 So. 650; State v. Collins. 32 Iowa 36; State v. Shafer, 22 Mont. 17, 55 Pac. 526; Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62; People v. Druse, 103 N. Y. 655, 8 N. E. 733; State v. Mc- Iver, 125 N. Car. 645, 34 S. E. 439; Upthegrove v. State, 37 Ohio St. 662. 3038.] HOMICIDE. OO-i only for that purpose it must generally be shown that it was known,, or must reasonably have been known, to the defendant.^** When ad- missible, it is the character of the deceased for violence and quarrel- someness or for peace and quietude at the date of the homicide which is relevant.^*^ Such evidence may also be admissible, in case of doubt as to which party was the aggressor, as tending to solve that question ;^*'^ and in such a case it would seem that it is unnecessary to show knowledge on the part of the defendant, as it is admitted to show what the deceased probably did rather than as to the defend- ant's state of mind.^*^ The reputation of the deceased may be ad- mitted in evidence^'*^ in a proper case, and it may be presumed to be known to the defendant.^*'* But evidence of the moral character of the deceased is not admissible.^^" And evidence that the deceased was a quarrelsome man, of a violent temper, and dangerous when ex- cited, is not admissible^^^ without laying the proper foundation or except for the purposes and under the circumstances already stated. "^People v. Rodawald, 177 N. Y. 408, 70 N. E. 1; Commonwealth v. Straesser, 153 Pa. St. 451, 26 Atl. 17 ; State v. Nash, 45 La. Ann. 1137, 13 So. 732; State v. Kennade, 121 Mo. 405, 26 S. W. 347; State v. Tur- pin, 77 N. Car. 473, 24 Am. R. 455; Henderson v. State, 12 Tex. 525. ^'^^Copeland v. State, 41 Fla. 320, 26 So. 319; Martin v. State, 90 Ala. 602, 8 So. 858; Fields v. State, 47 Ala. 603, 11 Am. R. 771; State v. Pettit, 119 Mo. 410, 24 S. W. 1014; Commonwealth v. Hoskins, 18 Ky. L. R. 59, 35 S. W. 284; State v. Thompson, i09 La. Ann. 296, 33 So. 320; State v. Sumner, 130 N. Car. 718, 41 S. E. 803; Bowlus v. State, 130 Ind. 227, 28 N. E. 1115; State v. Turner, 29 S. Car. 34, 6 S. E. 891; Plasters v. State, 1 Tex. App. 673; Smith V. United States, 161 U. S. 85, 16 Sup. Ct. 483. =**" State V. Spendlove, 44 Kans. 1, 24 Pac. 67; Williams v. Fambro, 30 Ga. 232; Palmore v. State, 29 Ark. 248; State v. Robinson, 52 La. Ann. 616, 27 So. 124; State v. Rider, 90 Mo. 54, 1 S. W. 825; State v. Turpin, 77 N. Car. 473, 24 Am. R. 455; Cope- land V. State, 7 Humph. (Tenn.) 479; State v. Cushing, 14 Wash. 527, 45 Pac. 145; but compare. Marts V State, 26 Ohio St. 162; People v. Rodawald, 177 N. Y. 408, 70 N. E. 1; Henderson v. State, 12 Tex. 525. =" Williams v. Fambro, 30 Ga. 232; State V. Ellis, 30 Wash. 369, 70 Pac. 963; State v. Robinson, 52 La. Ann. 616, 27 So. 124. =•" People V. Anderson, 39 Cal. 703 State V. Turpin, 77 N. Car. 473 Moriarty v. State, 62 Miss. 654 State v. Riddle, 20 Kans. 711. =*" Harrison v. Commonwealth, 79 Va. 374, 52 Am. R. 634; Childers v. State, 30 Tex. App. 160, 16 S. W. 903, 28 Am. St. 899. ^^^ Commonwealth v. Hoskins, 35 Ky. L. R. 284, 35 S. W. 284. ^'^^ State V. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599; State v. Field, 14 Me. 244, 31 Am. Dec. 52; Com- monwealth V. Hilliard, 2 Gray (Mass.) 294; State v. Thawley, 4 Har. (Del.) 562. 335 CHARACTER OF ACCUSED. [§ 3039. Thus, where defendant sought to prove that the deceased was an "overbearing, turbulent, and impetuous man," it was held not ad- missible.^^- And evidence to prove the vicious temper, nature, and disposition of the deceased has been held not admissible.^'^^ In these cases, however, the evidence was sought to be introduced in the first instance or there was no other showing of self-defense.^^* § 3039. Evidence as to character — Of accused. — It is the general rule that the defendant's good character or reputation for peace and quiet is admissible in his favor.^^^ But the evidence must be con- fined, in general, to the trait involved in the crime charged,^-"''' and it has been held that the defendant cannot show his good character and conduct subsequent to the commission of the crime.^^^ Thus, it has been held that although evidence of the previous good char- acter for peace and quietness of the defendant is admissible, evidence of his previous moral character is not.^^^ And whether the accused is a brave man or a coward has been held to be immaterial on a trial for murder.^^^ So it has been held that testimony as to the reputa- tion for "truth, honesty, and integrity" of defendant, who was a wit- ness in his own behalf, should be excluded where those traits of char- acter were not questioned by the prosecution;^®** and that one ac- cused of aiding and abetting a murder in pursuance of a conspiracy ^==Spivey v. State, 58 Miss. 858; State v. Howell, 100 Mo. 628, 14 S. Wright v. State, 17 Tenn. 342. W. 4; State v. Schleagel, 50 Kans. =="Brucker v. State, 19 Wis. 539. 325, 31 Pac. 1105; Wesley v. State, ^=*That there must be some show- 37 Miss. 327, 75 Am. Dec. 62; Mas- ing of self-defense, see, McKeone v. ton v. State, 83 Miss. 647, 36 So. 70; People, 6 Colo. 346; Jones v. People, Hall v. State, 132 Ind. 317, 31 N. E. 6 Colo. 452, 45 Am. R. 526; David- 536. son v. People, 4 Colo. 145; Bond v. ==« Walker v. State, 91 Ala. 76, 9 State, 21 Fla. 738; Roten v. State, So. 87; Demaree v. Commonwealth, 31 Fla. 514, 12 So. 910; State v. 26 Ky. L. R. 507, 82 S. W. 231; note Morey, 25 Ore. 241, 36 Pac. 573; in 103 Am. St. 897. State V. Pearce, 15 Nev. 188; Doyal =" Moore v. State, 96 Tenn. 209, 33 V. State, 70 Ga. 134; Drake v. State, S. W. 1046; see also, White v. State, 75 Ga. 413; Abbott v. People, 86 N. Ill Ala. 92, 21 So. 330. Y. 460; State v. Sumner, 130 N. Car. ^^nValker v. State, 102 Ind. 502, 1 718, 41 S. E. 803. N. E. 856. ■■'•'•'' Commonwealth v. Winnemore, 1 •'^'■'Keyes v. State, 122 Ind. 527, 23 Brewst. (Pa.) 356; Basye v. State, N. B. 1097. 45 Neb. 261, 63 N. W. 811; State v. ="« People v. Cowgill, 93 Cal. 596,. Gather, 121 Iowa 106, 96 N. W. 722; 29 Pac. 228. § 3040.] HOMICIDE. 33G cannot prove the good character of his co-defendants.^^^ After the defendant has put his character in evidence, the state may show his bad reputation with reference to the same traits of character.^®^ So, it lias been held competent for the state to show his character when drinking, when the homicide was committed by him while drinking. ^''^ But it has been held that testimony of the good character of the ac- cused cannot be met by evidence that he had formerly committed an act of violence against another person, at another place, and under different circumstances.^*'* It has also been held that the temper of the prisoner cannot be considered,^''^ and that evidence that the ac- cused had a nervous temperament, and was excitable and eccentric, is not admissible.^''*' § 3040. Evidence of habits and disposition. — Certain habits of the deceased may usually be shown under circumstances similar to those under which his character or reputation for peace or violence may be shown. ^^^ Thus, it is often competent to prove that the deceased was in the habit of going armed or carrying deadly weapons.^"^ But it must usually be made to appear that the defendant had Imowledge of such habit,^"^ and the evidence as to habit must not be too re- ^"Omer v. Commonwealth, 95 Ky. cause the defendant did not know 353, 25 S. W. 594. of it. ^"2 Vol. I, § 168. ^"^ Wiley v. State, 99 Ala. 146, 13 ^s^Cook V. State, (Fla.) 35 So. So. 424; Cawley v. State, 133 Ala. 665; but see. State v. McDaniel, 68 128, 32 So. 227; Naugher v. State, S. Car. 304, 47 S. E. 384. 116 Ala. 463, 23 So. 26; People v. ^''^Brownell v. People, 38 Mich. Howard, 112 Cal. 135, 44 Pac. 464; 732; see also. State v. Evans, 158 Garner v. State, 31 Fla. 170, 12 So. Mo. 589, 59 S. W. 994. 638; Riley v. Commonwealth, 15 Ky. ^® State v. Lipsey, 3 Dev. (N. L. R. 46, 22 S. W. 222; State v. Car.) 485. Yokum, 14 S. Dak. 84, 84 N. W. =<=« Commonwealtn v. Cleary, 148 389; State v. Crawford, 31 Wash. Pa. 26, 23 Atl. 1110. 260, 71 Pac. 1030. It has been held =°' See, State v. Ellis, 30 Wash, competent to show that such was his 369, 70 Pac. 963; White v. State, 100 reputation and that he was nick- Ga. 659, 28 S. E. 423; State v. named "Draws" from his readiness Yokum, 14 S. Dak. 84, 84 N. W. 389; to draw weapons. State v. Thomp- People v. Grimes, 132 Cal. 30, 64 son, 109 La. Ann. 296, 33 So. 320; Pac. 101; in Phipps v. State, 34 see also, Glenewinkel v. State, (Tex. Tex. Cr. App. 560, 31 S. W. 397, it Cr. App.) 61 S. W. 123. was held that evidence of the par- =«''' Sims v. State, 139 Ala. 74, 36 ticular habit there sought to be So. 138; People v. Howard, 112 Cal. shown could not be introduced be- 135, 44 Pac. 464; Garner v. State, 31 ■QO'V HABITS AND DISPOSITIOX. [§ 50-iO. mote."'" So, in a case where there was no question of self-defense or the like, and the defendant's claim was that the deceased had committed suicide, evidence that the deceased was in the habit of carrying a pistol was held not admissible."^ And it has been held that while the state may show the deceased was vmarmed at the time of the homicide, it cannot show in the first instance that he was in the habit of going unarmed and had refused to arm him: self.^^- But such evidence has been held admissible in rebuttal."' Evidence that the deceased was a drinking man is generally im- material and incompetent;"* but his character and disposition may be material and competent, as, for instance, in some cases where the homicide was committed under such circumstances."^ Evidence may be introduced by the accused to show that the deceased was of a mel- ancholy temperament and inclined to suicide,^^'' where there is evi- dence to support that theory. And the prosecution, in rebuttal, may introduce testimony showing the happy disposition and good health, the social condition and j)leasant surroundings of the deceased, to establish the absence of a suicidal intent."'^ So, where the defendant in a prosecution for killing his father-in-law claimed that shortly prior to the homicide he had discovered the deceased in adultery with Fla. 170, 12 So. 638; PMpps v. State, 34 Tex. Cr. App. 560, 31 S. W. 397. =■" People v. Barthleman, 120 Cal. 7, 52 Pac. 112. ='^ State V. Fitzgerald, 130 Mo. 407, 32 S. W. 1113; overruling. State v. Ludwig, 70 Mo. 412. In the syllabus in the S. W. Rep. this seems to be erroneously stated as applying to the defendant instead of the de- ceased. So it has been held incompe- tent for the defense to show that the deceased, who died from a pistol wound, was an expert with a pistol. State v. Punshon, 124 Mo. 448, 27 S. W. 1111. =>■- People V. Powell, 87 Cal. 348, 25 Pac. 481; see also, McCandless v. State, 42 Tex. Cr. App. 58, 57 S. W. 672, to the effect that the state can- not show this even in rebuttal of evidence that he did draw or at- tempt to draw a weapon at the time of the homicide. Held also that the accused could not show it, in State V. Chevallier, 36 La. Ann. 81. =^= State V. Mims, 36 Ore. 315, 61 Pac. 888; People v. Grimes, 132 Cal. 30, 64 Pac. 101. ^'* Seaborn v. Commonwealth, 25 Ky. L. R. 2203, 80 S. W. 223; see also. State v. McDaniel, 68 S- Car. 304, 47 S. E. 384. ="^ State V. Beird, 118 Iowa 474, 92 N. W. 694 ; Lewallen v. State, 6 Tex. App. 475; see also. State v. Ellis, 30 Wash. 369, 70 Pac. 963; State v. Hunter, 118 Iowa 686, 92 N. W. 872; Cook V. State, (Fla.) 35 So. 665. ='"'Boyd V. State, 14 Lea (Tenn.) 161; Blackburn v. State, 23 Ohio St. 146; Hall v. State, 132 Ind. 317, 31 N. E. 536. ^■' State v. Lentz, 45 Minn. 177, 47 N. W. 720. Vol. 4 Elliott Ev.— 22 § 3041.] HOMICIDE. 338 the defendant's wife, that fact being competent for the purpose of re- ducing the homicide to murder in the second degree, it was held that the defendant was entitled to show that deceased was a man of un- chaste and immoral habits, for the purpose of proving that he would be likely to commit the offense alleged.' 378 . § 3041. Evidence as to self-defense. — Where a homicide occurs under such circumstances that it is doubtful whether the act was committed maliciously or from a well-grounded apprehension of danger, testimony showing that the deceased was turbulent, violent, and desperate is proper, in order to determine whether the accused had reasonable cause to apprehend great personal injury to himself."'* But evidence of the violent character of the deceased is not admissible to show reasonable ground for apprehensions without some proof that the killing was in self-defense.^^" Thus, in the absence of proof of any assault or hostile demonstration by the deceased evidence of his dangerous character and disposition has often been held not to be ad- missible.3*^ -q^I jt has been held that evidence of the defendant's reputation for peace or violence is to be considered by the jury in doubtful cases in determining who was the assailant.^^^ Evidence of previous threats of the deceased against the accused is not admissible, unless there is some proof of an attack or overt hostile act showing an intent to carry the threats into excution.^^^ It has sometimes ^■^ Orange v. State, (Tex. Cr. App.) ^'^ Lang v. White, 84 Ala. 1, 4 So. 83 S. W. 385. 193, 5 Am. St. 324; Davidson v. Peo- 3^9 Williams v. State, 74 Ala. 18; pie, 4 Colo. 145; Roten v. State, 31 Garner v. State, 28 Fla. 113, 9 So. Fla. 514, 12 So. 910; Doyal v. State, 835, 29 Am. St. 232; State v. Gra- 70 Ga. 134; Cannon v. People, 141 ham, 61 Iowa 608, 16 N. W. 743; 111. 270, 30 N. E. 1027; State v. State v. Downs, 91 Mo. 19, 3 S. W. Stewart, 47 La. Ann. 410, 16 So. S45; 219; Basye v. State, 45 Neb. 261, 63 People v. Hess, 8 App. Div. (N. Y.) N. W. 811; Nichols v. People, 23 143, 40 N. Y. S. 486; West v. State, Hun (N. Y.) 165; Marts v. State, 26 18 Tex. App. 640; Smith v. United Ohio St. 162; Moore v. State, 15 Tex. States, 1 Wash. T. 262. App. 1; Smith v. United States, 161 =='= State v. Gushing, 14 Wash. 527, U. S. 85, 16 Sup. Ct. 483, and other 45 Pac. 145, 53 Am. St. 883, and authorities cited in ante section on other authorities cited, § 3038, on character of deceased. character of the deceased. ==*" Bowles V. State, 58 Ala. 335; =''*^ Hughey v. State, 47 Ala. 97; State v. Claude, 35 La. Ann. 71; People v. Campbell, 59 Cal. 243, 43 State v. Harris, 59 Mo. 550; People Am. R. 257; Steele v. State, 33 Fla. v. Hess, 8 App. Div. (N. Y.) 143, 40 348, 14 So. 841; State v. Stewart, 47 N. Y. S. 486. La. Ann. 410, 16 So. 945; State v. 339 SELF-DEFKXSE [§ 3011. been stated, in general terms, that evidence of tlireats uneoinniimi- cated to the defendant is not admissible.-"* Tims, it has been held that threats of deceased against the accused are not admissible in evidence, until it has been proved that the accused had been advised of them.^^^ But in these cases there was no pretense of self-defense ; and it is generally held that evidence of uncommunicated threats bv deceased is admissible in a proper case to show his mental attitude,^'*'' and determine who was the aggressor,^" And in a recent case it is said that uncommunicated threats, according to the modern and better reasoned cases, are admissible in three instances, namely, to show who began the affra}-, to corroborate evidence of communicated threats, and to show the attitude of the deceased.^^^ So, where self- defense is pleaded it is generally held that the accused may testify in such cases as to his belief that his life was in danger.^''^ But the Kenyon, 18 R. I. 217, 2C Atl. 199; West V. State, 18 Tex. App. 640; People V. Halllday, 5 Utah 467, 17 Pac. 118; State v. Spencer, 160 Mo. 118, 60 S. W. 1048, 83 Am. St. 463; note in 89 Am. St. 708. ^Vann v. State, 83 Ga. 44, 9 S. E. 945. ^= State V. McCoy, 29 La. Ann. 593; see also. State v. Zellers, 7 N. J. L. 220; State v. Vaughn, 22 Nev. 285, 39 Pac. 733; State v. Warren, 1 Marv. (Del.) 487, 41 Atl. 190; State v. Lyons, 7 Idaho 530, 64 Pac. 236; Ellis V. State, 152 Ind. 327, 52 N. E. 82. ^^ State V. Evans, 33 W. Va. 417, 10 S. E. 792. ^"Roberts v. State, 68 Ala. 156; People v. Tamkin, 62 Cal. 468; Hol- ler V. State, 37 Ind. 57, 10 Am. R. 74; State v. Felker, 27 Mont. 451, 71 Pac. 668; State v. Turpin, 77 N. Car. 473, 24 Am. R. 455; State v. Tartar. 26 Ore. 38, 37 Pac. 53; State v. Gush- ing, 14 Wash. 527, 45 Pac. 145; Wig- gins V. People, 93 U. S. 465; State v. Evans, 33 W. Va. 417, 10 S. E. 792; 89 Am. St. 709, note; but compare. People V. Arnold, 15 Cal. 476; At- kins V. State, 16 Ark. 568; Coker v. State, 20 Ark. 53. As already shown, however, there must be a claim of self-defense and some evidence thereof. =^"' Territory v. Hall, 10 N. Mex. 545, 62 Pac. 1083; see also, as to their admissibility to corroborate communicated threats. State v. Helm, 92 Iowa 540, 61 N. W. 246; State V. Brown, 22 Kans. 222; Cor- nelius v. Commonwealth, 54 Ky. 539; Levy V. State, 28 Tex. App. 203, 12 S. W. 596, 19 Am. St. 826. ^"Duncan v. State, 84 Ind. 204; Williams v. Commonwealth, 90 Ky. 596, 14 S. W. 595; Commonwealth v. Woodward, 102 Mass. 155; State v. Austin, 104 La. Ann. 409, 29 So. 23; Upthegrove v. State, 37 Ohio St. 662; but compare, Mann v. State, 134 Ala. 1, 32 So. 704 ; State v. Gonce, 87 Mo. 627. It has also been held that he may state what he thought the deceased intended to do. Wallace v. United States, 162 U. S. 466, 16 Sup. Ct. 850; Taylor v. People, 21 Colo. 426, 42 Pac. 652. ==« Hawkins v. State, 25 Ga. 207, 71 Am. Dec. 166; Gardner v. State, 90 Ga. 310, 17 S. E. 86, 35 Am. St. 202; Smith v. Commonwealth, 23 Ky. L. § 3041.] HOMICIDE. 343 opinions of third persons as to what the deceased intended to do,^''" or that the defendant was in imminent danger and had just cause for apprehension of great bodily harm^^^ are incompetent. Threats made by the deceased, a short time before the commission of the homicide, indicating an angry and revengeful spirit toward the ac- cused and a determination to do violence to his person, which were communicated to the prisoner a short time before the killing, arc admissible evidence in his favor,^^- where there is any evidence whatever fairly tending to support the issue of self-defense, and, possibly in other cases as well. On the issue of self-defense, the de- fendant, as stated in another section, may show that deceased car- ried deadly weapons,"''^ and was in the habit of so doing as the de- fendant knew. So on the issue of self-defense, defendant may show that deceased had time and again assaulted him,^^* or the like,^^^ at least where the evidence as to self-defense leaves the matter in doubt or a sufficient preliminary showing has been otherwise made.^''*' And where self-defense is set up to justify a murder, the declarations of the deceased, explanatory of accompanying acts, are admissible as part of the res gestae.^^^ It has been held that one indicted for manslaughter may prove the purpose, as well as the reasonable cause, of the fatal blow alleged by him to have been struck in self-defense.^*** R. 2271, 67 S. W. 32; State v. Scott, Wallace v. United States, 162 U. S. 26 N. Car. 409, 42 ^m. Dec. 148. 466, 16 Sup. Ct. 859. ^'''Keener v. State, 18 Ga. 194, 63 ^'^ State v. Graham, 61 Iowa 608, Am. Dec. 269; State v. Rhoads, 29 16 N. W. 743. Ohio St. 171; State v. Summers. 36 ^'-^ State v. Graham, 61 Iowa 608, S. Car. 479, 15 S. E. 369; see also, 16 N. W. 743; State v. Sorter, 52 Smith v. Commonwealth, 23 Ky. L. Kans. 531, 34 Pac. 1036; Enlow v. R. 2271, 67 S. W. 32; Gregory v. State, 154 Ind. 664, 57 N. E. 539. State, (Tex. Cr. App.) 48 S. W. 577; =» Gunter v. State, 111 Ala. 23, 20 State V. Brooks, 39 La. Ann. 817, 2 So. 632, 56 Am. St. 17; Common- So. 498; Lowman v. State, 109 Ga. wealth v. Booker, 25 Ky. L. R. 1025, 501, 34 S. E. 1019; but compare, 76 S. W. 838; People v. Hecker, 109 Stewart v. State, 19 Ohio 302, 53 Am. Cal. 451, 42 Pac. 307, 30 L. R. A. 403; Dec. 426; Thomas v. State, 40 Tex. State v. Peterson, 24 Mont. 81, 60 36. Pac. 809; State v. Dee, 14 Minn. 35; s^= Powell V. State. 52 Ala. 1; State People v. Taylor, 177 N. Y. 237, 69 V. Scott, 24 Kans. 68; Jackson v. N. E. 534. State, 65 Tenn. 452; State v. Dodson, ^"^ See, State v. Jefferson, 43 La. 4 Ore. 64; State v. Abbott, 8 W. Va. Ann. 995, 10 So. 199; State v. Smith, 741; Harris v. State, 72 Miss. 99, 16 164 Mo. 567, 65 S. W. 270. So. 360; State v. Harrod, 102 Mo. =" Wilson v. People, 94 111. 299. 590, 15 S. W. 373; Allison v. United ^'^'^ Commonwealth v. Woodward, States, 160 U. S. 203, 16 Sup. Ct. 252; 102 Mass. 155. 341 SELF-DEFEXSE — J USTIIICATION Oil EXCUSE. [§ 3041a. But the fact that defendant, after tlie affray, requested a third per- son to go to the relief of the deceased, has no tendency to prove that the killing was done in self-defense.^"^ The prosecution may, of course, introduce proper evidence in rebuttal. Thus, the state may show that the deceased did not make threats as claimed.^*"* So, it has been held that they may be explained, and that it may be shown that his manner was not threatening.*"^ It has also been held that subsequent friendly relations between the parties,*"- or the subse- quent conduct and declarations of the deceased indicating his peace- able intentions may be shown,*"^ at least when known to the de- fendant.*"* So, it has been held that the prosecution may prove the great physical superiority of the accused over the deceased.*"^ § 3041a, Evidence as to self-defense — Justification or excuse. — As already intimated, while homicide may be justifiable when it is com- mitted, without malice, in the performance of a legal duty or for the advancement of public justice, as where it is committed in making a lawful arrest, or in apprehending a criminal escaping from prison, or in preventing the commission of a felony,**"' yet the question of justification is usually determined by the consideration as to whether the homicide was necessary or apparently necessary to accomplish such lawful purpose or legal duty. So, in determining whether the homicide was excusable as committed in self-defense the rule is sub- stantially the same. If committed in the necessary defense of the defendant's person or habitation or in necessary defense of one to whom he owes the duty of protection, it is a good defense whether it be called merely excusable or justifiable.*"^ Indeed, the rule laid =»^ State v. Roberts, G3 Vt. 139, 21 ^°« See, State v. Phillips, 119 Iowa Atl. 424. 652, 94 N. W. 229, 67 L. R. A. 292, *"'' Maxwell v. State, 129 Ala. 48, 29 and extended note on the general £o. 981. subject; also elaborate note in, 67 *"'■ Myers v. State, 37 Tex. Cr. App. L. R. A. 529, et seq. 331, 39 S. W. 938. *"' It has been held that, wh *"- Naugher v. State, 116 Ala. 463, the homicide is committed in de- 23 So. 26. fense of another, any evidence is *"^ State V. ChafRn, 56 S. Car. 431, competent to establish justification ZS S. E. 454. that would have been competent if *<" Jimmerson v. State, 133 Ala. 18, the act had been committed in de- 32 So. 141; Rush v. State, (Tex. Cr. fense of the defendant's own per- App.) 76 S. W. 927; Johnson v. son. People v. Curtis, 52 Mich. 616, State, 22 Tex. App. 206, 2 S. W. 609. 18 N. W. 385; see also. State v. «= Hinch v. State, 25 Ga. 699. Felker, 27 Mont. 451, 71 Pac. 668; § 3041a.] HOMICIDE. 343 down in some of the older cases in regard to the absolute necessit}^ of the act and the subject of "reti-eating to wall" as against a mur- derous assault, where to do so would apparently endanger life or limb and be unreasonable, no longer prevails, if it ever did obtain, in most jurisdictions.*"* It is said in one case that "self-defense, or killing another in defense of one's own person, is mostly where one is sud- denly assailed by another without fault on his part, and under such circumstances as to give him just and reasonable ground to believe that he is in danger of losing his life or suffering some great bodily harm, enormous bodily harm. In such case the assailed need not wait for the apprehended injury by his adversary, but may take his life if necessary to protect his own person."*"^ It is not absolutely es- sential that the danger apprehended should be actual, positive and im- minent so as to make the homicide absolutely necessary. If it is apparent and the defendant had reasonable apprehension and ground Wood V. State. 128 Ala. 27, 29 So. 557; State v. Austin, 104 La. 4U9, 29 So. 23; State v. Foster, (Tenn.) 49 S. W. 747; see generally note in, 74 Am. St. 735, 737-740. ^"^ See, La Rue v. State, 64 Ark. 144, 40 S. W. 466; People v. Lewis, 117 Cal. 186, 48 Pac. 1088, 59 Am. St. 167, and note; Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1; Page v. State, 141 Ind. 236, 40 N. E. 745; State v. Hatch, 57 Kans. 420, 46 Pac. 708. 57 Am. St. 337; Mc- Clurg v. Commonwealth, (Ky.) 36 S. W. 14; Wilson v. Commonwealth, (Ky.) 63 S. W. 738; Bohannon v. Commonwealth, 8 Bush (Ky.) 482, 8 Am. Dec. 474; State v. Robert- son. 50 La. Ann. 92, 23 So. 9, 69 Am. St. 393; McCall v. State, (Miss.) 29 So. 1003; State v. Hudspeth. 150 Mo. 12, 51 S. W. 483; State v. Bart- lett. 170 Mo. 658, 71 S. W. 148; State V. Rolla, 21 Mont. 582, 55 Pac. 523; State v. Kennedy, 7 Nev. 374; Er- win V. State, 29 Ohio St. 186. 23 Am. R. 733; Kirk v. Territory, 10 Okla. 46, 60 Pac. 797; State v. Sherman, 16 R. L 631; State v. Carter, 15 Wash. 121, 45 Pac. 745; State v. Clark, 51 W. Va. 457, 41 S. E. 204; see also. High v. State, 26 Tex. App. 454, 8 Am. St. 488; but compare, Eiland v. State, 52 Ala. 322; Brown V. State, 83 Ala. 33, 3 Am. St. 685; State V. Warren, 1 Marv. (Del.) 487, 41 Atl. 190; Snelling v. State, (Fla.) 37 So. 917; State v. Benham, 23 Iowa 154, 92 Am. Dec. 417; State V. Warner, 100 Iowa 260, 69 N. W. 546; Shorter v. People, 2 N. Y. 193, 5 Am. Dec. 286; People v. John- son, 139 N. Y. 358, 34 N. E. 920; People v. Constantino, 153 N. Y. 24, 47 N. E. 37; State v. Kennedy, 91 N. Car. 572; Commonwealth v. Breyessee, 160 Pa. St. 451, 28 Atl. 646, 40 Am. St. 729; State v. Sum- ner, 55 S. Car. 32, 74 Am. St. 707; State V. Roberts, 63 Vt. 139, 21 Atl. 424; Allen v. United States, 164 U. S. 492, 17 Sup. Ct. 154; but see, Alberty v. United States, 162 U. S. 499, 16 Sup. Ct. 864; Beard v. United States, 158 U. S. 550, 15 Sup. Ct. 962; see notes in, 28 Am. St. 944, 953; 42 Am. St. 322; 48 Am. St. 22; 6 L. R. A. 424; 74 Am. St. 726. ^"^ State v. Walker, 9 Houst. (Del.) 464, 33 Atl. 227. 343 SELF-DEFENSE JUSTIFICATION OK EXCUSE. [§ 3041a. for the same and for so acting it will generally be sufficient to justify or at least excuse him.*^° "In other words, he is justified in acting upon the facts as they appear to him at the time, and is not to be judged by the facts as they actually are or as they appear to the jury."*" But, as a general rule, only such force should be used as is reasonably necessary, or as appears to be reasonably necessary, and when the force of the aggressor is repelled and protection achieved, the repellant force should cease and not be continued until it becomes unnecessarily aggressive.*^- The question of the apparent danger ""Many of the authorities to this effect are cited and reviewed in the note in, 74 Am. St. 717, et seq. And we cite only a few of the leading or more recent cases. Smith v. State, 59 Ark. 132, 26 S. W. 712, 43 Am. St. 20; Hubbard v. State, 37 Fla. 156, 20 So. 235; Finder v. State, 27 Fla. 370, 8 So. 837, 26 Am. St. 75; Enlow v. State, 154 Ind. 664, 57 N. E. 539; Campbell v. People, 16 111. 17, 61 Am. Dec. 49; Cockrill v. Commonwealth, 95 Ky. 22, 23 S. W. 659; McCrary v. State, (Miss.) 25 So. 671; State v. Hough, (N. Car.) 50 S. E. 709; Logne v. Com- monwealth, 38 Pa. St. 265, 80 Am. Dec. 481; Norris v. State, (Tex. Cr. App.) 61 S. W. 493; Brown v. Com- monwealth, 86 Va. 466. 10 S. E. 745; Schmidt v. State, (Wis.) 102 N. W. 1071; see also, 6 L. R. A. 424, note; 66 L. R. A. 367, note; 67 L. R. A. 304, note. As to application of this rule in case of resisting an officer who abuses his authority and uses unnecessary force, see note in, 66 L. R. A. 366-370, 375, et seq. "^25 Am. & Eng. Ency. of Law (2nd ed.) 260, 261; see also, Swain V. State, (Tex. Civ. App.) 86 S. W. 35; State v. Reed, 53 Kans. 767, 37 Pac. 174, 42 Am. St. 322; People v. Lennon, 71 Mich. 298, 38 N. W. 871, 15 Am. St. 259; Smith v. State, 59 Ark. 132, 26 S. W. 712, 43 Am. St. 20; Watkins v. United States, 1 Ind. Ter. 364, 41 S. W. 1044. "^ See, generally, Noles v. State, 26 Ala. 31, 62 Am. Dec. 711; Askew V. State, 94 Ala. 4, 10 So. 657, 33 Am. St. 83; People v. Griner, 124 Cal. 19, 56 Pac. 625; Ray v. State, 15 Ga. 223; Davis v. People, 88 III. 350; Smith v. State, 142 Ind. 288, 41 N. E. 595; State v. Thompson, 9 Iowa 188, 74 Am. Dec. 342; Amos v. Common- wealth, (Ky.) 28 S. W. 152; Ruloff v. People, 45 N. Y. 213; Shorter v. State, 2 N. Y. 193, 51 Am. Dec. 286; State v. Harper, 149 Mo. 514, 51 S. W. 89; State v. Stockton, 61 Mo. 382; Blake v. State, 3 Tex. App. 581; Byrd v. Commonwealth, 89 Va. 536, 16 S. E. 727; State v. Zeigler, 40 W. Va. 593, 21 S. E. 763; note in, 74 Am. St. 731, et seq. As it is not within the scope of this work to treat the substantive law of homicide further than may be proper or necessary in order to un- derstand the rules of evidence and their application in such cases, no attempt has been made to fully treat the subject of self-defense or other defenses of justification or excuse, but a general view of some of the leading features of the sub- ject is presented in this section, and the authorities cited with the annotations referred to will furnish a fairly comprehensive view of the subject. 5042.] HOMICIDE. 34. and reasonable necessity for the act depends largely upon the siir- roimding circumstances and whether the accused was justified or excused in the particular case and committed the act in self-defense is to be determined by the jury.*^^ As already shown, facts not known to the defendant may sometimes be admissible for certain pur- poses, but they are not admissible, as a general rule at least, to show his apprehension of danger.'*^^* § 3042. Evidence as to other defenses. — The defendant, as a gen- eral rule, is entitled to introduce any competent evidence tending to establish his theory of the case,^^* but it has been held that when he relies solely on one particular defense he cannot introduce evi- dence in no way relevant thereto.*^^ He may generally show his physical as well as his mental condition at the time of the alleged offense,*^" and that his purpose or conduct was lawful.*^^ So, in or- der to reduce the grade of the offense he may usually introduce proper evidence to show provocation or that he acted in the heat of passion without cooling time.*" He may show that the killing was accidental.*" So, he may introduce proper evidence to support the "^Jackson v. State, 66 Miss. 89, 5 So. 690, 14 Am. St. 542; State v. Dierberger, 96 Mo. 666, 10 S. W. 168, 9 Am. St. 380; Oliver v. State, 17 Ala. 587; Conraddy v. People, 5 Park. Cr. Cas. (N. Y.) 234; see also, State V. Jones, (N. J.) 60 Atl. 396; Ringer v. State, (Ark.) 85 S. W. 410; State v. Golden, 113 La. Ann. 791, 37 So. 757. 413* People v. Cook, 39 Mich. 236, 33 Am. R. 380. "*Utzman v. State, 32 Tex. Cr. App. 426, 24 S. W. 412. '■'= State V. Gosey, 111 La. Ann. 616, 35 So. 786; Brittain v. State, (Tex. Cr. App.) 40 S. W. 297; Manning v. State, 79 Wis. 178, 48 N. W. 209. "''Sage V. State, 91 Ind. 141; see also, Enlow v. State, 154 Ind. 664, 57 N. E. 539. *" See, Alexander v. State, 118 Ga. 26, 44 S. E. 851; State v. Welch, 22 Mont. 92, 55 Pac. 927; Massie v. Commonwealth, 15 Ky. L. R. 562, 24 b. W. 611; State v. Hall, 132 N. Car. 1094, 44 S. E. 553; State v. Prater, 52 W. Va. 132, 43 S. E. 230; see also, Tesney v. State, 77 Ala. 33; Schlem- mer v. State, 51 N. J. L. 23, 15 Atl. 836. "8Maher v. People, 10 Mich. 212, 81 Am. Dec. 781; State v. Brown, 181 Mo. 192, 79 S. W. Ill; Thomas v. State, 42 Tex. Cr. App. 386, 56 S. W. 70; Cheek v. State, 35 Ind. 492; Turner v. State, (Tex. Cr. App.) 46 S. W. 830; People v. Webster, 139 N. Y. 73, 34 N. E. 730. Evidence of in- toxication may be admissible. State V. Agnew, 10 N. J. L. J. 165; Willis V. Commonwealth, 32 Gratt. (Va.) 929; State v. Robinson. 20 W. Va. 713, 43 Am. R. 799; but compare. State V. Sneed, 88 Mo. 138. "^ State v. Wright, 112 Iowa 436, 84 N. W. 541; Nelson v. State, 61 Miss. 212. 345 EVIDENCE IX GENERAL. [§ 3043. defense of somnamljulism/'" or to prove an alibi. ■*-^ And he may show that the deceased committed suicide, er that the crime was committed by some other person,*-- even, it has been held, though the latter has been tried and acquitted.*^^ But the arrest and indictment of another person for the crime cannot be shown,*-* nor is the mere proximity of another person to the scene of the homicide rele- vant, without something tending to connect him with it.*-^ The defense of insanity, and other defenses have already been sufficiently considered. § 3043. Evidence in general. — It may be stated as a general rule that the prosecution, subject to the established rules of evidence, may introduce testimony as to any matters legitimately tending to prove any of the essential elements of the homicide or to connect the accused therewith; and that the accused, subject to the establislied rules of evidence, may introduce testimony as to such matters legiti- mately tending to rebut the evidence of the prosecution or to justify his offense or to reduce the degree of the offense.*-" The evidence must, however, be relevant to the issue or facts in issue and must tend to prove a fact material to the prosecution or defense or from which a presumption or inference may be reasonably drawn in reference to a material fact involved in the issue.*-^ And evidence which tends merely to arouse the passions or sympathies of the jury against or in ^^'Fain v. Commonwealth, 78 Ky. N. W. 684; State v. Myers, 12 Wash. 183, 39 Am. R. 213; see as to hyp- 77, 40 Pac. 626. notism. People v. Worthington, 105 *=» Noles v. State, 26 Ala. 31, 62 Cal. 166, 38 Pac. 689. Am. Dec. 711; Burton v. State, 115 ^-1 Gray v. State, 42 Fla. 174, 28 So. Ala. 1, 22 So. 585; Appleton v. State, 5.S; Goodwin v. State, 114 Wis. 318, 61 Ark. 590, 33 S. W. 1066; People 90 N. W. 170. v. Clarke, 130 Cal. 642, 63 Pac. 138; "-Keith V. State, 157 Ind. 376, 61 State v. Cronin, 64 Conn. 293, 29 Atl. N. E. 716; Green v. State, 154 Ind. 536; Gantling v. State, 40 Fla. 237, 655, 57 N. E. 637; Synon v. People, 23 So. 857; Ponder v. State, 87 Ga. 183 111. 609, 59 N. E. 508; Common- 262, 13 S. E. 464; Gannon v. People, wealth v. Werntz, 161 Pa. St. 561, 29 127 111. 507, 21 N. E. 525, 11 Am. St. Atl. 272; Ogden v. State, (Tex. Cr. 147; Holtz v. State, 76 Wis. 99, 44 App.) 58 S. W. 1018. N. W. 1107; Commonwealth v. Ken- '^ People V. Mitchell, 100 Cal. 328, nedy, 170 Mass. 18, 48 N. E. 770; 34 Pac. 698. People v.Shea, 147 N. Y. 78, 41 N. E. ^=* Baker v. State, 122 Ala. 1, 26 505. So. 194; Taylor v. Commonwealth, "'Jones v. State, 51 Ohio St. 331, 90 Va. 109, 17 S. E. 812. 38 N. E. 79; Taylor v. Common- "= State V. Beck, 73 Iowa 616, 35 wealth, 90 Va. 109, 17 S. E. 812. 3043.] HOMICIDE. 346 favor of the accused, or to divert their minds from the question which they are to decide, or which can have no reasonable hearing upon that question, is not competent.*^^ Circumstantial as well as direct evidence is competent, and when direct evidence is wanting the offense may be sufficiently established by such evidence. Cir- cumstantial evidence is often allowed to take a wide range, although it has been said that it should always be received and weighed with great caution.*^® Evidence which shows or tends to show that the defendant was possessed of or procured the means of committing the homicide, that he had made arrangements therefor, or that he had the opportunity to commit the homicide, is competent*^** in a proper case. Evidence that the defendant borrowed, purchased or stole, had in his possession or practiced using a similar weapon, has also been held admissible for the purpose of showing preparations to commit the crime.* ^^ In order to warrant a conviction on circumstantial ♦=* Andersen v. United States, 170 U. S. 481, 18 Sup. Ct. 689; Compton V. State, 117 Ala. 56, 23 So. 750; Evans v. State, 58 Ark. 47, 22 S. W. 1026; People v. Dice, 120 Cal. 189, 52 Pac. 477; Taylor v. People, 21 Colo. 426, 42 Pac. 652; Roten v. State, 31 Fla. 514, 12 So. 910; Hood v. State, 93 Ga. 168, 18 S. B. 553; Kirkham v. People, 170 111. 9, 48 N. E. 465; Shields v. State, 149 Ind. 395, 49 N. E. 351; Riggs v. Commonwealth, 103 Ky. 610, 45 S. W. 866; State v. John- son, 41 La. Ann. 574, 7 So. 670; Peo- ple v. Macard, 73 Mich. 15, 40 N. W. 784; State v. Hudspeth, 150 Mo. 12, 51 S. W. 483; State v. Gay, 18 Mont. 51, 44 Pac. 411; Carr v. State, 23 Neb. 749, 37 N. W. 630; People v. Greenwall, 108 N. Y. 296, 15 N. E. 404, 2 Am. St. 415; State v. Symes, 20 Wash. 484, 55 Pac. 626; Holtz v. State. 76 Wis. 99, 44 N. W. 1107. *-■' Campbell v. People, 159 111. 9, 42 N. E. 123, 50 Am. St. 134; Jenkins V. State, 35 Fla. 737, 18 So. 182, 48 Am. St. 267; Wharton v. State, 73 Ala. 366; Green v. State, 38 Ark. 304; People v. Smith, 106 Cal. 73, 39 Pac. 40. ""Davis v. State, 126 Ala. 44, 28 So. 617; Boiling v. State, 54 Ark. 588, 16 S. W. 658; People v. Winters, 125 Cal. 325, 51 Pac. 1067; Burgess v. State, 93 Ga. 304, 20 S. E. 331; Palmer v. People, 138 111. 356, 28 N. E. 130, 32 Am. St. 146; Wood v. State, 92 Ind. 269; State v. Cunning- ham, 111 Iowa 233, 82 N. W. 775; State V. Brown, 75 Me. 456; Garlitz V. State, 71 Md. 293, 18 Atl. 39; State V. Barrett, 40 Minn. 65, 41 N. W. 459; State v. Rider, 95 Mo. 474, 8 S. W. 723; People v. Kennedy, 159 N. Y. 346. 54 N. E. 51, 70 Am. St. 557; State V. Brabham, 108 N. Car. 793, 13 S. E. 217; State v. O'Neil, 13 Ore. 183, 9 Pac. 284; State v. Mowry, 21 R. I. 376, 43 Atl. 871; State v. Do- herty, 72 Vt. 381, 48 Atl. 658; Nich- olas V. Commonwealth, 91 Va. 741, 21 S. E. 364; State v. McCann, 16 Wash. 249, 47 Pac. 443. "' Finch V. State, 81 Ala. 41, 1 So. 565; People v. Rogers, 71 Cal. 565, 12 Pac. 679; Walsh v. People, 88 N. Y. 458; Boiling v. State, 54 Ark. 588, 16 S. W. 658. 347 EVIDEN'CE HELD ADMIS.SIBLE. [§ 3D44. evidence, however, it has been said in substance, that each necessary link, or in other words, each and every material and necessary fact upon which the conviction depends, must generally be proved by competent evidence, beyond all reasonable doubt; such facts must be consistent with each other and with the main fact sought to be proved; and the circumstances, taken together, must be of a conclu- sive nature, leading, on the whole, to a satisfactory conclusion and producing in effect a reasonable and moral certainty that the accused, and no other person, committed the offense charged."- The subject of the admissibility of evidence of other offenses generally has been treated in the tirst chapter in this volume. It is also treated, in con- nection with particular crimes, such as forgery, burglary, false pre- tenses and larceny. It is therefore unnecessary to consider it at length in this connection. Here, as elsewhere, the general rule is that evi- dence of a distinct independent offense is not competent to prove the defendant's guilt of the offense charged, but that evidence of other offenses is often competent to prove motive, intent and the like, or as part of the res gestae, when connected with the crime in question, and, if otherwise competent, it is not inadmissible merely because it tends to prove some other offense as well.*^^ § 3044. Evidence in general — Admissible. — Photographs with proper evidence in relation thereto are admissible for the purpose of identifying the deceased.*^* Photographs are also admissible for the purpose of showing the wounds on the body of the deceased. *^^ «='21 Am. & Eng. Ency. of Law, E. 576; State v. Messimer, 75 N. Car. 213; see also, Wharton v. State, 385; Commonwealth v. Johnson, 162 73 Ala. 366; Green v. State, 38 Ark. Pa. St. 63, 29 Atl. 280; Lancaster v. 304; People v. Smith, 106 Cal. 73, 39 State, 91 Tenn. 267, 18 S. E. 777; Pac. 40; Jenkins v. State, 35 Fla. Hill v. State, 37 Tex. Cr. App. 415, 35 737, IS So. 182. 48 Am. St. 267; S. W. 660; State v. Smith, 9 Wash. Campbell v. People, 159 111. 9, 42 N. 341, 37 Pac. 491; State v. Flanagan, E. 123, 50 Am. St. 134; Hinshaw v. 26 W. Va. 116. State, 147 Ind. 334, 47 N. E. 157; "^ See, 62 L. R. A. 193, 201, 227. State v. Kennedy, 77 Iowa 208, 41 278, 320, note, where numerous cases N. W. 609; Jackson v. Common- are collected and reviewed, wealth, 100 Ky. 239, 38 S. W. 422, 66 *" State v. Windahl, 95 Iowa 470, Am. St. 336; Commonwealth v. Web- 64 N. W. 420; Beavers v. State, 58 ster. 5 Cush. (Mass.) 295, 52 Am. Ind. 530. Dec. 711; People v. Aiken, 66 Mich. •'■'=' Malachi v. State, 89 Ala. 134, 8 460. 33 N. W. 821, 11 Am. St. 512; So. 104; People v. Fish, 125 N. Y. Perkins v. State. (Miss.) 23 So. 579; 136. 26 N. E. 319; Wilson v. United People v. Place, 157 N. Y. 584, 52 N. States, 162 U. S. 613, 16 Sup. Ct. 895. § 304:4.] HOMICIDE. 348 So maps and diagrams properly autlienticated and made by one hav- ing the requisite skill are admissible. *^^ Articles found on a dead body are proper to be considered in establishing its identity.'*^ ^ And the identity of a human skull and jaw bone may be proved by per- sons who were familiar with the formation of the teeth and jaws ' of the person whose skull it is alleged to be.*^^ It has also been held that it is unnecessary, but is harmless to the accused, to prove tliat deceased was a human being.*^^ The character of foot-prints lead- ing to or from the scene of the crime, discovered when the crime was discovered, and their correspondence with the feet of the accused, or with shoes worn by him or found in his possession, are admissi- ble in evidence for the purpose of identifying him as the guilty agent.*^° So, evidence as to the caliber of the bullet taken from the body of the person killed, and as to cartridges taken from defend- ant's trunk, has been held competent, as tending to identify the defendant as the person who shot the deceased.**^ Letters may be competent evidence when disclosing a motive.**^ They are also com- petent in a proper case when they contain a threat to kill the deceased or contain an admission that the defendant has committed the crime. **^ So, letters are admissible to show the relations and feel- ings existing between the accused and the deceased.'*** But letters written by the accused to his wife have been held not admissible against him.**^ As a general rule, it is said that any competent evi- dence referring to the death and the criminal agency producing it «« Burton V. State, 107 Ala. 108, 18 Stokes v. State, 5 Baxt. (Tenn.) So. 284; People v. Phelan, 123 Cal. 619, 30 Am. R. 72; Walker v. State, 551, 56 Pac. 424; Territory v. Egan, 7 Tex. App. 245, 32 Am. R. 595. 3 Dak. 119, 13 N. W. 568; Common- "^People v. Minisci, 12 N. Y. St. wealth V. Hourigan, 89 Ky. 305, 12 719. S. W. 550; Gavigan v. State, 55 Miss. "= Simons v. People, 150 111. 66, 36 533; People v. Johnson, 140 N. Y. N. E. 1019. 350, 35 N. E. 604; Smith v. State, 20 "^Singleton v. State, 71 Miss. 782, Tex. App. 134. 16 So. 295, 42 Am. St. 488; State v. «" State V. Dickson, 78 Mo. 438. Soper, 148 Mo. 217, 49 S. W. 1007. «s Qi-ay V. Commonwealth, 101 Pa. *** Commonwealth v. Krause, 193 St. 380, 47 Am. R. 733. Pa. St. 306, 44 Atl. 454; State v. ^^"Epps V. State, 102 Ind. 539, 1 N. Leabo, 84 Mo. 168, 54 Am. R. 91; E. 491. Pettit V. State, 135 Ind. 393, 34 N. E. ""Young V. State, 68 Ala. 569; 1118; O'Brien v. Commonwealth, 89 Campbell v. State, 23 Ala. 44; Peo- Ky. 354, 12 S. W. 471. pie V. McCurdy, 68 Cal. 576, 10 Pac. *•=* Wilkerson v. State, 91 Ga. 729, 207; Dillin v. People, 8 Mich. 357; 17 S. E. 990, 44 Am. St. 63. Murphy v. People, 63 N. Y. 590; 349 EviDEXCE HELD ad:missible. [§ 3044. and which tends to establish or disprove them is admissible, and all proper facts in the case, however trivial, should be considered as bear- ing on the question of malice.*'**' So, where one person is killed by mistake for another, evidence showing malice on the part of defend- ant toward the person for whom deceased is supposed to have been mistaken is admissible.**^ It has also been held that one indicted for murder may show that another had a motive for committing the murder.**^ . It has been held that where the accused entered a room with a drawn pistol, he may be examined as to what his intention was at the time he entered the room.**^ But, in another case, where the ■charge was for assault with intent to murder, it was held that the accused could not be asked what his intent was.*°° The fact that the prisoner secreted a knife, and began a fight with his fists, in the course of which he used the knife, has been held evidence of mur- derous intent.*"^ "\Miere a watchman shot a man, evidence that there had been much stealing in the neighborliood recently, was held com- petent on the question of intent.*^- It may be sliown in a proper case, that the defendant and the deceased were on unfriendly terms. *^^ And evidence of a quarrel between defendant and deceased three or four weeks before tl:c homicide has been held admissible as showing the relations between the parties.*^* Evidence showing that de- ceased was the mistress of the accused has been held competent ;*°^ and it has been held that the prosecution may prove that the de- ceased, when killed, was under the influence of whiskey.*^® The fact of the possession of money by the accused is admissible*^" in a proper "•= United States v. Meagher, 37 '^People v. Lyons, 110 N. Y. 618, Fed. 875. 17 N. E. 391; see also, Davidson v. «^ Clarke v. State, 78 Ala. 474, 56 State, 135 Ind. 254, 34 N. E. 972; Am. R. 45. Cluck v. State, 40 Ind. 263. **^ Sawyers v. State, 15 Lea *=' People v. Young, 102 Cal. 411, (Tenn.) 694. 36 Pac. 770. "° State v. Wright, 40 La. Ann. «■= Holmes v. State, 11 Tex. App. 589, 4 So. 486. 223; State v. Home, 9 Kans. 119; •'soponville v. State, 91 Ala. 39, 8 State v. Barfield, 30 N. Car. 344. So. 688. •*■■' Commonwealth v. Williams, 171 "'Price v. State, 36 Miss. 531, 72 Mass. 461, 50 N. E. 1035; Little v. Am. Dec. 195. State, 39 Tex. Cr. App. 654. 47 S. W. ^'Hobbs V. State, 16 Tex. App. 984; People v. Johnson, 140 N. Y. :517. 350, 35 N. E. 604; Gates v. People, 14 *"" State V. Stackhouse, 24 Kans. 111. 433; State v. Magers, 36 Ore. 38, 445; see also, Siberry v. State, 133 58 Pac. 892. Ind. 677, 33 N. E. 681; Siberry v. State, 149 Ind. 684, 39 N. E. 936. § 3044.] HOMICIDE. 350 case. Thus the fact that the accused after the homicide had in his possession a sum of money corresponding to an amount that was shown to have been possessed by the deceased, taken in connection with the evidence of the previous impecunious condition of the accused, was held competent.*^^ Sayings of the assailant next day after the as- sault, showing bitter hatred toward the person assailed, are admissi- ble to show malice at the time of the assault.*^'* So evidence is com- petent in a proper case to show that the accused had in his posses- sion a weapon which might have caused the wounds on the body of the deceased. *"" And it has been held not improper to show the business of the accused at the time of the killing.*''^ Where the theory of the state was that defendant had given deceased whiskey contain- ing a poison, to produce an abortion, which had caused her death, it was held that a witness should have been allowed to testify that a few days before the death of deceased he heard her say that she was pregnant, and that she asked him to procure an abortifacient for her, suggesting ergot; that he had refused to do so, but that, on her re- quest, her brother-in-law had taken some money from her, and agreed to get it for her.*^- An expert who has heard the autopsy described may be asked if, in his opinion, it was properly conducted.*^^ It is also held that a competent surgeon or medical practitioner, who con- ducted an autopsy, may testify as to the result of it.*"* So it is held that the physician may describe what tests are necessary to ascertain the cause of death, and after relating the facts revealed by the autopsy, may give his opinion, based thereon, as to the cause and mode of death.**'^ It is proper to admit evidence concerning a supposed spot of blood on defendant's coat, together with a test of physicians with reference thereto,*"*' And in a recent text book it is said: "All persons are more or less familiar with the appearance of stains caused by blood. It lias, therefore, been repeatedly held from time immemorial that ordinary witnesses may testify that certain ^'' Gates v. People, 14 111. 433; *«= Brown v. Commonwealth, 26 Garza v. State, 39 Tex. Cr. App. 358, Ky. L. R. 1269, 83 S. W. 645. 46 S. W. 242, 73 Am. St. 927. *"' State v. Moxley, 102 Mo. 374, 15 *°« Meeks v. State, 51 Ga. 429. S. W. 556. *•* People V. McDowell, 64 Cal. 467, ^"^ Commonwealth v. Taylor, 132 3 Pac. 124. Mass. 261. ^"1 Fahnestock v. State, 23 Ind. ^^ State v. Merrlman, 34 S. Car. Id, 231; State v. Moelchen, 53 Iowa 310, 12 S. E. 619. 5 N. W. 186; O'Brien v. Common- «° Beavers v. State, 58 led. 530. wealth, 89 Ky. 354, 12 S. W. 471. 351 EVIDENCE HELD IXADMISSIBLE. [§ 3045. stains on clothing or other articles look like or resemble blood stains. No peculiar skill or experience is required to be possessed by a wit- ness who saw the stains in court or elsewhere to render his evidence admissible, nor need a chemical analysis, or test, or a microscopical examination have been made."*" Where it appears that deceased was shot, and there is evidence that defendant, when arrested, said he could not shoot a rifle, or had not shot a gun for a long time, it is proper to admit evidence that he is an expert with the rifle.*"^ So, in rebuttal of testimony for the defendant that, as the deceased fell, he threw a pistol over into the field, witnesses may testify that the morning after the killing they went into such field and found no pistol.'*''^ § 3045. Evidence in general — Not admissible. — As already shown, threats against "some one" or the like may be admissible when it appears that the deceased was meant, but threats made by the ac- cused prior to the murder, to kill or injure a person other than the deceased, are not ordinarily admissible.*^" Evidence was admitted by the trial court in one case that, on the day before the killing the deceased and the defendant had played at dice, and the deceased had won the defendant's watch, which was missing from his body when found, and it was held on appeal that questions as to whether persons other than defendant had gambled with deceased, and ques- tions to a female witness as to whether her husband had not on one occasion shot at deceased, and whether she and her husband were living apart from each other on account of her relations with de- ceased, were not admissible.*'^ The opinion of a witness that a person killing another in a fight had an intent to kill the deceased before the fight commenced is not competent evidence of such in- tent.*'- And a witness cannot be asked whether defendant's pistol was fired accidentally or purposely.*" Evidence that the deceased was intoxicated is irrelevant when offered without any evidence of *«^ Underbill Cr. Ev., § 334; see "» Gregory v. State, 140 Ala. 16, 37 also, People v. Gonzalez, 35 N. Y. So. 259. 49; State v. Bradley, 67 Vt. 465, 32 ^'"Carr v. State, 23 Neb. 749, 37 N. Atl. 238; State v. Welch, 36 W. Va. \V. 630. 690, 15 S. E. 419; Tbomas v. State, *"' Bowen v. State, 140 Ala. 65, 37 67 Ga. 460; McLain v. Common- So. 233. wealth, 99 Pa. St. 86, 100; People v. ^"= Fundy v. State, 30 Ga. 400. Smith, 112 Cal. 333, 44 Pac. 663. *" State v. Ross, 32 La. Ann. 854. *"^ People v. Evans, (Cal.) 41 Pac. 444. § 3046.] HOMICIDE. 352 necessity for defendant to kill him, and when all the evidence in- troduced shows that the defendant was the aggressor.*^* And even if intoxication of the deceased may be considered on the question of self-defense or necessity for the defendant to take the former's life, evidence that deceased had a jug of whiskey at home, or carried one home the day of the homicide, is irrelevant, and does not tend to show he was intoxicated at the time of the trouble. It is also held in the same case that the defendant should not be allowed to testify why he had the pistol on the occasion of the difficulty. Hearsay evi- dence not falling within any of the exceptions, limitations or qualifica- tions of the hearsay rule, is incompetent;*^^ and dying decelarations have been held inadmissible to prove prior difficulties or threats.* ^^ § 3046. Weight and sufficiency — Variance, — Proof of a killing, in any manner or by any means, that correspond substantially with the indictment, is sufficient.*'" Thus, proof of a shooting with a pistol has been held sufficient to sustain an averment of shooting with a gun and vice versa.*^^ And proof of killing, with a dagger or bowie- knife will sustain an averment of death from stabbing with a dirk, sword or similar weapon.*" But proof of killing with a knife is not sufficient to sustain an allegation of killing by shooting and, as a rule, where the killing is charged to have been with a certain weapon, proof of an entirely different kind of a weapon is held a fatal vari- ance.*^" Difference in the spelling of the name will be disregarded when the name as proved is idem sonans with that alleged.*^^ Cir- cumstantial evidence of the identity of deceased, which leaves no room for reasonable doubt, is sufficient.*®- And circumstantial evi- *'' Gregory v. State, 140 Ala. 16, 37 United States, 170 U. S. 481, 18 Sup. So. 259. Ct. 689; Terry v. State, 120 Ala. 286, *" Forman v. Commonwealth, 9 25 So. 176. Ky. L. R. 759, 6 S. W. 579; State v. ^'« Commonwealth v. Webster, 5 Terrell, 12 Rich. L. (S. Car.) 321; Cush. (Mass.) 295, 52 Am. Dec. 711; Brown v. People, 17 Mich. 429; State v. Lautenschlager, 22 Minn. Stephens v. State, 20 Tex. App. 255. 514; Turner v. State, 97 Ala. 57, 12 *'»Binns v. State, 46 Ind. 311; So. 54. Jones V. State, 71 Ind. 66; State v. *"=' Hernandez v. State,. 32 Tex. Cr. AVood, 53 Vt. 560; State v. Moody, 18 App. 271, 22 S. W. 972. Wash. 165, 51 Pac. 356; Sullivan v. ^'^"Witt v. State, 6 Cold. (Tenn.) 5. State, 102 Ala. 135, 15 So. 264, 48 *^i State v. Lincoln, 17 Wis. 597; Am. St. 22; ante, Vol. I, § 336. Girous v. State, 29 Ind. 93; State v. *" Commonwealth v. Webster, 5 Witt, 34 Kans. 488, 8 Pac. 769. Cush. (Mass.) 295; State v. Smith, "'-State v. Dickson, 78 Mo. 438. 32 Me. 369; see also, Andersen v. 353 WEIGHT AND SUFFICIEXCY — VARIANCE. [§ 304G. dence may be sufficient even as to the corpus delicti.*^^ Convictions have been upheld when only charred or mutilated parts of the body have been found, the deceased, having been burned, cut in pieces, or subjected to the action of acid.*®* And the fact of death may be proved by circumstantial evidence, when that is the best evidence obtainable.*®^ So proof of premeditation need not be direct and posi- tive, but may be deduced from all the facts attending the killing.*®^ But it has been held that where it is probable that the death may have been due to natural causes or to accident, a conviction of mur- der in the second degree even cannot stand.*®^ And it has also been held that if it appears that the instrument used would not probably cause death, the jury should be limited to finding no greater degree of crime than manslaughter.*®® To warrant a conviction of murder in the first degree it has been said that express malice must be proved by such evidence as is reasonably sufficient to satisfy the jury of its existence.*®^ But it has been held that conviction of a defendant of murder in the first degree was warranted by evidence showing the death of deceased by a pistol shot, the presence of defendant at or about the time of the shooting, his previous threats, immediate flight, and subsequent arrest in a neighboring state.*^" And it has been held that where, after a violent attack, death soon ensued, the jury were justified in finding an intent on the part of the assailant to kill.*''^ And where, on a conviction for murder, the evidence warrants the jury in believing that defendant killed deceased intentionally, and *«3 As to evidence of the corpus *^ Yates v. State, 26 Fla. 484, 7 So. delicti held sufficient, see. People v. 880; State v. Mitchell, 64 Mo. 191; Moran, 144 Cal. 48, 77 Pac. 777; Wil- Territory v. Romine, 2 N. M. 114; son V. State, 140 Ala. 43, 37 So. 93; see also. State v. Lipscomb, 134 N. Edwards v. Territory, (Ariz.) 76 Car. 689, 47 S. E. 44. Pac. 458; as to identity of accused, ^'^ Lucas v. State, 19 Tex. App. 79. see. People v. Buckley, 143 Cal. 375, *^» State v. Craton, 28 N. Car. 164. 77 Pac. 169; Commonwealth v. Sal- '"'' Farrer v. State, 42 Tex. 265. yards, 158 Pa. St. 501, 27 Atl. 993. ^""Commonwealth v. Salyards, 158 «* Stocking V. State, 7 Ind. 326; Pa. St. 501, 27 Atl. 993; see also for Commonwealth v. Williams, 171 other cases of evidence held suffi- Mass. 461, 50 N. E. 1035; People v. cient to sustain a conviction of mur- Alviso, 55 Cal. 230; Anderson v. der in the first degree, Spaulding v. State, 24 Fla. 139, 3 So. 884; Lan- State, 162 Ind. 297, 70 N. E. 243; caster v. State, 91 Tenn. 267, 18 S. People v. Mooney, 178 N. Y. 91, 70 N. W. 777; State v. Smith, 9 Wash. 341, E. 97; Black v. State, (Tex. Cr. 37 Pac. 491. App.) 81 S. W. 302; State v. Clark, ""^ Campbell v. People, 159 111. 9, 42 34 Wash. 485, 76 Pac. 98. N. E. 123. «i Luck V. State, 96 Ind. 16. Vol. 4 Elliott Ev.— 23 HOMICIDE. 354 § 3046.] in cold blood, the absence of satisfactory proof of motive is not material.*^^ In case of homicide by poisoning it is held that a chemi- cal analysis, an autopsy, and the aid of expert testimony, though very desirable, are never indispensable.*^^ It has also been held that if it is shown that poison was in a house where the accused lived, within easy reach, and that he had knowledge of the fact, a convic- tion will be sustained*''* on that and other proper evidence. Proof of venue has been held sufficient if it is proved in any manner which satisfies tlie jury that the killing was committed within the jurisdic- tion of the court.*''' «»^ People V. Sliney, 137 N. Y. 570, 33 N. E. 150; Lillie v. State, (Neb.) 100 N. W. 316; see also, § 3026, on motive. ^''^ Johnson v. State, 29 Tex. App. 150, 15 S. W. 647; State v. Slagle, 83 N. Car. 630. See also. People v. Wood, (Cal.) 79 Pac. 367. *'*Zoldoske v. State, 82 Wis. 580, 52 N. W. 778. ^=*5 State v. West, 69 Mo. 401, 33 Am. R. 506; Marion v. State, 20 Neb. 233, 29 N. W. 911, 57 Am. R. 825; Stringfellow v. State, 26 Miss. 157. 59 Am. Dec. 247; Dumas v. State, 62 Ga. 58; Beavers v. State, 58 Ind. 530; Commonwealth v. Kaiser, 184 Pa. St. 493, 39 Atl. 299; Riggs v. State, 30 Miss. 635. CHAPTER CXLVI. Sec. 3047. Definition and elements. 3048. Distinguished from crimes. 2049. The taking. 3050. The trespass. 3051. The carrying away. 3052. The property. 3053. Ownership. 3054. Non-consent. LARCEXY. Sec. 3055. The intent. )ther 3056. The intent — Possession tained by fraud. ob- 3057. Other crimes. 3058. Recent possession of st goods. ;olen 3059. Defenses. 3059a. Miscellaneous — Recent cases. § 3047. Definition and elements. — Larceny is the wrongful taking and carrying away of the personal goods of another with the felonious intent to convert them to the taker's own use and make them his own property without the consent of the owner.^ It is also stated in some definitions that the taking must be without any color or pretense of right. But this is generally imderstood to be included in the statement that it must be wdth felonious intent. In a valuable note upon the subject, in a recent report, it is said : "Larceny may, in general, be defined as the taking by trespass and carrying away of the personal property of another, without his consent, with the intent to deprive the owner thereof. Thus, larceny is (1) the taking (2) by trespass (3) and carrying away (4) of the personal property (5) of another (G) without his consent, (7) with the intent to de- ^2 East P. C. 553; State v. South, 28 N. J. L. 28, 75 Am. Dec. 250; Ran- som v. State, 22 Conn. 153, 156; Rob- inson v. State, 113 Ind. 510, 512, 16 N. E. 184; 2 Bouvier L. Diet. (Rawle's ed.) 134; see also, 4 L. R. A. 291, note; 2 Bishop Cr. Law, §§ 757, 758; and 57 Am. Dec. 271, note; in some of the states the of- fense is defined by statute and in a few of them some change is made, 35 and acts are included which would not have constituted larceny at com- mon law. Larceny without personal violence or aggravating circum- stances is sometimes called simple larceny, and larceny accompanied by aggravating circumstances is some- times called compound larceny. So, larceny is classified as grand larceny and as petit larceny, according to the value of the property. §§ 3048, 3049.] i^veceny. 356 prive the owner thereof."- These different elements, and the evi- dence admissible and necessary to prove or disprove them, will be considered in the subsequent sections in this chapter, but an attempt will first be made to distinguish larceny from other somewhat simi- lar offenses. § 3048. Distinguished from other crimes. — Larceny bears a close resemblance to some other offenses, and it is sometimes difficult to distinguish them. This is especially true in regard to embezzlement and false pretense, but the distinction is well shown in an opinion by the Supreme Court of Massachusetts as follows: "If a person honestly receives the possession of the goods, chattels, or money of another upon any trust, express or implied, and, after receiving them, fraudulently converts them to his own use, he may be guilty of em- bezzlement, but cannot be of that of larceny, except as embezzle- ment is by statute made larceny. If the possession of such prop- erty is obtained by fraud, and the owner of it intends to part with liis title as well as his possession, the offense is that of obtaining property by false pretenses, provided the means by which they are acquired are such as in law are false pretenses. If the possession is fraudulently obtained, with intent on the part of the person obtain- ing it to convert the same to his own use, and the person parting with it intends to part with his possession merely, and not with his title to the property, the offense is larceny."^ § 3049. The taking. — The prosecution must show a taking of the property by the defendant,* but this may, in some cases, be construct- ive as well as actual, ?nd it is not absolutely necessary that the taking should be by the defendant with his own hands,^ nor that the = 88 Am. St. 561, note. son, 66 N. Car. 627; State v. Som- » Commonwealth v. Barry, 124 mers, 12 Mo. App. 374. Mass. 325, approved and adopted in, * Fulton v. State, 13 Ark. 168; Mi- People V. Miller, 169 N. Y. 339, 62 zell v. State, 38 Fla. 20, 20 So. 769; N. B. 418, 88 Am. St. 546; see also Sharp v. State, 29 Tex. App. 211, 15 as to the distinction between larceny S. W. 176. and false pretenses, Zink V. People, = Lester v. State, 32 Ark. 727; 77 N. Y. 114, 33 Am. R. 589; People Commonwealth v. Lucas, 2 Allen V. Tomlinson, 102 Cal. 19, 36 Pac. (Mass.) 170; Commonwealth v. Bar- 506; see as to distinction between ry, 125 Mass. 390; State v. Stroud, larceny and robbery, Brennon v. 95 N. Car. 626; Commonwealth v. State, 25 Ind. 403; State v. Hender- Cruikshank, 138 Pa. St. 194, 20 Atl. 357 THE TAKIXCJ TRESPASS. [§ 3050. property should actually come into jii? manual possession.® In other words, "to constitute one a taker of property, it is not necessary that he should actually take it into his physical possession, or that he be personally present at the time and place of the actual taking. It is sufficient if at the time of the taking he is doing something to aid and assist the one who does the actual taking."' So, he may take the property by means of an innocent third person.* It has also been held that proof that employes feloniously removed and sold their employer's property is sufficient although it has been in their cus- tody.® The act of taking in larceny is usually done more or less in secret, but the mere fact that it was somewhat publicly done does not necessarily prevent the offense from being larceny.^" It is, how- ever, a material circumstance tending to negative an intent to steal.^^ § 3050. The trespass. — It is essential that, in some sense at least, a trespass should be shown to have been committed. Unless the ele- 937; Pyland v. State, 4 Sneed (Tenn.) 357; Lane v. State, 41 Tex. Cr. App. 558, 55 S. W. 831; Rex v. Pitman, 2 Car. & P. 423, 12 E. C. L. 653. ■^Doss V. State, 21 Tex. App. 505, 2 S. W. 814, 57 Am. R. 618; State v. Hunt, 45 Iowa 673; Wixson v. Peo- ple, 5 Park. Cr. Cas. (N. Y.) 119; People v. Gillis, 6 Utah 84, 21 Pac. 404. ^Wright v. State, 18 Tex. App. 358; Gentry v. State, 24 Tex. App. 478, 6 S. W. 321; Willis v. State, 24 Tex. App. 586, 6 S. W. 857; Edmonds V. State, 70 Ala. 8; Kent v. State, 64 Ark. 247, 41 S. W. 849. «Doss v. State, 21 Tex. App. 505, 2 S. W. 814, 57 Am. R. 618; Lane v. State, 41 Tex. Cr. App. 558, 55 S. W. 831; Sanderson v. Commonwealth, 11 Ky. L. R. 341, 12 S. W. 136; Cum- mins V. Commonwealth, 5 Ky. L. R. 200; see also. State v. Hunt, 45 Iowa 673. ^Atterberry v. State, 56 Ark. 515, 20 S. W. 411; People v. Call, 1 Den. (N. Y.) 120, 43 Am. Dec. 655; Reg. V. Hornby, 1 Car. & Kir. 305, 47 E. C. L. 304; Marcus v. State, 26 Ind. 101; but see. State v. Wingo, 89 Ind. 204; Wynegar v. State, 157 Ind. 577, 62 N. E. 38; see generally, 88 Am. St. 580, 581, note. Where a servant has the mere custody of the property, the possession remains in the mas- ter, or in other words, the servant's possession is that of the master. ^» Talbert v. State, 121 Ala. 33, 25 So. 690; McMullen v. State, 53 Ala. 531; Newsom v. State, 107 Ala. 133, 18 So. 206; Higgs v. State, 113 Ala. 36, 21 So. 353; State v. Fenn, 41 Conn. 590; State v. Zumbunson, 86 Mo. Ill; Johnson v. Commonwealth, 24 Gratt. (Va.) 555; but see. State v. Ledford, 67 N. Car. 60. "Johnson v. State, 73 Ala. 523; Buchanan v. State, (Miss.) 5 So. 617; McDaniel v. State, 8 Smed. & M. (Miss.) 401, 47 Am. Dec. 93; Stuart v. People, 73 111. 20; see also. Causey v. State, 79 Ga. 564, 5 S. E. 121, 11 Am. St. 447; Seymore v. State, 12 Tex. App. 391. 3050.] LARCENY. 358 ment of trespass exists there can be no theft. ^- Thus, where the de- fendant had lawful possession, in tlic first instance, a refusal to de- liver to the owner on demand was held insufficient to constitute larceny.^' So, generally, wlien the owner consents to part not merely with possession but with his entire ownership, there is no trespass, and, hence no larceny.^* And, "as a general rule, a bailment passes the possession of the property to the bailee, as distinct from the mere custody, and hence a bailee could not be guilty of larceny, since he came lawfully into the possession of the property and, therefore, failed to commit tlie trespass necessary to render the offense larceny. This was the rule of common law, and except where modified by statute so as to make bailees generally guilty of larceny, it is still the rule."^"^ But where the owner merely parts with the custody and the constructive possession remains in him the elements of trespass may be present and even the custodian may be guilty of larceny.^^ So, as stated in another section, where one gets possession of personal "State V. Martin, 12 Ired. L. (N. Car.) 157; Gadson v. State. 36 Tex. 350; Garner v. State, 36 Tex. 693; State v. Copeland. 86 N. Car. 691; People V. McDonald, 43 N. Y. 61; State V. McCartey, 17 Minn. 76; Phelps V. People, 72 N. Y. 334; Hite V. State, 9 Yerg. (Tenn.) 197; Pritchett v. State, 2 Sneed (Tenn.) 285, 62 Am. Dec. 468. " People V. Taugher, 102 Mich. 598, 61 N. W. 66. " See, Haley v. State, 49 Ark. 147, 4 S. W. 746; Stewart v. People, 173 111. 464, 50 N. E. 1056, 64 Am. St. 133; State v. Reese, 49 La. Ann. 1337, 22 So. 378; Elliott v. Common- wealth, 12 Bush (Ky.) 176. 1=88 Am. St. 576, note; Wright v. Lindsay, 20 Ala. 428; Case v. State, 26 Ala. 17; Spivey v. State. 26 Ala. 90; Johnson v. People, 113 111. 99; State V. Fairclough, 29 Conn. 47, 76 Am. Dec. 590 (carrier) ; Warmoth V. Commonwealth, 81 Ky. 133; Com- monwealth V. Ryan, 155 Mass. 523, 30 N. E. 364, 31 Am. St. 560; Com- monwealth V. King, 9 Cush. (Mass.) 284; Nichols v. People, 17 N. Y. 114 (carrier) ; People v. Cruger, 102 N. Y. 510, 7 N. E. 555, 55 Am. R. 830; State V. England, 8 Jones L. (N. Car.) 399, 80 Am. Dec. 334; Stokely V. State, 24 Tex. App. 509, 6 S. W. 538; Hill v. State, 57 Wis. 377, 15 N. W. 445; Krause v. Common- wealth, 93 Pa. St. 418, 39 Am. R. 762; People V. Call, 1 Den. (N. Y.) 120, 43 Am. Dec. 655; State v. Fair- clough, 29 Conn. 47, 76 Am. Dec. 590; Robinson v. State, 1 Coldw. (Tenn.) 120, 78 Am. Dec. 487; Gill v. Bright, 6 T. B. Mon. (Ky.) 130; Richards v. Commonwealth, 13 Gratt. (Va.) 803; Holbrook v. State, 107 Ala. 154, x6 So. 109, 54 Am. St. 65; but see, 57 Am. Dec. 280-283, note. '"See, People v. Call, 1 Den. (N. Y.) 120, 43 Am. Dec. 655; Holbrook V. State, 107 Ala. 154, 18 So. 109, 54 Am. St. 65; State v. McCartey, 17 Minn. 76; Brown v. People, 20 Colo. 161, 36 Pac. 1040; Commonwealth v. Flynn, 167 Mass. 460, 45 N. E. 924. 57 Am. R. 472; 88 Am. St. 578, 580, note. 359 THE CARRYING AWAY. [§ 30.j1, property by means of fraud or a trick, with a preconcerted design or felonious intent to steal the property, the taking may neverthe- less be larceny, for the fraud vitiates the transaction, the owner is still deemed to retain a constructive possession of the property, and the conversion and taking of it by the defendant is deemed to con- stitute such a trespass to that possession as is essential to the crime of larceny.^^ And the same theory of constructive possession in the owner and trespass thereto is deemed in most jurisdictions, with the other essential elements in such cases, to support the rule that there may be larceny where property has been mislaid or even lost.^^ § 3051. The carrying away. — The carrying away of the property is an element of the offense as essential as any other. ^'^ But any re- moval of the property such as works a complete severance from the possession of the owner is generally sufficient.-** Thus, a very slight removal,^^ and a mere temporary possession of the property by the "See, § 3048; also, Crum v. State. 148 Ind. 401, 47 N. E. 833; Huber v. State, 57 Ind. 341, 26 Am. R. 57; Fleming v. State, 136 Ind. 149, 36 N. E. 154; Grunson v. State, 89 Ind. 533, 46 Am. R. 178; Hecox v. State, 105 Ga. 625, 31 S. E. 592; People v. Rae, 66 Cal. 423, 6 Pac. 1, 56 Am. R. 102; People v. Montarial, 120 Cal. 691, 53 Pac. 355; People v. Tomlin- son, 102 Cal. 19, 36 Pac. 506. The subject is well explained in the first and last Indiana cases and the last California case above cited. See also, Gillet Cr. Law, § 540. " See, Tanner v. Commonwealth, 14 Gratt. (Va.) 635; State v. Mar- tin, 28 Mo. 530; Lamb v. State, 40 Neb. 312, 58 N. W. 963; Pritchett v. State, 2 Sneed (Tenn.) 285, 62 Am. Dec. 468; Pyland v. State, 4 Sneed (Tenn.) 357; but compare. Porter v. State, Mart. & Yerg. (Tenn.) 226; also. State v. England, 8 Jones L. (N. Car.) 399, 80 Am. Dec. 334. " Mizell v. State, 38 Fla. 20, 20 So. 769; Harrison v. People, 50 N. Y. 518, 10 Am. R. 517; Eckels v. State, 20 Ohio St. 508; Wright v. State, 18 Tex. App. 358, 365; Sharp v. State, 29 Tex. App. 211, 213, 15 S. W. 176, 177; State v. Wingo, 89 Ind. 204, 207; Starck v. State, 63 Ind. 285; State V. Craige, 89 N. Car. 475, 45 Am. R. 698; Commonwealth v. Luck- is, 99 Mass. 431, 96 Am. Dec. 769; Gettinger v. State, 13 Neb. 308, 14 N. W. 403; State v. Wilson, 1 N. J. L. 439, 1 Am. Dec. 216; State v. Hig- gins, 88 Mo. 354. =" State V. Taylor, 136 Mo. 66, 37 S. W. 907; Edmonds v. State, 70 Ala. 8, 9; State v. Seagler, 1 Rich. L. (S. Car.) 30; State v. Gilbert, 68 Vt. 188, 34 Atl. 697; Gettinger v. State, 13 Neb. 308, 14 N. W. 403. =' Gettinger v. State, 13 Neb. 308, 14 N. W. 403; State v. Green. 81 N. Car. 560; State v. Higgins. 88 Mo. 354; Eckels v. State. 20 Ohio St. 508; State v. Chambers, 22 W. Va. 779, 46 Am. R. 550; but see, Ed- monds V. State, 70 Ala. 8, 45 Am. R. 67; Commonwealth v. Luckis, 99 Mass. 431, 96 Am. Dec. 769; State v. Jones, 65 N. Car. 395; People v. Meyer, 75 Cal. 383, 17 Pac. 431. 3052.] LAKCENY. 360 thief^^ may be sufficient. The authorities already cited in the notes will suffice as illustrations of what is or is not sufficient in this re- spect.^' § 3052. The property — Value — Identification. — As a general rule any personal property may be the subject of larceny.^* But at com- mon law choses in action were not,-^ and animals ferae naturae or those of a so-called base nature, including dogs, were held not to be the subject of larceny in most of the earlier cases,^^ but a more liberal rule now prevails in regard to dogs, especially where they are regarded as personal property and taxed as such.^^ Property an- nexed to the freehold or savoring of the realty is not the subject of larceny at common law unless already severed. ^^ But this rule has been criticized and statutes in some of the states change the com- mon law rule in some respects.-^ The property must be of some value.^° But evidence of the precise value of property having some intrinsic value is unnecessary^^ unless the grade of the offense or the " Harrison v. People, 50 N. Y. 518; State v. Jackson, 65 N. Car. 305; Eckels V. State, 20 Ohio St. 508. =^ See also authorities reviewed in 88 Am. St. 584, 585, note. " See, for example, State v. Hecox, 83 Mo. 531; State v. Craige, 89 N. Car. 475, 45 Am. R. 698; Common- wealth V. Coffee, 9 Gray (Mass.) 139; Jolly v. United States, 170 U. S. 402, 18 Sup. Ct. 624; State v. Well- man, 34 Minn. 221, 25 N. W. 395; People V. Williams, 24 Mich. 156, 9 Am. R. 119. ^Culp V. State, 1 Port. (Ala.) 33, 26 Am. Dec. 357; United States v. Moulton, 5 Mas. (U. S.) 537; see for illustrations of what are and what are not within this rule, 88 Am. St. 587, note. =" State V. Murphy, 8 Blackf. (Ind.) 498; State v. Doe, 79 Ind. 9, 41 Am. R. 599; State v. Lymus, 26 Ohio St. 400, 20 Am. R. 772; Norton v. Ladd, 5 N. H. 203, 20 Am. Dec. 573; State v. Turner, 66 N. Car. 618; State V. Holder, 81 N. Car. 527, 31 Am. R. 517; Mullaly v. People, 86 N. Y. 365. '' Hamby v. Samson, 105 Iowa 112, 74 N. W. 918, 67 Am. St. 285; Har- rington V. Miles, 11 Kans. 480, 15 Am. R. 355; State v. Langford, 55 S. Car. 322, 33 S. E. 370; Common- wealth V. Hazelwood, 84 Ky. 681, 2 S. W. 489; Mullaly v. People, 86 N. Y. 365; Hurley v. State, 30 Tex. App. 333, 17 S. W. 455, 28 Am. St. 916. 2^ Holly V. State, 54 Ala. 238; Lang- ston V. State, 96 Ala. 44, 11 So. 334; Jackson v. State, 11 Ohio St. 104; Harberger v. State, 4 Tex. App. 26, 30 Am. R. 157. -' See, 88 Am. St. 591, note. ^^Lane v. State, 113 Ga. 1040, 39 S. E. 463; State v. Lambert, 21 Mo. App. 301; People v. Loomis, 4 Den. (N. Y.) 380; Parker v. State, 110 Ala. 688, 20 So. 1022. =^ State V. Slack, 1 Bailey L. (S. Car.) 330; see also, Pooler v. State, 97 Wis. 627, 73 N. W. 336; Common- wealth V. Riggs, 14 Gray (Mass.) 376; Commonwealth v. McKenney, 9 361 OWNERSHIP. [§ 3053. punishment or penalty depends upon the value, in which case it is necessary to prove such value as will bring the case within the stat- ute.^^ The identity of the property must be established, and a vari- ance in the description may be fatal.^^ The property need not, ordi- narily, be produced in court,^* and it may frequently be identified by marks or brands thereon.^^ So, it has been held that a statute re- quiring marks and brands to be recorded makes the record thereof competent evidence.^® § 3053. Ownership. — As a general rule the property must be owned by some one other than the thief.^^ But there are exceptional cases in which one may be guilty of larceny in stealing his own property when it is done with the intent of charging another, as the bailee, for instance, with the value of the property.^® And it is not essential that the thief should know who is the true o^^^ler if he knows that the property is not his own and he takes it to deprive the owner of it, whoever he may be.^" A special ownership is suffi- Gray (Mass.) 114; Whalen v. Com- monwealth, 90 Va. 544, 19 S. E. 182. ^- State V. McCarty, 73 Iowa 51, 34 N. W. 606; Whitehead v. State, 20 Fla. 841; State v. Doepke, 68 Mo. 208, 30 Am. R. 785; as to evidence to show value, see, State v. Brown, 55 Kans. 611, 40 Pac. 1001; People V. Cole. 54 Mich. 238, 19 N. W. 968; Commonwealth v. Stebbins, 8 Gray (Mass.) 492. '^ Wiley V. State, 74 Ga. 840; Rob- ertson V. State, 97 Ga. 206, 22 S. E. 974; State v. Jackson, 30 Me. 29; Hooker v. State, 4 Ohio 348; Banks V. State, 28 Tex. 644; Keating v. People, 160 111. 480, 43 N. E. 724; see also, Johnson v. State, 119 Ga. 257, 45 S. E. 960. =* SpittorfE V. State, 108 Ind. 171, 8 N. E. 911; Moore's Case, 2 Leigh (Va.) 701. ^ State V. Ballard. 104 Mo. 634, 16 S. W. 525. A witness may describe them; Lockwood v. State, (Tex.) 26 S. W. 200; Tittle v. State, 30 Tex. App. 597, 17 S. W. 1118. '" Brooke v. People, 23 Colo. 375, 48 Pac. 502; Thompson v. State, 26 Tex. App. 466, 9 S. W. 760. ^'People V. Mackinley, 9 Cal. 250; People V. Stone, 16 Cal. 369; Tervin V. State, 37 Fla. 396, 20 So. 551; Adams v. State, 45 N. J. L. 448; State V. Fitzpatrick, 9 Houst. (Del.) 385, 32 Atl. 1072; Alfele v. Wright, 17 Ohio St. 238, 93 Am. Dec. 615; Fields V. State, 6 Coldw. (Tenn.) 524; Williams v. State, 34 Tex. 558. ^ Jones V. Jones, 71 Cal. 89, 11 Pac. 817; State v. Quick, 10 Iowa 451; Commonwealth v. Greene, 111 Mass. 392; Commonwealth v. Lan- nan, 153 Mass. 287, 26 N. E. 858. 25 Am. St. 629; 4 L. R. A. 292, note; 57 Am. Dec. 281, 282, note. =^ Tervin v. State, 37 Fla. 396, 20 So. 551; People v. Dunn. 114 Mich. 355, 72 N. W. 172; Lawrence v. State, 20 Tex. App. 536. § 3054.] LARCENY. 363 cient/° and it has been held that possession is sufficient evidence of ownership." But ownership must usually be proved substantially as alleged.*^ And- the best evidence of ownership is usually the instru- ment under which the title is claimed/^ but ownership of the per- sonal property in larceny cases may generally be proved by parol, as by evidence of possession and the exercise of exclusive control and ordinary acts of ownership.** § 3054. Non-consent.— As stated in the definition of larceny, the property must also be taken without the owner's consent.*^ The « Littleton v. State, 20 Tex. App. 168; State v. Moore, 101 Mo. 316, 14 S. W. 182; State v. Somerville, 21 Me. 14; United States v. Jackson, 29 Fed. 503. " State v. Bishop, 98 N. Car. 773, 4 S. E. 357; see also, Quinn v. Peo- ple, 123 111. 333, 15 N. E. 46; but compare, State v. Repp, 104 Iowa 305, 73 N. W. 829, 65 Am. St. 463. ^- McDowell v. State, 68 Miss. 348, 8 So. 508; Clark v. State, 29 Tex. App. 437, 16 S. W. 171; State v. Bur- gess. 74 N. Car. 272; Commonwealth V. Trimmer, 1 Mass. 476; State v. McCoy, 14 N. H. 364; but compare. People V. Nunley, 142 Cal. 105, 75 Pac. 676; State v. Ireland, (Idaho) 75 Pac. 257. "Edwards v. State, 29 Tex. App. 452, 16 S. W. 98. ** Morris v. State, 84 Ala. 446, 4 So. 912; State v. Robinson, 35 La. Ann. 964; Ledbetter v. State, 35 Tex. 195, 32 S. W. 903; State v. Bishop, 98 N. Car. 773, 4 S. E. 357. In a re- cent case, which was a prosecution for larceny of clothing from a rail- road car, the ownership was laid in the Lake Shore and Michigan South- ern Railway Company, and several witnesses testified to the larceny from the car, which was broken open in the railroad yards. Defendant confessed to a special agent of the company that he committed the lar- ceny "up there in the yard," and on trial did not testify or call a wit- ness. It was held that the jury were warranted in finding the averment of ownership proved; and in the same case an employe of the shipper testified that the box containing the clothing was shipped on "the Lake Shore and Michigan Southern Rail- way," and other witnesses, describ- ing themselves as employes of "Lake Shore and Michigan Southern," tes- tified to facts showing the larceny from a car referred to as being at the time in the "Lake Shore Yards." It was held that the terms used by the witnesses in referring to the railroad being familiar, and there being a striking similarity between all of them and the name of the rail- road as alleged, it was competent for the jury to infer that the company alleged was the bailee from whose custody the goods were stolen. Grif- fiths V. State, (Ind.) 72 N. E. 563. ^=> Welsh V. People, 17 111. 339; State V. Adams, 115 N. Car. 775, 20 S. E. 722; People v. Hanselman, 76 Cal. 460, 18 Pac. 425, 9 Am. St. 238; McAdams v. State, 8 Lea (Tenn.) 456; Woods v. State, 26 Tex. App. 490, 10 S. W. 108; People v. Cruger, 102 N. Y. 510, 7 N. E. 555, 55 Am. R. 830. Non-consent must be proved; State V. Storts, 138 Mo. 127, 39 S. W. 483; Garcia v. State, 26 Tex. 209. 363 XOX-COXSEXT — IXTEXT, [§ 3055. mere fact that the owner does not prevent the theft, when he might have done so, or that he furnished an opportunity for its commission, for the purpose of detecting and arresting the thief, does not prove a consent on the part of the owner,*** nor does the delivery of property by mistake,*^ or, as already shown, where it is induced by fraud when the fraud vitiates the apparent consent and the owner does not in- tend to part with his entire ownership. The testimony of the owner, •or of his agent having management of the property, is admissible to prove non-consent.*^ It has been held that other evidence of non- consent is not admissible until the failure to produce or take the testimony of the owner or his agent has been accounted for.*^ But when this has been done, or, if it is not required, the non-consent may be shown by competent circumstantial evidence as well as by direct evidence.^*' So, it may be showTi by the declarations of the accused.^^ § 3055. The intent. — The requisite felonious intent must be shown beyond a reasonable doubt. ^- But it may be inferred from circum- «Varner v. State, 72 Ga. 745; State v. Adams, 115 N. Car. 775, 20 S. E. 722; see also, Pigg v. State, 43 Tex. 108; Alexander v. State, 12 Tex. 540; Conner v. State, 24 Tex. App. 245, 6 S. W. 138; People v. Hansel- man, 76 Cal. 460, 18 Pac. 425, 9 Am. St. 238; but compare. State v. Hull, 33 Ore. 56, 54 Pac. 159, 72 Am. St. 694; McAdams v. State, 8 Lea (Tenn.) 456; Williams v. State, 55 Ga. 391; Speiden v. State, 3 Tex. App. 156, 30 Am. R. 126; Rex v. Mac- danlel, 2 East P. C. 665; Reg. v. Reeves, 5 Jur. N. S. 716. *^ Bailey v. State, 58 Ala. 414; Cooper V. Commonwealth, 110 Ky. 123, 22 Ky. L. R. 1627, 60 S. W. 938; State V. Ducker, 8 Ore. 394, 34 Am. B. 590; People v. Miller, 4 Utah 410, 11 Pac. 514; Fulcher v. State, 32 Tex. Cr. App. 621, 25 S. W. 625; Wolf stein v. People, 6 Hun (N. Y.) 121. ** State v. Moon, 41 Wis. 684; Bub- ster v. State, 33 Neb. 663, 50 N. W. 953; Wilson v. State, 12 Tex. App. 481. *■■' State V. Osborne, 28 Iowa 9; State V. Morey, 2 Wis. (362) 494; see also, Rema v. State, 52 Neb. 375, 72 N. W. 474. "■" Carroll v. People, 136 111. 456, 27 N. E. 18; State v. Porter, 26 Mo. 201; State v. Skinner, 29 Ore. 599, 46 Pac. 368; Files v. State, 36 Tex. Cr. App. 206, 36 S. W. 93; Rains v. State, 7 Tex. App. 588; Sapp v. State, (Tex. Cr. App.) 77 S. W. 456. "People V. Dean, 58 Hun (N. Y.) 610, 12 N. Y. S. 749. "Long V. State, 11 Fla. 295, 297; Phelps V. People, 55 111. 334; Britt V. State, 21 Tex. App. 215; Waidley V. State, 34 Neb. 250, 252, 51 N. W. 830; Micheaux v. State, 30 Tex. App. 660, 18 S. W. 550; Pence v. State, 110 Ind. 95, 10 N. E. 919; State v. Fitzpatrick, 9 Houst. (Del.) 385, 32 Atl. 1072; Green v. State, (Tex. Cr. App.) 33 S. W. 120; Truslow v. State, 95 Tenn. 189, 31 S. W. 987; § 3055.] LARCENY. 364 stances. What is necessary to constitute such intent as a matter of law is a question for the court,^^ but whether it existed in the par- ticular case is a question for the jury.^* Evidence of a secret wrong- ful taking of the goods without the owner's consent, and of an at- tempt to conceal them or to prevent the owner from finding them has been held to be relevant.^^ "Facts or declarations prior or subse- quent to the larceny may be proved if a part of the res gestae. From these a felonious intent may be inferred. But the facts to sustain a. conviction of larceny must show an intention to commit that crime and not some other similar offense."^® In order to rebut the infer- ence of a felonious intent the accused is usually permitted to testify that he had, or believed he had, and claimed in good faith a title to the property from its owner,^^ or that he took it for an innocent pur- pose,^* or in an open manner, to satisfy a claim against the owner,^* or because he believed it to be his own.®" So, the intoxication or mental weakness of the accused before the taking may usually be shown for the same purpose.®^ State V. Ravenscraft, 62 Mo. App. 109; People v. Hendrickson, 18 App. Div. (N. Y.) 404, 46 N. Y. S. 402. ^^Snoddy v. State, 75 Ala. 23; State V. Hinnant, 120 N. Car. 572, 26 S. E. 643. ^^Hart v. State, 57 Ind. 102; Rob- inson V. State, 113 Ind. 510, 16 N. E. 184; People v. Swalm, 80 Cal. 46, 22 Pac. 67, 13 Am. St. 96; State v. Bry- ant, 74 N. Car. 124; State v. McAn- drews, 15 R. I. 30; People v. Griffith, 77 Mich. 585, 43 N. W. 1061; Com- monwealth V. Steimling, 156 Pa. St. 400, 27 Atl. 297; Booth v. Common- wealth, 4 Gratt. (Va.) 525. ^=Long V. State, 11 Fla. 295, 297; but it is not absolutely necessary that the taking should be secret. Talbert v. State, 121 Ala. 33, 25 So. 690. And it has been held that a wrongful taking without the own- er's consent, with no apparent pur- pose of returning the property, is, in the absence of explanation, sufficient evidence from which the felonious intent may be inferred. State v. Davis, 38 N. J. L. 176; Robinson v. State, 113 Ind. 510, 512, 16 N. E. 184. ■>" Pence v. State, 110 Ind. 95, 99, 10 N. E. 919; Underbill Cr. Ev., § 292. "State v. Williams, 95 Mo. 247, 250, 8 S. W. 217; Commonwealth v. Stebbins, 8 Gray (Mass.) 492, 495; see also. People v. Slayton, 123 Mich. 397. 82 N. W. 205, 81 Am. St. 211. =" Brooks v. State, (Tex. Cr. App.) 27 S. W. 141. Declarations of a de- ceased owner of property alleged to have been stolen that he gave it to the accused held admissible in. Peo- ple V. Doyle, 58 Hun (N. Y.) 535, 538, 12 N. Y. S. 836. =" People V. Husband, 36 Mich. 306, 308. ""State V. Daley, 53 Vt. 442, 444; Hunter v. State, (Tex. Cr. App.) 37 S. W. 323; Black v. State, 38 Tex. Cr. App. 58, 41 S. W. 606; State v. Ravenscraft, 62 Mo. App. 109; see also, 88 Am. St. 604, 605, note. "'Robinson v. State, 113 Ind. 510, 513; 16 N. E. 184; Wood v. State, 34 Ark. 341, 36 Am. R. 13. 365 THE INTENT — FRAUD. [§ 3056. § 3056. The intent — Possession obtained by fraud. — The offense of larceny at common law is established so far as the question of in- tent is concerned, by proof on the part of the prosecution showing that the defendant obtained possession of the property by some trick, fraudulent device, or artifice, animo furandi, with the intention at the time of subsequently appropriating it to his own use.*'- But while this is generally held where the felonious intent is shown to exist at the time of fraudulently obtaining the possession, the weight of authority seems to be to the effect that the felonious in- tent must exist at such time.*'^ So, where the defendant found the property,*'* or took it up as an estray,*'^ or otherwise obtained pos- session of it under circumstances consistent with his innocence,*'^ evidence that he entertained a felonious intent at the time of takinff it is necessary to make out the crime of larceny, proof of a subse- quent appropriation not being sufficient.*'^ Proof that the property bore the name of the owner is not alone sufficient to establish this fact where it appears that the defendant could not read,^^ and in the absence of proof that he knew the owner, evidence that the defend- ant secreted the property and denied having it has been held insuifi- «^ People V. Miller, 169 N. Y. 339, v. Coombs, 55 Me. 477, 92 Am. Dec. 62 N. E. 418, 88 Am. St. 546; People 610; Commonwealth v. White, 11 V. Laurence. 137 N. Y. 517, 33 N. E. Cush. (Mass.) 483; Beatty v. State, 547; People v. Morse, 99 N. Y. 662, 2 61 Miss. 18; see also, Hernandez v. N. E. 45; Justices &c. v. Henderson, State, 20 Tex. App. 151. 90 N. Y. 12, 43 Am. R. 135; Loomis "Bailey v. State, 52 Ind. 462; V. People, 67 N. Y. 322, 23 Am. R. Wolfington v. State, 53 Ind. 343; 123; Hildebrand v. People, 56 N. Y. State v. Clifford, 14 Nev. 72, 33 Am. 394, 15 Am. R. 435; Smith v. People, R. 526; Commonwealth v. Titus, 116 53 N. Y. Ill, 13 Am. R. 474; People Mass. 42, 17 Am. R. 138; 88 Am. St. V. McDonald, 43 N. Y. 61; Huber v. 603, note. State, 57 Ind. 341; Fleming v. State, «= Lamb v. State, 40 Neb. 312, 58 136 Ind. 149, 36 N. E. 154; Common- N. W. 963; McCarty v. State, 36 wealth v. Barry, 124 Mass. 325; Reg. Tex. Cr. App. 135, 35 S. W. 994; V. Buckmaster, 16 Cox Cr. Cas. 339. Starck v. State, 63 Ind. 285. «^ People V. Laurence, 137 N. Y. ^'Keely v. State, 14 Ind. 36; Hart 517, 33 N. E. 547; People v. Camp- v. State, 57 Ind. 102; Umphrey v. bell, 127 Cal. 278, 59 Pac. 593; State State, 63 Ind. 223. V. McRae, 111 N. Car. 665. 16 S. E. "See also, Bailey v. State, 52 Ind. 173; Doss v. People, 158 111. 660, 41 462; Wolfington v. State, 53 Ind. N. E. 1093, 49 Am. St. 180; Blunt v. 343, 346, in addition to authorities Commonwealth, 4 Leigh (Va.) 689, cited in last two preceding notes. 26 Am. Dec. 341; but compare, State "^Wolfington v. State. 53 Ind. 343. §§ 3057, 3058.] larceny. 36& cient of itself to prove his guilt of the crime of larceny.^^ Proof of the removal and malicious destruction of property does not estab- lish the felonious intent to steal it, which is a necessary ingredient in this crime.''*' § 3057. Other crimes. — ^The general rule, elsewhere considered, to the effect that the commission by the defendant of other distinct and independent crimes does not prove that the defendant committed the crime in question and that evidence thereof is not, ordinarily, admissible, finds a frequent application in larceny cases.'^ But the exception or the other branch of the rule, admitting evidence of other offenses under certain circumstances and for certain purposes also finds a frequent application in such cases.'^^ The general treat- ment of the subject elsewhere,''^ however, renders it unnecessary to do more in this connection than to refer to a few of the many cases in which the doctrines in question have been applied in prosecu- tions for larceny. This is done in the first two notes to this section. § 3058. Recent possession of stolen goods. — Another subject that : has already received full consideration in a general way is that of the admissibility and effect of evidence of the recent possession of stolen goods.^* A few additional remarks, however, with particu- lar reference to such evidences in larceny cases, may not be out oi' place. As already shown, there is some conflict among the authorities as to whether there is any true presumption from the mere recent «' Bailey v. State, 52 Ind. 462; 14 N. E. 198; People v. Dowling, 8f Starck v. State, 63 Ind. 285; State N. Y. 478; Snapp v. Commonwealth, V. Conway, 18 Mo. 321. 82 Ky. 173; State v. Weaver, 104 N. '"Pence v. State, 110 Ind. 95, 99, Car. 758; 10 S. E. 486; State v. 10 N. E. 919. Schaffer, 70 Iowa 371, 30 N. W. 639; "'Dove v. State, 37 Ark. 261; Mc- Ballow v. State, 42 Tex. Cr. App. Queen v. State, 108 Ala. 54, 18 So. 263, 58 S. W. 1023; Mclver v. State, 843; People v. Tucker, 104 Cal. 440. (Tex. Cr. App.) 60 S. W. 50; John- 38 Pac. 195; State v. Vinson, 63 N. son v. State, 148 Ind. 522, 525, 47 N. Car. 335; State v. Goetz, 34 Mo. 85; E. 926; see also dissenting opinion Miller v. Commonwealth, 78 Ky. 16, in. Strong v. State, 86 Ind. 208, ap- 39 Am. R. 194; Wilcox v. State, 3 proved in, Crum v. State, 148 Ind. Heisk. (Tenn.) 110, 116; Links v. 401, 47 N. E. 833. State, 13 Lea (Tenn.) 701; Alex- " See, chap. 127, § 2720; also chap, ander v. State, 21 Tex. App. 406; 17 138, § 2917. S. W. 139; State v. Johnson, 38 La. '* See, chap. 127, § 2725; also chap. Ann. 686. 138, § 2918. "People v. Dimick, 107 N. Y. 13, 367 RECENT POSSESSION OF STOLEN GOODS. [§ 3058. possession of stolen goods, and as to whether conviction can be sus- tained without additional evidence upon the subject. It is gen- erally held, however, in larceny as well as other cases, that it is at least a circumstance to be considered, and its weight and that of any explanation given by the accused should usually be left to the jury.'^^ In a recent case, on the trial of a prosecution for larceny of a bill of a certain denomination, evidence that shortly after the commission of the offense the wife of the accused was in possession of a bill of the same denomination, and that she sent it by another person to the bank to be changed, was held admissible.'^® It is generally in- competent to show that the accused had in his possession other goods than those stolen at the time in question.'^ But such evidence has been held admissible in some cases for certain purposes.'^* So, where it is shown that the other goods were stolen at the same time, the recent possession of them by the accused may often be shown as tending to connect him with the offense.''^ ^Stafford v. State, (Ga.) 48 S. E. 903; State v. Lax, (N. J.) 59 Atl. 18; State V. Ireland, (Idaho) 75 Pac. 257; State v. King, 122 Iowa 1, 96 N. W. 712; but the corpus delicti must be proved; Reg. v. Hall, 1 Cox Cr. Cas. 231; Thomas v. State, 109 Ala. 25, 19 So. 403; Hand v. State, 110 Ga. 257, 34 S. E. 286; Bailey v. State, 52 Ind. 462, 21 Am. R. 182; but this may be done by circumstan- tial evidence; State v. Clark, 4 Strob. L. (S. Car.) 311; State v. Peterson, 38 Kans. 204; 16 Pac. 263; Johnson v. State, 47 Ala. 62; State V. Minor, 106 Iowa 642, 77 N. W. 330; Reg. v. Burton, 6 Cox Cr. Cas. 293. '"Buckine v. State, (Ga.) 49 S. E. 257; in a prosecution for larceny where there was evidence that de- fendant took a gold piece of a cer- tain denomination from witness' person while they were together in a room, and defendant was there- upon arrested, further testimony that about half an hour after the arrest the policeman and witness returned to the room, and, upon search, found a gold piece of the same denomination secreted on the dresser, was held admissible, al- though the witness could not iden- tify the particular piece of money as his own; State v. Johnson, (Wash.) 78 Pac. 903. ■• Reg. V. Oddy, T. & M. 593, 5 Cox Cr. Cas. 210. •'^ See, State v. Ditton, 48 Iowa 677; State v. Moore, 101 Mo. 316, 14 S. W. 182; State v. Murphy, 84 N. Car. 742; Yarborough v. State, 41 Ala. 405; State v. Robinson, 35 S. Car. 340; Slaughter v. Common- wealth, 22 Ky. L. R. 679, 58 S. W. 588. '"Yarborough v. State, 41 Ala. 405; Johnson v. State, 148 Ind. 522, 47 N. E. 926; People v. Robles, 34 Cal. 591; Wormly v. State, 70 Ga. 721; State v. Weaver, 104 N. Car. 758, 10 S. E. 486. § 3059.] LARCENY. 368 §' 3059. Defenses. — As a general rule, it may be said that the de- fendant may introduce any proper evidence legitimately tending to prove that he did not commit the crime for which he is on trial, or to rebut the evidence introduced by the state. Thus, he may ex- plain his possession of the stolen goods,^" and upon this subject it is said in a recent text book:^^ "He may prove that he bought the goods,^2 ^;hat he offered to pay the owner for them,83 ^p ^^^t he be- came possessed of them, believing he was the o^mer's agent.^* These and other explanatory facts may be shown even where the defendant has failed or refused to give a satisfactory explanation of the pos- session of the property when it was first found in his possession.*^ If the explanatory evidence creates a reasonable doubt in the minds of the jurors that he stole the property, he should be acquitted.**' It is not absolutely requisite that the accused should prove that his possession was honest. It is sufficient to acquit him if he gives a natural, reasonable and probable explanation which the prosecution does not show to be false." Such an explanation may be taken as true if the state, relying upon recent possession alone, does not prove its falsity or attempt to do so.** If the explanation is absurd, unrea- sonable or unsatisfactory it is the right of the jury, and often their duty, to disregard it, though no evidence in rebuttal on that point is ^^Even his own testimony; State 64 N. W. 614; Gilmore v. State, V. Bethel, 97 N. Car. 459, 1 S. E. 551. (Tex. Cr. App.) 33 S. W. 120; Craw- " Underbill Cr. Ev., § 302. ford v. State, 113 Ala. 661, 21 So. «= Jones v. People, 12 111. 259; in- 64; State v. Dillon, 48 La. Ann. 1365, eluding all pertinent declarations 20 So. 913. made by himself or the vendors; "Hart v. State, 22 Tex. App. 563, People v. Bowling, 84 N. Y. 478, 485. 3 S. W. 741; Garcia v. State, 26 Tex. "Hall V. State, 34 Ga. 208, 210. 209, 210; State v. Moore, 101 Mo. "Lewis V. State, 29 Tex. App. 201, 316, 14 S. W. 182; Jones v. State, 15 S. W. 642; Chambers v. State, 62 30 Miss. 653, 655; State v. Castor, Miss. 108. 93 Mo. 242, 250, 5 S. W. 906; Yar- «= Harris v. State, 15 Tex. App. brough v. State, 115 Ala. 92, 22 So. 411. 534. *" State v. Peterson, 67 Iowa 564, «* People v. Hurley, 60 Cal. 74; 567, 25 N. W. 780; Grentzinger v. Powell v. State, 11 Tex. App. 401, State, 31 Neb. 460, 462, 48 N. W. 402; Johnson v. State, 12 Tex. App. 148; Clark v. State, 30 Tex. App. 385; State v. Kimble, 34 La. Ann. 402, 17 S. W. 942; Baker v. State, 392, 395; 3 Greenleaf Ev. 32; see 80 Wis. 416, 50 N. W. 518; Blaker also, Leslie v. State. 35 Pla. 171, 17 v. State, 130 Ind. 203, 29 N. E. 1077; So. 555; York v. State, 17 Tex. App. State V. Wilson, 95 Iowa 341, 64 N. 441. W. 26; State v. Cross, 95 Iowa 629, 369 DEFENSES. [§ 3059. offered.^^ But when the explanation offered is reasonable and prob- able it must be overcome and its falsity sho\\'n by positive and definite evidence. Direct evidence is not always essential. Circumstantial evi- dence will answer if upon all the evidence the prosecutor shall succeed in convincing the jury of the guilt of the prisoner beyond a reasonable doubt.'"'*' His declarations explaining his possession are also admis- sible, in a proper case, at least when part of the res gestae.®^ But, of course, such declarations are not usually admissible when self-serving and after he has had time to concoct an explanation.^- The defendant may also prove an alibi.^^ So, he may show that he obtained the consent of the owner, or, in some cases, of the supposed owner,^* and other evidence tending to show good faith, absence of any felonious intent and facts inconsistent with guilt may be compe- tent.^° So, while slight weakness of mind or voluntary intoxication will not justify a crime, nor even excuse it, ordinarily, yet evidence thereof is admissible as bearing upon the question of intent.®'' And the accused may likewise introduce evidence of his good character.^^ ^ Tilly v. State, 21 Fla. 242; see also, to the effect that the weight of the explanation is for the jury. State V. Ireland, (Idaho) 75 Pac. 257; State v. King, 122 Iowa 1, 96 N. W. 712. »« Franklin v. State, 37 Tex. Cr. App. 312, 39 S. W. 680; State v. Schaffer, 70 Iowa 371, 375, 30 N. W. 639; Brown v. State, 34 Tex. Cr. App. 150, 29 S. W. 772; see also. State V. Kimble, 34 La. Ann. 392; Van Straaten v. People, 26 Colo. 184, 56 Pac. 905. "^Henderson v. State, 70 Ala. 23; Hubbard v. State, 109 Ala. 1, 19 So. 519; State v. Moore, 101 Mo. 316, 14 S. W. 182; Walker v. State, 28 Ga. 254; State v. Daley, 53 Vt. 442, 38 Am. R. 694; Reg. v. Abraham, 2 Car. & Kir. 550, 61 E. C. L. 550. °= Cooper V. State, 63 Ala. 80; State V. Moore, 101 Mo. 316, 14 S. W. 182. »' State V. Sidney, 74 Mo. 390; Wil- burn V. Territory, 10 N. Mex. 402, 62 Pac. 968. »^ State V. Matthews, 20 Mo. 55; but see, Drumright v. State, 29 Ga. 430. °=See, State v. Eubank, 33 Wash. 293, 74 Pac. 378; State v. Marquard- sen, 7 Idaho 352, 62 Pac. 1034; People v. Cline, 74 Cal. 575, 16 Pac. 391; Jones v. State, 30 Miss. 653, 64 Am. Dec. 154; Way v. State, 35 Ind. 409. "*= Robinson v. State. 113 Ind. 510, 16 N. E. 184; see also, 36 L. R. A. 469. '*' People V. Hurley, 60 Cal. 74, 44 Am. R. 55; State v. Richart, 57 Iowa 245, 10 N. W. 657; Clackner v. State, 33 Ind. 412; Foster v. State, 52 Miss. 695; State v. Crank, 75 Mo. 406; but see, Wagner v. State, 107 Ind. 71, 7 N. E. 896. Vol. 4 Elliott Ev.— 24 § 3059a.] LARCEXy. 370 § 3059a. Miscellaneous — Recent cases. — It has been held that it is sufficient in case of theft of money from a person to show that any part of the money alleged in the indictment was taken, and that the fact that the theft was committed after the time alleged is no ground for acquittal.®^ So, where the indictment charged the stealing of one double case silver watch, and the evidence showed that the accused took from the jeweler's bench the case and works, which had been separated for the purpose of repair, it was held that the variance, if any, was not fatal.^^ The prosecuting witness may testify to the ownership of the property."** Although, as already shown, there must be a carrying away or taking, it is held in a recent case that there may be a conviction notwithstanding the money alleged to have been stolen by the defendant was never seen in his possession.^" ^ It is also held in the same case that although evidence of motive was not indispensable it was nevertheless admissible, and that it was not error to admit evidence that the defendant was in debt at the time as tending to some extent to show a motive for the crime, especially as the evidence of the larceny by the defendant was largely circum- stantial. "'Green v. State, (Tex. Cr. App.) 86 S. W. 332; see also, Com. v. Dingman, 26 Pa. Super. Ct. 615. "^ Patterson v. State, (Ga.) 50 S. E. 489; see also, Crawford v. State, 94 Ga. 772, 21 S. E. 992; Payne v. State, 140 Ala. 148, 37 So. 74. !<» Bennett v. State, (Ark.) 84 S. W. 483. "iDemmlck v. United States, 135 Fed. 257. For recent cases holding the evidence sufficient to sustain a conviction, see, Crockford v. State, (Neb.) 102 N. W. 70; Territory v. Clark, (N. Mex.) 79 Pac. 708; Davis V. Territory, (Ariz.) 80 Pac. 389; Jones v. People, (Colo.) 79 Pac. 1013; State v. Minck, (Minn.) 102 N. W. 207; State v. Mumford, (Kans.) 79 Pac. 669; Ware v. State, (Tex. Cr. App.) 84 S. W. 1065. For cases in which the evidence was held insufficient, see, Wesley v. State, (Tex. Cr. App.) 85 S. W. .802; Womack v. State, (Tex. Cr. App.) 86 S. W. 1015; Brokaw v. State, (Tex. Cr. App.) 85 S. W. 801; Bird v. State, (Fla.) 37 So. 525. CHAPTER CXLVII. NUISANCE, Sec. Sec. 3060. Generally. 3066. Obstructing Wghways. 3061. Examples of public nuisance. 3067. Obstructing or polluting wa- 3062. Evidence for prosecution. ters. 3063. Evidence of reputation. 3068. Public indecency. 3064. Defenses. 3069. Storing explosives. 3065. Disorderly houses. § 3060. Generally. — The subject of this chapter in so far as indi- vidual citizens and their rights and remedies are concerned has been treated in another volume.^ A definition of a public as well as a private nuisance is there given and the general subject is there treated to such an extent that comparatively little remains to be said in this connection. It may be well, however, to give another definition of a public or common nuisance and to further explain its general nature before considering the law in detail with particular reference to criminal prosecutions. A public or common nuisance is an "offense against the public order and economical regimen of the state," being either the doing of a thing to the annoyance of the citizens gener- ally, and not merely to some particular person, or the neglecting to do a thing which the common good requires.^ More particularly, a common nuisance "is said to comprehend endangering the public personal safety or health ; or doing, causing, occasioning, promoting, maintaining, or continuing what is noisome and offensive, or annoy- ing and vexatious, or plainly hurtful to the public, or is a public outrage against common decency or common morality, or tends plainly and directly to the corruption of the morals, honesty, and good habits of the people ; the same being without authority or justi- fication by law."^ 1 Vol. Ill, chap 116. 5 Port. (Ala.) 279, 311; see also, 2 2 Bouvier L. Diet. 524; 1 Hawk- Acme Fertilizer Co. v. State, (Ind. ins P. C. 197; 4 Blackstone Comm. App.) 72 N. E. 1037; State v. Tabler, 166; 3 Greenleaf Ev., M84; 8 Bacon (Ind. App.) 72 N. E. 1039. Abridgment 223; State v. Mayor &c.. = Report of Mass. Comr's on Cr. 371 §§ 3061-3063.] NUISANCE. 372 § 3061. Examples of public nuisance. — Among the things that most often constitute public nuisances are the keeping of disorderly houses, obstructing highways or navigable streams and waters, pol- luting waters, maintaining offensive and stagnant ponds, making noises and the like so as to disturb the public peace, being a com- mon scold, or a common eavesdropper, committing public indecency and the storing and keeping of dangerous explosives at an improper place so as to endanger the public. So, public as well as private nuisances may arise from carrying on a business or trade so as to create offensive and noxious smells, smoke and the like. The most important of these will be considered in subsequent sections. § 3062. Evidence for prosecution. — "In proof of the charge, evi- dence must be adduced to show, 1st, that the act complained of was done by the defendant; and this will suffice, though he acted as the agent or servant and by the command of another;* 3nd, that it was to the common injury of the public, and not a matter of mere pri- vate grievance."^ The annoyance must be such and to such a num- ber of people that the offense is to be deemed a public rather than a mere private nuisance, but it is not necessary that it should in- juriously affect all the people of the state nor even every member of the community.*' § 3063. Evidence of reputation. — As a general rule a nuisance can- not be shown by evidence of reputation, but there are nuisances in which evidence 'of the reputation of the inmates or frequenters of a certain house or place, and, perhaps, even of the reputation of such Law, Common Nuisance, § 1, refer- nis v. State, 91 Ind. 291; Rex. v. red to in, 3 Greenleaf Ev., § 184; for Neil, 2 Car. & P. 485, 12 E. C. L. other definitions see, Bohan v. Port 690. But his act must have been a Jervis Gas-L. Co., 122 N. Y. 18, 32, proximate cause. State v. Holman, 25 N. E. 246; State v. Wolf, 112 N. 104 N. Car. 861, 10 S. E. 758. Car. 889, 17 S. E. 528; Common- = State v. Luce, 9 Houst. (Del.) wealth V. Smith, 6 Cush. (Mass.) 396, 32 Atl. 1076; State v. Wolfe, 80; State v. Godwinsville &c. Co., 49 112 N. Car. 889, 17 S. B. 528; Innes N. J. L. 270, 10 Atl. 666. v. Newman, L. R. 2 Q. B. (1894), * State V. Bell, 5 Port. (Ala.) 365; 292; 3 Greenleaf Ev., § 186. State v. Matthis, 1 Hill (S. Car.) « People v. Jackson, 7 Mich. 432, 37; Commonwealth v. Mann, 4 Gray 74 Am. Dec. 729; Hackney v. State, (Mass.) 213; see also, Rex v. Med- 8 Ind. 494; 2 Chitty Cr. Law 607; ley, 6 Car. & P. 292; or, notwith- State v. Tabler, (Ind. App.) 72 N. standing others contributed. Den- E. 1039, 1040. 373 REPUTATION-. [§ 3063. house or place may be admissible. It is said by Mr. Wliarton that "where an offense is laid generally in the indictment, as where the defendant is cliargcd as a common barrator, or a common scold, or as keeping a common gambling house, or disorderly house, evi- dence of general reputation is not admissible, it being necessary to sustain the indictment, that tlie particular facts which consti- tute the offense should be proved."^ He further says, however, that on indictments for keeping houses of ill-fame, when such is the statutory term describing the offense, the "ill-fame" or bad reputa- tion of the house may be put in evidence,^ and that "the bad reputa- tion of the visitors is in any view competent evidence,"^ but that in the case of a disorderly house particular acts of disorder rather than the reputation of the house must be shown. i** It is generally agreed that the reputation of the inmates and visitors is admissible in a proper case, but there is some conflict as to the other statement of Mr. ^Miarton to the effect that the reputation of the house itself is not admissible unless the statute clearly makes the reputation and not merely the character of the house an element of the offense. As will be shown in the section on disorderly houses, there are many jurisdictions in which the reputation of the house may be shown, and in some of them the statutes do not seem to have changed the com^ mon law. 'Wharton Cr. Law, § 260; citing, ^Citing, State v. Boardman, 64 Commonwealth v. Stewart, 1 S. & R. Me. 523 ; State v. McGregor, 41 N. (Pa.) 342; Archbold Cr. PI. 105; H. 407; Commonwealth v. Gannett, Commonwealth v. Hopkins, 2 Dana 1 Allen (Mass.) 7; Commonwealth (Ky.) 418; but see. Kissel v. Lewis, v. Kimball, 7 Gray (Mass.) 328; 156 Ind. 233, 59 N. E. 478; World v. Harwood v. People, 26 N. Y. 190; State, 50 Md. 49; Fong Yuk, In Re, Sparks v. State, 59 Ala. 82; O'Brien (1901), 8 Br. Col. 118; Demartini v. People, 28 Mich. 213; King v. V. Anderson, 127 Cal. 33, 59 Pac. State, 17 Fla. 183; Morris v. State, 207; State v. Hendricks, 15 Mont. 38. Tex. 603; Clementine v. State, 14 194, 39 Pac. 94; see, 20 L. R. A. 610- Mo. 112; State v. Brunell, 29 Wis. 612, note. 435; see also. State v. McDowell, * Citing, United States v. Gray, 2 Dudley (S: Car.) 346; Coramon- Cranch. (N. S.) 675; United States wealth v. Clark, 145 Mass. 251, 13 V. Stevens, 4 Cranch (U. S.) 341; N. E. 388; Howard v. People, 27 Cadwell v. State, 17 Conn. 467; State Colo. 396, 61 Pac. 595; Beard v. V. Morgan, 40 Conn. 44; People v. State, 71 Md. 275, 17 Atl. 1044. 4 L. Lockwing, 61 Cal. 380; People v. R. A. 675. Luchanan, 1 Idaho 681; but see, '"Citing, State v. Foley, 45 N. H. Parker v. People, 94 111. App. 648; 466; United States v. Jourdine, 4 State V. Plant, 67 Vt. 454, 32 Atl. Cranch (U. S.) 338; Commonwealtn 237, 48 Am. St. 821. v. Stewart, 1 S. & R. (Pa.) 342; § n064.] NUISANCE. 374 § 3064. Defenses. — In defense, proper evidence is, of course, ad- missible to show any facts tending to disprove or, in a proper case, to justify the charge.^^ But the law does not, ordinarily at least, balance conveniences, and the defendant will not be permitted to show as a defense that the public benefit resulting from his act is equal to the public inconvenience which arises from it.^^ Neither is it a good defense that similar nuisances are tolerated elsewhere even in the same neighborhood.^^ Nor is the motive or intent, as a rule, material, for, even though the act constituting the nuisance was committed without any improper motive, this would not be a de- fense.^* The fact that the act is authorized by a constitutional and valid enactment of the legislature will constitute a defense to the criminal prosecution even though it would otherwise be a public nuisance.^^ But a right to maintain a public nuisance, as against the public, cannot be gained by prescription.^'' In other words, no length Commonwealth v. Hopkins, 2 Dana (Ky.) 418; but see, 20 L. R. A. 610- 612, note, for review of conflicting authorities. "3 Greenleaf Ev., § 187. i=Rex V. Ward, 4 Ad. & El. 384, 31 E. C. L. 180; Reg. v. Train, 2 B. & S. 640, 110 E. C. L. 640; State v. Raster, 35 Iowa 221; Seacord v. People, 121 111. 623, 13 N. E. 194; Baltimore &c. Tpk. Road v. State, 63 Md. 573. " Rex V. Neil, 2 Car. & P. 485, 12 E. C. L. 690; Dennis v. State, 91 Ind. 291; Commonwealth v. Perry, 139 Mass. 198, 29 N. E. 656; see also, Euler V. Sullivan, 75 Md. 616, 23 Atl. 845, 32 Am. St. 420; People v. Mal- lory, 4 Thomp. & C. (N. Y.) 567; Hurlbut V. McKone, 55 Conn. 31, 3 Am. St. 17; Stephens v. Gardner Creamery Co., 9 Kans. App. 883. 57 Pac. 1058. "Reg. v. Stephens, L. R., 1 Q. B. 702; People v. Burtleson, 14 Utah 258, 47 Pac. 87; Seacord v. People, 121 111. 623, 13 N. E. 194. Compare. State V. Linkhaw, 69 N. Car. 214, 12 Am. R. 645. So the fact that a land- lord made his tenant agree not to maintain a nuisance, or to be liable therefor, has been held no defense. Peacock Distillery Co. v. Common- wealth, 25 Ky. L. R. 1778, 78 S. W. 893. ^= State V. Louisville &c. R. Co., 86 Ind. 114; State v. Barnes, 20 R. I. 525, 40 Atl. 374; People v. Law, 34 Barb. (N. Y.) 494; Commonwealth V. Reed, 34 Pa. St. 275; Stoughton V. State, 5 Wis. 291; Commonwealth V. Boston, 97 Mass. 555; Rex v. Pease, 4 B. & Ad. 30, 24 E. C. L. 24; Danville &c. R. Co. v. Common- wealth, 73 Pa. St. 29; see also. Com- monwealth V. Packard, 185 Mass. 64, 69 N. E. 1067. ^"Rex V. Cros.B, 3 Campb. 224; State V. Phipps, 4 Ind. 515; Ash- brook V. Commonwealth, 1 Bush (Ky.) 139, 89 Am. Dec. 616; Com- monwealth V. Upton, 6 Gray (Mass.) 473; State v. Holman, 104 N. Car. 861, 10 S. E. 758; Commonwealth v. McDonald, 16 S. & R. (Pa.) 390; State V. Louisville &c. R. Co., 86 Ind. 114; 30 Am. St. 557. note. 375 DISORDERLY HOUSES. [§ 30G5. of time will justify a public nuisance.^' The extent to which the legislature or a municipality may go in declaring a thing to be a nuisance or in authorizing what would otherwise be a nuisance has been sufficiently considered in another volume.^* § 3065. Disorderly houses. — A disorderly house was a public nui- sance at common law, and even in states in which the common law as to crimes has not been adopted there are generally statutes to much the same effect. The chief question that may be considered as at all peculiar or deserving of special treatment in this connection is that relating to evidence of character or reputation and to evi- dence of specific acts, although it may be well to state in passing that the evidence must sufficiently connect the defendant with the keep- ing of the house as alleged/** and that common reputation or rumor is not sufficient of itself, even if competent, to prove that he is the keeper of the house.^^ But it may be shown by circumstantial evi- dence.-^ In many jurisdictions it is held that on a prosecution for keeping a disorderly house, or permitting it to be so used as to make it disorderly, evidence of the general reputation of the house is ad- missible as tending to prove that it was disorderly.-^ But, perhaps " People v. Cunningham, 1 Denio ^ Howard v. People, 27 Colo. 396, (N. Y.) 524, 536; People v. Gold 61 Pac. 595; Territory v. Chartrand, Run &c. Co., 66 Cal. 155, 4 Pac. 1 Dak. 379, 46 N. W. 583; Territory 1150; Commonwealth v. Alburger, 1 v. Stone, 2 Dak. 155, 4 N. W. 697; Whart. (Pa.) 469; 1 L. R. A. 296, King v. State, 17 Fla. 183; Hogan note. V. State, 76 Ga. 82; People v. Bu- "Vol. Ill, chap. 116, § 2527. chanan, 1 Idaho 681, 688; Territory '"Humphries v. State, (Tex. Cr. v. Bowen, 2 Idaho 607, 23 Pac. 82; App.) 68 S. W. 681; Hamilton v. Betts v. State, 93 ind. 375; Whitlock State. (Tex. Cr. App.) 60 S. W. 39; v. State, 4 Ind. App. 432, 30 N. E. People v. Wright, 90 Mich. 362, 51 934; State v. Mack, 41 La. Ann. N. W. 517; Bindernagle v. State, 61 1079, 6 So. 808; State v. West, 46 N. J. L. 259, 38 Atl. 973, 39 Atl. 360. La. Ann. 1009, 15 So. 418; O'Brien v. =°Loraine v. State, 22 Tex. App. People, 28 Mich. 213; People v. Gas- 640, 3 S. W. 340; People v. Saunders, tro, 75 Mich. 127, 42 N. W. 937; 29 Mich. 269. State v. Smith, 29. Minn. 193, 12 N. =' State v. Worth, R. M. Charlt. W. 524; State v. Bresland, 59 Minn. (Ga.) 5; State v. Hand, 7 Iowa 411, 281, 61 N. W. 450; State v. Hen- 71 Am. Dec. '453; State v. Wells, 46 dricks, 15 Mont. 194, 39 Pac. 93, 48 Iowa 662; United States v. Miller, 4 Am. St. 666; Drake v. State, 14 Neb. Cranch (U. S.) 104; evidence of an 535, 17 N. W. 117; Nelson v. Terri- inmate is held not to be that of an tory, 5 Okla. 512, 49 Pac. 920; accomplice in. Stone v. State, (Tex. Sprague v. State, (Tex. Cr. App.) 44 Cr. App.) 85 S. W. 808. S. W. 837; Forbes v. State, 35 Tex. 3065.] NUISANCE. 376 the weight of authority is that such evidence is incompetent, unless it is made competent by statute, on the ground that the disorderly character of the house must be shown as a fact, and not by hearsay evidence of reputation.-^ The disorderly character of the house may,, however, be shown by evidence that crowds of disorderly people went in and out,-* or that it was commonly resorted to for immoral and illegal purposes, such as prostitution,-^ or the like,^® and the acts and immoral conversation of its inmates and frequenters in and about the house, or in some instances, even elsewhere or in the absence of the accused, may be shown in a proper case.^'^ So, knowledge on the part of the defendant, when necessary, may be shown by circum- stantial evidence.^'^ The weight of authority is, perhaps, to the effect that evidence of the bad character or reputation of the defendant, as keeper, is incompetent in the first instance,-^ but the question de- Cr. App. 24, 29 S. W. 784; Harkey v. State, 33 Tex. Cr. App. 100, 25 S. W. 291, 47 Am. St. 19. Under some of the statutes the reputation of the house would seem to be directly in issue, and evidence thereof would clearly be competent. ^^Wooster v. State, 55 Ala. 217; Toney v. State, 60 Ala. 97; Sparks v. State, 59 Ala. 82; Parker v. Peo- ple, 94 111. App. 648; State v. Lyon, 39 Iowa 379; State v. Lee, 80 Iowa 75, 45 N. W. 545, 20 Am. St. 401; Smith V. Commonwealth, 6 B. Mon. (Ky.) 21; State v. Boardman, 64 Me. 523; Henson v. State, 62 Md. 231, 50 Am. R. 204; Handy v. State, 63 Miss. 207, 56 Am. R. 803; State v. Bean, 21 Mo. 267; Loehner v. Home Mut. Ins. Co., 17 Mo. 247; State v. Foley, 45 N. H. 466; Heflin v. State, 20 N. J. L. J. 151; People v. Mauch, 24 How. Pr. (N. Y.) 276; Nelson v. Territory, 5 Okla. 512, 49 Pac. 920; Commonwealth v. Stewart, 1 S. & R. (Pa.) 342, and authorities cited in § 3063 on evidence of reputation. -* Commonwealth v. Davenport, 2 Allen (Mass.) 299; State v. Robert- son, 86 N. Car. 628; State v. Mc- Gahan, 48 W. Va. 438, 37 S. E. 573. ^ Commonwealth v. Goodall, 165 Mass. 588, 43 N. E. 520; Cahn v. State, 110 Ala. 56, 20 So. 380; State v. Young, 96 Iowa 262. 65 N. W. 160. -^ See, People v. Russell, 110 Mich. 46, 67 N. W. 1099; Reg. v. Rice, L. R., 1 C. C. 21, 10 Cox Cr. Cas. 155; Weideman v. State, 4 Ind. App. 397,. 30 N. E. 920. -'State V. Boardman, 64 Me. 523; State V. Garing, 75 Me. 591; Binder- nagle v. State, 60 N. J. L. 307, 37 Atl. 619; State v. Toombs, 79 Iowa 741, 45 N. W. 300; State v. Main, 31 Conn. 572; Herzinger v. State, 70 Md. 278, 17 Atl. 81; Beard v. State, 71 Md. 275, 17 Atl. 1044, 17 Am. St. 536, 4 L. R. A. 675; Commonwealth V. Dam, 107 Mass. 210; Common- wealth V. Cardoze, 119 Mass. 210; but see. Commonwealth v. Harwood, 4 Gray (Mass.) 41, 64 Am. Dec. 49. -^ Harwood v. People, 26 N. Y. 190, 84 Am. Dec. 175; State v. Schaffer, 74 Iowa 704, 39 N. W. 89; State v. Wells, 46 Iowa 662; Graeter v. State, 105 Ind. 271, 4 N. E. 461; Ward v. People, 23 111. App. 510. ==* State V. Hand, 7 Iowa 411, 71 Am. Dec. 453; State v. Mack, 41 La. Ann. 1079, 6 So. 808; United States. 377 OBSTRUCTTXG HIGHWAYS. [§ 3066. pends somewhat on local statutes, and there is some conflict among^ the antliorities. It is said that Indiana, Wisconsin and South Caro- lina affirm the compotenc}^ of such e\ddence and the other states deny it.^" The question does not seem to have been decided, however, in. every state, and there are some jurisdictions, in addition to those mentioned, in which such evidence is admitted in a proper case.^^ But a petition of citizens to the city council, in which the defendant is referred to as a lewd woman, is incompetent.^^ § 3066. Obstructing highways. — Any permanent unauthorized ob- struction to a public street or highway is a public nuisance. ^^ It may be on, beneath or above the surface of the highway.^* Indeed, an obstruction may be a nuisance although not permanent in its na- ture,^ ^ and an unlawful interference with a highway may be a nui- V. Nailor, 4 Cranch (U. S.) 372; Gamel v. State, 21 Tex. App. 357, 17 S. W. 158; State v. Hull, 18 R. I. 207, 26 Atl. 191, 20 L. R. A. 609. Con- duct and admissions of the accused tending to show the bad character of the house and that he or she was the keeper, may be proved in a proper case. Commonwealth v. Dam, 107 Mass. 210; Sullivan v. State, 75 Wis. 650, 44 N. W. 647; State v. McGregor, 41 N. H. 407. '"'20 L. R. A. 610, note. Bad char- acter of the lessor indicted for leas- ing a house for prostitution cannot, however, be shown in the first in- stance, in Indiana. Graeter v. State, 105 Ind. 271, 4 N. E. 461. But the terms of the lease may be admis- sible. People V. Saunders, 29 Mich. 269. "^Whittock V. State, 4 Ind. App. 432, 30 N. E. 934; State v. McDowell, Dudley (S. Car.) 346; State v. Bru- nei], 29 Wis. 435; Sparks v. State, 59 Ala. 82; Howard v. People, 27 Colo. 396, 61 Pac. 595; State v. Hen- dricks, 15 Mont. 194, 39 Pac. 93, 48 Am. St. 666, the keeper being an in- mate. See also, Dailey v. State, (Tex. Cr. App.) 55 S. W. 823; see generally as to proof of good or bad character of the accused, and the time to which ic may relate, 20 L. R. A. 612, 613, note. ^' Howard v. People, 27 Colo. 396, 61 Pac. 595; see also, Allen v. State, 15 Tex. App. 320. '^Elliott Roads & Streets (2nd ed.), § 645; State v. Berdetta, 73 Ind. 185. 38 Am. R. 117 (fruit stand); Pettis v. Johnson, 56 Ind. 139; Cos- tello v. State, 108 Ala. 45, 18 So. 820, 35 L. R. A. 303; Commonwealth v. Blaisdell, 107 Mass. 234; Smith v. State, 23 N. J. L. 712; People v. Ma- her, 141 N. Y. 330, 36 N. E. 396; State v. Leaver, 62 Wis. 387, 22 N. W. 576; Rex v. Jones, 3 Campb. 230; Hibbard v. Chicago, 173 111. 91. 50 N. E. 256, 40 L. R. A. 621; Smith v. McDowell, 148 111. 51, 35 N. E. 141, 22 L. R. A. 393; Young v. Rothrock, 121 Iowa 588, 96 N. W. 1105, 1107. ^'^Bybee v. State, 94 Ind. 443; see also, Reimer's Appeal, 100 Pa. St. 182, 45 Am. R. 373; Reg. v. Watts, 1 Salk. 357; Elliott Roads & Streets (2nd ed.), § 647. == Elliott Roads & Streets (2nd ed.), § 648; see also Commonwealth V. Passmore, 1 S. & R. (Pa.) 217; 3066.] NUISANCE. 378 sance although not strictly an obstruction.^^ The existence of the highM'ay must be shown^^ where the indictment is for obstructing a highway, but, if this is properly shown, it matters not how the highway was established.^® As to evidence competent and sufficient to show the existence of a highway reference is made to the author- ities cited below.^^ Each day's continuance, as a rule, is an indict- able offense, and a prescriptive right to maintain it cannot be ac- quired and used as a defense to a public prosecution.^" Neither is it a good defense for the defendant to show that he had opened a new way for the public over his own land.*^ But as far as the public Commonwealth v. Ruggles, 6 Allen (Mass.) 588; People v. Horton, 64 N. Y. 610; Rex v. Russell, 6 East 427; 1 Hawkins P. C, chap. 76, § 49; People v. Cunningham, 1 Denio (N. Y.) 524, 43 Am. Dec. 709; Rex v. Cross, 3 Campb. 224; State v. Edens, 85 N. Car. 522, 526; 1 Am. St. 840- 844, note. ««See, Elliott Roads & Streets (2nd ed.), §§ 649, 650, and illustra- tive cases there cited. ^^Whaley v. Wilson, 120 Ala. 502, 24 So. 855; State v. Trove, 1 Ind. App. 553, 27 N. E. 878; People v. Jackson, 7 Mich. 432, 74 Am. Dec. 729; State v. Cunningham, 61 Mo. App. 188; State v. Lucas, 124 N. Car. 804, 32 S. E. 553. It seems that it must generally be shown to have been actually opened to some extent at least. State v. Shinkle, 40 Iowa 131; State v. Babcock, 42 Wis. 138; State V. Kendall, 54 S. Car. 192, 32 S. E. 300; Southerland v. Jackson, 30 Me. 462, 50 Am. Dec. 633; Bailey V. Commonwealth, 78 Va. 19; Ken- nedy V. State, (Tex. Cr. App.) 40 S. W. 590. But it may be doubted as to whether this is true in all cases. See, Commonwealth v. McNaugher. 131 Pa. St. 55, 18 Atl. 934; Morgan V. Monmouth &c. Road Co., 26 N. J. L. 99; Seeger v. Mueller, 28 111. App. 28; see also, Elliott Roads & Streets (2nd ed.), §§ 662, 663. ^'Howard v. State, 47 Ark. 431; State V. Teeters, 97 Iowa 458, 66 N. W. 754; Zimmerman v. State, 4 Ind. App. 583, 31 N. E. 55. ^^ Commonwealth v. Abney, 4 T. B. Mon. (Ky.) 477; Sage v. Barnes, 9 Johns (N. Y. 365; Arnold v. Flat- tery, 5 Ohio 271; Plummer v. Ossi- pee, 59 N. H. 55; Hampson v. Tay- lor, 15 R. I. 83; Schafer v. Mayor, 154 N. Y. 466, 48 N. E. 749; and compare. Stone v. Langworthy, 20 R. I. 602, 40 Atl. 832; Hoffman v. Port Huron, 110 Mich. 616, 68 N. W. 546; for evidence held insutScient, see, Snellhouse v. State, 110 Ind. 509, li N. E. 484. " Commonwealth v. Upton, 6 Gray (Mass.) 473; Taylor v. People, 6 Park. Cr. Cas. (N. Y.) 347; Rex v. Cross, 3 Campb. 224, 227; Queen v. Brewster, 8 U. C. C. P. 208; Elliott Roads & Streets (2nd ed.), §659, and numerous authorities cited; Pettit V. Grand Junction, 119 Iowa 352, 93 N. W. 381. " Commonwealth v. Belding, 13 Mete. (Mass.) 10; State v. Harden, 11 S. Car. 360; Weathered v. Bray, 7 Ind. 706. Nor that he owns the fee. State v. Walters, 69 Mo. 463; Montgomery v. Parker, 114 Ala. 118, 21 So. 452; Langsdale v. Bonton, 1^ Ind. 467. Nor that there are other obstructions or that it is the custom of the neighborhood. Commonwealth 379. OBSTRUCTING OR POLLUTING WATERS. [§ 3067. prosecution is concerned, if the act is one that has been authorized by the legislature, this will constitute a defense so long as the de- fendant keeps within the law, even though the act might otherwise constitute a public nuisance;" yet proof of a license to maintain a temporary obstruction is no defense to a prosecution for maintain- ing a permanent obstruction where the maintenance of a permanent obstruction is shown.'** § 3067. Obstructing or polluting waters. — An unlawful obstruc- tion placed in a navigable stream is a public nuisance, remediable by indictment against the party or parties who have caused the ob- struction to be placed in the stream." Such a nuisance may also be abated in a proper case, and "in cases where the remedy by indict- ment appears to be inadequate, that is to say, if there appears to be imminent danger of irreparable mischief to the public right of navi- gation before the tardiness of the law can afford relief, equity may interpose and abate the nuisance upon a bill for an injunction filed by the attorney-general."-*^ It has been held that if the defendant relies upon a statutory license to obstruct the stream, he must prove compliance with every requirement thereof.*^ Here, as elsewhere, the V. Northern Cent. R. Co., 7 Pa. Sup. dall, 6 Ad. & El. 143; Reg. v. Betts, Ct. 234; Henline v. People, 81 111. 16 Q. B. 1022, 71 E. C. L. 1022; Reg. 269; Robinson v. State, (Tex. Cr. v. Randall, Car. & M. 496; Gould App.) 44 S. W. 509; see also, Mc- Waters, § 121. Cloughry v. Finney, 37 La. Ann. 27, ''57 Am. St. 694, note; Yolo Coun- 31; Judd V. Fargo, 107 Mass. 264; ty v. Sacramento, 36 Cal. 193; Rowe Bateman v. Burge, 6 Car. & P. 391, v. Granite Bridge Co., 21 Pick. 25 E. C. L. 490; but see, Hamilton (Mass.) 344; Mayor &c. v. Alexan- V. State, 106 Ind. 361, 7 N. E. 9. dria Canal Co., 12 Pet. (U. S.) 91; "Elliott Roads and Streets, (2nd Attorney-General v. Cohoes Co., 6 ed.), § 651, and authorities cited. Paige (N. Y.) 133, 29 Am. Dec. 755; Other authorities are cited in Vol. Attorney-General v. Jamaica Pond III, chap. 116, on Nuisance. &c. Co., 133 Mass. 361; Attorney- " State v. Berdetta, 73 Ind. 185. General v. New Jersey R. Co., 3 N. "People V. Vanderbilt, 26 N. Y. J. Eq. 136; Thompson v. Paterson 287; Commonwealth v. Church, 1 &c. R. Co., 9 N. J. Eq. 526; Allen Pa. St. 105, 44 Am. Dec. 112; Dugan v. Board of Chocen Freeholders, 13 V. Bridge Co., 27 Pa. St. 303, 67 Am. N. J. Eq. 68; Attorney-General v. Dec. 464; Allegheny Co. v. Zimmer- Delaware &c. R. Co., 27 N. J. Eq. 1. man, 95 Pa. St. 287, 40 Am. R. 649; ^"Commonwealth v. Church, 1 Pa. Sigler V. State, 7 Baxt. (Tenn.) 493; St. 105, 44 Am. Dec. 112; State v. Rex v. Russell, 6 B. & C. 566; Rex Freeport, 43 Me 198; State v. Par- V. Ward, 4 Ad. & El. 384; Rex v. rott, 71 N. Car. 311; see also, State Grosvenor, 2 Stark. 448; Rex v. Tin- v. AVheeler, 44 N. J. L. 88. 3068.] NUISANCE. 380 general rule is that the court will not balance against the offense the benefit to any part of the public that might be derived from the nuisance, and even though such benefit might outweigh the public inconvenience caused by the obstruction it would constitute no de- fense to an indictment therefor.*^ A wreck/^ or a mere temporary obstruction*^ may not, however, be a nuisance. There are statutes in many of the states prohibiting the pollution of streams and other waters,^" and even at common law the pollution of certain streams and waters so as to destroy the fish or injuriously affect the public health or the like was a public nuisance.'' But it has been held that, in the absence of any statute upon the subject, it must be shown that the stream was a public one or the public in some way injuriously af- fected.'- § 3068. Public indecency. — Lewd and lascivious conduct, exposure of the person, obscenity, and the like, in public, were indictable of- fenses at common law,^^^ and generally constituted public nuisances, but statutes in many states have added to or enlarged the scope of the common law upon the subject of public indecency.'* In an old case it is said that the term public indecency has no fixed legal mean- *' Rex V. Ward, 4 Ad. & El. 384, 31 E. C. L. 180; Rex. v. Grosvenor, 2 Stark. 448; Gold v. Carter, 9 Humph. (Tenn.) 369, 49 Am. Dec. 712; Peo- ple v. St. Louis, 10 111. 351, 48 Am. Dec. 339; Respubllca v. Caldwell, 1 Dall. (U. S.) 150; 1 Wood Nuisance, §§ 478, 479. *«See, Rex v. Watts, 2 Esp. 675; Snark, The, L. R. (1900), P. Div. 105, 82 L. T. N. S. 42; 21 Am. & Eng. Ency. of Law, 443. ■"> State v. Charleston &c. Co., 68 S. Car. 540, 47 S. E. 979; People v, Mor- ton, 64 N. Y. 610, affg 5 Hun (N. Y.) 516; see also, Rex v. Tindall, 6 Ad. & El. 143, 33 E. C. L. 96. =» State V. Griffin, 69 N. H. 1, 39 Atl. 260, 41 L. R. A. 177, and note citing authorities. See also, 12 L. R. A. 577, 84 Am. St. 916, as to in- junction and damages for pollution and as to the rights and liabilities of municipalities for casting sewage and the like into streams. "Garrett Nuisance (2nd ed.) Ill, 112, 113; Commonwealth v. Soulas, 16 Phila. (Pa.) 523, 525; Rex v. Med- ley, 6 Car. & P. 292, 25 E. C. L. 439; State v. Taylor, 29 Ind. 517; Board &c. V. Casey, 3 N. Y. S. 399; State V. Wahl, 35 Kans. 608, 11 Pac. 911. =>= Messersmidt v. People, 46 Mich. 437, 9 N. W. 485. ^^ See, 4 Blackstone Comm. 64; Knowles v. State, 3 Day (Conn.) 103; State v. Appling, 25 Mo. 315, 69 Am. Dec. 469; Bell v. State, 1 Swan (Tenn.) 42; Grisham v. State, 2 Yerg. (Tenn.) 589; Rex v. Wilkes, 4 Burr. 2527 ; Dugdale v. Reg., Dears. C. C. 64; Rex v. Sedley, 17 How. St. Tr. 155, note. "See, United States v. Males, 51 Fed. 41; Commonwealth v. Wardell, 128 Mass. 52; Fuller v. People, 92 111. 182. 381 PUBLIC IXDECENCY. [§ 3068. ing and is usually limited by the courts to public displays of the naked person, the pul)lication, sale, or exhibition of obscene books and prints, or the exhibition of a monster— acts which have a direct bearing on public morals, and affect the body of society, and that even under a statute against "notorious lewdness or other public indecency," a prosecution will not lie for using obscene language or singing obscene songs.^"^ Under most of the statutes, as at common law, the offensive act of lewdness must be public and is generally re- quired to be open and notorious,^" but a private sale or exhibition of obscene pictures or prints has been held a sufficient publication." And it seems that under the later decisions, tlie place in which the person is exposed need not be public if more than one person saw or was in a situation to see it.=^^ Circumstantial as well as direct evidence is competent,^ ^ but mere hearsay evidence is not."" Knowl- edge or intent may be inferred from circumstances and is some- times presumed regardless of the actual motive." But the question of intent and various other questions that usually arise are generally for the jury to determine.*'- "McJunkinG v. State. 10 Ind. 140. =° Grouse v. State, 16 Ark. 566; People V. Gates, 46 Gal. 52; Brooks V. State, 2 Yerg. (Tenn.) 482; Com- monwealth v. Munson, 127 Mass. 459; Searls v. People, 13 111. 597; State v. Marvin, 12 Iowa 499. ='Reg. V. Garlile, 1 Cox Cr. Gas. 229; Gommonwealth v. Sharpless, 2 S. & R. (Pa.) 91, 7 Am. Dec. 632. ='Reg. V. Wellard, L. R. 14 Q. B. D. 63, 54 L. J. M. G. 14, 15 Gox Gr. Gas. 559; Reg. v. Farrgll, 9 Gox Gr. Gas. 446; State v. Hazle, 20 Ark. 156; Gommonwealth v. Wardell, 128 Mass. 52, 35 Am. R. 357; but see, Gommonwealth v. Hardin, 2 Ky. L. R. 59; Reg. v. Thallman, 9 Gox Gr. Gas. 388. Much, however, depends upon the particular statute. As to what is a public place, see, Reg. v. Harris, L. R., 1 C. G. 282, 11 Gox Cr. Gas. 659; Van Houten v. State, 46 N. J. L. 16, 50 Am. R. 397; Reg. V. Wellard, L. R., 14 Q. B. 63, 15 Gox Gr. Gas. 559; Reg. v. Holmes, 6 Gox Gr. Gas. 216 ; Moffit v. State, 43 Tex. 346; Lorimer v. State, 76 Ind. 495. ^» Gommonwealth v. Dill, 156 Mass. 226, 30 N. E. 1016; Peak v. State, 10 Humph. (Tenn.) 99. "° Buttram v. State, 4 Goldw. (Tenn.) 171. " Reg. V. Hicklin, 11 Gox Gr. Gas. 19, 29; State v. Holedger, 15 Wash. 443, 46 Pac. 652; United States v. Harmon, 45 Fed. 414; State v. Mc- Kee, 73 Gonn. 18, 46 Atl. 409; People V. Muller, 96 N. Y. 408, 48 Am. R. 635; Montross v. State, 72 Ga. 261, 53 Am. R. 840; State v. Stice, 88 Iowa 27, 55 N. W. 17; Gommon- wealth V. Haynes, 2 Gray (Mass.) 72, 61 Am. Dec. 437. <>= Miller v. People, 5 Barb. (N. Y.) 203; Garter v. State, 107 Ala. 146, 18 So. 232; State v. Van Wye, 136 Mo. 227, 37 S. W. 938. 58 Am. St. 627; United States v. Smith, 45 Fed. 476. § 3069.] NUISANCE. 382 § 3069. Storing explosms. — It has been held that the mere keep- ing of a large quantity of gunpowder or other explosives on one's premises, or even near a public place, does not necessarily constitute a public nuisance per se.^^ But it may constitute a public nuisance if the explosives are so kept and in such a place and under such cir- cumstances as to endanger life.*'* There are comparatively few de- cisions upon the subject, however, in criminal cases, and nothing peculiar in the application in such cases of rules of evidence. The questions generally arise in civil actions for damages or in actions or prosecutions under municipal ordinances.®^ "Kinney v. Koopman, 116 Ala. see also, Heeg v. Licht, 80 N. Y. 310, 22 So. 593, 67 Am. St. 119, and 579; Rudder v. Koopman, 116 Ala. note; Dumesnll v. Dupont, 18 B. 332, 22 So. 601; Wilson v. Phoenix Mon.' (Ky.) 800, 68 Am. Dec. 750. Powder Co., 40 W. Va. 413, 21 S. E. "Reg. v. Lister, 7 Cox Cr. Cas. 1035, 52 Am. St. 890; Wier's Appeal, 342; People v. Sands, 1 Johns. (N. 74 Pa. St. 230. Y.) 78, 3 Am. Dec. 296; Bradley v. «= See, 67 Am. St. 134, note; 86 People, 56 Barb. (N. Y.) 72; State Am. St. 521, note, and, 38 L. R. A. v. Raggett, 8 Wash. 579, 36 Pac. 487; 306, note. CHAPTER CXLVIII. PERJURY. Sec. Sec. 3070. Definition — Essential elements. 3080. 3071. Burden of proof. 3081. 3072. Presumptions. 3082. 3073. Questions of law or fact. 3083. 3074. Oath and proceedings. 3084. 3075. Jurisdiction of tribunal — Au- 3085. thority of officer. 3086. 3076. Jurisdiction of tribunal — Re- 3087. cent cases. 3088. 3077. Falsity. 3089. 3078. Motive or intent. 3090. 3079. Materiality. 3091. Materiality — Collateral matter. Materiality — How shown. Record of former proceedings. Best evidence. Stenographer's notes. Parol evidence. Res gestae. Circumstantial evidence. Admissions and confessions. Corroboration. Defenses. Variance. §3070. Definition — Essential elements.— Perjury, except where the statute otherwise expressly or impliedly defines it, may be defined as a corrupt, wilful and false oath taken in a judicial proceeding, be- fore some court or officer having authority to administer oaths, con- cerning a material matter involved in the proceedings.^ To maintain a prosecution for perjury, it is said, it must appear that the oath was false, the intention wilful, the proceedings judicial, the party lawfully sworn, the assertion absolute, and the falsehood material to the matter in question.^ The statutes of many of the states pro- vide that one may be prosecuted for perjury who takes a lawful oath or affirmation in any matter in which, by law, an oath or affirmation may be required and who, upon such oath or affirmation, swears or affirms wilfully, corruptly, and falsely touching a matter material 'Hood V. State, 44 Ala. 81; Miller v. State, 15 Fla. 577. At common law perjury was defined as the "tak- ing of a wilful false oath by one who being lawfully sworn by a com- petent court to depose the truth in any judicial proceeding, swears ab- solutely and falsely, in a matter ma- terial to the point in issue, whether he believed it or not." Common- wealth V. Powell, 2 Mete. (Ky.) 10; see also, 1 Hawkins P. C. chap. 69, § 1; 2 Russell Crimes (5th Am. ed.) 596; 4 Blackstone Comm. 137. - Commonwealth v. Kuntz, 4 Pa. L. J. 163. 383 3070.] PERJURY, 384 to the point in question.^ In some jurisdictions false swearing, where it would not be perjury, is also made a crime, but it has been held that where it is made a separate and distinct crime by statute, the prosecution must be based upon such statute.* Modern statutes in many of the states have, as above stated, enlarged the common-law offense of perjury, and it is impossible to give an exact definition and statement of the essential elements under every statute, yet the different statutes bear, in most respects, a close resemblance. The definition and statement of the essential elements given by Mr. Hughes will be found to be applicable in most jurisdictions, and we can not do better than to quote from his work as follows :^ "Per- jury consists in wilfully and falsely swearing to a fact material to the"^ point in issue before a court or tribunal having legal authority to inquire into the cause or matter investigated.^ To sustain a charge of perjury the evidence must prove the following essential elements : (1) The authority of the officer to administer the oath; (2) the occasion of administering it; (3) the taking of the oath by the ac- cused; (4) the substance of the oath; (5) the material matter sworn to; (6) the introductory averments; (7) the falsity of the matter sworn to; and (S) the corrupt intention of the accused.'^ To commit a perjury a person must wilfully, corruptly and falsely, swear or affirm. The false assertion made by the witness under oath must be kno^-n to such witness to be false and must be intended by him or her to mislead the court or jury."* 'See, for instance. Burns' Ann. note; State v. Mace, 76 Me. 64. 5 Ind. Stat, § 2093; State v. Smith, 63 Am. Cr. R. 588; Hood v. State, 44 Vt. 201, 22 Atl. 604; R. L. Vt, Ala. 81, 86; see also, 85 Am. Dec. § 4263; Langford v. State, 9 Tex. 488, note. App. 283; see, Act Cong. March 3, '2 Roscoe Cr. Ev., 836, 1045. 1857, § 5 (11 Stat. 250). « Coyne v. People, 124 111. 24, 14 estate V. Runyan, 130 Ind. 208, N. E. 668, 7 Am. St. 324; Johnson v. 29 N. E. 779; see also, Common- People, 94 111. 505; People v. Ger- wealth V. Maynard, 91 Ky. 131, 15 man, 110 Mich. 244, 68 N. W. 150; S. W. 52; State v. Carpenter, 164 see. State v. Higgins, 124 Mo. 640, Mo. 588, 65 S. W. 255; Steber v. 28 S. W. 178; People v. Ross, 103 State, 23 Tex. App. 176, 4 S. W. 880. Cal. 425, 37 Pac. 379; Bell v. Senneff, ^Hughes Cr. Law & Proc, § 1582. 83 111. 122; People v. Willey, 2 Park. M Blackstone Comm. 137; Pankey Cr. Cas. (N. Y.) 19; Thomas v. V. People, 1 Scam. (111.) 80; State State, 71 Ga. 252; State v. Cruik- V. Hunt, 137 Ind. 537, 37 N. E. 409; shank, 6 Blackf. (Ind.) 62; Miller v. see, State v. Houston, 103 N. Car. State, 15 Fla. 577; Green v. State, 383, 9 S. E. 699, 8 Am. Cr. R. 631, 41 Ala. 419; Williams v. Common- 385 BURDEN OF PROOF. [§ 3071. § 3071. Burden of proof. — The burden is upon the prosecution to establish the defendant's guilt beyond a reasonable doubt.* In order to do this it is necessary, in general, to prove the essential elements of the crime as enumerated in the last preceding section. Thus, it has been held that the burden rests upon the state in a prosecution for perjury to show that the oath was false,^** the intention wilful,^^ the proceedings judicial,' ^ the party lawfully sworn,^^ the assertion absolute'* and the falsehood material to the matter in question." The burden is upon the state, however, to prove only so much of the testimony of the witness false as relates to the particular material fact on which the perjury is assigned,'^* but under no circumstances, it is said, will the materiality be presumed.'^ It has been held that when the prosecution has shown a material part of the defendant's statement under oath to be false, a prima facie case is established, and the burden of proof rests upon the defendant to show that his false oath was occasioned by surprise, inadvertency, or mistake, and was not made through a corrupt motive.'^ But where the defendant is unable to read or write, in a prosecution for perjury for signing a false affidavit, the state must first show that the defendant had wealth, 91 Pa. St. 493; Davidson v. State. 22 Tex. App. 372, 3 S. W. 662; 1 Hawkins P. C. 429, § 2. "Galloway v. State, 29 Ind. 442; People v. German, 110 Mich. 244, 68 N. W. 150; State v. Fannon, 158 Mo. 149, 59 S. W. 75; Rex v. De Beau- voir, 7 Car. & P. 17, 32 E. C. L. 477. '" Heflin v. State, 88 Ga. 151, 14 S. E. 112, 30 Am. St. 147; Common- wealth v. Kuntz, 4 Pa. L. J. 163; State V. Chamberlin, 30 Vt. 559; Anderson v. State, 24 Tex. App. 705, 7 S. W. 40; Littlefield v. State, 24 Tex. App. 167, 5 S. W. 650. "Mason v. State, 55 Ark. 529. 18 S. W. 827; Foster v. State. 32 Tex. Cr. App. 39, 22 S. W. 21; People v. Macard, 109 Mich. 623, 67 N. W. 968. ^-King v. State, 32 Tex. Cr. App. 463, 24 S. W. 514; Keator v. People, 32 Mich. 484. "Sloan v. State, 71 Miss. 459, 14 So. 262; Dempsey v. People, 20 Hun (N. Y.) 261; State v. Mace, 86 N. Car. 668. "Mason v. State, 55 Ark. 529, 18 S. W. 827; Commonwealth v. Kuntz, 4 Pa. L. J. 163. "State V. Aikens, 32 Iowa 403; Nelson v. State, 32 Ark. 192; Law- rence V. State, 2 Tex. App. 479; Rich V. United States, 1 Okla. 354, 33 Pac. 804. "* United States v. Erskine, 4 Cranch (U. S.) 299, 25 Fed. Cas. No. 15057; Dodge v. State, 24 N. J. L. 455; Hutcherson v. State, 33 Tex. Cr. App. 67, 24 S. W. 908; 1 Bishop Cr. Proc, § 934. -"Nelson v. State. 32 Ark. 192; that the materiality must be shown, see also, Commonwealth v. Pollard, 12 Mete. (Mass.) 225; State v. Aik- ens, 32 Iowa 403; Wood v. People, 59 N. Y. 117; Garrett v. State, 37 Tex. Cr. App. 198, 38 S. W. 1017. " State V. Chamberlin, 30 Vt. 559. Vol. 4 Elliott Ev. §§ 3072, 3073.] perjury. 386 an understanding of the statement contained in the aflfidavit.^^ Mak- ing a mark at the end of an affidavit after it is read to affiant where the affidavit contains a preface and conclusion, both stating that it is sworn to, and where the officer signing the jurat says to the affiant, "if you swear to this statement put your mark here," has been held to be an oath sufficient on which to assign perjury.^® § 3072. Presumptions. — Where it is affirmatively shown in a prose- cution for perjury that an oath was administered in open court by an acting officer of the class having authority to administer such oaths, the presumption is that it was rightfully done,^° but in the absence of any evidence by the prosecution, there is no presumption that an oath was administered or that it was correctly done.^^ There is no- legal presumption in favor of the prosecution that the false state- ment was material,^^ but on the other hand, this must be affirmatively established by the state.^^ And it may, perhaps, be said that no pre- sumption favors the prosecution as to any of the allegations necessarily alleged, for they must be affirmatively proved by the state.^* That is, the state must at least produce some evidence upon the subject. § 3073. Questions of law or fact. — Questions of fact are for the jury in perjury cases as in other criminal cases. But the question as to whether the alleged false testimony or oath upon which per- jury is assigned is material within the rule in regard to perjury is generally held to be a question for the court.^^ So, the question as ''Hernandez v. State, 18 Tex. App. Vt. 559; Sloan v. State, 71 Miss. 459, 134, 51 Am. R. 295. 14 So. 262. " United States v. Mallard, 40 Fed. " State v. Clough, 111 Iowa 714, 151, 5 L. R. A. 816. 83 N. W. 727; State v. Cay wood, 96 2° State V. Mace, 86 N. Car. 668; Iowa 367, 65 N. W. 385; State v. State V. Hascall, 6 N. H. 352; Swafford, 98 Iowa 362, 67 N. W. 284; Staight V. State, 39 Ohio St. 496; Gordon v. State, 48 N. J. L. 611, 7 Reg. V. Roberts, 38 L. T. N. S. 690. Atl. 476; United States v. Singleton, =' Sloan V. State, 71 Miss. 459, 14 54 Fed. 488; State v. Faulkner, 175 So. 262. Mo 546, 75 S. W. 116; State v. Wil- ^' Nelson v. State, 32 Ark. 192. liams, 30 Mo. 364; Peters v. United =' Commonwealth v. Kuntz, 4 Pa. States, 2 Okla. 138, 37 Pac. 1081; L. J. 163; State v. Chamberlin, 30 People v. Lem You, 97 Cal. 224, 32 Vt. 559; State v. Aikens, 32 Iowa Pac. 11; Hanscom v. State, 93 Wis. 403. 273, 67 N. W. 419; State v. Park, 57 '* Commonwealth v. Kuntz, 4 Pa. Kans. 431, 46 Pac. 713; Davidson v. L. J. 163; State V. Chamberlin, 30 State, 22 Tex. App. 372, 3 S. W. 662. 387 OATH AND PROCEEDINGS. [§ 3074. to the jurisdiction of the court in the proceeding in which the oath was taken has been held to be a question for the court.-** But, in a few jurisdictions, as elsewhere shown, juries are made the judges of both law and fact, and in such a jurisdiction it has been held that the defendant in a prosecution for perjury has a right to have the ques- tion of the materiality of the alleged false testimony submitted to the jury.^^ § 3074. Oath and proceedings. — It is said that to make a valid oath, for the falsity of which perjury will lie, there must be in some form, in the presence of an oflBcer authorized to administer it, an unequivocal and present act by which the affiant consciously takes upon himself the obligation of an oath.^^ But if no particular form is prescribed, the form is not a vital matter, where the oath is solemnly administered,^* and, if a form is prescribed, a substantial compliance is sufficient,^" A mere voluntary oath, not administered in the course of justice, is generally insufficient,^^ but it is not now usually required, as at common law, to be in a judicial proceeding. It has been held that perjury may be predicated on false testimony, although the witness was incompetent,^^ ^^(j ^i-,^^ ^^ affidavit initiating a criminal But it is said that it may become a professes such forms to be binding mixed question of law and fact; upon his conscience. Markey v. Young V. People, 134 111. 37, 24 N. E. State, (Fla.) 37 So. 53. 1070; McAvoy v. State, 39 Tex. Cr. ^^ State v. Dayton, 23 N. J. L. 49, App. 684, 47 S. W. 1000. 53 Am. Dec. 270; State v. Gates, 17 -•^ State V. Clough, 11 Iowa 714, 83 N. H. 373; Sharp v. Wilhite. 2 N. W. 727; in. State v. Hopper, 133 Humph. (Tenn.) 434; Common- Ind. 460, 32 N. E. 878; Masterson v, wealth v. Smith, 11 Allen (Mass.) State, 144 Ind. 240, 43 N. E. 138. it 243; State v. Owen, 72 N. Car. 605; is held that the court should take State v. Green, 24 Ark. 591. judicial notice of the authority of =' See, People v. Travis, 4 Park, the officer to administer oaths upon Cr. Cas. (N. Y.) 213; Silver v. State, proof of facts showing that he is an 17 Ohio 365; Lamden v. State, 5 officer upon whom the statute con- Humph. (Tenn.) 83; Linn v. Com- fers snoh authority. monwealth, 96 Pa. St. 285; Heintz v. 2' State V. Spencer, 45 La. Ann. 1, Union Quarter Sessions, 45 N. J. L. 12 So. 135. 523; Rex v. Cohen, 1 Stark. 416; =» O'Reilly v. People, 86 N. Y. 154, Reg. v. Bishop, Car. & M. 302; 40 Am. R. 525; Markey v. State, United States v. Babcock, 4 McLean (Fla.) 37 So. 53. (U. S.) 113. ^''See, State v. Keene, 26 Me. 33; === State v. Moore, 111 La. Ann. 2 Wharton Cr. Law, § 1251; 2 Bishop 1006, 36 So. 100; see also, Horn v. Cr. Law, § 1018. Or if the affiant Foster, 19 Ark. 346, 354; Montgom- § 3075.] PERJURY. 388 prosecution is a sufficient predicate for perjury .^^ So, where a proper ease for impeaching a witness by showing contradictory statements was presented, it was held that such witness was guilty of perjury if he swore as to whether he did or did not make such contradictory statements.^* Many other illustrative cases are given in the notes referred to below.^^ In a recent Florida case it is held that the officer alleged to have administered the oath, or defendant himself, or any witness present at such alleged swearing may be examined fully as to the facts connected therewith that it may be determined whether defendant was sworn and that the identification and production of the testimony of defendant on trial for perjury, who was complainant in a divorce suit, with proof of the signature of the defendant and of the officer taking the testimony, is prima facie sufficient to establish that defendant was actually sworn, and conclusive unless the pre- sumption is overcome by other testimony.^^ So, in a Kansas case it is held that the complaint filed and the warrant served in the action in which the false testimony was given are competent and admissible to prove the pendency of the proceedings to which they relate." And in a Georgia case, where it appeared that accused had sworn to a re- port of several pages, one of such pages was held not to be inadmissible because the accused had previously sworn to it before another attesting officer.^* § 3075. Jurisdiction of tribunal — Authority of officer. — It is es- sential that the oath should be taken before an officer having authority ery v. State, 10 Ohio 220; State v. case that where the affidavit of Hawkins, 115 N. Car. 712, 20 S. B. testimony of a witness was actu- 623; but compare. Smith v. Bouch- ally used by him in the cause in ier,'2 Str. 993. which it was talten, proof of this '^Simpson v. State, (Tex. Cr. fact will obviate the necessity of App.) 79 S. W. 530. proving his handwriting on trial for ^* Brown v. State, (Fla.) 36 So. perjury, but will not dispense with YQ5_ proof that he was sworn. See also, ==85 Am. Dec. 491. note; 54 L. R. Rex v. James, 1 Show. 397, Carth. A. 520. note. Cases in which it was 220; State v. Madigan, 57 Minn. 425, held that the tribunal, proceeding or 59 N. W. 490; Rex v. Morris, 2 Burr, oath was not such as perjury could 1189; Rex v. Benson, 2 Campb. 508. be predicated upon are reviewed as =' State v. Horine, (Kans.) 78 Pac. well as tho':e in which it was held 411. that perjury would lie. '" Thompson v. State, 120 Ga. 132, '^Markey v. State. (Fla.) 37 So. 47 S. E. 566. 53. It was also held in the same 389 JURISDICTION — AUTHORITY OF OFFICER. [§ 30T5. to administer it, or, if in judicial proceedings in court, that the court should have jurisdiction.^** But there is some conflict among the authorities as to what is or is not sufficient to show or constitute the necessary authority or jurisdiction, and mere slight irregularities, or even want of jurisdiction, in a sense, to render the final judg- ment rendered by tlie court, will not necessarily prevent one who swears falsely from being found guilty of perjury. A recent writer after reviewing the authorities upon the subject, makes the following statement: "The authorities thus reviewed seem to establish that want of jurisdiction to inquire into a matter at all is fatal to a charge of perjury, and this is true, at least at common law, even if the court had general jurisdiction of the subject-matter but the jurisdiction had not attached in the particular case. In this connection, however, it is important to bear in mind that defects which in some cases, and under some circumstances, are deemed to deprive the court of jurisdiction of the particular proceeding, in other cases and under other circumstances are regarded as mere irregularities that they may be waived. So, also, it is to be observed that, though the court may not, under the circumstances as developed in a particular case, have had jurisdiction to proceed to judgment, yet it may have had jurisdiction to take cognizance of the case in the first in- stance. So, also, a distinction has been made between a case where there was no jurisdiction and a case where the jurisdiction might have been, but was not, defeated by proof of extrinsic circum- stances."*" In a recent case it is held that perjury would lie although the officer or magistrate before whom the proceedings were had was only an officer de facto." So, it is generally sufficient prima facie to show that the officer or magistrate was regularly acting as such.*- 5^85 Am. Dec. 490, note; 54 L. R. Atl. 406; United States v. Curtis, 107 A. 513, note. In botli of these notes U. S. 671. numerous authorities are reviewed, *« Morford v. Territory, 10 Okla. and reference will here be made to 741, 63 Pac. 958, 54 L. R. A. 513, 521, only a few of them. Paine's Case, note. Yel. Ill; Rex v. Verelst, 3 Campb. " Morford v. Territory, 10 Okla. 433; Reg. v. Pearce, 9 Cox Cr. Cas. 741, 63 Pac. 958, 54 L. R. A. 513; 268; Reg. v. Hughes, 7 Cox Cr. Cas. but see, Biggerstaff v. Common- 286; Muir v. State, 8 Blackf. (Ind.) wealth, 11 Bush (Ky.) 169; Lam- 154; State v. Phippen, 62 Iowa 54, bert v. People, 76 N. Y. 220. 17 N. W. 146; State v. Gates, 107 N. •*' State v. Hascall, 6 N. H. 352; Car. 832, 12 S. E. 319; Butler v. Masterson v. State, 144 Ind. 240, 43 State, 36 Tex. Cr. App. 483, 38 S. W. N. E. 138; Keator v. People, 32 787; State v. McCone, 59 Vt. 117, 7 Mich. 484; Staight v. State, 39 Ohio § 3076.] PERJURY. 390 Thus, evidence that the oath was administered in open court by one acting as deputy clerk has been held sufficient proof of official author- ity to administer oaths.*^ So, it has been held that in a prosecution for perjury for making a false affidavit the production of the affidavit, with proof that the defendant signed it, the officer having properly affixed his seal and Jurat, is sufficient evidence that the defendant actually swore to the affidavit,** and that a witness may testify that he had authority to administer oaths and having such authority that he administered the oath.*^ § 3076. Jurisdiction of tribunal — ^Recent cases. — The subject treated in the last preceding section has been under consideration in several recent cases, in addition to those cited, and it may be well to review a few of them. In a Texas case it was said that while perjury cannot be predicated on an oath administered in proceedings wholly void, yet mere irregularities or informalities not ousting the juris- diction of the court constitute no defense to a charge of perjury. And it has been held that where parties to a civil action expressly agreed in writing to waive notice, time, and issuance of commission to take a deposition of the plaintiff therein as evidence on the trial, and agreed that the answers to the interrogatories might be taken on the original and cross interrogatories before any officer authorized by law to take the same in the county where plaintiff might be found, a notary public of the county where plaintiff was found was authorized to take his deposition, making the deposition legal, and plaintiff guilty of perjury on giving false answers to such interrogatories.*'' So, in a recent case in Florida, it is held that although a tribunal must have jurisdiction before perjury can be committed by making a false oath before it, yet where there is a de- fect which renders the proceeding voidable only, and such proceeding St. 496; Reg. v. Roberts, 38 L. T. 59 N. W. 490; State v. Hascall, 6 N. N. S. 690; see also, Warwick v. H. 352; but see, Morrell v. People, State, 25 Ohio St. 21; Stephens v. 32 111. 499, 502; State v. Theriot, 50 State, 1 Swan (Tenn.) 157; State v. La. Ann. 1187, 24 So. 179; United Mace, 86 N. Car. 668; State v. Greer, States v. Garcelon, 82 Fed. 611. 48 Kans. 752, 30 Pac. 236. '= Woodson v. State, 24 Tex. App. *-Keator v. People, 32 Mich. 484; 153, 6 S. W. 184; State v. Hascall, King V. State, 32 Tex. Cr. App. 463, 6 N. H. 352; Moore v. State, 52 Ala. 24 S. W. 514; Masterson v. State, 144 424. Ind. 240, 43 N. E. 138. « Manning v. State, (Tex. Cr. "State V. Madigan, 57 Minn. 425, App.) 81 S. W. 957. 391 FALSITY OF OATH, [§ 3077. is amendable or the defects are waived, perjury may be committed ; and that mere irregularities in the appointment of a person to take testimony cannot be questioned on the trial for perjury of one who testified falsely before him. Applying these principles to the case before it, the court held that where, on motion of the complainant in a proceeding for divorce, the court appoints a certain attorney to take testimony, but fails to designate him by any official title, the order confers authority on him to take the testimony and to ad- minister oaths to complainant and other witnesses, and that where a bill for divorce contained allegations giving the court jurisdiction and warranting the relief sought, if true, the fact that, on the trial •of complainant for perjury in testifying as to material facts, it ap- peared that neither party had resided in the state for the statutory period, would not prevent a conviction,*'^ And in another recent case it is held that one may be convicted of false swearing although the officer who administered the oath knew at the time that it was false, and was made to obtain funds to which the affiant was not en- titled, and although such officer administered the oath for the pur- pose of instituting criminal proceedings,*^ § 3077. Falsity. — Proper evidence is, of course, admissible to show ihe falsity of the statement in the former proceedings as this is an essential ground upon which the proceeding must stand or fall.*^ Circumstantial evidence is admissible upon this question,^" and con- tradictory statements and facts which show the falsity of the oath upon which perjury is assigned are usually relevant and admissible.^^ Thus, it is held that the state may show the falsity of the defendant's statements regarding other and correlative facts as tending to prove "Markey v. State, (Fla.) 37 So. 109 Mich. 623, 67 N. W. 968; State 53, V. Smith, 119 N. Car. 856, 25 S. E. *« Thompson v. State, 120 Ga. 132, 871. 47 S. E. 566. '" State v. Swafford, 98 Iowa 362, "Heflin v. State, 88 Ga. 151, 14 67 N. W. 284; State v. Faulk, 30 La. S E. 112, 30 Am. St. 147; Adams v. Ann. 831; Eighmy v. People, 79 N. State, 93 Ga. 166, 18 S. E. 553; Y. 546; but see, Hemphill v. State, Littlefield v. State, 24 Tex. App. 167, 71 Miss. 877, 16 So. 261. 5 S. W. 650. "Any fact," says Mr. "Brown v. State, 57 Miss. 424; Underbill, "is relevant which tends State v. Faulk, 30 La, Ann. 831; to prove or disprove either its truth State v. Jones, 91 N. Car. 629; Cord- or falsity." Underhill Cr. Ev., way v. State, 25 Tex. App. 405, 8 S. § 469; see also. Walker v. State, 107 W. 670; Mason v. State, 55 Ark. 529, Ala. 5, 18 So. 393; People v. Macard, 18 S. W. 827, § 3078.] PERJURY. 392 the falsity of the material fact.^^ It has also been held that a wit- ness for the state in a case of perjury may testify as to what the de- fendant said in the former proceeding and may then say that it was false, and give the facts which conclusively show it to be false.^^ § 3078. Motive or intent. — Evidence tending to show the motive or intent in taking the alleged false oath or giving the alleged false testimony is frequently important upon the question as to whether it was wilfully false and corrupt, and evidence has been held ad- missible to show animosity and malice in the defendant against the prosecutor;^* or that he had sinister and corrupt motives in giving the false testimony. Thus, where the charge of perjury was based upon a complaint made by the defendant of threats on the part of the prosecutor to do him some great bodily harm, requiring sureties of the peace against him, it was held that evidence was admissible, which showed that the real object of the defendant, in making that complaint, was to coerce the prosecutor to pay a disputed demand.^ ^ And so it has been held that although the false testimony given in a cause was afterwards retracted on cross-examination, or a subsequent stage of the trial, yet the indictment will be sustained by proof that the false testimony was wilfully and corruptly given, notwithstanding the subsequent retraction.^" "But it must be clearly shown," says Professor Greenleaf,^^ "to have been wilfully and corruptly given, without any intention, at the time, to retract it; for it is settled, that a general answer may be subsequently explained so as to avoid the imputation of perjury. Thus, where perjury was assigned upon an answer in chancery, in which the defendant stated that she had received no money ; and it was proved, that, upon exceptions being taken to this answer, she had put in a second answer, explaining the generality of the first, and stating that she had received no money before such a day, — it was held, upon a trial at bar, that nothing in the first answer could be assigned as perjury which was explained in the second."^^ It has also been held that the evil intent of the de- ^^ Anderson v. State, 24 Tex. App. also, Reg. v. Phillpotts, 3 Car. & 70.5, 7 S. W. 40. Kir. 135, 5 Cox Cr. Cas. 363. ^' Adams v. State, 93 Ga. 166, 18 S. " 3 Greenleaf Ev., § 199. E. 553; Heflin v. State, 88 Ga. 151, °^ Rex v. Carr, 1 Sid. 418, 2 Keb. 14 S. E. 112, 30 Am. St. 147. 336; 2 Russell Crimes 666 (5th Eng. "Rex V. Munton, 3 Car. & P. 498. ed.. Vol. Ill, 97). The same general ^^ State V. Hascall, 6 N. H. 352. principle is recognized in, Rex v. ^"Martin v. Miller, 4 Mo. 47; see Jones, 1 Peake N. P. 38; Rex v. Dow- 393 MOTIVE OR INTENT — MATERIALITY. [§ 30';:). fendant may be shown by evidence of other perjury than that alleged in the indictment, relating to the same oath and subject-matter, and this may be properly considered by the jury in determining the question of corrupt intent in swearing to the false matter upon which the defendant is charged. °® Evidence has also been held ad- missible which tends to show that the accused endeavored to induce a third person to give false testimony in the case in which he gave the alleged false testimony,*'" or that the defendant charged with per- jury endeavored to prevent and induce witnesses from testifying against the defendant in the case in which the false testimony was given,'^ Deliberation and wilfulness, it is said, are essential ele- ments of the crime of perjury and evidence which tends to prove such is admissible and goes to the very substance of the offense."* It has also been held that a justice of the peace who conducted the preliminary examination of the case in which the perjury is alleged to have taken place, may testify as to the insolent conduct and lan- guage of the defendant while testifying before him.®^ And where the defendant attempts to show that his affidavit or testimony was made by mistake, inadvertence or under agitation, the prosecution may usually show that the defendant made such false statement with premeditation.*'* § 3079. Materiality. — In an action for perjury there must be proof that the false testimony was material to the issue. The fact that it was false alone is not enough to convict, and false testimony will not be presumed to be material.*'^ A witness will not be per- mitted to give it as his opinion that the evidence was material, but this is left for the tribunal.'"' The question of materiality is usually to lin, 1 Peake N. P. 170; Rex v. Row- '^Lawrence v. State, 2 Tex. App. ley, Ry. & M. 299. 479; Rich v. United States, 1 Okla. =» State V. Raymond, 20 Iowa 582. 354, 33 Pac. 804; Wood v. People, 59 «°Heflin v. State, 88 Ga. 151, 14 S. N. Y. 117; Nelson v. State, 32 Ark. E. 112, 30 Am. St. 147. 192. The mere fact that the testi- " People V. Macard, 109 Mich. 623, mony was admitted has been held 67 N. W. 968. insufficient to show that it was ma- "^ Mason v. State, 55 Ark. 529, 18 terial. Commonwealth v. Pollard, 12 S. W. 827. Mete. (Mass.) 225; see also. Brown "^Foster v. State, 32 Tex. Cr. App. v. State, (Fla.) 36 So. 705. 39, 22 S. W. 21. '" Washington v. State, 23 Tex. "Davidson v. State, 22 Tex. App. App. 336, 5 S. W. 119; Foster v. 372, 3 S. W. 662; but see, Mason v. State, 32 Tex. Cr. App. 39, 22 S. W. State, 55 Ark. 529, 18 S. W. 827. 21; Silver v. State, 17 Ohio 365. 5079.] PERJURY. 394 be determined as of the time when the alleged false testimony was given.®'^ Upon this question Professor Greenleaf says :®^ "As to the materiality of the matter to which the prisoner testified, it must appear either to have been directly pertinent to the issue or point in question, or tending to increase or diminish the damages, or to induce the jury or judge to give readier credit to the substantial part of the evidence."^ But the degree of materiality is of no im- portance; for, if it tends to prove the matter in hand, it is enough, though it be circumstantial.'^" Thus, falsehood, in the statement of collateral matters, not of substance, such as the day in an action of trespass, or the kind of staff with which an assault was made, or the color of his clothes, or the like, may or may not be criminal, ac- cording as they may tend to give weight and force to other and material circumstances, or to give additional credit to the testimony of the witness or of some other witness in the cause.''^ And there- •"Rex v. Hailey, 1 Car. & P. 258; Bullock V. Koon, 4 Wend. (N. Y.) 531; People v. Lem You, 97 Cal. 224, 32 Pac. 11; see also, People v. Hitchcock, 104 Cal. 482, 38 Pac. 198; State v. Mooney, 65 Mo. 494; Reg. v. Phillpotts, 3 Car. & Kir. 135, 5 Cox Cr. Cas. 363; Rex v. Crossley, 7 Term R. 311, 315; State v. Whitte- more, 50 N. H. 245, 9 Am. R. 196. Evidence that, in a corporation court having jurisdiction only of offenses committed in the city, on a trial for playing cards in the city, the defendant falsely swore that he had not seen or played in a game outside of the city has been in- sufficient to sustain a conviction of perjury, without evidence to show the materiality of the facts of which he testified. Pyles v. State, (Tex. Cr. App.) 83 S. W. 811. So, in a similar case it was held by the same court that evidence that the game of cards about which the defendant swore falsely was played outside of the city limits, would not support a conviction, in the absence of further proof showing that such false testi- mony was material to the issue. Liggett V. State, (Tex. Cr. App.) 83 S. W. 807. "' 3 Greenleaf Ev., § 195. ""2 Russell Crimes 600, (5th Eng. ed.. Vol. Ill, 10); 1 Hawkins P. C, chap. 69, § 8; Rex v. Aylett, 1 Term R. 63, 69; Commonwealth v. Parker, 2 Cush. (Mass.) 212; Common- wealth V. Knight, 12 Mass. 274; Rex V. Prendergast, Jebb C. C. 64; see also. State v. Norris, 9 N. H. 96; Wood V. People, 59 N. Y. 117; Com- monwealth V. Grant, 116 Mass. 17; State V. Park, 57 Kans. 431, 46 Pac. 713; Crump v. Commonwealth, 75 Va. 922; Hanscom v. State, 93 Wis. 273, 67 N. W. 419; State v. Hunt, 137 Ind. 537, 37 N. E. 409; 85 Am. Dec. 492, 493, note. "Rex V. Griepe, 1 Ld. Raym. 256; Reg. V. Rhodes, 2 Ld. Raym. 886, 890; State v. Hattaway, 2 N. & Mc. (S. Car.) 118; Commonwealth v. Pollard, 12 Mete. (Mass.) 225; see, Reg. V. Worley, 3 Cox Cr. Cas. 535; Reg. V. Owen, 6 Cox Cr. Cas. 105. "1 Hawkin P. C, chap. 69, § 8; 2 Russell Crimes, 600 (5th Eng. ed.. 395 COLLATERAL MATTER. [§ 3083. fore every question upon the cross-examination of a witness is said to be material.'^^ In the answer to a bill in equity, matters not re- sponsive to the bill may be material."^^ But, while questions on cross-examination that go to the credit of the witness are generally considered material, the statement of Professor Greenleaf seems to be a little too broad, for if the evidence of the witness in chief is not material and the question on cross-examination does not go to the credit of the witness, it would not, ordinarily, be material.'^* § 3080. Collateral matter. — Although the false oath or testimony must be material, it is not necessary that it should be material to the main issue or question.'^ ^ It may be sufficient if it is material to some collateral matter involved. Thus, it is said, that "a party not only commits perjury by swearing falsely and corruptly as to the fact which is immediately in issue, but also by doing so as to material circumstances which have a legitimate tendency to prove or disprove such fact.""'' It has been held, for instance, that perjury may be as- signed upon false testimony offered to procure the admission in evi- dence of a material document,'^' upon a false affidavit for a con- tinuance,'^^ upon false testimony tending to increase or diminish the damages, '^^ or upon false testimony affecting the credibility of a witness.^*' And it makes no difference that the jury may not have Vol. Ill, 10); Studdard v. Linville, Mete. (Mass.) 225; State v. Laval- 3 Hawks (N. Car.) 474; State v. ley, 9 Mo. 834; Wood v. People, 59 Norris, 9 N. H. 96 N. Y. 117; State v. Brown, 79 N. Car. "State V. Strat, 1 Murph. (N. 642, 644; Dilcher v. State, 39 Ohio Car.) 124; Reg. v. Overton, 2 Moo. St. 130; 2 Bishop Cr. Law, § 1032; C. C. 263, Car. & M. 655; Reg. v. 2 Wharton Cr. Law, § 1277. Lavey, 3 Car. & Kir. 26; see also, ""Commonwealth v. Grant, 116 State v. Hunt, 137 Ind. 537, 37 N. E. Mass. 17; see also, Rex v. Griep. 409; Hanscom v. State, 93 Wis. 273, Holt 535, 12 Mod. 139, 1 Ld. Raym. 67 N. W. 419. 256. "Rex V. Melling, 5 Mod. 348; see "Reg. v. Phillpotts, 5 Cox Cr. Cas. also, Reg. v. Yates, Car. & M. 132; 363, 3 Car. & Kir. 135. but compare. Silver v. State, 17 Ohio '* State v. Winstandley, 151 Ind. 365. 316, 51 N. E. 92; see also, Sanders " Stanley v. United States, 1 Okla. v. People, 124 111. 218, 222, 16 N. E. 336, 33 Pac. 1025; Leak v. State, 61 81; State v. Bunker, 38 Kans. 737, Ark. 599, 33 S. W. 1067; see also, 17 Pac. 651. State V. Brown, 68 N. H. 200. '"State v. Norris, 9 N. H. 96; '=* Jacobs V. State, 61 Ala. 448; Lawrence v. State, 2 Tex. App. 479; Robinson v. State, 18 Fla. 898; State Stephens v. State, 1 Swan (Tenn.) V. Wilson, 156 Ind. 343, 59 N. E. 157. 932; Commonwealth v. Pollard, 12 ^"Reg. v. Lavey, 3 Car. & Kir. 26; §§ 3081, 3082.] PERJURY. 396 believed the false testimony, or that the result would have been the same if the accused had not given false testimony.^^ § 3081. Materiality — How shown. — The record of the former pro- ceedings is usually admissible and generally necessary to show the materiality of the alleged false testimony, but as will be hereafter shown, parol evidence is admissible in some instances and the re- porter who takes down the evidence may read from his notes in a proper case. "Where the proof of materiality is found in the records of the court, or in the documents necessary to show the nature of the proceedings in which the oath was taken, this fact," says Professor Greenleaf, "will appear in the course of proving the proceedings, as has already been shown. But where the perjury is assigned in the evidence given in the cause, it will be necessary, not only to pro- duce the record, but to give evidence of so much of the state of the cause, and its precise posture at the time of the prisoner's testifying, as will show the materiality of his testimony."*^ In a recent case in which the defendant was charged with having falsely sworn that he did not commit an assault on his wife, the state was allowed to show the assault and all that occured at the time "in order to develop the materiality of the issue laid in the indictment."^^ § 3082. Record of former proceedings. — To show that the false statement was made in a judicial proceeding, and that it was a material statement, it is generally proper to introduce in evidence the proceedings of the former trial upon which the perjury was committed, and to show defendant's testimony upon that trial.^* Reg. v. Gibbons, 9 Cox Cr. Cas. 105; or a duly autlienticated transcript, Williams v. State, 68 Ala. 551; Peo- is necessary to prove the judicial pie V. Barry, 63 Cal. 62; People v. proceedings); Partain v. State, 22 Courtney, 94 N. Y. 490; United Tex. App. 100, 2 S. W. 854; People v. States V. Landsberg, 21 Blatchf. (U. Macard, 109 Mich. 623, 67 N. W. S.) 169, 23 Fed. 585. 968; Kitchen v. State, 26 Tex. App. "^Hamper's Case, 3 Leon 230; 165, 9 S. W. 461; Smith v. State, 31 Wood V. People, 59 N. Y. 117; Pol- Tex. Cr. App. 315, 20 S. W. 707; lard V. People, 69 111. 148, 154. Rogers v. State, 35 Tex. Cr. App. ^- 3 Greenleaf Ev., § 197. 221, 32 S. W. 1044, holds that where **= Townley v. State, (Tex. Cr. it appeared that the false testimony App.) 81 S. W. 309. was given upon another date than ** Heflin v. State, 88 Ga. 151, 14 S. the one on the certificate, it was E. 112, 30 Am. St. 147 (stating also proper to show that the certificate that, as a general rule, the record, was not correctly dated. 397 RECORD OF FORMER PROCEEDINGS. [§§ 3083, 3084. The original pleadings, rulings and judgment of the court in the case in which the perjury is alleged to have heen committed may be shown in evidence, where the final judgment is not made up.** As said by a recent writer:'*'' "The files of the case in which perjury is charged to have been committed are competent to show the pendency and regularity of that case.''*'^ If the charge of perjury is based on evi- dence given on the trial of a cause, in addition to the production of a record, the previous evidence and state of the cause should be proven, or at least so much of it as shows that the matter sworn to was ma- terial to the issue or point in question.*^ "But it is said that if the defendant is being tried for perjury before the same court in which the testimony was given in the former proceeding, it is not necessary to produce a copy of the record as the court will be presumed to know its own record.'"*^ § 3083. Best evidence. — Where the indictment alleges a false affi- davit or any instrument under oath and part of the record of the court, and by the defendant signed and sworn, such instrument is generally the best evidence.*"^ So, where the indictment is for perjury alleged to have been committed on the trial of a cause in a court of record, unless formal proof is waived or otherwise dispensed with, the record, or a duly certified transcript, if permitted, must generally be intro- duced."^ But secondary evidence may be admissible in a proper case after laying the necessary foundation, and, as elsewhere shown, the testimony of the witness, not a part of the record, and the identity of the accused may be shown in a proper case by parol evidence."^ § 3084. Stenographer's notes. — It frequently happens that there is no record of the evidence taken at the former trial and that the ^ Smith V. State, 103 Ala. 57, 15 39 Tex. Cr. App. 479, 46 S. W. 826; So. 866; People v. Macard, 109 Mich. 3 Starkie Ev., 1142. 623, 27 N. W. 968; Boynton v. State, ""United States v. Erskine, 4 77 Ala. 29; Williams v. State, 68 Cranch (U. S.) 299, 25 Fed. Cas. No. Ala. 551; McMurry v. State, 6 Ala. 15057. 324. ^"United States v. Walsh, 22 Fed. «" Hughes Cr. Law & Proc, § 1653. 644; but see, Schmidt v. United "'People V. Macard, 109 Mich. 623, States, 133 Fed. 257. 67 N. W. 968; Martinez v. State, 39 '" Heflin v. State, 88 Ga. 151, 14 S. Tex. Cr. App. 479, 46 S. W. 826; E. 112; 2 Bishop Cr. Proc, § 933b; Smith V. State, 103 Ala. 57, 15 So. 2 Starkie Ev. 859; 2 Chitty Cr. Law 866. 312a; Wharton Cr. Law, § 1326. »' Young v. People, 134 111. 37, 42 '•'- See, People v. Jan John, 144 Cal. 24 N. E. 1070; see, Martinez v. State, 284, 77 Pac. 950. § 3085.] PERJURY. 398 alleged false testimony can be shown only by the oral evidence of some one who heard it given or by the stenographer from his notes. It is proper to permit a stenographer who took the testimony of the defendant in the case in which perjury is charged to have been com- mitted to read from his notes, when he swears that he can give it just as the defendant gave it in court.'*^ Such evidence would seem to be admissible to prove the testimony alleged to be false, upon which the perjury is assigned, and also as bearing upon the question of its materiality. § 3085. Parol evidence. — The prosecution in a perjury case may generally show by parol evidence what the defendant swore to in the former proceedings,^* and the mere fact that the witness is unable to give an accurate and detailed account of the entire testimony as given by the defendant in the former proceeding, will not prevent him from testifying to the particular part on which the perjury is as- signed. ^^ It is also held in a recent case that on the trial of a prose- cution for perjury committed in a naturalization proceeding, the de- fendant's signature to affidavits filed in the proceeding is admissible to prove the fact that he was a witness therein, although such affi- davits, when signed, were in blank; that the provision of the Act of Congress that all courts shall, before issuing a final order or certificate of naturalization, "cause to be entered of record the affidavit of the ap- plicant and of his witness, so far as applicable, reciting and affirming the truth of every material fact requisite to naturalization," does not limit the evidence which may be taken in the proceeding to the affidavits so entered of record; and that on the trial of a person for perjury committed in such a proceeding, oral evidence is admissible to show the commission of the offense.*"^ «= People v. Macard, 109 Mich. 623, People v. Macard, 109 Mich. G23, 67 67 N. W. 968; State v. Camley, 67 IN. W. 968. Vt. 322, 31 Atl. 840; see, State v. '^ Hutcherson v. State, 33 Tex. Cr. Gibbs, 10 Mont. 213, 25 Pac. 289 App. 67, 24 S. W. 908; Taylor v. (parol evidence); see also, Heflin v. State, 48 Ala. 157; see also. Rex v. State, 88 Ga. 151, 14 S. E. 112, 30 Jones, 1 Peake N. P. 37; United Am. St. 147. States v. Erskine, 4 Cranch (U. S.) "^ State v. Gibbs, 10 Mont. 213, 25 299, 25 Fed. Gas. No. 15057. Pac. 289, 10 L. R. A. 749; People v. ""Schmidt v. United States, 133 Curtis, 50 Cal. 95; Commonwealth Fed. 257. V. Farley, Thacher Cr. Cas. 654; 399 RES GESTAE — CIRCUMSTANTIAL EVIDENCE. [§§ 3086, 3087. § 3086. R€s gestae. — Evidence of the defendant's acts and declara- tions at the time of or immediately preceding the giving of the alleged false testimony is admissible in a proper case as being part of the res gestae, and material as showing inducement.^^ The whole res gestae, including declarations of the defendant made at the time may be shown as tending to prove that his testimony as to some of the particulars was false.''^ So, in a prosecution for perjury, where it was charged that defendant swore that he did not, on a particular ac- casion, assault his wife, it was held competent for the state to show, in connection with testimony of the assault, what occured at the time, in order to develop the materiality of the issue laid in the indict- ment.^® § 3087. Circumstantial evidence. — Although, as shown in another section, certain matters in a prosecution for perjury must be estab- lished by at least one witness and corroborating circumstances, yet this does not mean that circumstantial evidence is not admissible. Whether it is sufficient, of itself, to support a conviction is another question. It is generally admissible as in other cases,^"" although more or different evidence may also be required as to some matters. Thus, circumstantial evidence is admissible in a proper case, to show the truth or falsity of defendant's statement upon the former trial.^**^ The falsity of other and correlative facts may be shown in a proper case as tending to show defendant's testimony false.^"^ And where the indictment charged immaterial as well as material matters alleged to be perjury, evidence of the immaterial matter was held competent where it showed that the testimony on the material matter was wil- fully false and not given by mistake.^"^ So, on a prosecution for °"Tuttle V. People, 36 N. Y. 431; '""See, Beach v. State, 32 Tex. Cr. State V. Curtis, 12 Ired. L. (N. Car.) App. 240, 22 S. W. 976; United 270; see also, Spencer v. Common- States v. Wood, 14 Pet. (U. S.) 430; wealth, 15 Ky, L. R. 182, 22 S. W. 2 Bishop Cr. Proc, § 932. 559. ^01 State v. Swafford, 98 Iowa 362, ^'Heflin v. State, 88 Ga. 151, 14 S. 67 N. W. 284; Eighmy v. People, 79 E. 112, 30 Am. St. 147; see also, N. Y. 546; see, Harkreader v. State, Hughes Cr. Law & Proc, § 1659. 35 Tex. Cr. App. 243, 33 S. W. 117, "^Townley v. State, (Tex. Cr. 60 Am. St. 40; Reavis v. State, 6 App.) 81 S. W. 309. "As a part of Wj-o. 240, 44 Pac. 62. the res gestae," says the court, "was "= Cordway v. State, 25 Tex. App. appellant's cursing and abusing of 405, 8 S. W. 670; Brown v. State, 57 her." See also, Atchison v. State, Miss. 424. 44 Tex. Cr. App. 551, 72 S. W. 998. ^»= Jefferson v. State, (Tex. Cr. §§ 3088, 3080.] PERJURY. . 400 perjury, the criminal record of such person in other cases than the one in which the perjury is alleged to have been committed, was held admissible against the defendant."* If the falsity of the state- ment upon which perjury is assigned is established so as to convince the jury beyond a reasonable doubt, it is sufficient, even though the evidence in addition to that of one witness is circumstantial.^ "^^ § 3088. Admissions and confessions. — Admissions made by de- fendant that his former statements under oath were untrue may be used against him."*' So, letters of the defendant showing that goods cost more than he swore they cost in entering them at the custom house, have been held competent as admissions."^ It has also been held that where the defendant is indicted for false swearing, the con- fessions of others and accomplices are admissible to prove the falsity of defendant's statements, even if made in the absence of defendant.^*'^ But one cannot be convicted of perjury upon proof merely that at another time he made a statement contradicting his alleged false statement.^''® § 3089. Corroboration. — On a charge of perjury the state, in order to convict, must usually sliow by two or more witnesses, or by one witness supported by corroborating and independent circumstances, that the former testimony was false. ^^*^ One witness may be sufficient App.) 29 S. W. 1090; see. People v. '»« Martin v. State, 33 Tex. Cr. Ah Sing, 95 Cal. 657, 30 Pac. 797. App. 317, 26 S. W. 400. •"Jefferson v. State, (Tex. Cr. '<* Reg. v. Hughes, 1 Car. & Kir. App.) 29 S. W. 1090. 519, 47 E. C. L. 519; Jackson's Case, •°* See authorities cited in preced- 1 Lewis C. C. 270; Peterson v. State, ing notes; also. People v. Porter, 74 Ala. 34; Freeman v. State, 19 Fla. 104 Cal. 415, 38 Pac. 88; People v. 552; State v. Buckley, 18 Ore. 228, Strassman, 112 Cal. 683, 45 Pac. 3; 22 Pac. 838; Schwartz v. Common- People v. Maxwell, 118 Cal. 50, 50 wealth, 27 Gratt. (Va.) 1025, 21 Am. Pac. 18; Sloan V. State, 71 Miss. 877, R. 365; Brooks v. State, 29 Tex. 16 So. 262; Gandy v. State, 23 Neb. App. 582, 16 S. W. 542; but see, 436, 36 N. W. 817; Crusen v. State, Whitaker v. State, 37 Tex. Cr. App. 10 Ohio St. 258; State v. Rutledge, 479, 36 S. W. 253. (Wash.) 79 Pac. 1123. ""United States v. Hall, (D. C.) •""United States v. De Amador, 6 44 Fed. 864, 10 L. R. A. 324; United N. Mex. 173, 27 Pac. 488; Littlefield States v. Coons, 1 Bond (U. S.) 1, v. State, 24 Tex. App. 167, 5 S. W. 25 Fed. Cas. No. 14860; Galloway 650; Cordway v. State, 25 Tex. App. v. State, 29 Ind. 442; State v. Ray- 405, 8 S. W. 670. mond, 20 Iowa 582; State v. Jean, •"■United States v. Wood, 14 Pet. 42 La. Ann. 946, 8 So. 480; Brown v. (U. S.) 430; see also, Rex v. May- State, 57 Miss. 424; State v. Gibbs, hew, 6 Car. & P. 315, 25 E. C. L. 450. 10 Mont. 213, 25 Pac. 289, 10 L. R. 401 CORROBORATION. [§ 3039. to prove the taking of the oath, but one witness, without supporting circumstances, is not sufficient to establish the falsity of the oath.^^'- It was formerly held that two witnesses were necessary, as otherwise it would be oath against oath, but this rule no longer obtains. In- deed, it has been held that the manner and testimony of the de- fendant may be sufficient corroboration to justify a conviction upon the testimony, in addition to one witness for the state.^^^ The evi- dence corroborating may be circumstantial, but it must relate to the material part and must be sufficient to convince the jury.^^^ It has been held that proof of the admissions of the defendant contrary to his statements under oath may be sufficient corroboration.^^* But it is said in a recent cace that corroborative evidence in this connection means evidence aliunde which tends to show the perjury, independent of any declaration or admission of the prisoner, and that the evidence must be something more than sufficient to counterbalance the oath of the prisoner and the legal presumption of his innocence, and the oath of the opposing witness will not avail, unless it is corroborated by other independent circumstances; but that the additional evidence need not be such as standing by itself, would justify a conviction, where the testimony of a single witness would suffice for that pur- pose,^^° And it has been held by the Supreme Court of the United States that there may be cases, where the evidence is documentary, in which no living witness is necessary. "We quote from the opinion as follows : "If we will but recognize the principle upon which circum- stances in the case of one witness are allowed to have any weight, that principle will carry us out to the conclusion that circumstances, without any witness, when they exist in documentary or written A. 749; Gandy v. State, 23 Neb. 436, that the evidence in question was 36 N. W. 817, 44 N. W. 108; State v. false. Peters, 107 N. Car. 876, 12 S. E. 74; "-"State v. Miller, 24 W. Va. 802. Beach v. State, 32 Tex. Cr. App. 240, "^ Hernandez v. State, 18 Tex. 22 S. W. 976; see, 85 Am. Dec. 488, App. 134, 51 Am. R. 295; Beach v. note; 10 L. R. A. 324, 749, note. State, 32 Tex. Cr. App. 240, 22 S. W. "^People V. Hayes, 70 Hun (N. 976. Y.) Ill, 24 N. Y. S. 194, 140 N. Y. "^Hemphill v. State, 71 Miss. 877, 484, 35 N. E. 951, 37 Am. St. 572, 23 16 So. 261; State v. Blize, 111 Mo. L. R. A. 830; United States v. Hall, 464, 20 S. W. 210; State v. Molier, 12 (D. C.) 44 Fed. 864, 10 L. R. A. 324, N. Car. 263. holds that one witness is sufficient "= State v. Hunter, 181 Mo. 316, 80 to establish every allegation of the S. W. 955. indictment, except the allegation Vol. 4 Elliott Ev.— 26 § 3089.] PERJURY. 402 testimony, may combine to establish the charge of perjury; as they may combine, together unaided by oral proof, except the proof of their authenticity, to prove any other fact connected with the declara- tions of persons or business of human life. That principle is, that circumstances necessarily make up a part of the proofs of human transactions; that such as have been reduced to writing in unequivo- cal terms, when the writing has been proved to be authentic, cannot be made more certain by evidence aliunde; and that such as have not been reduced to writing, whether they relate to the declarations or conduct of men, can only be proved by oral testimony. If it be true, then, and it is so, that the rule of a single witness, being insuf- ficient to prove perjury rests upon the law of a presumptive equality of credit between persons, or upon what Starkie terms, the appre- hension that it would be unsafe to convict in a case where there is merely the oath of one man to be weighed against that of another; satisfy the equal claim to belief, or remove the apprehension, by con- curring written proofs, which existed, and are proved to have been in the knowledge of the person charged with the perjury when it was committed, especially if such written proofs came from himself, and are facts which he must have known, because they were his own acts ; and the reason for the rule ceases. In what cases, then, w411 the rule not apply ? Or in what cases may a living witness to the corpus delicti of a defendant be dispensed with, and documentary or written testimony be relied upon to convict? We answer, to all such where a person is charged with a perjury, directly disproved by documentary or w^ritten testimony springing from himself, with circumstances showing the corrupt intent. In cases where the perjury charged is contradicted by a public record, proved to have been well known to the defendant when he took the oath ; the oath only being proved to have been taken. In cases where a party is charged with taking an oath, contrary to what he must necessarily have known to be the truth, and the false swearing can be proved by his own letters, relating to the fact sworn to, or by other written testimony existing and being found in the possession of a defendant, and which has been- treated by him as containing the evidence of the fact recited by it."^^® In a re- cent case in Texas, it is held that the general reputation of the cor- roborating witness for truth and veracity may be inquired into and that where the general reputation of such corroborating witness for truth and veracity is bad and he is contradicted by an unimpeached "''United States v. Wood, 14 Pet. (U. S.) 430, 441, 442. 403 DEFENSES. [§ 3000. and disinterested witness, such testimony will not be sufficient to sup- port a conviction.^ ^'^ § 3090. Defenses. — Proper evidence is, of course, admissible on behalf of the defendant to rebut and disprove the prima facie case made by the prosecution. He may, for instance, introduce evidence fairly tending to show that the oath or testimony on which perjury is assigned was true and not false, or that it was not on a material matter.^ ^^ So, he may show, in a proper case, that the court or of- ficer before whom the oath was taken had no jurisdiction or authority, and this will constitute a good defense,^^^ but, as already shown, mere irregularities and the like are not, ordinarily, jurisdictional, and there are some limitations upon collateral attacks. Evidence of the intoxication of the accused has also been held admissible in his behalf where it tends to show that he could not have sworn wilfully and corruptly.^-" On the other hand, where the defendant on trial for any charge, falsely swears that he did not commit the unlawful act, the fact that he was justified or acted in self-defense in so act- ing, is immaterial in his trial for perjury.^ ~^ Nor is the judgment of acquittal in the former case admissible to show the defendant's inno- cence,^ ^^ although such evidence has been held admissible as matter "'Kitchen v. State, 29 Tex. App. wealth, 11 Bush (Ky.) 169; United 45, 14 S. W. 392. But in prosecu- States v. Curtis, 107 U. S. 671, 2 tions for perjury, as in other cases. Sup. Ct. 507; 2 Hawkins P. C. (7th hearsay evidence, not coming with- ed.) 86; Roscoe Cr. Ev. (7th Am. in any of the recognized exceptions, ed.) 817; 2 Wharton Cr. Law, § 1256; is inadmissible. Pollard v. People, 2 Archbold Cr. Proc. & PI. (8th ed.) 69 111. 148; State v. Fannon, 158 Mo. 1722; Muir v. State, 8 Blackf. (Ind.) 149, 59 S. W. 75; Maines V. State, 23 154; Commonwealth v. White, 8 Tex. App. 568, 5 S. W. 123; Reavis Pick. (Mass.) 453; State v. Furlong, V. State, 6 Wyo. 240, 44 Pac. 62. 26 Me. 69; Hitesman v. State, 48 "'See, State v. Brown, 68 N. H. Ind. 473. 200, 38 Atl. 731; State v. Hattaway, ""Lytle v. State, 31 Ohio St. 196. 2 N. & McC. (S. Car.) 118; Hinch v. Or that the testimony was given by State, 2 Mo. 158. surprise, inadvertence and under an ""Lambert V. People, 76 N. Y. 220; excusable mistake. Rex v. Melling, Jackson v. Humphrey, 1 Johns. (N. 5 Mod. 349; State v. Woolverton, 8 Y.) 498; Rex V. Cohen, 1 Stark. 416; Blackf. (Ind.) 452; Harp v. State, see also, Urquhart v. State, 103 Ala. 59 Ark. 113, 26 S. W. 714. 90, 16 So. 17; Walker v. State, 107 '" Hutcherson v. State, 33 Tex. Cr. Ala. 5, 18 So. 393; Commonwealth App. 67, 24 S. W. 908. V. Hillehbrand, 96 Ky. 407, 29 S. ^-- Hutcherson v. State, 33 Tex. Cr. W. 287; Biggerstaff v. Common- App. 67, 24 S. W. 908; see also. State § 3091.] PERJURY. 404 of inducement.^" So, it has been said that the fact that an affiant merely stated in his affidavit that he believed it to be true is no de- fence, where such alleged belief is unreasonable and has no basis."* And the fact that the false testimony was in an affidavit or deposition which was not used on the trial in which it was taken for use, is not a good defense^^^ at least under most of the statutes. § 3091. Variance. — As already shown, it is not always necessary to prove everything in the indictment upon which perjury is assigned, and where there are several distinct assignments it is generally suffi- cient to prove any one of them.^^® So, proof of the substance of the testimony on which perjury is assigned, where the meaning is fairly shown, is generally sufficient.^-^ Variances as to time and date are not always fatal,"^ but they may be so."'' A variance in regard to whether the officer before whom the perjury was alleged to have been committed was elected or appointed has been held immaterial,^ ^^ but where the indictment alleged that the defendant was sworn by the county clerk and the evidence showed that he was sworn by a city V. Caywood, 96 Iowa 373, 65 N. W. 385; State v. Williams, 60 Kans. 837, 58 Pac. 476; but see. Cooper v. Com- monwealth, 21 Ky. L. R. 546, 51 S. W. 789, 45 L. R. A. 216. i=« Davidson v. State, 22 Tex. App. 373, 3 S. W. 662; Kitchen v. State, 26 Tex. App. 172, 9 S. W. 461. But these authorities also hold that the jury should be instructed that it is limited to that purpose or at least that it should not be considered as proving or disproving perjury. "* See, Johnson v. People, 94 111. 513, 514; Commonwealth v. Cornish, 6 Binn. (Pa.) 249; Rex v. Pedley, 1 Leach 365. ^"■' Shell v. State, 148 Ind. 50, 47 N. E. 144; State v. Whittemore, 50 N. H. 245; Reg. v. Vreones, L. R. (1891) 1 Q. B. 360; see also. People V. Naylor, 82 Cal. 607, 23 Pac. 116; United States v. Volz, 14 Blatchf. (U. S.) 15; but compare, State v. Joaquin, 69 Me. 218; Jacobs v. State, 61 Ala. 448; People v. Fox, 25 Mich. 492. "'State v. Hascall, 6 N. H. 352; State V. Blaisdell, 59 N. H. 328; Commonwealth v. Johns, 6 Gray (Mass.) 274; State v. Day, 100 Mo. 242, 12 S. W. 365; Marvin v. State, 53 Ark. 395, 14 S. W. 87; State v. Bordeaux, 93 N. Car. 560; Smith v. State, 103 Ala. 57, 15 So. 866; Har- ris v. People, 64 N. Y. 148. "'Rex V. Leefe, 2 Campb. 134; Rex V. Jones, 1 Peake N. P. 37; Tay- lor V. State, 48 Ala. 157. "* Matthews v. United States, 161. U. S. 500, 16 Sup. Ct. 640; see also. Commonwealth v. Monahan, 9 Gray (Mass.) 119. ^=«Reg. v. Bird, 17 Cox Cr. Cas. 387. As where the indictment is based upon a writing set out in haec verba. Dill v. People, 19 Colo. 469, 36 Pac. 229, 41 Am. St. 254; State v. Ammons, 3 Murph. (N. Car.) 123. "» State V. Williams, 60 Kans. 837, 58 Pac. 476. 405 VARIANCE. [§ 3091. clerk, it was held a fatal variance.^" Other cases showing what is or is not a fatal variance are cited below.^^^ "> McClerkin v. State, 105 Ala. 107, 17 So. 123; see also. Cutler v. Terri- tory, 8 Okla. 101, 56 Pac. 861; but compare, People v. Nolte, 19 Misc. (N. Y.) 674, 44 N. Y. S. 443; Staight V. State, 39 Ohio St. 496; 2 Wharton Cr. Law (9th ed.), § 1287. "^Variance held fatal or sub- stance of issue not proved in, Dill v. People, 19 Colo. 469, 36 Pac. 229, 41 Am. St. 254; Wilson v. State, 115 Ga. 206, 41 S. E. 696, 90 Am. St. 104; Hitesman v. State, 48 Ind. 473; Walker v. State, 96 Ala. 53, 11 So. 401; Gandy v. State, 27 Neb. 707, 43 N. W. 747, 44 N. W. 108; Sapping- ton V. State, 114 Ga. 269, 40 S. B. 241; People v. Strassman, 112 Cal. 683, 45 Pac. 3; variance held imma- terial, see. State v. Caywood, 96 Iowa 367, 65 N. W. 385; Atchison v. State, 44 Tex. Cr. App. 551, 72 N. W. 998; Stefani v. State, 124 Ind. 3, 24 N. E. 254; see also, 99 Am. Dec. 351, note; 87 Am. Dec. 471, note; 17 Am. Dec. 563, note. CHAPTER CXLIX. RAPE. Sec. Sec. 3092. Generally. 3102. Corroboration. 3093. Burden of proof. 3103. Admissions and confessions. 3094. Presumptions. 3104. Evidence generally — Circum- 3095. Age of prosecutrix. stantial evidence. 3096. Consent. 3105. Other offenses. 3097. Resistance. 310fi. Real evidence. 3098. Res gestae. 3107. Physical examination anc 3099. Complaint. medical testimony. 3100. Complaint — Particulars. 3108. Defenses. 3101. Character and reputation. 3109. Variance. § 3092. Generally. — Rape is the carnal knowledge of a woman by a man, forcibly and unlawfully, without her consent or against her will; or, of a female child under the age of ten years, or under such age as the statute of the jurisdiction provides, with or without her consent.^ By consent is meant a conscious permission, and evidence of fraud or fright is proper to prove the lack of consent.- Evidence may be introduced to show that at the time the prosecuting witness was not capable of giving consent, or that the woman had no will, as when insane, an infant under the statutory age of consent, drugged or asleep.^ Penetration is essential,'* but it may be very slight, and may ^Don Moran v. People, 25 Mich. 356, 359, 12 Am. R. 283; State v. Pickett, 11 Nev. 255, 21 Am. R. 754; Croghan v. State. 22 Wis. 444; Sut- ton v. People, 145 111. 279, 34 N. E. 420; 4 Blackstone Comm. 210; 1 East P. C. 434. ^ Commonwealth v. Burke, 105 Mass. 376, 7 Am. R. 531; Turner v. People, 33 Mich. 363; State v. Ward, 73 Iowa 532, 35 N. W. 617; Huston v. People, 121 111. 497, 13 N. E. 538. '2 Bishop Cr. Law 1115; 1 Hale P. C. 629; Hawkins P. C, chap. 41; Reg. v. Mayers, 12 Cox Cr. Cas. 311; Reg. V. Barratt, 12 Cox Cr. Cas. 498; Reg. V. Woodhurst, 12 Cox Cr. Cas. 443; Moody v. People, 20 111. 316, 319; State v. Cunningham, 100 Mo. 382, 12 S. W. 376; Felton v. State, 139 Ind. 531, 39 N. E. 228; Pomeroy V. State, 94 Ind. 96; Coates v. State, 50 Ark. 330, 7 S. W. 304; Common- wealth V. Murphy, 165 Mass. 66, 42 N. E. 504; Commonwealth v. Burke, 105 Mass. 376, 7 Am. R. 531; Hughes Cr. Law & Proc, § 285, et seq.; Un- derhill Cr. Ev., § 407. ^ State V. Grubb, 55 Kans. 678, 41 Pac. 951; State v. Dalton, 106 Mo. 406 407 BURDEN OF I'UOOF. [§ 3393. be proved by circumstantial evidence/ and actual emission, if ever necessary, is no longer required to be shown.*^ § 3093. Burden of proof. — Actual carnal knowledge must be shown, either by direct or indirect evidence.'' The burden is upon the state to prove penetration,^ but evidence which shows the least pene- tration is sufficient.'' The prosecution must also show that force, either actual or constructive was used,^° and that there was sufficient force to accomplish a penetration.^^ If the state can show that the woman submitted through fear of violence or because of threats of 463, 17 S. W. 700; Hardtke v. State, 67 Wis. 552, 30 N. W. 723. ^ State v. Carnagy, 106 Iowa 483, 76 N. W. 805; People v. Crowley, 102 N. Y. 234, 6 N. E. 384; Taylor v. State, 111 Ind. 279, 12 N. E. 400; Brauer v. State, 25 Wis. 413; Word V. State, 12 Tex. App. 174. ^Waller v. State, 40 Ala. 325; State V. Shields, 45 Conn. 256; Barker v. State, 40 Fla. 178, -24 So. 69; Taylor v. State. Ill Ind. 279, tl2 N. E. 400; White v. Common- wealth, 96 Ky. 180, 28 S. W. 340; Bean v. People, 124 111. 576, 16 N. E. 656; People v. Courier, 79 Mich. 366, 44 N. W. 571; People v. Crow- ley, 102 N. Y. 234,-6 N. E. 384; Corn- stock V. State, 14 Neb. 205, 15 N. W. 355; State v. Hargrave, 65 N. Car. 466; Osgood v. State, 64 Wis. 472, 25 N. W. 529; Davis v. State, 43 Tex. 189; see also, Reg. v. Lines, 1 Car. & Kir. 393, 47 E. C. L. 393; 1 Hale P. C. 628; 2 Bishop Cr. Law 1085. ' Hardtke v. State, 67 Wis. 552, 30 N. W. 723; Davis v. State, 43 Tex. 189; Wesley v. State, 65 Ga. 731; Erauer v. State, 25 Wis. 413; Hanes V. State, 155 Ind. 112, 57 N. E. 704 (circumstantial evidence) ; State v. Welch, 41 Ore. 35, 68 Pac. 808 (same). "Taylor v. State, 111 Ind. 279. 12 N. E. 400; People v. Crowley, 102 N. Y. 234, 6 N. E. 384; Brauer v. State, 25 Wis. 413; Audley's Case, 3 How. St. Tr. 401. ' Taylor v. State, 111 Ind. 279, 12 N. E. 400; People v. Crowley, 102 N. Y. 234, 6 N. E. 384; State v. Shields, 45 Conn. 256; Bean v. People, 124 111. 576. 16 N. E. 656; People v. Har- lan, 133 Cal. 16, 65 Pac. 9; Ellis v. State, 25 Fla. 702, 6 So. 768; Wesley V. State, 65 Ga. 731; State v. Rol- lins, 80 Minn. 216, 83 N. W. 141; State V. Monds, 130 N. Car. 697, 41 S. E. 789; Commonwealth v. Hollis, 170 Mass. 433, 49 N. E. 632; Bailey v. Commonwealth, 82 Va. 107, 3 Am. St. 87; Murphy v. State, 108 Wis. Ill, 83 N. W. :l112. "State V. Murphy, 6 Ala. 765, 41 Am. Dec. 79; Dawson v. State, 29 Ark. 116; Garrison v. People, 6 Neb. 274; Osgood v. State, 64 Wis. 472, 25 N. W. 529; Mills v. State, 52 Ind. 187; Brown v. Commonwealth, 102 Ky. 227, 43 S. W. 214; State v. Wil- liams, 32 La. Ann. 335, 36 Am. R. 272; Commonwealth v. Fogerty, 8 Gray (Mass.) 489, 69 Am. Dec. 264; Williams v. State, (Tex. App.) 13 S. W. 609. ^' Commonwealth v. McDonald. 110 Mass. 405; The prosecuting wit- ness may be asked whether the in- tercourse caused her pain. People V. Flynn, 96 Mich. 276. 55 N. W. 834. 3094.] RAPE. 40& violence, it is sufficient to prove that force was used/^ but it is held that her will must be so entirely overcome by the fear as to prevent resistance.^^ The burden is upon the state to prove a boy under fourteen years of age physically capable of committing rape, as he is pre- sumed to be incapable.^* The burden is upon the state in such a prose- cution, as in all other prosecutions, to prove beyond a reasonable doubt the guilt of the defendant.^^ The state must, in general, prove all the material allegations of the indictment, but it has been held that the state need not affirmatively show the prosecutrix to be of good repute ; the burden is upon the defendant to show her bad repute.^® It is upon the state, however, to show where the indictment is for rape of a child under the statutory age of consent, that the child was under the statutory age;^^ and in other cases the burden is upon the state to show want of consent.^® § 3094. Presumptions. — The presumption is generally that a boy under the age of fourteen years cannot commit the crime of rape, but this may be rebutted. ^^ A child under ten years of age is conclusively incapable of giving her consent,"" and it is generally the rule that a ^= State V. Ward, 73 Iowa 532, 35 N. W. 617; Turner v. People, 33 Mich. 363; Huston v. People, 121 111. 497, 13 N. E. 538; Bass v. State, 16 Tex. App. 62; Ransbottom v. State, 144 Ind. 250, 43 N. E. 218. "State v. Ruth, 21 Kans. 583; State V. Ward, 73 Iowa 532, 35 N. W. 617. "Gordon v. State, 93 Ga. 531, 21 S. E. 54, 44 Am. St. 189; Williams V. State, 14 Ohio 222, 45 Am. Dec. 536; Hiltabiddle v. State, 35 Ohio St. 52, 35 Am. R. 592. '= Anderson v. State, 41 Wis. 430; Brown v. State, 76 Ga. 623; Austine v. People, 51 111. 236; People v. Mc- Whorter, 93 Mich. 641, 53 N. W. 780. " Commonwealth v. Allen, 135 Pa. St. 483, 19 Atl. 957, 26 W'kly Notes Gas. 285. "State v. Houx, 109 Mo. 654, 19 S. W. 35, 32 Am. St. 686; Lawrence V. State, 35 Tex. Cr. App. 114, 32 S. W. 530; but see, Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239. "State v. Beabout, 100 Iowa 155, 69 N. W. 429; Pollard v. State, 2 Iowa 567; Strang v. People, 24 Mich. 1; People v. Page, 162 N. Y. 272,. 56 N. E. 750; State v. Taylor, 57 S. Car. 483, 35 S. E. 729, 76 Am. St. 575; Jenkins v. State, 1 Tex. App. 346. '^ Heilman v. Commonwealth, 84 Ky. 457, 1 S. W. 731, 4 Am. St. 207; Williams v. State, 14 Ohio 222, 45 Am. R. 536; People v. Randolph, 2 Park Cr. Gas. 174; Wagoner v. State, 5 Lea (Tenn.) 352, 40 Am. R. 36. If over fourteen capacity, it is said, is presumed. State v. Handy, 4 Harr. (Del.) 566; see generally, 42 L. R. A. 589. =" State V. Smith, 9 Houst. (Del.) 588, 33 Atl. 441; People v. McDon- ald, 9 Mich. 150; Commonwealth v. Sugland, 4 Gray (Mass.) 7; Fizell 409 AGE OF PROSECUTRIX. [§ 3095. girl between the ages of ten and twelve can only give consent when it is sliown that she is capable of so doing,^^ but it is held that such child's inconsistent statements and acts of indecency and immorality with others may be inquired into in a proper case upon her cross- examination. *- § 3095. Age of prosecutrix. — A female child under the statutory age is conclusively presumed to be incapable of consenting to sexual intercourse, or, in other words, her consent is no defense, but it has been held that evidence is admissible to show that she understood the nature of the act/^ and that her bad reputation for chastity may be shown as affecting her credibility.^* The age of the prosecutrix may be proved by her own testimony,-'^ by that of her parents, or others who know,^" and, in a proper case, by family tradition and pedigree,^' or by records and documents.^* Opinions of medical men have also v. State, 25 Wis. 364; O'Meara v. State, 17 Ohio St. 515; State v. Sul- livan, 68 Vt. 540, 35 Atl. 479. Twelve years, — Murphy v. State, 120 Ind. 115, 22 N. E. 106. "State V. Houx, 109 Mo. 654, 19 S. W. 35, 32 Am. St. 686. =^ Bessette v. State, 101 Ind. 85; State v. Duffey, 128 Mo. 549, 31 S. W. 98. Not ordinarily, however, up- on the question of consent, but rather as affecting her credibility, or the like. -'O'Meara v. State, 17 Ohio St. 515. ^* State v. Duffey, 128 Mo. 549, 31 S. W. 98; People v. Johnson, 106 Cal. 289, 39 Pac. 622; see. People v. Glover, 71 Mich. 303, 38 N. W. 874; People V. Abbott, 97 Mich. 484, 56 N. W. 862, 37 Am. St. 360. '^Weed V. State, 55 Ala. 13; Peo- ple V. Ratz, 115 Cal. 132, 46 Pac. 915; Commonwealth v. Phillips, 162 Mass. 504, 39 N. E. 109; People v. Bernor, 115 Mich. 692. 74 N. W. 184; State v. Bowser, 21 Mont. 133, 53 Pac. 179; Johnson v. State, 42 Tex. Cr. App. 298, 59 S. W. 398; Dodge V. State, 100 Wis. 294, 75 N. W. 954. =' People V. Bernor, 115 Mich. 692, 74 N. W. 184; George v. State, 61 Neb. 669, 85 N. W. 840; Lawrence v. State, 35 Tex. Cr. App. 114, 32 S. W. 530, 539; Reg. v. Nicholls, 10 Cox Cr. Cas. 476. =^Reg. V. Hayes, 2 Cox Cr. Cas. 226; Bain v. State, 61 Ala. 75. But not by the girl's own declarations to third persons. State v. Deputy, 3 Pen. (Del.) 19; see generally, Vol. I, § 377. " See, People v. Ratz, 115 Cal. 132, 46 Pac. 915 (family bible;) Com- monwealth V. Mollis, 170 Mass. 433, 49 N. E. 632 (birth certificate); People V. Vann, 129 Cal. 118, 61 Pac. 776 (physician's record) ; Smith v. State, (Tex. Cr. App.) 73 S. W. 401 (same) ; Reg. v. Weaver, 12 Cox Cr. Cas. 527 (copy of register of births) ; Rex. v. Wedge, 5 Car. & P. 298; but see. People v. Mayne, 118 Cal. 516, 50 Pac. 654, 62 Am. St. 256, and compare, People v. Shep- pard, 44 Hun (N. Y.) 565; People V. Flaherty. 162 N. Y. 532, 57 N. E. 73. § 3096.] RAPE. 410 been held admissible in some instances,^^ and it has been held that the appearance of the girl may be taken into consideration.^o -^^^^ jj^ ^ recent case in which the age of prosecutrix was in issue, a school- teacher testified that the prosecutrix had gone to school to him, and that he had placed her name and age on the register ; that he usually obtained information as to the age of pupils by asking them, their older brothers or sisters, or their parents, but did not know how he had learned the age of prosecutrix, although he got it from some member of the family, and it was held that the register was not admissible to show the age of prosecutrix.^^ § 3096. Consent. — As already intimated, where the woman is over the statutory age, so that there is no rape if she consents to the act, it must appear that she did not consent. Proof of consent of the female, over the age named in the statute, is a defence to the action, no matter how reluctantly granted.^^ Where consent in a qualified -^See, State v. Smith, 61 N. Car. 302; see also, Vol. I, §§ 676, 677, as to opinion evidence of age. =° Commonwealth v. Phillips, 162 Mass. 504, 39 N. E. 109; People v. Dickerson, 58 App. Div. (N. Y.) 202, 68 N. Y. S. 715; State v. McNair, 93 N. Car. 628; Vol. I, § 166. That evidence of the resemblance of the child to the alleged father is admis- sible and that the child may be shown for the purpose of compari- son in cases of rape, bastardy and the like, at least when it is suffi- ciently mature, see, State v. Dan- forth, (N. H.) 60 Atl. 839 (review- ing many authorities); Finnegan v. Dugan, 14 Allen (Mass.) 197; Scott V. Donovan, 153 Mass. 378, 26 N. E. 871; Farrell v. Weitz, 160 Mass. 288, 35 N. E. 783; Gaunt v. State, 50 N. J. L. 490, 14 Atl. 600; Jones v. Jones, 45 Md. 144; State v. Wood- ruff, 67 N. Car. 89; State v. Horton, 100 N. Car. 443, 6 S. E. 238, 6 Am. St. 614; Wright v. Hicks, 15 Ga. 160, 60 Am. Dec. 687, 695; Paulk V. State, 52 Ala. 427; Kelly v. State, 133 Ala. 195, 32 So. 56, 91 Am. St. 25; Crow v. Jordan, 49 Ohio St. 655, 32 N. E. 750; People v. Wing, 115 Mich. 698, 701, 702, 74 N. W. 179; Jessup's Estate, 81 Cal. 408, 21 Pac. 976, 22 Pac. 742, 1028, 6 L. R. A. 594; Marr v. Marr, 3 U. C. C. P. 36; 52 L. R. A. 500, note, and 84 Am. St. 350, note; but compare. Risk v. State, 19 Ind. 152; Reitz v. State, 33 Ind. 187; La Matt v. State, 128 Ini. 123, 27 N. E. 346; State v. Har- vey, 112 Iowa 416, 84 N. W. 535, 52 L. R. A. 500, 84 Am. St. 350; Clark V. Bradstreet, 80 Me. 454, 15 Atl. 56, 6 Am. St. 221; Hanawalt v. State, 64 Wis. 84, 24 N. W. 489, 54 Am. R. 588; State v. Neel, 23 Utah 541, 65 Pac. 494. ^^ Simpson v. State, (Tex. Cr. App.) 81 S. W. 320. "Whittaker v. State, 50 Wis. 518, 7 N. W. 431, 36 Am. R. 856; Brown v. People, 36 Mich. 203; State v. Burgdorf, 53 Mo. 65; Huber v. State, 126 Ind. 185, 25 N. E. 904; State v. Hammond, 77 Mo. 157. So held, even though she refused at first, if 411 CONSENT. [§ 309G. sense is obtained through fear, and there is no actual resistance, the prosecution must show generally that the fear was so complete as to preclude all resistance.^^ The age and relations of the parties may be considered and also whether the female was ignorant of the nature of the act.^* It has also been held that the statements of the prose- cutrix concerning her consent to the intercourse and as to the force used, are admissible.^" There can be no consent where the woman was asleep, unconscious or completely insensible from intoxication, and evidence of these facts is admissible upon the question of consent,^*^ Lack of consent is also proved where the state shows the woman to be an idiot or of such a weak mind as to prevent assent,^^ and of course, girls under the statutory age cannot give consent.^^ Wliere so called consent is obtained from the woman under the misrepresentation that the intercourse is a part of her medical treatment or surgical operation, such facts may be shown to prove that the intercourse was obtained without a valid consent.^® Proper evidence tending to show the want of chastity of prosecutrix may be introduced and considered in deter- mining the question of consent.'*" But this, and other e\ddence bear- ing upon the subject, will be considered in the sections relating to character and reputation and to circumstantial' evidence. she consented before penetration. '' Commonwealth v. Burke, 105 Reg. v. Hallett, 9 Car. & P. 748, 38 Mass. 376, 7 Am. R. 531; Osgood v. E. C. L. 433; Whittaker v. State, 50 State, 64 Wis. 472, 25 N. W. 529; Wis. 518, 7 N. W. 431, 36 Am. R. State v. Shields, 45 Conn. 256. 856. But in such cases there may " State v. Atherton, 50 Iowa 189, often be a conviction of assault with 32 Am. R. 134. intent to rape. "* People v. Johnson, 106 Cal. 289, ^'^ People v. Flynn, 96 Mich. 276, 39 Pac. 622; State v. Eberline, 47 55 N. W. 834; State v. Ward, 73 Kans. 455, 27 Pac. 839; People v. Iowa 532, 35 N. W. 617; Don Moran Glover, 71 Mich. 303, 38 N. W. 874. v. People, 25 Mich. 356, 12 Am. R. =" Eberhart v. State, 134 Ind. 651, 283; State v. Ruth, 21 Kans. 583; 34 N. E. 637; Pomeroy v. State, 94 Ransbottom v. State, 144 Ind. 250, Ind. 96, 48 Am. R. 146; Reg. v. Flat- 43 N. E. 218; Felton v. State, 139 tery, 13 Cox Cr. Cas. 388; Don Ind. 531, 39 N. E. 228; Sharp v. Moran v. People, 25 Mich. 356, 12 State, 15 Tex. App. 171. Am. R. 283; but compare. State v. ^* Hawkins v. State, 136 Ind. 630, Murphy, 6 Ala. 765, 41 Am. Dec. 79; 36 N. E. 419; Ransbottom v. State, Reg. v. Clarke, 6 Cox Cr. Cas. 412. 144 Ind. 250, 43 N. E. 218; People v. ^"Carney v. State, 118 Ind. 525, Burwell, 106 Mich. 27, 63 N. W. 986; 21 N. E. 48; McQuirk v. State, 84 People V. Lenon, 79 Cal. 625, 21 Pac. Ala. 435, 4 So. 775, 5 Am. St. 381; 967. State v. Fitzsimon, 18 R. I. 236, =» People v. Flynn, 96 Mich. 276, 27 Atl. 446, 49 Am. St. 766; Wilson 55 N. W. 834. V. State, 17 Tex. App. 525. §§ 3097, 3098.] rape. 412 § 3097. Resistance. — The amount of resistance required depends- upon the relative strength of the parties and upon the circumstances- of each particular case.*^ No invariable rule can be laid down. It is generally said, however, that the woman must exercise actual op- position and the utmost resistance of which she is capable, or at ' least she must make such resistance as she is reasonably called upon to exercise under the circumstances.*^ Eesistance may be sufficiently proved, however, when it is shown that the act was accomplished by means of threats and fear of bodily injury,*^ which overcome the female. ''The importance of resistance," it is said, "is simply to show two elements of the crime; carnal knowledge by force by one of the parties and non-consent by the other."** And, as already shown, when the woman is an idiot, overcome by fear and threats, under the age of consent or the like, the rule requiring actual physical resistance does not apply. § 3098. Res gestae. — Matters constituting part of the res gestae are admissible in cases of rape as well as in other cases. Thus, evidence of the conduct and language of the parties at the time of and character- izing the act is admissible.*^ So, the struggles and outcries of the woman are competent to be shown.*® So, the condition of her person "Felton V. State, 139 Ind. 531, 39 "Ransbottom v. State, 144 Ind. N. E. 228; Hawkins v. State, 136 250, 43 N. E. 218; Felton v. State, Ind. 630, 36 N. E. 419; Anderson v. 139 Ind. 531, 39 N. E. 228; People State, 104 Ind. 467, 4 N. E. 63; v. Lenon, 79 Cal. 625, 21 Pac. 967. People V. Crego, 70 Mich. 319, 38 " State v. Shields, 45 Conn. 256. N. W. 281; State v. Knapp, 45 N. ••= Castillo v. State, 31 Tex. Cr. H. 148; Bean v. People, 124 111. 576, App. 145, 19 S. W. 892, 37 Am. St. 16 N. E. 956; Commonwealth v. Mc- 794; 1 McClain's Cr. Law, § 455; Donald, 110 Mass. 405; Ransbottom 2 Bishop Cr. Proc, § 936; see also, V. State, 144 Ind. 250, 43 N. E. 218; McMath v. State, 55 Ga. 303; People Brown v. Commonwealth, 82 Va. v. Flynn, 96 Mich. 276, 55 N. W. 653. 834; State v. Shettleworth, 18 Minn. ^^Huber v. State, 126 Ind. 185, 25 208; People v. Colletta, 65 App. Div. N. E. 904; Anderson v. State, 104 (N. Y.) 570, 72 N. Y. S. 903. Ind. 467, 4 N. E. 63; Oleson v. State, *" Such evidence might, of course, 11 Neb. 276, 9 N. W. 38, 38 Am. R. be original evidence. But it has 366; People v. Dohring, 59 N. Y. been held error to permit a witness 374, 17 Am. R. 349; People v. Mayes, to testify that he heard cries or 66 Cal. 597, 6 Pac. 691, 56 Am. R. noises indicating distress, when he 126; see, 36 Am. R. 860, note; Mills could not state who made the noise V. United States, 164 U. S. 644, 17 nor what it was about. Baker v. Sup. Ct. 210; 80 Am. Dec. 364-367, State, 82 Miss. 84, 33 So. 716. That note. no outcry was made, although prose- 413 RES GESTAE — COMPLAINT. [§ 3099. and clothing and the like at the time and place of the alleged rape may be shown.*^ And her spontaneous exclamations and complaints may also be so connected with the principal transaction as to be part of the res gestae.*^ Indeed, some authorities admit details of her complaint as part of the res gestae, although as shown in another section, her complaint is not ordinarily treated as part of the res gestae, but is ad- mitted on another principle, and the details or particulars are ex- 'Cluded in the first instance. § 3099. Complaint. — As elsewhere pointed out the use of the woman's complaint in evidence is apparently a relic of the old law of hue and cry.*'' According to the decided weight of authority in this -country, however, while the fact that the prosecutrix made complaint is admissible, the particulars of the complaint cannot be shown by her in the first instance before any attempt has been made to impeach her.^° This is true unless the complaint is so recent, so spontaneous. cutrix knew persons were near has been held admissible. Sutton v. People, 145 111. 279, 34 N. B. 420; State V. Patrick, 1C7 Mo. 147, 17 S. W. 666; see also, Huber v. State, 126 Ind. 185, 25 N. E. 904. " And in some cases evidence of such matters at a time after the alleged act is treated as admissible as part of the res gestae. See gen- erally. Poison V. State, 137 Ind. 519, 35 N. E. 907; State v. Baker, 106 Iowa 99, 76 N. W. 509; State v. Hutchinson, 95 Iowa 566, 64 N. W. 610; People v. Baldwin, 117 Cal. 244, 49 Pac. 186; State v. Murphy, 118 Mo. 7, 25 S. W. 95; State v. San- ford. 124 Mo. 484, 27 S. W. 1099; Hornbeck v. State, 35 Ohio St. 277, 35 Am. St. 608; Proper v. State, 85 Wis. 615, 55 N. W. 1035; State v. Sargent, 32 Ore. 110, 49 Pac. 889; State V. Robertson, 38 La. Ann. 618, 58 Am. R. 201; Brown v. State, 72 Miss. 997, 17 So. 298; Rex v. Clarke, 2 Stark. 241, 3 E. C. L. 393; State v. Shettleworth, 18 Minn. 208; Peffer- ling V. State, 40 Tex. 486. *' McMurrin v. Rigby, 80 Iowa 322, 45 N. W. 877; State v. Jerome, 82 Iowa 749, 48 N. W. 722; Castillo v. State, 31 Tex. Cr. App. 145, 19 S. W. 892, 37 Am. St. 794; State v. Neel, 21 Utah 151, 60 Pac. 510; State v. Fitzsimon, 18 R. I. 236, 27 Atl. 446; some of these cases, per- haps, go a little too far and are not in line with the weight of authority. See also, Kenney v. State, (Tex. Cr. App.) 79 S. W. 817, 65 L. R. A. 316, and note. *»See, Vol. I, § 566; Bract, f. 147; 1 Hale P. C. 634; 2 Hale P. C. 279, 284; Hannon v. State, 70 Wis. 448, 36 N. W. 1, 3. ^" Bray v. State, 131 Ala. 46, 31 So. 107; Barnett v. State, 83 Ala. 40, 3 So. 612; Williams v. State, 66 Ark. 264, 50 S. W. 517; Hannon v. State, 70 Wis. 448, 451, 36 N. W. 1; Lee V. State, 74 Wis. 45, 41 N. W. 960; State V. Langford, 45 La. Ann. 1177, 1179, 14 So. 181; Lowe v. State, 97 Ga. 792, 25 S. E. 676; Baccio v. People, 41 N. Y. 265, 271; State v. Harness, (Idaho) 76 Pac. 788; § 9099.] RAPE. 414 and so connected with the principal fact as to constitute part of the res gestae. But a few authorities hold that the particulars of the com- plaint are admissible as res gestae declarations even when they would hardly be so considered in any other class of cases. ^^ And on cross- examination to impeach her the details may be brought out, or, after the credibility of her testimony on the subject has been attacked, she may show the details of her complaint by herself or the witness to whom she made such complaint." The theory on which the fact that she made complaint is admitted seems to be that it would be a natural thino- to do and that if no evidence were given that she did complain the jury might well infer that she made no complaint and that no such aei as that charged was committed by force and without her Thompson v. State, 38 Ind. 39; Cross V. State, 132 Ind. 65, 31 N. E. 473; Ellis v. State, 25 Fla. 702, 708, 6 So. 768; State v. Shettle- worth, 18 Minn. 208, 212; People v. Stewart, 97 Cal. 238, 32 Pac. 8; People V. Scalamiero, 143 Cal. 343, 76 Pac. 1098; Oleson v. State, 11 Neb. 276, 38 Am. R. 366; State v. Campbell, 20 Nev. 122, 17 Pac. 620; State V. Mitchell, 68 Iowa 116, 119, 26 N. W. 44; State v. Richards, 33 Iowa 420; State v. Clark, 69 Iowa 294, 28 N. W. 606; Parker v. State, 67 Md. 329, 10 Atl. 219; Stevens v. People, 158 111. Ill, 41 N. E. 856; Pefferling v. State, 40 Tex. 486; People v. Tierney, 67 Cal. 54, 7 Pac. 37; People v. Mayes, 66 Cal. 597, 6 Pac. 691; State v. Daugherty, 63 Kans. 473, 65 Pac. 695; People v. Flaherty, 162 N. Y. 532, 57 N. E. 73; State V. Sargent, 32 Ore. 110, 49 Pac. 889; State v. Neel, 21 Utah 151, 60 Pac. 510; see also. Vol. I, § 566. " State v. Kinney, 44 Conn. 153, 26 Am. R. 436; McCombs v. State, 8 Ohio St. 643; Laughlin v. State, 18 Ohio 99, 51 Am. Dec. 444; Bens- tine V. State, 2 Lea (Tenn.) 169, 31 Am. R. 593; see also, Hornbeck V. State, 35 Ohio St. 277, 35 Am. R. 608; Reg. v. Lillyman, L. R., (1896) 2 Q. B. 167; Reg. v. Riendeau, 9 Quebec Q. B. 147. And in Michigan, while it is held that the general rule is that particulars cannot be given, yet it is held that they may be in exceptional cases, as where the girl is of tender years. People v. Gage, 62 Mich. 271, 28 N. W. 835, 4 Am. St. 854; People v. Glover, 71 Mich. 303, 38 N. W. 874; see also. Vol. I, § 566. ^- State V. Freeman, 100 N. Car. 429, 433, 5 S. E. 921; State v. Brown, 125 N. Car. 606, 34 S. E. 105; Wood V. State, 46 Neb. 58, 64 N. W. 355; State V. Clark, 69 Iowa 294, 296, 28 N. W. 606; Barnett v. State, 83 Ala. 40, 44, 3 So. 612; Griffin v. State, 76 Ala. 29, 32; Pleasant V- State, 15 Ark. 624; Thompson v. State, 38 Ind. 39; Parker v. State, 67 Md. 329, 331, 10 Atl. 219; State V. Neel, 21 Utah 151, 60 Pac. 510. But it would seem that the woman must be a witness. See, Thompson V. State, 38 Ind. 39; State v. Meyers, 46 Neb. 152, 64 N. W. 697, 37 L. R. A. 423; Hornbeck v. State, 35 Ohio St. 277, 35 Am. St. 608; Reg. v. Gut- tridges, 9 Car. & P. 471, 38 E. C. L. 279; Commonwealth v. Cleary, 172 Mass. 175, 51 N. E. 746; State V- Wolf, 118 Iowa 564, 92 N. W. 673. 415 COMPLAINT rARTICULARS. [§ 3100. consent, hor silence being inconsistent with her charge and present testimony.^^ So, after she has been impeached, or her credibility at- tacked, the details of her complaint are admitted on the principle of corroboration rehabilitating her by evidence of similar statements. The fact that some time elapsed before she made complaint generally goes to her credibility and the weight of the testimony rather than to its competency," and the delay may be explained by her, as by showing that it was caused by the threats of the prisoner, lack of op- portunity, or the like.^^ § 3100. Complaint — ^Particulars. — There is some difference of opinion as to what are particulars within the rule excluding evidence of the particulars of the complaint in the first instance. In some cases the name of the assailant or alleged ravisher has not been considered a particular of the complaint and has been permitted to be stated.^** But, as a general rule supported by the weight of authority, it is ex- cluded." So, her statements as to violence used, the injuries to her " See, State v. Neel, 21 Utah 151, 60 Pac. 510; State v. De Wolf, 8 Conn. 93, 99; Baccio v. People, 41 N. Y. 265, 268. Or on the principle of corroboration. State v. Peterson, 110 Iowa 647, 82 N. W. 329; Mc- Clain Cr. Law, § 455. ^* Trimble v. Territory, (Ariz.) 71 Pac. 932; State v. Peterson, 110 Iowa 647, 82 N. W. 329; State v. Bebb, (Iowa) 96 N. W. 714; State v. Mulkern, 85 Me. 106, 26 Atl. 1017; Legore v. State, 87 Md. 735, 41 Atl. 60; State v. Marcks, 140 Mo. 656, 41 S. W. 973, 43 S. W. 1095; State V. Peres, 27 Mont. 358, 71 Pac. 162; Higgins v. People, 58 N. Y. 377; State v. Sudduth, 52 S. Car. 488, 30 S. E. 408; Robertson v. State, (Tex. Cr. App.) 49 S. W. 398; State v. Niles, 47 Vt. 82; but compare. People V. Lambert, 120 Cal. 170, 52 Pac. 307; People v. Duncan. 104 Mich. 460, 62 N. W. 556; Dunn v. State, 45 Ohio St. 249, 12 N. E. 826; State V. Patrick, 107 Mo. 147, 17 S. W. 666. ^'^ State v. Knapp, 45 N. H. 148, 155; State v. Shettleworth, 18 Minn. 208; State v. Reid, 39 Minn. 277, 39 N. W. 796; see also. State v. Peterson, 110 Iowa 647, 82 N. W. 329; State v. Wilkins, 66 Vt. 1, 28 Atl. 323; Rex v. Rearden, 4 F. & F. 76; People v. Glover, 71 Mich. 303, 38 N. W. 874; Poison v. State, 137 Ind. 519, 35 N. E. 907; State v. Byrne, 47 Conn. 465; State v. Baker, 136 Mo. 74, 37 S. W. 810. 5" See, Ellis v. State, 25 Fla. 702, 6 So. 768; State v. Watson, 81 Iowa 380, 46 N. W. 868; State v. Hutchin- son, 95 Iowa 566, 64 N. W. 610; Harmon v. Territory, 9 Okla. 313, 60 Pac. 115. "Bray v. State, 131 Ala. 46, 31 So. 107; Thompson v. State, 38 Ind. 39; Stevens v. People, 158 111. Ill, 41 N. E. 856; State v. Daugherty, 63 Kans. 473, 65 Pac. 695; State v. Robertson, 38 La. Ann. 618, 58 Am. R. 201; People v. demons, 37 Hun. (N. Y.) 580; Johnson v. State, 21 Tex. App. 368, 17 S. W. 252; State § 3101.] RAPE. 416 person, and the like, have been excluded. ^« But it is held that the time and place of the complaint, the person to whom it was made, and the like, may be shown.^^ § 3101. Character and reputation. — The character of the prose- cutrix for chastity may be said to be in issue or relevant to the issue in prosecution for rape as bearing upon the question of consent,^" where the prosecution is not under a statute for carnally knowing a child under the age of consent." There is some conflict among the V. Niles, 47 Vt. 82; Brogy v. Com- monwealth, 10 Gratt. (Va.) 722; see also, Stephen v. State, 11 Ga. 225; Commonwealth v. Phillips, 162 Mass. 504, 39 N. E. 109; Reg. v. Osborne, Car. & M. 622, 41 E. C. L. 338; Reg. T. Nicholas, 2 Car. & Kir. 246, 61 E. C. L. 246. "'Reddick v. State, 35 Tex. Cr. 'App. 463, 34 S. W. 274, 60 Am. St. 56; Scott v. State, 48 Ala. 420; State V. Carroll, 67 Vt. 477, 32 Atl. 235; Lowe v. State, 97 Ga. 792, 25 S. E. 676; but see. State v. Baker, 106 Iowa 99, 76 N. W. 509. ■^^ State v. Neel, 21 Utah 151, 60 Pac. 510; State v. Mitchell, 68 Iowa 116, 26 N. W. 44; Barnes v. State, 88 Ala. 204, 7 So. 38, 16 Am. St. 48; Harmon v. Territory, 9 Okla. 313, 60 Pac. 115. In a recent case, which was a prosecution for an assault with intent to commit rape by the defendant on a certain evening at his barber shop, a witness testified that she accompanied the mother of the prosecutrix to the barber shop shortly after the offense, and that the mother asked the defendant what he had been doing with prose- cutrix, to which he replied that she had not been in his shop; and her father testified that when he reached the shop, shortly afterwards, the de- fendant admitted to him that the child had been there, but said he had done nothing to her, and it was held that the admission of such tes- timony was not objectionable on the theory that it brought before the jury part of the details of a com- plaint made by the prosecutrix. People V. Scalamiero, 143 Cal. 343, 76 Pac. 1098. »° Seals V. State, 114 Ga. 518, 40 S. E. 731; Carney v. State, 118 Ind. 525, 21 N. E. 48; State v. McDon- ough, 104 Iowa 6, 70 N. W. 357; Neace v. Commonwealth, 23 Ky. li. R. 125, 62 S. W. 733; State v. Reed, 41 La. Ann. 581, 7 So. 132; Common- wealth V. Kendall, 113 Mass. 210, 18 Am. R. 469; Woodruff v. State, (Neb.) 101 N. W. 1114; State v. Campbell, 20 Nev. 122, 17 Pac. 620; State V. Forshner, 43 N. H. 89, 80 Am. Dec. 132; Conkey v. People, 1 Abb. App. Dec. (N. Y.) 418; People V. Abbot, 19 Wend. (N. Y.) 192; Woods V. People, 55 N. Y. 515; Mc- Dermott v. State, 13 Ohio St. 332, 82 Am. Dec. 444; see also. People v. Johnson, 106 Cal. 289, 39 Pac. 622; State V. Ogden, 39 Ore. 195, 65 Pac. 449; Titus v. State, 7 Baxt. (Tenn.) 132; Steinke v. State, 33 Tex. Cr. App. 65, 24 S. W. 909; State v. Long, 93 N. Car. 542; Reg. v. Clay, 5 Cox Cr. Cas. 146; Reg. v. Tissington, 1 Cox Cr. Cas. 48; 80 Am. Dec. 368, note. "Plunkett V. State. (Ark.) 82 S. W. 845; People v. Johnson, 106 Cal. 289, 39 Pac. 622; State v. Eberline, 417 CHARACTER AXD REPUTATION. [§ 3101. authorities, but the weight of authority is to the effect that it is the reputation of the prosecutrix for unchastity prior to the alleged rape that is, ordinarily, to be shown and not specific acts of unchastity with third persons." The defendant may, however, show specific acts of unchastity between the prosecutrix and himself as tending to show consent.*^^ But where the girl is under the statutory age of consent 47 Kans. 155, 27 Pac. 839; People v. Harris, 103 Mich. 473, 61 N. W. 871; People V. Abbott, 97 Mich. 484, 56 N. W. 862, 37 Am. St. 360; State v. Duffey, 128 Mo. 549, 31 S. W. 98; State V. Whitesell, 142 Mo. 467, 44 S. W. 332; State v. Hilberg, 22 Utah 27, 61 Pac. 215; State v. Williamson, 22 Utah 248, 62 Pac. 1022, 83 Am. St. 780. "Maxey v. State, 66 Ark. 523, 52 S. W. 2; Pleasant v. State, 15 Ark. 624, 648; State v. Cassidy, 85 Iowa 145, 52 N. W. 1; State v. Brown, 55 Kans. 766, 42 Pac. 363; Common- wealth V. Harris, 131 Mass. 336; Commonwealth v. Kendall, 113 Mass. 210; State v. Fitzsimon, 18 R. I. 236, 27 Atl. 446; O'Blenis v. State, 47 N. J. L. 279; State v. Knapp, 45 N. H. 148; McCombs v. State, 8 Ohio St. 643; Innis v. State, 42 Ga. 473, 485; Richie v. State, 58 Ind. 355; Richie v. State, 59 Ind. 121; Ander- son V. State, 104 Ind. 467, 4 N. E. 63; People v. Abbott, 97 Mich. 484, 486, 36 N. W. 862, 37 Am. St. 360; People V. McLean, 71 Mich. 309, 38 N W. 917; State v. Patrick, 107 Mo. 47, 17 S. W. 666; State v. Campbell, 20 Nev. 122, 17 Pac. 620; McQuirk V. State, 84 Ala. 435, 4 So. 775; State V. Turner, 1 Houst. Cr. Cas. (Del.) 76; Reg. v. Dean, 6 Cox Cr. Cas. 23; contra, People v. Abbot, 19 Wend. (N. Y.) 192; Brennan v. Peo- ple, 7 Hun (N. Y.) 171; Benstine V. State, 2 Lea (Tenn.) 169, 173; People V. Benson, 6 Cal. 221; People V. Knight, (Cal.) 43 Pac. 6; People V. Shea, 125 Cal. 151, 57 Pac. 885; Vol. 4 Elliott Ev. — 27 State V. Murray, 63 N. Car. 31; see also, Shirwin v. People, 69 111. 55; State V. Johnson, 28 Vt. 512; see, as to the effect of questioning her upon such matters. People v. Fla- herty, 79 Hun (N. Y.) 48, 29 N. Y. S. 641; Reg. v. Holmes, 12 Cox Cr. Cas. 137; Strang v. People, 24 Mich. 1; People v. Knight, (Cal.) 43 Pac. 6; 80 Am. Dec. 368, note. "McQuirk v. State, 84 Ala. 435, 4 So. 775, 5 Am. St. 381; Barnes v. State, 88 Ala. 204, 207, 7 So. 38; People V. Abbott, 97 Mich. 484, 36 N. W. 862, 37 Am. St. 360; State v. Jefferson, 6 Ired. L. (N. Car.) 305; Bailey v. State, 57 Neb. 706, 78 N. W. 284, 73 Am. St. 540; Woods v. People, 55 N. Y. 515; Rex v. Martin, 6 Car. & P. 562; Bedgood v. State, 115 Ind. 275, 17 N. E. 621; Hall v. People, 47 Mich. 636, 11 N. W. 414; State V. Cassidy, 85 Iowa 145, 52 N. W. 1; State v. Cook, 65 Iowa 560, 22 N. W. 675; State v. Forshner, 43 N. H. 89; People v. Grauer, 12 App. Div. (N. Y.) 464, 42 N. Y. S. 721; see also. Rice V. State, 35 Fla. 236, 17 So. 286, 48 Am. St. 254. So, evidence of acts of intercourse with other persons may sometimes be admissible to re- but matters shown by the state, such as the condition of the woman, indicating sexual intercourse relied upon to charge the defendant, a venereal disease, or the like. Nugent V. State, 18 Ala. 521; People v. Craig, 116 Mich. 388, 74 N. W. 528; Bice v. State, 37 Tex. Cr. App. 38, 38 S. W. 803. 3102.] RAPE, 418 there is some difference of opinion. The subject will be considered in the section on evidence of other offenses. § 3102. Corroboration. — In the absence of any statutory require- ment to that effect, the testimony of the prosecuting witness may be sufficient to support a conviction without corroboration.^* But in some jurisdictions, corroboration is necessary ,*^^ and, in all, proper evi- dence is admissible for that purpose. It is not necessary that the ravished woman's testimony be confirmed by an examination of her person or by medical experts.^** It has been held that one may be con- victed of the charge of rape upon the unsupported and uncorroborated evidence of a child under the years of discretion, if the manner and testimony of the child remove every reasonable doubt from the mind& of the jurors.*'^ For the purpose of corroboration, the prosecution may show that the woman made complaint immediately after the ravishment,*^^ and, as already shown, the details may be given to cor- roborate her, after she has been impeached. It has also been held that the relation of the parties and the opportunity offered the de- fendant of meeting the prosecutrix may be shown.*''' The conduct of »*Barnett v. State, 83 Ala. 40, 3 So. 612; Curby v. Territory, 4 Ariz. 371, 42 Pac. 953; Frazier v. State, 56 Ark. 242, 19 S. W. 838; People V. Stewart, 90 Cal. 212, 27 Pac. 200; State V. Lattin, 29 Conn. 389; Doyle V. State, 39 Fla. 155, 22 So. 272, 63 Am. St. 159; Coney v. State, 108 Ga. 773, 36 S. E. 907; State v. Ander- son, 6 Idaho 706, 59 Pac. 180; John- son V. People, 197 111. 48, 64 N. E. 286; People v. Miller, 96 Mich. 119, 55 N. W. 675; Monroe v. State, 71 Miss. 196, 13 So. 884; State v. Wil- cox, 111 Mo. 569, 20 S. W. 314, 33 Am. St. 551; State v. Knighten, 39 Ore. 63, 64 Pac. 866; Keith v. State, (Tex. Cr. App.) 56 S. W. 628; Giv- ens V. Commonwealth, 29 Gratt. (Va.) 830; Lanphere v. State, 114 Wis. 193, 89 N. W. 128; Tway v. State, 7 Wyo. 74, 50 Pac. 188. «= See, Eager v. State, 22 Neb. 332, 35 N. W. 195; People v. Kunz, 76 Hun (N. Y.) 610, 27 N. Y. S. 945; People V. Page, 162 N. Y. 272, 56 N. E. 750; People v. Terwilliger, 74 Hun (N. Y.) 310; 26 N. Y. S. 674; State v. Carnagy, 106 Iowa 483, 76 N. W. 805; State v. Wheeler, 116 Iowa 212; 89 N. W. 978. ""State v. Lattin, 29 Conn. 389; Poison V. State, 137 Ind. 519, 35 N. E. 907, holds that the physician may testify to the condition of the female, if he has examined the woman. " Territory v. Keyes, 5 Dak. 244, 38 N. W. 440; limited in, Montresser V. State, 19 Tex. App. 281; Jones v. State, 68 Ga. 760. •=^ Thompson v. State, 38 Ind. 39; State v. Mitchell, 68 Iowa 116, 26 N. W. 44; Smith v. State, 47 Ala. 540; State v. Niles,.47 Vt. 82; Phil- lips V. State, 9 Humph. (Tenn.) 246, 49 Am. Dec. 709; Cross v. State, 132 Ind. 65, 31 N. E. 473. "« People V. Abbott, 97 Mich. 484, 56 N. W. 862, 37 Am. St. 360. 419 CORROBOEATIOX ADMISSIONS AXD COXFESSIOXS. [§ 3103. both the prosecutrix and of the defendant may be shown in a proper case in corroboration of the prosecutrix, or, as affecting her credi- bility, as tending to disprove the commission of the offense.'" The condition of the woman's clothes and underwear immediately after the rape," may be shown. So, it has been held, may the conduct of the defendant while in the presence of the prosecutrix immediately after the alleged offense.^^ The physical condition and marks upon the person of the woman afterwards," may be shown in a proper case, but it has been held that the refusal of the prosecutrix to submit to a physical examination cannot be shown to discredit her testimony.^* Evidence of the apparent physical and mental condition, such as her appearance, red face and swollen eyes, and of her crying shortly after the occurrence is competent.''^ This is held on the same ground on which her complaint is admitted, as tending to corroborate her and to determine the credit to be given to her testimony. § 3103. Admissions and confessions. — In a prosecution for rape'^ statements of the accused admitting guilt are admissible ; and evidence that the defendant at the time of the offense, used obscene language, indicating a determination to have intercourse with girls that night, if he had to force them, is competent.'''^ The declaration of the ac- •"Huber v. State, 126 Ind. 185, 25 Plynn, 96 Mich. 276, 55 N. W. 834; N. E. 904; People v. Lenon, 79 Cal. Gifford v. People, 148 111. 173, 35 625, 21 Pac. 967; People v. Stewart, N. E. 754; State v. Watson, 81 Iowa 97 Cal. 238, 32 Pac. 8; Dyer v. State, 380, 46 N. W. 868. (Tex. Cr. App.) 83 S. W. 192. Let- '* Barnett v. State, 83 Ala. 40, 3 ters written by the defendant to the So. 612; Poison v. State, 137 Ind. prosecutrix corroborating her testi- 519, 35 N. E. 907, holds that physi- mony are admissible. State v. De cian may testify upon the part of Witt, (Mo.) 84 S. W. 956. the state. "Grimmett v. State, 22 Tex. App. "People v. Batherson, 50 Hun (N. 36, 2 S. W. 631, 58 Am. R. 630; Y.) 44, 6 N. Y. Cr. 173, 2 N. Y. S. State v. Montgomery, 79 Iowa 737, 376; State v. Bedard, 65 Vt. 278, 26 45 N. W. 292; State v. Robertson, Atl. 719. 38 La. Ann. 618, 58 Am. R. 201. '« People v. Roach, 129 Cal. 33, 61 "Conkey v. People, 1 Abb. App. Pac. 574; Hogan v. State, 46 Miss. Dec. (N. Y.) 418. 274; People v. Flaherty, 27 App. "Poison v. State, 137 Ind. 519, 35 Div. (N. Y.) 535, 50 N. Y. S. 574, N. E. 907; Scott v. State, 48 Ala. 162 N. Y. 532, 57 N. E. 73; State v. 420; State v. Reid, 39 Minn. 277, 39 De Witt, (Mo.) 84 S. W. 956. N. W. 796; Myers v. State, 84 Ala. " Massey v. State, 31 Tex. Cr. App. 11, 4 So. 291; Hannon v. State, 70 371, 20 S. W. 758; Barnes v. State, Wis. 448, 36 N. W. 1; People v. 88 Ala. 204, 7 So. 38, 16 Am. St. 48; § 3103.] KAPE. . 430 cused of his misconduct with other females, however, is not admissible to show guilt in the case at barJ^ And in a recent case, which was a prosecution for rape without force, it was lield that the fact that de- fendant was over sixteen years of age, being a necessary element of the corpus delicti, under the statute, could not be proved by defend-' ant's confession alone J" Where, on a prosecution for assault with intent to rape, the theory of the state was that the defendant had en- ticed the prosecutrix into his barber shop, and there committed the assault, it was held proper to admit the testimony of her father that when he reached the shop, shortly after the alleged assault, he asked defendant if prosecutrix had been there, and that defendant said that she had; such evidence being competent proof, as an admission by defendant of a material fact in the case, and also to show that the defendant, having told another witness about the same time that the prosecutrix had not been there, had made conflicting statements.^'* Statements of the prosecutrix that defendant was not guilty or that she had caused his arrest to extort money, have been held admissible.^^ Testimony of the prosecuting witness on a preliminary examination before a justice of the peace relative to the same offense and evidence as to the motive for changing her testimony should be admitted in attacking the credibility of the prosecuting witness.*^ Where the de- fendant admits the sexual intercourse, but claims the female's consent tliereto, the state is relieved of further proof of the act.*^ So, state- ments of the prosecutrix that she did not consent and as to the force see also, Ricks v. State, (Tex. Cr. unable to identify him. State v. App.) 87 S. W. 345, where a witness Icenbice, (Iowa) 101 N. W. 273. was permitted to testify that the «° People v. Scalamiero, 143 Cal. accused had called attention to a 343, 76 Pac. 1098; see, however, tree under which the prosecutrix People v. Page, 162 N. Y. 272, 56 N. testified that the intercourse had E. 750. talcen place and had asked the wit- ^^ Shirwin v. People, 69 111. 55; ness if he supposed any girl had see also, Bessette v. State, 101 Ind. ever had sexual intercourse under 85; Callison v. State, 37 Tex. Cr. such tree. App. 211, 39 S. W. 300. But as here- " People v. Bowen, 49 Cal. 654; inafter shown, admissions of the People V. Stewart, 85 Cal. 174, 24 prosecutrix are not, ordinarily, Pac. 722; Janzen v. People, 159 111. treated as admissions of the state or 440, 42 N. E. 862. substantive evidence. •'Wistrand v. People, 213 111. 72, **= Bessette v. State, 101 Ind. 85; 72 N. E. 748. But his confession McMath v. State, 55 Ga. 303. has been held sufficient evidence to »^ Anderson v. State, 104 Ind. 467, go to the jury on the subject of 4 N. E. 63. identity, where the prosecutrix was 421 CIRCUMSTANTIAL KVIDKKCK. [§ 3194. used, if made in the presence of the defendant and not denied by him, are admissible.^* But, while statements of the prosecutrix contrary to her testimony are competent as impeaching evidence, they are not admissions, as the state is the real party, and her attention must first be called to them as in other cases of impeachment of a witness by con- tradictory statements.^^ So, where the prosecuting witness was not constant in her accusation, and on the trial testified that her deposi- tion before the examining magistrate was false, it was held that such deposition was admissible only for the purpose of contradicting her testimony, and was not substantive evidence which the jury was en- titled to consider as evidence of commission of the crime charged.^* § 3104. Evidence generally — Circumstantial evidence. — The cir- cumstance surrounding the act may be shown as tending to prove whether or not consent was given or the intercourse was against the will of the prosecuting witness." The relative physical strength of the two parties may be shown.^** The defendant may also show that there was no objection except a mere verbal one, and that the prosecu- trix made no outcry or actual resistance, and that the act was com- mitted in such a place that a cry or alarm would have been heard by others.'*'' It has also been held that the fact that no complaint was made within a reasonable time, or that the prosecutrix had brought a civil action for seduction, may be shown by the defendant in the ** People V. Flynn, 96 Mich. 276, 55 evidence that defendant tried to pro- N. W. 834; see also, Humphrey v. cure an abortion was held inadmis- State, (Tex. Cr. App.) 83 S. W. 187. sible in, Darrell v. Commonwealth, «= State V. Brady, (N. J. L.) 59 Atl. 26 Ky. L. R. 541, 82 S. W. 289, where 6; see also, People v. Lambert, 120 he admitted the intercourse, and the Cal. 170, 52 Pac. 307; State v. Shet- only question was as to consent, tleworth, 18 Minn. 208; State v. Yo- ^'Jenkins v. State, 1 Tex. App. cum, 117 Mo. 622, 23 S. W. 765; 346; People v. Crego, 70 Mich. 319, State V. Sudduth, 52 S. Car. 488, 30 38 N. W. 281; Brown v. Common- S. E. 408. wealth, 82 Va. 653; Nugent v. State, *« People v. Miner, (Mich.) 101 N. 18 Ala. 521; Richards v. State, 36 W 536. Neb. 17, 53 N. W. 1027. »' Bean v. People, 124 111. 576, 16 *"" State v. Cross, 12 Iowa 66, 79 N. E. 56; People v. Crego, 70 Mich. Am. Dec. 519; Reynolds v. People, 319, 38 N. W. 281; State v. Knapp, 41 How. (N. Y.) 179; State v. Mc- 45 N. H. 148; Nugent v. State, 18 Caffrey, 63 Iowa 479, 19 N. W. 331; Ala. 521; Commonwealth v. Thomp- State v. Cone, 1 Jones L. (N. Car.) son, 116 Mass. 346; People v. Flynn, 18; Bean v. People, 124 111. 575, 16 96 Mich. 276, 55 N. W. 834; People N. E. 56. V. Mayes, 66 Cal. 597, 6 Pac. 691; § 3104.] RAPE. 422 criminal prosecution for rape."" So, as a circumstance tending to prove the defendant not guilty of rape, it may be shown that the pros- ecuting witness, just after the time the crime is alleged to have been committed, treated the defendant in a friendly manner.^^ The age and relations of the parties may be shown as circumstances bearing upon the question of consent.'^- It has also been held that the mental capacity of the prosecutrix, her age and her demeanor, as exhibited during the trial, may be taken into consideration.^^ Evidence to the effect that upon the woman's crying out, the defendant immed- iately relinquished his effort and fled is competent on the question, of proving intent to rape,^* and the fact that the defendant caught the woman or chased her in a private place may be considered as a cir- cumstance tending to prove the actual intent of the defendant.^^ It has also been held that the facts that defendant left his home im- mediately after the offence was committed, and that search was made for him are admissible against him."'' And it has likewise been held that the relations between the prosecutrix and defendant prior to the alleged offence may be shown,®^ and that the prosecutrix may be asked if upon former occasions she did not consent to intercourse. ^^ Evi- dence of mere opportunity for sexual intercourse is not of itself suf- ficient to show it,"" but it may be inferred from circumstances, as where »"Eyler v. State, 71 Ind. 49; Pol- N. E. 904; State v. Hollenbeck, 67 lard v. State, 2 Iowa 567; State v. Vt. 34, 30 Atl. 696. Reid, 39 Minn. 277, 39 N. W. 796; »== People v. Burwell, 106 Mich. 27, People V. Knight, (Cal.) 43 Pac. 6. 63 N. W. 986; Hawkins v. State, 136 In a prosecution for assault with Ind. 630, 36 N. E. 419; State v. Mc- intent to rape, defendant contended Caffrey, 63 Iowa 479, 19 N. W. 331. that the prosecutrix consented to "' State v. Philpot, 97 Iowa 365, 66 all that was done, and evidence of N. W. 730; Thompson v. State, 44 a witness, who was not more than Neb. 366, 62 N. W. 1060. sixty-five feet from the prosecutrix =>* Taylor v. State, 50 Ga. 79. at the time of the alleged assault, "= State v. Donovan, 61 Iowa 369, that he called to her in a loud voice 16 N. W. 206; Jackson v. State, 91 for the purpose of attracting her at- Ga. 322, 18 S. E. 132, 44 Am. St. 25. tention, together with the conver- »" People v. Mayes, 66 Cal. 597, 6 sation had between the witness and Pac. 691 ; see also. Smith v. Com- his wife at the time with reference monwealth, 26 Ky. L. R. 1229, 83 S. to what they saw and did in conse- W. 647. quence thereof, was held admissible *' State v. Hollenbeck. 67 Vt. 34, for the purpose of contradicting the 30 Atl. 696. prosecutrix and corroborating de- "'People v. Abbott, 97 Mich. 484, fendant's testimony. State v. Huff, 56 N. W. 862, 37 Am. St. 360. (N. Car.) 49 S. E. 339. ''"State v. Scott, 28 Ore. 331, 42 "^Huber v. State, 126 Ind. 185, 25 Pac. 1; Bishop Stat. Cr., § 679. 423 OTHER OFFENSES. [§ 3105. a lascivious disposition is shown together with the fact that the parties occupied the same bed under circumstances indicating sexual intercourse, and penetration may be inferred from this and other cir- cumstantial evidence.^*"' § 3105. Other offenses. — The general rule that evidence of other offenses is incompetent to show the guilt of the defendant in the case on trial obtains in cases of rape as in other cases. ^^^ But such evi- dence has been held admissible to explain the submission of the prose- cutrix,"- and when part of the res gestae."^ And other acts of undue intimacy between the defendant and the prosecutrix may be shown by him, in a proper case, as furnishing a predicate for the presumption or inference of consent on the occasion in question.^"'* It is also held in a recent case that on a prosecution for rape of a girl under the age of consent, testimony of subsequent as well as prior acts of illicit inter- course between the parties is admissible to corroborate her."^ The same view is also taken in some other jurisdictions.^"*' But there is much conflict upon the subject. In one or two jurisdictions it seems to have been held that neither prior nor subsequent acts of intercourse between the parties can be shown. ^•'^ In others, it is held that evi- ^•^ State V. Welch, 41 Ore. 35, 68 880; Parkinson v. People, 135 111. Pac. 809; State v. Carnagy, 106 Iowa 401, 25 N. E. 764; State v. Borchert, 483, 76 N. W. 805; Commonwealth 68 Kans. 360, 74 Pac. 1108. V. Hollis, 170 Mass. 433, 49 N. E. ^"^ Barnes v. State, 88 Ala. 207, 7 632; People v. Scouten, 130 Mich. So. 38; People v. Goiilette, 82 Mich. 620, 90 N. W. 332; Taylor v. State, 36, 45 N. W. 1124; State v. Cook, 65 111 Ind. 279, 12 N. E. 400; Brauer Iowa 560, 22 N. W. 675. v. State, 25 Wis. 413. "= Woodruff v. State, (Neb.) 101 ^"'People V. Bowen, 49 Cal. 654; N. W. 1114. Janzen v. People, 159 111. 440, 42 N. ^"^ State v. King, 117 Iowa 768, 91 E. 862; Parkinson v. People, 135 N. W. 768; People v. Edwards, 111. 401, 25 N. E. 764; State v. Bon- (Cal.) 73 Pac. 416; State v. Bor- sor, 49 Kans. 758, 31 Pac. 736; State chert, 68 Kans. 360, 74 Pac. 1108; V. Stevens, 56 Kans. 720, 44 Pac. Smith v. Commonwealth, 22 Ky. L. 992; State v. Masteller, 45 Minn. B. 1349, 60 S. W. 531; State v. 128, 47 N. W. 541; Owens v. State, Robertson, 121 N. Car. 551, 28 S. E. 39 Tex. Cr. App. 391, 46 S. W. 240. 59; Sykes v. State, (Tenn.) 82 S. W. "-Strang v. People, 24 Mich. 1; 185; State v. Fetterly, 33 Wash, see also. People v. Fultz, 109 Cal. 599, 74 Pac. 810; Lanphere v. State, 258, 41 Pac. 1040. 114 Wis. 193, 89 N. W. 128. "^See, State v. Taylor, 117 Mo. ""Parkinson v. People, 135 111. 181, 22 S. W. 1103; Cross v. State. 401, 25 N. E. 764; see also, Barnett 138 Ind. 254, 37 N. E. 790; People v. v. State, 44 Tex. Cr. App. 592, 73 S. O'Sullivan, 104 N. Y. 481, 10 N. E. W. 399, overruling prior decisions. §§ 3106, 3107.] RAPE. 424 dence of such prior acts between the parties is admissible and that evidence of subsequent acts is not, ordinaril}^ admissible.^"* § 3106. Real evidence. — Eeal evidence is often admissible in cases of rape. Thus, evidence is not only admissible as to the condition of the clothing of the prosecutrix after the alleged rape, but the clothing itself may be exhibited and put in evidence.^"'' It must, however, be identified as that worn by her at the time of the offense. "° So, where the defendant's hat was identified and corresponded with the de- scription given by witnesses of the hat worn by him on the occasion in question, it was held admissible in evidence.^ ^^ As elsewhere shown, it is also held in many jurisdictions that the child, of which the defendant is claimed to be the father, may be exhibited to the jury. § 3107. Physical examination and medical testimony. — As al- ready shown, the condition of the clothing, the physical condition, of the prosecutrix, marks of violence, and even her mental condition, may be shown in a proper case.^^^ So, for the purpose of proving pen- etration the condition of the private parts of the prosecutrix after the alleged rape may be shown,^^^ This is usually, although not necessarily. See also, People v. Harris, 103 Mich. 473, 61 N. W. 871. "^See, People v. Etter, 81 Mich. 570, 45 N. W. 1109 People v. Fowler, 104 Mich. 449, 62 N. W. 572; People V. Robertson, 88 App. Div. (N. Y.) 198, 84 N. Y. S. 401; State v. Neel, 23 Utah 27, 65 Pac. 494; State v. Hilberg, 22 Utah 27, 61 Pac. 215; State v. Scott, 172 Mo. 536, 72 S. W. 897; see also. State v. Lancaster, (Idaho) 78 Pac. 1081; Smith v. State, (Tex. Cr. App.) 73 S. W. 401; Manning v. State, 43 Tex. Cr. App. 54, 65 S. W. 920; see, 62 L. R. A. 332-338, note, reviewing authori- ties upon the general subject. ^"^ Ransbottom v. State, 144 Incl. 250, 43 N. E. 218; State v. Peterson, 110 Iowa 647, 82 N. W. 329; State v. Murphy, 118 Mo. 7, 25 S. W. 95; Long V. State, 39 Tex. Cr. App. 461, 46 S. Y/. 821. ""Lowe V. State, 97 Ga. 792, 25 S. E. 676; Gonzales v. State, 32 Tex. Cr. App. 611, 25 S. W. 781. "' State V. Neal, 178 Mo. 63, 76 S. W. 958; see also. Vol. II, § 1232. "^ In addition to authorities else- where cited, see. People v. Keith, 141 Cal. 686, 75 Pac. 304; State v. Carpenter, (Iowa) 98 N. W. 775; State V. Sudduth, 52 S. Car. 488, 30 S. E. 408; Bannen v. State, 115 Wis. 317, 91 N. W. 107. "=* Myers v. State, 84 Ala. 11, 4 So. 291; Gifford v. People, 148 111. 173, 35 N. E. 754; Poison v. State, 137 Ind. 519, 35 N. E. 907; State v. Sanford, 124 Mo. 484, 27 S. W. 1099, and authorities cited in following note. But it is not absolutely neces- sary. State V. Ogden, 39 Ore. 195, 65 Pac. 449; Barnett v. State, 88 Ala. 40, 3 So. 612; Frazier v. State, 56 Ark. 242, 19 S. W. 383. As to 425 DEFENSES. [§ 3108. shown by the testimony of a physician who made the examination, and the fact that the examination was not made for several weeks, or even months perhaps, after the time of tlie alleged offense does not necessa- rily render the evidence incompetent, but goes to its weight rather than to its competency."* The time may be so remote, however, as to justify or even require the exclusion of the evidence."^ Expert evi- dence is also admissible on various other questions in rape cases,^^* but not, it seems, as to the effect of indecent liberties upon the mind of the prosecutrix,"' nor as to whether sexual intercourse could be accomplished without the consent or against the resistance of a woman."® § 3108. Defenses. — The defense in cases of rape most often con- sists in controverting the evidence of the state that force was used and that the act was without the woman's consent, although, of course, the sexual intercourse may be denied altogether or the defendant may show that he was not the guilty party. Proper evidence legitimately tending to prove any of these matters in defense is always competent and admissible. So, the defendant, as in other cases, may introduce evidence of his own good character for chastity."'* So, there are cases in which the defendant may show the improper motive of the whether an examination will be or- "^People v. Baldwin, 117 Cal. 244, dered at the request of the defend- 49 Pac. 186; State v. Watson, 81 ant, see, State v. Piicca, (Del.) 55 Iowa 380, 46 N. W. 868; People v. Atl. 831; Barnett v. State, 83 Ala. Duncan, 104 Mich. 460, 62 N. W. 40, 3 So. 612; McGuff v. State, 88 556; Young v. Johnson, 123 N. Y. Ala. 147, 7 So. 35, and Vol. II, 226, 25 N. E. 363; Proper v. State, §§ 1231, 1232, 1237, 1238. 85 Wis. 615, 55 N. W. 1035. "* People v. Bene, 130 Cal. 159, 62 "' People v. Royal, 53 Cal. 62. Pac. 404; Gifford v. People, 148 III. ''« People v. Bene, 130 Cal. 159, 62 173, 35 N. E. 754; State v. Watson, Pac. 404; Cook v. State, 24 N. J. L. 81 Iowa 380, 46 N. W. 868; State v. 843; Noonan v. State, 55 Wis. 258, Teipner, 36 Minn. 535, 32 N. W. 678. 12 N. W. 379; Woodin v. People, 1 State v. Scott, 172 Mo. 536, 72 S. W. Park. Cr. Cas. (N. Y.) 464; see also, 897; Lyles v. United States, 20 App. State v. Hull, 45 W. Va. 767, 32 S. Cas. (D. C.) 559; Commonwealth v. E. 240. Allen, 135 Pa. St. 483, 19 Atl. 957; "'' Hardkte v. State, 67 Wis. 552, Gonzales v. State, 32 Tex. Cr. App. 30 N. W. 723; Lincecum v. State, 29 611, 25 S. W. 781. Tex. App. 328, 15 S. W. 818, 25 Am. "= State v. Evans, 138 Mo. 116, 39 St. 727; evidence of general reputa- S. W. 462, 60 Am. St. 549; People v. tion for peace or violence was held Butler, 55 App. Div. (N. Y.) 361, 66 admissible in, Horton v. State, N. Y. S. 851; People v. Cornelius, 36 (Miss.) 36 So. 1033; but see. State App. Div. (N. Y.) 361, 55 N. Y. S. v. Brady, (N. J. L.) 59 Atl. 6. 723. § 3108.] RAPE. 426 prosecution.^20 other matters that may be shown by the defendant as bearing upon the question of consent or the credibility of the prose- cutrix have already been considered. Condonation by the woman can- not be shown as a defense in the criminal prosecution. ^^^ Wliere it is only shown that the defendant took indecent liberties with the person of the prosecutrix, with or without her consent, the defendant cannot be found guilty of rape, even if the female was under the statutory age.^" To be guilty of rape some slight penetration must be proved and against her will.^^^ Impotence is a defense,^^* and in- toxication may render one temporarily impotent ;^2^ but, if the crime is consummated, intoxication is not a good defense.^-^ It has been held, however, that it may be a defense to a prosecution for assault with intent to rape, where it is such as to prevent the forma- tion of the necessary specific intent. ^-^ The defendant, if under four- teen years of age may also show that fact in defense as at least raising the presumption that he was unable to commit rape. At common law this presumption seems to have been conclusive, but it is now generally regarded as rebuttable.^-^ The fact that the defendant was ignorant of the age of the prosecutrix, who was in reality under the age of consent, and believed that she was of sufficient age to give con- sent, is no defense. ^^^ Nor is the previous unchastity of the woman ^^"Curby v. Territory, (Ariz.) 42 Jeffers v. State, 10 Ohio Dec. 832, 20 Pac. 953; State v. McDevitt, 69 Ohio C. C. 294. Iowa 549, 29 N. W. 459; Shirwin v. ""People v. Murray, 72 Mich. 10, People, 69 111. 55. 40 N. W. 29; State v. Murphy, 118 "1 Commonwealth v. Slattery, 147 Mo. 7, 25 S. W. 95; Crew v. State, Mass. 423, 18 N. E. 399; State v. (Tex. Cr. App.) 23 S. W. 14. Newcomer, 59 Kans. 668, 54 Pac. "• State v. Donovan, 61 Iowa 369, €85. 16 N. W. 206; Reagan v. State, 28 "^ "= Stephens v. State, 107 Ind. 185, Tex. App. 227, 12 So. 601, 19 Am. 8 N. E. 94; White v. State, 136 Ind. St. 833, 36 L. R. A. 479, note. 308, 36 N. E. 274. '"' See, Bird v. State, 110 Ga. 315, 1-^ Commonwealth v. McDonald, 35 S. E. 156; Williams v. State, 20 110 Mass. 405; Taylor v. State, 111 Fla. 777; Davidson v. Common- Ind. 279, 12 N. E. 400. wealth, 20 Ky. L. R. 540, 47 S. W. "* Nugent v. State, 18 Ala. 521; 213; State v. Coleman, 54 S. Car. see also. State v. McCune, 16 Utah 162, 31 S. E. 866; Foster v. Com- 170, 51 Pac. 818; Reg. v. Williams, monwealth, 96 Va. 306, 31 S. E. L. R., (1893) 1 Q. B. 320. Expert 503. evidence as to lost virility is held "" People v. Ratz, 115 Cal. 132, 46 admissible. State v. Walke, (Kans.) Pac. 915; Holton v. State, 28 Fla. 76 Pac. 408. 303, 9 So. 716; State v. Sherman, "^Nugent V. State, 18 Ala. 521; 100 Iowa 684, 77 N. W. 461; State 427 VARIANCE. [§ 3109. a defense/^'" although, as elsewhere shown, it may have an important bearing upon the question of consent. § 3109. Variance. — The essential elements of the crime should be proved substantially as laid. WTiere the indictment charges a rape upon a woman, evidence of sexual intercourse with a child under the age of consent, without proof that it was by force and without her consent, has been held insufficient, even though no such proof would have been necessary if the indictment had charged rape on a child under the age of consont.^^^ So, it has been held that proof of an assault with intent to rape by fraud will not sustain a charge of com- mitting an assault with intent to rape by force.^^- But this would not, perhaps, be held imder other statutes.^^^ And a conviction for rape may be had under an indictment therefor upon proof of all the essential elements, even though the child is under the age of con- sent, and intercourse with her would be a distinct crime if she had attempted to consent."* V. Baskett, 111 Mo. 271, 19 S. W. "^poi-d v. State, 41 Tex. Cr. App. 1097; Edens v. Stata, (Tex. Cr. 270, 53 S. W. 846. App.) 43 S. W. 89; Smith v. State, ^^^ See, State v. Austin, 109 Iowa 44 Tex. Cr. App. 137, 68 S. W. 995; 118, 80 N. W. 303; Mobley v. State, Commonwealth v. Murphy, 165 46 Miss. 501. Mass. 66, 42 N. E. 504, 30 L. R. A. "* Rex v. Wedge, 5 Car. & P. 298; 734. Reg. v. Nicholls, 10 Cox Cr. Cas. ^'"McQuirk v. State, 84 Ala. 435, 476; Commonwealth v. Sugland, 4 4 So. 775; People v. Hartman, 103 Gray (Mass.) 7; State v. Gaul, 50 Cal. 242, 37 Pac. 153; Pratt v. State, Conn. 578; State v. Storkey, 63 N. 19 Ohio St. 277. Car. 7; State v. Staton, 88 N. Car. 1" Greer v. State, 50 Ind. 267; see 654; Vasser v. State, 55 Ala. 264; also. State v. Erickson, 45 Wis. 86; State v. Worden, 46 Conn. 349, 362, Bishop Stat. Cr., § 487; Dick v. 33 Am. R. 27. State, 30 Miss. 631; State v. Jack- son, 30 Me. 29. CHAPTER CL. RECEIVING STOLEN GOODS. Sec. Sec. 3110. Meaning of term. 3116. Character evidence. 3111. Presumptions. 3117. Identification of goods. 3112. Burden of proof. 3118. Other instances of receiving 3113. Burden of proof — Essential stolen goods. elements and material facts. 3119. Defenses. 3114. Knowledge that goods were 3120. Evidence in general. stolen. 3121. Sufficiency of evidence. 3115. Intent to defraud. § 3110. Meaning of term. — Eeceiving stolen goods is said to be the short name usually given to the offense of receiving any goods or chattels with the knowledge that they have been feloniously or unlawfully stolen, taken, extorted, obtained, embezzled or disposed of.^ But in some states the offense is committed only in case the property was stolen. And a receiver of stolen property has been de- fined as "one who receives into his possession or under his control, with felonious intent, any stolen goods or chattels, with knowledge that they have been stolen."^ At common law it seems that while sO' receiving stolen goods may have been a misdemeanor it did not make the receiver accessory to the theft. It is now made a substantive crime in England and some states by statute, and in a few others the receiver is an accessory after the fact.^ § 3111. Presumptions. — The so-called presumption of guilt aris- ing from the recent possession of stolen property has been held to apply to one charged with unlawfully receiving it as well as to one charged with the original taking.* But it is not conclusive,^ ^Black's L. Diet. State, 38 Fla. 3, 20 So. 765; Curran = 24 Am. & Eng. Ency. of Law v. State, (Wyo.) 76 Pac. 577; State (2d ed.) 44. v. Hazard, 2 R. I. 474, 60 Am. Dec. ^ See for remarks on the history of 96. the offense and statutes, Anderson v. * People v. Weldon, 111 N. Y. 569;. 428 429 PRESUMPTIONS [§ 3111. and it would seem that, ordinarily, the presumption, if any, other than of innocence, would be that of larceny ratlier than of a feloni- ous receiving of the goods knowing them to be stolen.® Failure, how- ever, by one in possession of stolen goods to make a reasonable ex- planation has been held sufficient to raise a presumption, or at least an inference of guilt. ^ But where a reasonable explanation is given it is held that no such inference arises.^ When the circumstances tend to show that certain stolen goods have been in the possession of the accused for a long time before their discovery it has been held that such possession may raise a presumption or inference of guilt against one charged with receiving them though such goods were not found until more than three montlis after they were stolen.'' It has been held that the possession by a person of stolen property recently after the theft raises a presumption that he stole it, but the mere fact of recent possession of stolen property, by a person who is charged with receiving stolen property, knowing it to be stolen, does not raise a presumption tluit he had knowledge that it was stolen. ^° But recent possession in connection with other circumstances of a peculiar and suspicious character has been held sufficient to warrant a pre- sumption, or at least an inference of guilty knowledge, if it may rea- sona])ly be inferred from the circumstances that the one in possession of the goods did not commit tlie larceny himself.^^ But the mere purchase of stolen goods for less than their value does not raise a presumption of knowledge that they were stolen.^- The omission of the accused to testify in his own behalf, creates no presumption 19 N. E. 279; see also, Sahlinger v. firmed. See also, Reg. v. Oddy, 5 People, 102 111. 241, 244; State v. Cox Cr. Cas. 210. Grebe, 17 Kans. 458; Jenkins v. 'Muggins v. People, 135 111. 243, State, 62 Wis. 49, 21 N. W. 232. 25 N. E. 1002, 25 Am. St. 357; State "State V. Pomeroy, 30 Ore. 16, 46 v. Mayer, 45 Iowa 698; State v. Mil- Pac. 797. ler, 159 Mo. 113, 60 S. W. 67. «See, Durant v. People, 13 Mich. •* Williams v. State. 29 Tex. App. 351; Sartorious v. State, 24 Miss. 167, 15 S. W. 285; Estes v. State, 23 602; State v. Bulla, 89 Mo. 595, 1 S. Tex. App. 600, 5 S. W. 176. W. 764; Trail v. State, (Tex. Cr. "Jenkins v. State, 62 Wis. 49, 21 App.) 57 S. W. 92. In, State v. N. W. 232. Richmond, (Mo.) 84 S. W. 880; the ^" State v. Bulla, 89 Mo. 595, 1 S. case of State v. Guild, 149 Mo. 370, W. 764. 50 S. W. 909, 73 Am. St. 395, which "State v. Mayer, 45 Iowa 698; disapproved, State v. Bulla, supra, Goldstein v. People, 82 N. Y. 231; is itself disapproved, and the doc- Sartorious v. State, 24 Miss. 602. trine of the older case again af- '• Sartorious v. State, 24 Miss. 60^. §§ 3112, 3113.] RECEIVING STOLEN GOODS. 430 against him, yet his failure to account in any way for his possession of a large sum of money may be a significant circumstance to be considered by the jury.^^ It has been held in some cases that the fact that the accused knew the goods to have been stolen is, in the absence of other evidence, conclusive proof that he received the same with intent to defraud the owner.^* But in a number of jurisdictions it is held that the presumption, if any, against the accused, arising from recent possession of goods is that the possessor is guilty of larceny and not a felonious reception.^^ § 3112. Burden of proof. — The burden or proof, as in other crimes, is on the prosecution to establish the guilt of the accused.'^^ But the burden of showing that one was not properly convicted as a thief is upon the one who has received the goods when the record of the conviction and sentence of such thief is introduced in evi- dence,^'^ if that question can be gone into at all. The general rule, however, is that the burden is upon the prosecution to establish every essential element of the crime and ultimately convince the jury of the guilt of the accused beyond a reasonable doubt. § 3113. Burden of proof — Essential elements and material facts. The essential elements of the crime and the material facts to be proved by the state are in general, (1) the larceny of the goods by some thief; (2) the subsequent reception of the stolen goods by the prisoner; (3) that he knew at the time that they were stolen. ^^ Proof that the goods were actually stolen is essential, and the mere posses- sion of them by another than the owner has no tendency in itself, it is said, to prove that fact.^** Neither can the theft be proved as against a person charged with receiving the stolen goods by the confession or declarations of the thief.^° The fact that defendant knew the goods " Jenkins v. State, 62 Wis. 49, 21 goods were, in fact, stolen goods. N. W. 232. State v. Kinder, 22 Mont. 516, 57 " United States v. Lowenstein, 21 Pac. 94. D. C. 515. ^"Coxwell v. State, 66 Ga. 309; i^Sisk V. State, (Tex. Cr. App.) Cooper v. State, 29 Tex. App. 8, 13 42 S. W. 985; State v. Bulla. 89 Mo. S. W. 1011, 25 Am. St. 712; Ander- 595, 1 S. W. 764; Sartorious v. son v. State, 63 Ga. 675. State, 24 Miss. 602; People v. Wei- ^^^ Reilley v. State, 14 Ind. 217. don, 111 N. Y. 569,, 19 N. E. 279. "Bailey v. State, 52 Ind. 462. "Anderson v. State, 63 Ga. 675. '"Reilley v. State, 14 Ind. 217. The state must show that the 431 KNOWLEDGE. [§ 3114. to be stolen when he received them must be affirmatively proved,^^ but his guilty knowledge raay.be inferred from circumstances.^^ And the fact that they were concealed in the defendant's house in places where such goods would not ordinarily be kept has been held compe- tent evidence of guilty knowledge.^^ It has also been held in some jurisdictions that it must also be shown that the goods were received either directly or indirectly from the thief,-* and that any allegations as to the identity of the thief must l)e proved as laid.-^ But the weight of authority, under most of the statutes, is to the effect that one may be guilty of receiving stolen goods, although he receives them from some person other than the person who committed the larceny, and that, if it is properly shown that they are stolen goods, and the other elements of the crime are established, the name of the thief is im- material.-" It is also held in the Wyoming case cited in support of the last proposition that it was not essential that the larceny should have been committed in that state if the stolen goods were received there with guilty knowledge. § 3114. Knowledge that goods were stolen. — All the facts and circumstances from wliich the inference of guilty knowledge arises are, in general, competent to prove such knowledge.^'' It may be in- ferred from circum.stances leading a reasonable man to believe that the goods were stolen.-^ Thus, the fact that a party received stolen =^ Robinson v. State, 84 Ind. 452; " Huggins v. People, 135 111. 243, Foster v. State, 106 Ind. 272, 6 N. 25 N. E. 1002, 25 Am. St. 357; Peo- E. 641. pie v. Schooley, 149 N. Y. 99, 43 N. =- Goodman v. State, 141 Ind. 35, E. 536, aff'g 89 Hun (N. Y.) 391, 35 39 N. E. 939. N. Y. S. 429; Commonwealth v. "Semon v. State, 158 Ind. 55, 62 Billings, 167 Mass. 283, 45 N. E. N. E. 625. 910; Murio v. State, 31 Tex. Cr. =^ Foster v. State, 106 Ind. 272, App. 210, 20 S. W. 356; People v. 278, 6 N. E. 641; State v. 'ives, 13 Clausen, 120 Cal. 381, 52 Pac. 658; Ired. L. (N. Car.) 338. Licette v. State, 75 Ga. 253; State == Foster v. State, 106 Ind. 272, 6 v. Guild, 149 Mo. 370, 50 S. W. 909 N. E. 641; Semon v. State, 158 Ind. (conduct and attempt to escape). 55, 62 N. E. 625. -"Birdsong v. State, (Ga.) 48 S. ^''Curran v. State, (Wyo.) 76 Pac. E. 329; Delahoyde v. People. 212 111. 577; Smith v. State, 59 Ohio St. 350, 554, 72 N. E. 732. In, Cobb v. State, 52 N. E. 826; People v. Clausen, 120 76 Ga. 664, it is said: "Circum- Cal. 381, 52 Pac. 658; Kirby v. stances may convict of the defend- United States, 174 U. S. 47, 19 Sup. ant's knowledge, as well as actual Ct. 574; State v. Fink, (Mo.) 84 S. and direct proof. . . . The cir- W. 921; Levi v. State, 14 Neb. 1, 14 cumstances, the time, the secrecy, N. W. 543. all the transactions before, at the § 3114.] RECEIVING STOLEN GOODS. 433 goods under circumstances which would induce a man of ordinary observation to believe they had been stolen, and also concealed them, has been held competent and even sufficient evidence to show guilty knowledge.2^ So, evidence that accused received into his store, at night, goods shown by the evidence to have been stolen from persons who were suspicious characters, and one of whom he knew to be a pro- fessional thief has been held sufficient to support, in this respect, a conviction for receiving stolen goods.^° And where all the goods were stolen from the same person and delivered to the accused by the thief, guilty knowledge may be shown by the state by proving other prior acts of receiving, and that other stolen goods were found in the pos- session of the accused. ^^ And, as already shown, it is held in many jurisdictions that for such evidence to be admissible it is not neces- sary that the stolen goods should be from the same person from whom the goods in question were received.^- So, it has been hold that guilty knowledge may be inferred from the fact that the ac- cused purchased the stolen goods for much less than their real value,^^ at least where there are also other suspicious circumstances. Evi- dence that the accused, a dealer in second-hand clothing, according to the trade custom, did not, as a rule, pay full price for clothing, and bought out of season and at reduced prices, has been held ad- time and afterwards, may be ^"Friedberg v. People, 102 111. 160. brought to bear upon what was the ^^ Harwell v. State, 22 Tex. App. knowledge of the receiver; and if 251, 2 S. W. 606; Copperman v. Peo- from all these the jury can conclude pie, 56 N. Y. 591; State v. Habib, 18 that the receiver did have good rea- R. I. 558, 30 Atl. 462; State v. Ja- son, as a reasonable person, to be- cob, 30 S. Car. 131, 8 S. E. 698, 14 lieve or suspect that the goods were Am. St. 897; Goodman v. State, 141 stolen, they may well conclude, if Ind. 35, 39 N. E. 939. he did not inquire and investigate ^- Goodman v. State, 141 Ind. 35, before he received them, that he had 39 N. E. 939; Morgan v. State, 31 knowledge, such as the law will Tex. Cr. App. 1, 18 S. W. 647; see charge him with, of the character § 3111, on presumptions, of the goods, and of the person ^^ Huggins v. People, 135 111. 243, from whom he received, as one who 25 N. E. 1002, 25 Am. St. 357; Peo- had stolen them." . . . "Knowl- pie v. Levlson, 16 Cal. 98, 76 Am. edge may well be deduced from con- Dec. 505; People v. Clausen, 120 duct and behavior, the character of Cal. 381, 62 Pac. 658; State v. Gold- the person from whom received, man, 65 N. J. L. 394, 47 Atl. 641; and the kind of goods, and the hour State v. Houston, 29 S. Car. 108, 6 when received." S. E. 943. -^Collins V. State, 33 Ala. 434, 73 Am. Dec. 426. 433 INTENT. [§ 3115. missible to rebut the inference of guilty knowledge from the fact that the goods were bouglit at a low price.^* It has been held that the mere fact that the accused did not attempt to prevent the owner from recovering his goods is not evidence that he did not know that they were stolen.^^ The mere fact that defendant was found in possession of the goods has been held insufficient without more, to establish de- fendant's guilty knowledge that the goods had been stolen.^® But where a person engaged in trade is found in possession of stolen goods under suspicious circumstances, and states that lie knows, or has the means of ascertaining the person from whom he received them, but takes no steps to point out such person, this has been held a fact from which the jury may draw the inference of guilt. ^^ Evidence of sub- sequent receivings has been held inadmissible.^^ It has also been held that proof of drunkenness will not supjjort an averment of a want of guilty knowledge in receiving stolen goods.^** ' § 3115. Intent to defraud. — It has been held that if the accused knew when he received tlie goods that they were stolen, the intent to defraud the owner can be gathered from that and the surrounding circumstances.*" Thus, it has been held that where one holding goods and knowing them to be stolen, offers the goods for sale this is evi- dence of his guilty intent.*^ But under most of the statutes there must be a fraudulent intent to deprive the true owner of his interest in them.*- Yet it has been held that receiving stolen goods, knowing '♦Andrews v. People, 60 111. 354. Berry v. State, 31 Ohio St. 219, 227; =' People v. Solomon, 125 Cal. xix, Commonwealth v. Mason, 105 Mass. 5S Pac. 55. 163; Reg. v. O'Donnell, 7 Cox Cr. =" State v. Richmond, (Mo.) 84 S. Cas. 337. W. 880. "Rice v. State, 3 Heisk. (Tenn.) ^^ Adams v. State, 52 Ala. 379. 215; Pelts v. State, 3 Blackf. (Ind.) ^^ People V. Willard, 92 Cal. 482, 28 28; see also, State v. Caveness, 78 Pac. 585. N. Car. 484; George v. State, 57 =« Commonwealth v. Finn, 108 Neb. 656, 78 N. W. 259; Holt v. Mass. 466. State, 86 Ala. 599, 5 So. 793; People ♦"United States v. Lowenstein, 21 v. Tilley, 135 Cal. 61, 67 Pac. 42; D. C. 515, 519; see also. State v. State v. Biirdon, 38 La. Ann. 357; Smith, 88 Iowa 1, 55 N. W. 16. Arcia v. State, 28 Tex. App. 193, 12 "People V. Fletcher, 44 App. Div. S. W. 509; Hey v. Commonwealth, 32 (N. Y.) 199. 60 N. Y. S. 777. So Gratt. (Va.) 946, 34 Am. R. 799; held where taken with intent to State v. Shoaf, 68 N. Car. 375 (in- hold for a reward. Baker v. State, tent for jury) ; People v. McClure, 58 Ark. 513, 25 S. W. 603; see also, 148 N. Y. 95, 42 N. E. 523; Hurell v. State v. Pardee, 37 Ohio St. 63; State, 5 Humph. (Tenn.) 68; but Vol. 4 Elliott Ev.— 28 §§ 3116, 3117.] RECEIVING STOLEN GOODS. 43-i them to be stolen, for the purpose of aiding the thief in concealing them or in escaping with them, is as much an offense as if the re- ceiving be done with the hope of obtaining a reward from the owner or other pecuniary gain or advantage.*" § 3116. Character evidence. — Evidence of the good character of the accused has been held competent.** This is in accordance with the general rule.*^ But in some jurisdictions it is held that evidence of good character is not competent unless the other evidence in the case is circumstantial or unless the guilt of the accused is doubtful. *** Evidence of the character of parties who frequented defendant's house, and from whom he received goods, has been held competent,*^ as tending to show his knowledge that they were stolen. So, evidence of the reputation of the thief from whom he received the goods may be admissible for the same purpose,*^ at least where the accused is shown to have knowledge thereof.*^ § 3117. Identification. — The receipt of the stolen goods by the accused must be shown, and in order to do this they must be identi- fied in some way. It has been held proper to hand to the witness articles similar to those stolen, to enable him to identify and prove the kind of articles stolen.^" And it has been held that all the cir- cumstances of the case properly bearing upon the question should be taken into consideration in determining the question as to the receipt see, State v. Lane, 68 Iowa 384, 27 ner v. State, 107 Ind. 71, 7 N. E. 896, N. W. 266; Rex v. Davis, 6 Car. & 57 Am. R. 79; Holland v. State, 131 P. 177, 25 E. C. L. 381. Ind. 568, 31 N. E. 359. *^ People V. Wiley, 3 Hill (N. Y.) "Hey v. Commonwealth, 32 Gratt. 194; State v. Rushing, 69 N. Car. (Va.) 946, 34 Am. R. 799. 29; Commonwealth v. Bean, 117 " Goodman v. State, 141 Ind. 35, 39 Mass. 141; State v. Hazard, 2 R. I. N. E. 939; Morgan v. State, 31 Tex. 474; Rex v. Richardson, 6 Car. & Cr. App. 1, 18 S. W. 647. P. 335, 25 E. C. L. 461. '' Huggins v. People, 135 111. 243, ** Jupitz V. People, 34 111. 516. 25 N. E. 1002, 25 Am. St. 357; Com- *^ See, People v. Hurley, 60 Cal. 74, monwealth v. Gazzolo, 123 Mass. 220, 44 Am. R. 55; State v. Ford, 3 Strob. 25 Am. R. 79. L. (S. Car.) 517; ante. Vol. I, § 168. " Friedberg v. People, 102 111. 160; But it is questionable whether such State v. Goldblat, 50 Mo. App. 186. evidence of itself is sufficient to re- ^ Jupitz v. People, 34 111. 516. But but the presumption of guilt, where mere similarity has been held in it- it arises, and the evidence should self insufficient evidence of identity, be considered in connection with Commonwealth v. Billings, 167 Mass. the other evidence in the case. Wag- 283, 45 N. E. 910. 435 IDENTIFICATION OTHER INSTANCES OF RECEIVING. [§ 3118. and identification of the stolen property.^ ^ In a certain case papers produced from a closet, to which there was evidence that defendant had access, which papers, as the testimony also tended to show, were wrappers of the stolen goods, were held admissible in evidence.^^ And evidence as to the similarity of wrapping paper found in the room of the accused,''^ or as to the use of certain marks,^'* has been held com- petent. Thus a witness may testify that he saw the goods in the pos- session of the accused and knew them by certain marks.^^ And evi- dence of the receiving of other goods has been held admissible to aid in the identification of the goods in qestion, where it fairly tended to do so.'^' § 3118. Other instances of receiving stolen goods. — Other in- stances of receiving stolen goods, knowing them to be stolen, may be introduced^'' in a proper case. Thus, to prove guilty knowledge it may be shown that the accused had received stolen goods on another oc- casion.^^ And evidence of his having other stolen goods in his pos- session has also been held competent to show guilty knowledge.^* "The rule as to such evidence is that when there is a question whether a person said or did something, the fact that ho said or did some- thing of the same sort on a different occasion may be proved, if it shows the existence on the occasion in question of any intention, knowledge, good or bad faith, malice, or other state of mind, or of any state of body or bodily feeling, the existence of which is in issue or is deemed to be relevant to the issue: but such acts or words may not be proved merely in order to show that the person so acting or speak- ing was likely, on the occasion in question, to act in a similar man- " People V. Kiley, 107 Mich. 345, 65 " People v. McClure. 148 N. Y. 95. N. W. 233; People v. Connor, 141 N. 42 N. E. 523; see also. State v. Y. 583, 36 N. E. 345; Hester v. State, Hanna, 35 Ore. 195, 57 Pac. 629. 103 Ala. 83, 15 So. 857; Jenkins v. " Shriedley v. State, 23 Ohio St. State, 62 Wis. 49, 21 N. W. 232. 130; Yarborough v. State, 41 Ala. "Commonwealth v. Mullen, 150 405; Devoto v. Commonwealth, 3 Mass. 394, 23 N. E. 51. Mete. (Ky.) 417; Goodman v. State. ■^^Commonwealth v. Mullen, 150 141 Ind. 35, 39 N. E. 939; 62 L. R. A. Mass. 394, 23 N. E. 51; Polin v. 269, 317. note. State, (Tex. Cr. App.) 65 S. W. 183. ''State v. Ward, 49 Conn. 429; " People V. Maloney, 113 Mich. 536, Commonwealth v. Johnson, 133 Pa, 71 N. W. 866; Hester v. State, 103 293. 19 Atl. 402. Ala. 83, 15 So. 857. '" Devoto v. Commonwealth, S ^= Hester v. State, 103 Ala. 83, 15 Mete. (Ky.) 417. So. 857. § 3118.] RECEIVING STOLEX GOODS. 436 ner."^** The facts that the accused received from another articles stolen by him from a third person in the course of several months, and that the accused pledged all of them, are deemed to be relevant to the fact that the accused knew that the goods in question were stolen by the other from the third person.®^ And so, evidence that the accused persons had received other stolen goods than those de- scribed in the indictment about the same time, and stolen from the same person, has been held competent, as tending to show guilty knowledge that the goods in question were stolen.^^ Evidence of pre- vious purchases from the same thief of goods known to have been stolen is admissible to show guilty knowledge on the part of the re- ceiver,^^ and it was so held where the circumstances of the previous dealing were suspicious and the price grossly inadequate,®* al- though the property was stolen from different persons. So, in other cases it has been held that evidence of similar transactions of the ac- cused, other than those connected with the offense charged, may be given for the purpose of showing guilty knowledge,®^ and that evi- dence that the accused has frequently received similar articles of prop- erty, under like circumstances, from the same thief, stolen from the same person or place, knowing that they were stolen, is proper upon the question of guilty knowledge.^® And, again, it is held that evi- dence of previous transactions between accused and the thief, in ref- erence to other stolen property, is competent to show knowledge that the goods were stolen. *'' Evidence that the supposed thief had stolen other goods of the same kind has, however, been held not to be com- petent.®** And the fact that the accused received property on other occasions from still other persons, knowing it to have been stolen, was held in one case not to be relevant,®^ where the property was different *> Stephen Dig., Art. 11. ^^ Coleman v. People, 1 Hun (N. «^ Coleman v. People, 58 N. Y. 555; Y.) 596, 4 Thomp. & C. (N. Y.) 61. State V. Ward, 49 Conn. 429; Kilrow "^ Copperman v. People, 56 N. Y. V. Commonwealth, 89 Pa. St. 480; 591. Shriedley v. State, 23 Ohio St. 130. «' State v. Feuerhaken, 96 Iowa " State v. Jacob. 30 S. Car. 131, 8 299, 65 N. W. 299. S. E. 698, 14 Am. St. 897. «' Mclntire v. State, 10 Ind. 26; see «« Shriedley v. State, 23 Ohio St. also, Reg. v. Oddy, 5 Cox Cr. Cas. 130; People v. McClure, 148 N. Y. 95, 210. 42 N. E. 523; People v. Grossman, «* Coleman v. People, 55 N. Y. 81; 168 N. Y. 51, 60 N. E. 1050. see also, Reg. v. Oddy, 5 Cox Cr. Cas. " People V. Doty, 175 N. Y. 164, 67 210. N. E. 303. 437 DEFENSES. [§§ 3119, 3120. in kind, and was stolen from a difTorcnt person and received from a different person. § 3119. Defenses. — If the goods are received in good faith on be- half of the owner with the honest intention and purpose of delivering them to him without reward, and they are so restored, this will constitute a good defense.'" The prosecution may also be barred by the statute of limitations.'^^ And a former acquittal may constitute a good defense,'^ ^^t an acquittal of breaking into a house with intent to steal and taking goods therefrom is not a bar to a prose- cution for receiving stolen goods." What the accused said on the discovery of the goods with him has been held admissible in his favor, if made instantaneously and without opportunity for concoction, as a part of the res gestae.''^ And so it has been held competent for the defense to show by the accused, he being a witness in his o\ra be- half, when, from whom, how, and under what circumstances he re- ceived the property and what was done and said at the time in con- nection with the receipt of it by himself ; such facts being part of the res gestae to be submitted as evidence, and weighed by the jury." Evi- dence that the vendor of the goods in question claimed the same as his own before the sale to the accused, is properly admissible in de- fense.'^'' And it has been held that a dealer in second-hand goods may show the custom not to pay a full price for goods which they deal in, even though practically new, in order to rebut the presumption or inference of guilty knowledge from the purchase of such goods at a greatly reduced price." § 3120. Evidence in general. — Evidence is admissible against the accused of conversations between the defendant and the thief, mak- ing arrangements for recei^^ng the goods, before the offense was com- mitted.'^^ And conversations between the accused and the thief on previous occasions, when the accused received similar goods from the ^"Aldrichv. People, 101 111. 16. Payne v. State. 57 Miss. 348; Mc- " Jones v. State, 14 Ind. 346. Phail v. State, 9 Tex. App. 164. "People V. Willard, 92 Cal. 482, 28 "= State v. Bethel, 97 N. Car. 459, 1 Pac. 585. S. E. 551. " Pat v. State, 116 Ga. 92, 42 S. E. " Harwell v. State, 22 Tex. App. a89; Commonwealth v. Bragg, 104 251. 2 S. W. 606. Ky. 306, 47 S. W. 212. " Andrews v. People, 60 111. 354. •* Bennett v. People, 96 111. 602; '"Commonwealth v. Jenkins, 10 Henderson v. State, 70 Ala. 23; Gray (Mass.) 1S5. § 3120.] RECEIVING STOLEN GOODS. 438 thief, have also been held competent to show guilty knowledge.''^ And 60 conversations between the thieves before and after the commission of the theft may be admissible to show how it was planned and ac- complished.*" And if it is shown that there was a fraudulent con- spiracy between those who stole the goods and the one who received the goods to sell or dispose of them, it has been held, as in other cases of conspiracy, that the acts or statements of one of the conspirators in reference to the undertaking, even in the absence of the accused, are competent against the accused if made before the property is dis- posed of.*^ It has been held that the declaration of the one holding the property that he received it from another may be taken as suffi- cient proof that he received it from the thief rather than that he him- self stole it.*2 Evidence that defendant also had other stolen prop- erty of the same kind in his possession is admissible,^^ in a proper case, but evidence that the thief from whom the defendant received the property had also been guilty of another theft is inadmissible.^* Wliere the defendant was charged with receiving stolen goods during the continuance of a partnership of which he was a member, the ex- clusion of a bill shoM'ing a sale of goods to the defendant by the al- leged owner of the stolen goods after the firm had been dissolved was held to be proper.*^ For the purpose of showing that the property was stolen before defendant was found in possession of it, an indict- ment charging another with the theft of the property, and a judgment of conviction of said person for such theft, have been held admis- sible.*^ But an acquittal of the alleged thief has been held no de- fense to the receiver.*^ The failure of a junk dealer to keep a book, as required by law, wherein all articles purchased by him are to be entered, it has been held, may be shown in a prosecution against him for receiving stolen property.*® There is a diversity of opinion in the adjudicated cases as to whether the thief is an accomplice making it necessary under the statutes that his testimony should be '"Copperman v. People, 1 Hun (N. " Mclntire v. State, 10 Ind. 26. y.) 15. 8= Delahoyde v. People, 212 111. 554, *<• State V. Smith, 37 Mo. 58. 72 N. E. 732. "People V. Pitcher, 15 Mich. 397; «« Cooper v. State. 29 Tex. App. 8, McFadden v. State, 28 Tex. App. 241, 13 S. W. 1011, 25 Am. St. 712. 14 S. W. 128. " State v. Sweeten, 75 Mo. App. ^^'Gunther v. People, 139 111. 526, 28 127. N. E. 1101. * Commonwealth v. Leonard, 140 ** Turner v. State, 102 Ind. 425, 1 Mass. 473, 4 N. E. 96, 54 Am. R. 485. N. E. 869; Goodman v. State, 141 Ind. 35, 39 N. E. 939. 439 EVIDENCE IN GENERAL. [§ 3120. corroborated in order that the accused may be convicted. Some juris- dictions hold that the thief is not an accomplice,^® while some other jurisdictions take the opposite view.®" And it has been held that it is a question of fact for the jury.'*^ Thus, it has been held error to al- low the jury to convict on the uncorroborated testimony of the thief, without leaving to them to find whether such witness was not in fact an accomplice of the accused, so as to require his testimony to be cor- roborated.®^ The matter depends largely upon the statute of the par- ticular jurisdiction. The testimony of the one who stole the goods is competent against the one who received them.®^ And the owner of the stolen property is a competent witness.®* It has been held that the owner of the property may state what the value of the property was to him, as that is a fact slightly tending to show its real value.®' Wliere the defendant was accused of receiving stolen goods, and it was established that he went to a certain house and got a particular pack- age of the goods, evidence of a witness that defendant "knew it was there" was held not objectionable as a conclusion.®® The confession of the accused is admissible.®^ It should be remembered, however, that the confession should be made voluntarily.®^ And, as elsewhere shown, corroboration may be required. Evidence of the kind of shop kept and conducted by the accused has been held admissible to inform the jury of his habitual occupation and hence the opportunity to com- mit the crime.®® But it has been held, on the other hand, that evi- dence that the house of the accused is the resort of felons, who resort there to dispose of stolen goods is not admissible.^'^'^ Eecent posses- sion, without any evidence that the property stolen had been in the »^ Springer v. State, 102 Ga. 447, " Gassenheimer v. State, 52 Ala. 30 S. E. 791; State v. Kuhlman, 152 313. Mo. 100, 53 S. W. 416, 75 Am. St. 438. " Cohen v. State, 50 Ala. 108. "" State V. Greenburg, 59 Kans. 404, "' Delahoyde v. People, 212 111. 554, 53 Pac. 61; Commonwealth v. Poots, 72 N. E. 732. 18 Phila. (Pa.) 477; Johnson v. "People v. McKennan, 35 N. Y. State, 42 Tex. Cr. App. 440, 60 S. W. St. 938, 12 N. Y. S. 493; State v. 667. Hahib, 18 R. I. 558, 30 Atl. 462. " People V. Kraker, 72 Cal. 459, 14 "« State v. Davis, 125 N. Car. 612, Pac. 196, 1 Am. St. 65. 34 S. E. 198. ^' People V. Kraker, 72 Cal. 459, 14 '"' Commonwealth v. Campbell, 103 Pac. 196, 1 Am. St. 65. Mass. 436. "^People V. Levison, 16 Cal. 98, 76 '""People v. Pierpont, 1 Wheeler Am. Dec. 505; People v. Cook, 5 Cr. Cas. (N. Y.) 139. But it might Park. Cr. Cas. (N. Y.) 351; State v. be admissible as already shown, in a Coppenburg, 2 Strob. L. (S. Car.) proper case, on the question of 273. guilty knowledge. § 3121.] RECEIVING STOLEN GOODS. 440 possession of some person other than the owner before it came to the alleged receiver, or other circumstances to rebut the presumption of larceny has been held to be evidence of larceny rather than evidence of receiving stolen goods.^°^ § 3121. Sufficiency of evidence. — The bare fact of receiving- stolen goods is not sufficient to show knowledge on the receiver's part that the goods were stolen."^ And proof that the accused had in his possession property twelve months after it was stolen will not sustain a conviction for receiving stolen property, where there is no evidence that the accused knew it to have been stolen."^ It has been held^ however, that one may be convicted of receiving stolen money upon evidence showing his poverty previous to the larceny, and that shortly thereafter he was in the unexplained possession of a large amount of currency, although such currency is not specifically identified with that which was stolen."* So, where the accused was charged with, receiving a stolen watch, and admitted that after the theft he had sold a watch of the same number as the stolen watch, such evidence was held sufficient to show that the stolen watch had been in his posses- sion."^ In a recent case in New York one who had stolen money took it to a bank, the defendant going with him, and delivered it to the bank teller to count. While it was being counted, the defendant,, at the instance and with the consent of the thief, made out a deposit slip for the money to his own credit, which was received with the money, the money being placed to the defendant's credit in the bank, and the court held that this constituted receiving stolen money, which, being with knowledge that it was stolen, was a crime under the New York statute. ^*"^ So, where the defendant, knowing goods to have been stolen, put part of them in his bag and helped the thief carry them to a merchant to sell, this was held sufficient to sustain a charge of receiving stolen goods. "^ It has also been held that on a charge of ^°'Reg. V. Langmead, 9 Cox Cr. "^Jenkins v. State, 62 Wis. 49, 21 Cas. 464. N. W. 232. ^°- Castleberry v. State. 35 Tex. Cr. '"'■ Gunther v. People, 139 111. 526, App. 382, 33 S. W. 875, 60 Am. St. 53. 28 N. E. 1101. But there are usually other circum- "" People v. Ammon, 92 App. Div. stances or the possession may be so (N. Y.) 205, 87 N. Y. S. 358, aff'd in, recent that knowledge may be in- 71 N. E. 1135. ferred under the circumstances. '"' State v. Rushing, 69 N. Car. 29. "^Tolliver v. State, 25 Tex. App. But this comes close to the line of 600, 8 S. W. 806. larceny or aiding and abetting the 441 - SUFFICIENCY OF EVIDENCE. [§ 3121. receiving stolen goods belonging to a corporation, it is sufficient to prove that they were owned by a corporation de facto.^**® But v/here the indictment charged the receipt of a certain number of ounces of silver, knowing it to have been stolen, and the proof was that the silver had been so far manufactured into the form of forks and spoons as to bear a resemblance at least to the finished product, and these forms were distinctively known as fork blanks and spoon blanks, it was held that the evidence did not sustain the indictment.^"'* same. See, Reg. v. Coggins, 12 Cox '«« State v. Nelson, 27 R. I. 31, 60 Cr. Cas. 517; Smith v. State, 59 Ohio Atl. 589. Compare Reg. v. Mansfield, St. 530, 52 N. E. 826. Car. & Mar. Rep. 140. "« Butler V. State, 35 Fla. 246, 17 So. 551. CHAPTER CLI. RIOTS AND UNLAWFUL ASSEMBLIES. Sec. Sec. 3122. Meaning of terms. 3xiJ6. Proof as to participation. 3123. Presumptions and burden of 3127. Proof as to terror of the peo- proof. pie. 3124. Order of proof. 3128. Evidence in general. 3125. Number of persons at least three. § 3122. Meaning of terms. — A riot is defined as a "tumultuous disturbance of the peace by three persons or more assembling together of their own authority, with an intent mutually to assist each other against any who shall oppose them in the execution of some enter- prise of a private nature, and afterward actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful."^ An unlawful as- sembly at common law is the meeting together of three or more per- sons, to the disturbance of the public peace, and with the intention of co-operating in the forcible and violent execution of some unlaw- ful private enterprise. If they take steps toward the performance of their purpose it becomes a rout, and if they put their design into actual execution it is a riot.- If they part without doing it and with- out taking such steps it is merely an unlawful assembly.^ Again, riot has been defined as a tumultuous disturbance of the peace, by three or more persons assembling together of their own authority, with an intent to assist one another against any one who shall oppose them in the execution of some enterprise of a private nature, and afterward actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act itself be lawful or unlawful.'' Under the Georgia statute, which provides that if two or more per- ' Black's L. Diet. Cr. Law. As to riotous conspiracy = Black's L. Diet. see. Spies v. People, 122 111. 1, 12 N. = 3 Greenleaf Ev., § 216. E. 865, 3 Am. St. 320, and note. * State V. Russell, 45 N. H. 83; May 443 443 PRESUMPTIONS AND BUKDEX OF PROOF. [§ 3123. sons do an unlawful act of violence or any other act in a violent and tumultuous manner, they shall be guilty of a riot, it is held that there must be concert of action on the part of such persons in furtherance of a common intent,^ but that while there must be a common intent on the part of two or more persons to do an unlawful act, and also concert of action in furtherance of such intent, it is not necessary that there must have been a previous plot on the part of the rioters in order to constitute such offense.*^ In Indiana it has been held unneces- sary to prove that the defendants were engaged in doing an act which of itself was unlawful.*^ And in the same state it is also held that the violent and tumultuous manner in which the act is done is the essence of the offense, and gathering together in a crowd for the purpose of giving a newly wedded couple a charivari, and making a great noise by shouting, shooting off firearms, blowing horns and beating on tin pans may constitute a riot,^ although all the rioters were in a good humor,^ and it is not necessary to show that anybody was terrified by the tumult.^" § 3123. Presumptions and burden of proof. — It has been held that the mere fact that three or more persons in a violent manner beat another does not raise the presumption of law that they assembled with that intent, or, after being assembled, agreed mutually to assist one another in executing such purpose.^^ But from the doing of the act, accompanied by declarations of an intent to do it, the jury may infer a previous intent and agreement to do it, and mutually to assist each other in doing it ; and it is said that in the absence of all contra- " Coney v. State, 113 Ga. 1060, 39 State, 20 Ga. 839; Reg. v. Cunning- S. E. 425; Stafford v. State, 93 Ga. hame, 16 Cox Cr. Cas. 420, 427. 207, 19 S. E. 50; Prince v. State, 30 » Bankus v. State, 4 Ind. 114; State Ga. 27. It is also said that the mere v. Brown, 69 Ind. 95. making of a noise will not constitute * Bankus v. State, 4 Ind. 114. a riot in the absence of violence. '"Bankus v. State, 4 Ind. 114; Barron V. State, 74 Ga. 833. Thayer v. State, 11 Ind. 287; see 'Jemley v. State, (Ga.) 49 S. E. also. Commonwealth v. Runnels, 10 292. Mass. 518; People v. O'Loughlin, 3 ^Kiphart v. State, 42 Ind. 273; see Utah 133, 1 Pac. 653 (strikers march- also. State v. Voshall, 4 Ind. 589; ing through street held rioters); State v. Dillard, 5 Blackf. (Ind.) Darst v. People, 51 111. 286; State v. 365; People v. O'Loughlin, 3 Utah York, 70 N. Car. 66; State v. Boies, 133, 1 Pac. 653; State v. Blair, 13 34 Me. 235. Rich. L. (S. Car.) 93; Jacobs v. " State v. Kempf, 26 Mo. 429. § 3124.] RIOTS AND UNLAWFUL ASSEMBLIES. 444 dictory evidence they ought so to infer.^^ ^nd it is held that proof of an agreement or proposal to do the unlawful act need not be made/3 and that it is sufficient if there is a common intent or pur- pose and concert of action without any previous plot." The burden of proof is on the prosecution to establish that at least three persons were engaged in the unlawful act.^^ And the burden of proof is gen- erally on the prosecution to establish an unlawful assembly. But an assembly that might not have been unlawful in the first instance/^ if it had been properly conducted, may become unlawful." It has also been held that it must be shown that the object of the rioters was of a private nature/^ and the common intent or purpose must be shown/^ but it may be inferred from conduct and other circum- stantial evidence.^" § 3124. Order of proof. — In proving the guilt of the defendants,, says Greenleaf, "the regular and proper order is similar to that which is adopted in prosecutions for conspiracy ; namely, jfirst to prove the combination, and then to show what was done in pursuance of the un- lawful design." But this rule is not imperative, and the court, in its discretion may admit evidence out of its usual and regular order.^^ "United States v. Stockwell, 4 v. Snow, 18 Me. 346; Lycoming F, Cranch (U. S.) 671. Ins. Co. v. Schwenk, 95 Pa. St. 89, 40 "United States v. Stockwell, 4 Am. R. 629; State v. Cole, 2 McCord Cranch (U. S.) 671; United States v. L. (S. Car.) 117, 120; Blackwell v. Fenwick, 4 Cranch (U. S.) 675. But State, 30 Tex. App. 672, 18 S. W. 676; there must be a common purpose of see, Commonwealth v. Martin, 7 Pa. doing it. Aron v. Wausau, 98 Wis. Dist. 219. 592, 74 N. W. 354. '' Douglass v. State, 6 Yerg, "Jemley v. State, (Ga.) 49 S. E. (Tenn.) 525; 3 Greenleaf Ev., § 220. 292. "See, State v. McBride, 19 Mo. "Commonwealth v. Berry, 5 Gray 239; State v. Kempf, 26 Mo. 429; (Mass.) 93; State v. Bailey, 3 Dixon v. State, 105 Ga. 794, 31 S. E. Blackf. (Ind.) 209; 3 Greenleaf Ev., 750; Aron v. Wausau, 98 Wis. 592, 74 §§ 216,217. Two or more under the N. W. 354; Commonwealth v. Gib- Georgia statute. ney, 2 Allen (Mass.) 150. ^^Commonwealth v. Runnels, 10 =" Commonwealth v. Gibney, 2 Mass. 518; State v. Stalcup, 1 Ired. Allen (Mass.) 150; United States v. L. (N. Car.) 30, 35 Am. Dec. 732; Stockwell, 4 Cranch (U. S.) 671; Reg. V. Soley, 2 Salk. 594, 11 Mod. United States v. Fenwick, 4 Cranch 115; but see, Dougherty v. People, 5 (U. S.) 675. 111. 179. =13 Greenleaf Ev., § 221; see also, "United States v. McFarland, 1 Nicholson's Case, 1 Lewin C. C. 300; Cranch (U. S.) 140; State v. John- 1 East P. C. 96. § 37; Redford v. son, 89 Iowa 594, 57 N. W. 302; State Birley, 3 Stark. 76. 445 NUMBER OF PERSONS — PARTICIPATION. [§§ 3125, 3126. § 3125. Number of persons, at least three. — It must be proved that least three persons were engaged in the unlawful act.-^ Other- wise the offense is not made out." So it has been held that if the evi- dence extends only to one or two persons, all the defendants must be -acquitted of the charge of riot, though the act proved against one or two might be an assault or some similar offense.-* Thus, it has been held that riot is a joint offense, and that the evidence must show that at least three^^ of the persons charged participated in the alleged riot, or none of them can be convicted.^*^ It has been held not enough to prove that persons not indicted for the riot took part in it." But in the same jurisdiction where the indictment charged the defendants, and other persons to the grand jury unknown, with having committed a riot, proof that defendants and unknown persons to the number of three participated in the offense was held sufficient to justify a convic- tion of the defendants.^® § 3126. Proof as to participation. — Participation by persons pres- ent at an unlawful aesembly may generally be proved by evidence of their presence, and any conduct on their part indicating that they adopted the language and conduct of the others or were under the influence of similar sentiments. ^^ Evidence of a refusal to obey a lawful order to disperse is regarded as showing participation, because the mere presence of persons in an unlawful assembly encourages and strengthens those who are actively bent on mischief .^^^ It will be suf- ficient to establish the guilt of any defendant, if it be shown that he joined himself to the others after the riot began, or encouraged them or otherwise took part in their proceedings.^^ It is not necessary to establish that when the parties first met they assembled unlawfully, for an originally lawful assemblage may be converted into a riot.^- == Commonwealtli v. Berry, 5 Gray (Ind.) 72; Hardebeck v. State, 10 (Mass.) 93; Rex v. Sudbury, 1 Ld. Ind. 459. Raym. 484; Rex v. Scott, 3 Burr. " Hardebeck v. State, 10 Ind. 459. 1262. Two in Georgia. Stafford v. =^ Turpin v. State, 4 Blackf . (Ind.) State, 93 Ga. 207. 72. " State V. Bailey, 3 Blackf. (Ind.) =^ People v. Most, 128 N. Y. 108, 27 209. N. E. 970, 26 Am. St. 458. "State v. Kuhlmann, 5 Mo. App. =° Riots of 1844, In re, 2 Pa. L. J. 588; Turpin v. State, 4 Blackf. 275. 279. 4 Pa. L. J. 29, 32. (Ind.) 72. ''People v. White, 55 Barb. (N. "3 Greenleaf Ev. (16th ed.), Y.) 606. 612; Rex v. Royce, 4 Burr. §§ 216. 216. 2073, 1 Hale P. C. 65, § 89. =" State V. Bailey. 3 Blackf. (Ind.) "State v. Snow, 18 Me. 346. 209; Turpin v. State, 4 Blackf. §' 3127.] RIOTS AND UNLAWFUL ASSEMBLIES. 446 It has been held to be unnecessary to establish that every defendant was present at the original assemblages. Thus, one joining others already engaged in a riot is equally guilty with the others.^^ And persons who have lawfully assembled and afterward do an unlawful act of violence in a tumultuous manner are guilty of riot.^* "All who join an unlawful assembly, disregarding its probable effect, and the alarm and consternation likely to ensue, and all who give countenance and support to it, are criminal parties."^^ But evidence that the de- fendant came up just after the riot was over and did acts, which, if done in conjunction with others, might have amounted to a riot, does not prove him guilty of the offense.^^ § 3127. Proof as to terror of the people. — It has been held un- necessary to expressly prove that the deed was done to the terror and disturbance of the people,^^ and where the indictment charges and the evidence shows the actual perpetration of a deed of violence, such as an assault and battery, the pulling down of a building or the like, it will usually be sufficient.^* But where the offense consists in tumultuously disturbing the peace without perpetration of any deed of violence it is held necessary to prove that the conduct was to the disturbance and terror of the people.^^ "The violence necessary to constitute a riot need not be actually inflicted upon any person. Threatening with pistols, or clubs, or even by words or gestures to injure if interfered with in the prosecution of the unlawful purpose, or any other demon- stration calculated to strike terror and disturb the public peace is a sufficient violence to constitute the assembly riotous. So, where sev- eral attempt, by threat and menace, to rescue a lawful prisoner, they ''State v. Brazil. Rice (S. Car.) "State v. Sims, 16 S. Car. 486, 257. 490. =* Commonwealth v. Runnels, 10 =* Bankus v. State, 4 Ind. 114; Mass. 518; Kiphart v. State, 42 Ind. Thayer v. State, 11 Ind. 287. 273. ^^ Commonwealth v. Runnels, 10 =' Williams v. State, 9 Mo. 270. Mass. 518; State v. Brooks, 1 Hill =« Sloan v. State. 9 Ind. 565. And (S. Car.) 362. And that the defend- in several other cases mere pres- ants knew or should have known ence, without some act on the part that their acts were likely to lead to of the accused or evidence of his a breach of the peace. Reg. v. Clark- countenance or support, has been son, 66 L. T. N. S. 297. Proof that held insufficient. State v. McBride, one person was terrified held suffi- 19 Mo. 239; Reg. v. Atkinson, 11 Cox cient. Reg. v. Langford, Car. & M. Cr. Cas. 330. 602; Reg. v. Phillips, 2 Moody C. C. 252. 447 EVIDENCE IN GENERAL. [§ 3128. are guilty of a riot. Indeed, it has been held that a trespass to prop- erty in the presence of a person in actual possession, though there is no actual force, amounts to a riot. The disturbance of the peace by exciting terror, is the gist of offense. To disturb another in the en- joyment of his lawful right is a trespass, which, if done by three or more persons unlawfully combined, with noise and tumult, is a riot; as the disturbance of a public meeting or making a great noise and disturbance at a theater for the purpose of breaking up the perform- ance, though without offering personal violence to any one ; or even going in the night upon a man's premises and shaving his horse's tail, if it be done with so much noise and of such a character as to rouse the proprietor and alarm his family. Violent threatening and forcible methods of enforcing rights, whether public or private, are not law- ful."*° Testimony of a general feeling of alarm and disquiet has been held properly received to show that the defendant disturbed the public peace.^^ § 3128. Evidence in general. — What is said and done by persons during the time they are engaged in a riot constitutes the res gestae, and it is, of course, competent as a rule to prove all that is said and done. If the violent or disorderly conduct of the rioters results in in- jury to property, and the act of causing the injury is committed during the riot, the state may prove the act which caused the injury. This evi- dence is not admitted for the purpose of establishing another offense, but because it is a part of the occurrence which constitutes the riot and tends to show that the conduct of the defendants was riotous and vio- lent.*- It has been held that upon a trial for a riot, evidence might be received to show that the defendants were members of the same secret society.*^ In an indictment for a riot and breaking into an outhouse, proof that the house was within the curtilage, and that the door was broken in a riotous manner without any demand or refusal to admit has been held competent testimony under a count for a riot, ^^May Cr. Law, § 166; see also, 518; State v. Brazil, Rice (S. Car.) State v. Calder, 2 McCord (S. Car.) 257; State v. Alexander, 7 Rich. L. 462; State v. Jackson, 1 Speer (S. (S. Car.) 5. Car.) 13; Bell v. Mallory, 61 111. 167; " People v. O'Loughlin, 3 Utah 133, Fisher v. State, 78 Ga. 258; State v. 1 Pac. 653. Fisher, 1 Dev. (N. Car.) 504; State ^= Gallaher v. State. 101 Ind. 411; v. Renton, 15 N. H. 169; State v. see also, Rex v. Hunt, 3 B. & Aid. Brooks, 1 Hill (S. Car.) 362; State 566. v. Townsend, 2 Harr. (Del.) 543; " State v. Johnson, 43 S. Car. 123, Commonv/ealth v. Runnels, 10 Mass. 20 S. E. 998. § 3128.] RIOTS AND UNLAWFUL ASSEMBLIES. 448 and admissible in aggravation of the offense, although there is no count charging a breaking into a house, within the curtilage.** It has been held, however, that it may not be shown that the defendant had been engaged in riotous proceedings in former years.** That is, evidence of riotous assemblage in former years is incom- petent, either as tending to rebut the defense that the assemblage in question was of a peaceful character or as tending in the first in- stance to characterize the assemblage in question.*" Where defend- ants' witnesses had testified that they were of the party concerned in the riot, they were not allowed to give evidence of their intentions in meeting.*^ In an indictment for a riot and forcible trespass in enter- ing a man's dwelling-house, he being in the actual possession therof, and taking from his possession slaves and other personal property, it has been held that it is unnecessary to show that the prosecutor had the right to the property or the right to the possession, but whether he had in fact the possession thereof at the time when that possession was charged to have been invaded with such lawless violence, and any evi- dence tending to establish that possession is admissible.*^ And under an indictment for riot, whereby a mill-dam was destroyed, it is only necessary to prove the possession of the prosecutor. *** It has been held that an allegation that some of the rioters are unknown need not be proved^** and even where the act charged to have been violently and tumultuously done was an attempt to commit an assault it is not nec- essary to allege or prove that the defendants had the present ability to inflict an injury on the prosecuting witness. ^^ And it has been held that under an indictment for a riot a conviction for an assault,^^ an unlawful assembly, or a rout may be had.^^ And a conviction for assault and battery has been held, in other jurisdictions, to be no bar to a prosecution for a riot.^* It has been said, however, that where the "Douglass v. State, 6 Yerg. "o State v. Blair, 13 Rich. L. (S. (Tenn.) 525. Car.) 93. « State v. Renton, 15 N. H. 169; '^' State v. Acra, 2 Ind. App. 384, 28 CJommonwealth v. Campbell, 7 Allen N. E. 570. (Mass.) 541, 83 Am. Dec. 705. ^= Shouse v. Commonwealth, 5 Pa- ^« State v. Renton, 15 N. H. 169; St. 83; Rex v. Hemings, 2 Show. 93; see also, Reg. v. Mailloux, 16 New but see, Ferguson v. People, 90 111. Br. 493, 499. 510. *' United States v. Dunn, 1 Cranch "State v. Sumner, 2 Speers L. (S. (U. S.) 165. Car.) 599, 42 Am. Dec. 387; see also, "State v. Bennett, 4 Dev. & B. (N. Rex v. Cox, 4 Car. & P. 538, 19 E. C. €ar.) 43. L. 638. *« State V. Wilson, 23 N. C. 32. " Freeland v. People, 16 111. 380; 449 EVIDENCE IN GENERAL. [§ 3128. gravamen of a riot consisted of an assault and battery, a conviction for that offense will bar a prosecution for riot, but, where the assault and battery was merely incidental to the riot, then a convic- tion for the former offense will not necessarily bar a prosecution for the latter.^5 see also, Ferguson v. People, 90 111. Mass. 454, 8 N. E. 324; State v. 510; State v. Russell, 45 N. H. 83; Townsend, 2 Harr. (Del.) 543. but compare, State v. Ham, 54 Me. "'Wininger v. State, 13 Ind. 540; 194; Commonwealth v. Hall, 142 Greenwood v. State, 64 Ind. 250. Vol. 4 Elliott Ev.— 29 CHAPTER CLII. ROBBERY. Sec. 3129. 3130. 3131. 3132. 3133. 3134. Definition and elements. Presumptions — O wnership from possession. Presumptions — Fear and other presumptions. Intent. Identity of accused. Res gestae. Sec. 3135. Evidence of value. 3136. Recent possession of stolen property. 3137. Evidence of other offenses. 3138. Circumstantial evidence. 3139. Circumstantial evidence — Cor- roboration. 3140. Defenses. § 3129. Definition and elements. — Eobbery may be defined in a general way as a felonious taking of property from the person of an- other by force.^ The force necessary may, however, be either actual or, in a sense, constructive. Thus, robbery may be accomplished, in most jurisdictions, by threats or putting the person robbed in fear and overcoming his will.^ And it is defined in substance by many stat- utes as the felonious taking of personal property from the person or in the presence of another, against his will, by means of force or fear.* The offense is distinguished from larceny largely by the elements of force or putting in fear,* and evidence of the mere snatching of prop- ^ See 4 Blackstone Comm. 242; Harris Cr. Law (Forces' ed.) 177; 2 Abbott L. Diet. 436; United States v. Jones, 3 Wash. (U. S.) 209; Rex V. Donolly, 2 East P. C, chap. 16, § 129, cited in, Breckinridge v. Com- monwealth, 97 Ky. 267, 30 S. W. 643, and State v. Brown, 113 N. Car. 645, 18 S. E. 51. ^ Rains v. State, 137 Ind. 83, 36 N. E. 532; Duffy v. State, 154 Ind. 250, 56 N. E. 209; Arnold v. State, 52 Ind. 281, 21 Am. R. 175; Keeton v. State, 70 Ark. 163, 66 S. W. 645; 3 Greenleaf Ev., § 231; Clary v. State, 33 Ark. 561; State v. Howerton, 58 Mo. 581; Dill v. State, 6 Tex. App. 113; Foster's Cr. Law 128, 2 East P. C. 711. ^ See, People v. Medina, (Cal.) 79 Pac. 842; People v. Foley, 9 N. Y. St. 34; Rains v. State, 137 Ind. 83, 36 N. E. 532; McDaniel v. State, 16 Miss. 401; State v. Lawler, 130 Mo. 366, 32 S. W. 979, 51 Am. St. 575; State v. Davis, (Utah) 76 Pac. 705. ^ "The distinction of robbery from other kinds of larceny," says Mr. Harris, "is, that in the former case there must have been a felonious 450 451 DEFINITION AND ELEMENTS. [§ 312J>. erty from another without violence or putting in fear tends to prove larceny rather than robbery/'' So, obtaining money by extortion, false pretenses or other trick, unaccompanied by violence or putting in fear, will not amount to robbery.*' But snatching a watch or purse from another with such violence as to break a chain by which it is secured/ or snatching an earring with such force as to make the ear bleed^ has Ijeen held sufficient force or violence to constitute robbery so far as that essential element is concerned. So, where the defendant had bound the prosecuting witness and put her in fear so that information as to the place where she kept her money and watch was extorted from her, and the defendant, leaving her bound, took the property, tliis was held sufficient to support a conviction for robbery, notwith- standing the property was not attached to her person and the defend- ant had to go into another room to get it.^ taking from the person, or in the presence of another, accompanied either by violence or a putting in fear." Harris Cr. Law (Forces' ed.) 212. See, Long v. State, 12 Ga. 293. ' McCloskey v. People, 5 Park Cr. Cas. (N. Y.) 299; People v. Hall, 6 Park Cr. Cas. (N. Y.) 642; People v. McGinty, 24 Hun (N. Y.) 62; Bon- sall V. State, 35 Ind. 460; see also, Mahoney v. People, 5 Thomp. & C. (N. Y.) 329; Norris' Case, 6 City Hall Rec. (N. Y.) 86; Fanning v. State, 66 Ga. 167; Spencer v. State, 106 Ga. 692, 32 S. E. 849; but see, "Williams v. Commonwealth, 20 Ky. L. R. 1850, 50 S. W. 240; Snyder v. Commonwealth, 21 Ky. L. R. 1538, 55 S. AV. 679. « Perkins v. State, 65 Ind. 317; Huber v. State, 57 Ind. 341; see also, James v. State, 53 Ala. 380; Shinn V. State, 64 Ind. 13, 31 Am. R. 110; Routt V. State, 61 Ark. 594, 597; Doyle V. State, 77 Ga. 513; State v. Deal, 64 N. Car. 270, 276. Where the owner of the property was drunk and there was no violence or put- ting in fear, it was held no robbery in, Hall v. People, 171 111. 540, 49 N, E. 495. ' Smith V. State, 117 Ga. 320, 43 S, E. 736, 97 Am. St. 165; Rex v. Ma- son, 2 Leach C. C. 548; State v. Broderick, 59 Mo. 318; State v. Mc- Cune, 5 R. I. 60, 70 Am. Dec. 176, and note; J^nes v. Commonwealth, 112 Ky. 689, 66 S. W. 633, 57 L. R. A. 432, and note, 99 Am. St. 330; but compare, Bowlin v. State, (Ark.) 81 S. W. 838. »Rex V. Lapier, 1 Leach C. C. 360,. 2 East P. C. 557; see also. State v. Perley, 86 Me. 427, 30 Atl. 74; Rex v. Moore, 1 Leach C. C. 354; see for other instances, Seymour v. State, 15 Ind. 288; Hughes' Case, 1 Lewin C. C. 301. ' State V. Calhoun, 72 Iowa 432, 34 N. W. 194, 2 Am. St. 252; see also, 2 Bishop Cr. Law, § 975; Wharton Cr. Law, § 1696; Clements v. State, 84 Ga. 660, 11 So. 505, 20 Am. St. 385; but see. Crews v. State, 3 Coldw. (Tenn.) 350; State v. Freels, 3 Humph. (Tenn.) 228; see gener- ally. Hill v. State, 42 Neb. 503, 60 N. W. 916; Turner v. State, 1 Ohio St. 422. 31S0.] ROBBERY. 453 § 3130. Presumptions — Ownership from possession. — Possession of the property by the prosecuting witness at the time it was taken is said to be presumptive evidence of ownership in him.^° In other words, as the rule is often stated, where money or other property is taken from a party by robbery, the party from whom such property was taken is prima facie the owner,^^ as against the robber. Indeed, while some of the cases seem to hold that the person from whom the goods are taken must be either the general or special owner or have such an interest as would entitle him to maintain an action for taking them from his custody,^^ yet several of these cases have been over- ruled, and it is said that it is not essential that the property should belong to the person robbed,^^ The contention to the contrary, it is said, is a mere technicality and to sustain it would be manifestly against the reason of the law and constitute an obstruction to justice.^* The subject is thoroughly reviewed in a recent case in which it was held that a clerk having possession of his employer's money had suffi- cient ownership to support an allegation of ownership in him in an indictment for robbery, and below we quote from the opinion at some length. ^° "People v. Oldham, 111 Cal. 648. 44 Pac. 312; People v. Becker, 48 Mich. 43, 11 N. W. 779; State v. Howard, (Mont.) 77 Pac. 50. "People v. Oldham, 111 Cal. 648, 44 Pac. 312; State v. Adams, 58 Kans. 365, 49 Pac. 81; Bow v. Peo- ple, 160 111. 443, 43 N. E. 593; Du- rand v. People, 47 Mich. 332, 11 N. W. 184; People v. Hicks, 66 Cal. 105, 4 Pac. 1093; Morris v. State, 84 Ala. 446, 4 So. 912; People v. Nelson, 56 Cal. 77; State v. Hobgood, 46 La. Ann. 855, 15 So. 406; see. State v. Montgomery, 181 Mo. 19, 79 S. W. 693, 67 L. R. A. 343. "See State v. Morledge, 164 Mo. 522, 65 S. W. 226; State v. Lawler, 130 Mo. 366, 32 S. W. 979, 51 Am. St. 575; Hughes v. Commonwealth, 17 Gratt. (Va.) 565, 94 Am. Dec. 498; Commonwealth v. Williams, 7 Gray (Mass.) 337; East P. C, § 90. " State v. Montgomery, 181 Mo. 19, 79 S. W. 693 (overruling the Mis- souri cases cited in last preceding note) ; Brooks v. People, 49 N. Y. 436, 10 Am. R. 398; State v. Adams, 58 Kans. 365, 49 Pac. 81. " Case and Comment, No. 1, June, 1905. ^= "Is it the law that, if the presi- dent or cashier of a bank should be temporarily absent from the bank, a robber may with impunity enter the bank, and present a revolver or gun at the clerks left in charge, and take all the money of the bank, and escape punishment for robbery? Or, to state it differently, if a gentleman confide to his friend his watch, for convenience, and, after they part, a robber places his revolver at the friend's head, and, by putting him in fear, takes the watch, there can be no robbery, because the real owner was not present, and was not put in fear, and, as the friend was not a bailee for hire, and makes no claim of any property rights, other 453 PRESUMPTIONS. [§ 313i. § 3131. Presumptions — Fear and other presumptions. — It is said by Professor Greenleaf tliat : "Evidence that the money or goods were obtained from the owner by putting him in fear, will support the allegation that they were taken by force. And the law, in odium spoliatoris, will presume fear, wherever there appears a just ground for it. The fear may be of injury to the person ; or, to the property ; or, to the reputation ; and the circumstances must be such as to indi- cate a felonious intention on the part of the prisoner. The fear, also, must be shown to have continued upon the party up to the time when he parted with his goods or money ; but it is not necessary to prove any words of menace, if the conduct of the prisoner were sufficient without them ; as, if he begged alms with a drawn sword ; or, by simi- lar intimidation, took another's goods under color of a purchase, for half their value, or the like. It is only necessary to prove that the fact was attended with those circumstances of violence or terror, which, than his possession, therefore the ownership cannot be laid in him. The question is one of much prac- tical moment. This identical ques- tion arose in Brooks v. People, 49 N. Y. 436, 10 Am. R. 398, on a stat- ute couched in the exact words of our statute, and it was ruled by the Court of Appeals of New York that, as against a robber, the person robbed was the owner of the goods in his possession and custody, whereof he was robbed. Judge Peck- ham in that case traced the history of this section in the New York Code, and found that the revisers had said they defined robbery ac- cording to 2 East P. C, chap. 16, §§ 125-129; the material ingredient in this offense being that it is done against the will, by violence or by fear of immediate injury to the per- son. The learned judge pointed out that the elementary common-law writers generally did not insert in their definition of this crime that the property should belong to the person robbed. 1 Hale P. C. 532; 4 Blackstone Comm. 241; 2 Russell Crimes (4th ed.) 98; Page Mar. 867; Hawkins, 95 C. 34; Commonwealth V. Clifford, 8 Cush. (Mass.) 215. The conclusion was reached that, as against a robber, the possession was sufficiently laid in the person robbed. The same question again arose on a statute in the same words in State v. Adams, 58 Kans. 365, 49 Pac. 81, and the court very aptly says: "The characteristic of rob- bery, distinguishing it from other forms of larceny, lies in the vio- lence inflicted on the person of one in possession of the property, or in putting him in fear of injury to his person. So far as the mere taking is concerned, the offense is neither greater nor less if filched in any other way. The gravity of the of- fense lies in the breach of the peace, in the personal violence inflicted, or the terror excited in the mind of the individual robbed. At the common law it was never held that the prop- erty belonged to the person robbed It was sufllcient that the prope'.iy belonged to the person robbed or some third person." State v. Mont- gomery, 181 Mo. 19, 79 S. W. 69.1, 67 L. R. A. 343, and note. § 3132.] ROBBERY, 454 in common experience, are likely to induce a man unwillingly to part with his money for the safety of his person, property or reputation."^" Thus, it has been held that actual fear need not be strictly proved, and that if the taking be under such circumstances as would ordinarily create an apprehension of danger in the mind of a man of ordinary experience, and cause him to give up his property, such evidence will be admissible and may be sufficient proof of this element of robbery." In a recent case a witness was permitted to testify that he was the city electrician and knew of the electric lights at a certain place in question, that no report came in from there at the time in question, and that reports were not made unless the light went out. This was held proper as indirect evidence under the California statute, in ac- cordance with the presumption that the ordinary course of business was followed. ^^ § 3132. Intent. — Circumstances which show that the accused forcibly or by intimidation and putting in fear, took the property from the owner without his consent, intending to deprive him of it and convert it to his own use, may be shown, and the intent of the ac- cused to rob may be inferred from such acts and circumstances.^* When the taking of the property has been proved, the felonious intent may be inferred from the circumstances and appropriation of the property. ^° The intent, however, it is said, is not necessarily to be in- ferred from the act done, but must be established from the circum- stances surrounding the act, and the investigation may extend beyond the res gestae.^^ To constitute the crime of robbery, the taking must ^^ 3 Greenleaf Ev., § 231. But while prosecuting witness may testify that there may be such an inference or, he was scared. Long v. State, 12 Ga. perhaps, presumption of fact, it may 293. be too strong a statement to say ^* People v. Kelly, (Cal.) 79 Pac. tnat the law itself presumes fear. 846. In several cases, however, it is said '= State v. Woodword, 131 Mo. 369, that the law presumes fear where 33 S. W. 14; People v. Hughes, 11 there appears to be a just ground Utah 100, 39 Pac. 492. for it, even though there was no ac- ^'' Jordan v. Commonwealth, 25 tual fear. Jones v. State, (Tex. Cr. Graft. (Va.) 943, 948; Long v. State, App.) 88 S. W. 217; Long v. State, 12 Ga. 293; see also, Jones v. State, 12 Ga. 293. (Tex. Cr. App.) 88 S. W. 217. "Long V. State, 12 Ga. 293; Wil- -°^ State v. Glovery, 10 Nev. 24; liams V. State, 51 Neb. 711, 71 N. W. see also, Ogden v. People, 134 111. 729; Pickerel v. Commonwealth, 17 599, 25 N. E. 755; State v. Howard, Ky. L. R. 120, 30 S. W. 617. The (Mont.) 77 Pac. 50. 455 IDEXTITY— RES GESTAE. [§§ 3133, 3134. be animo furandi, and evidence tending to rebut the felonious intent is admissible.^- It is for the jury to determine, from all tlie circum- stances whether the acts of the accused were committed with intent to rob, or for some other purpose.^^ Evidence which shows a conceal- ment of the property may be admissible as tending to show the felonious intent.-^ § 3133. Identity of Accused. — The identity of the defendant must be established by evidence. But the evidence may be circumstantial 31; Ridenour v. State, 65 Ind. 411. 489 CARRYING CONCEALED WEAPONS. [§ 3166. defendant in carrying it.^*' It has been held tliat the state may sliow that the accused carried the concealed "weapon not only on the date charged, hut at any time, within the statute of limitations, previous to the date of the information or indictment.^^ Where an essential element of the crime is the concealment of the weapon, or, in other words, the carrying of it concealed, the defendant may show that it was not concealed on the occasion in question.^ ^ So, it has been held that he may show that it was not carried as a weapon, but for the pur- pose of having it repaired,^® or returning it to the owner,-° or the like.^^ The mere fact that threats had been made against the accused does not constitute a defense to a charge of unlawfully carrying con- cealed weapons.^- But, while evidence that many lawless men lived in the community, and that the defendant had been advised to go armed is not admissible as a defense,^^ and while vague threats and The jury may infer that it was loaded If it was carried concealed and as a loaded weapon. See, Carr V. State, 34 Ark. 448; see also. State V. Bollis, 73 Miss. 57, 19 So. 99; State v. Wardlaw, 43 Ark. 73. "Walls V. State, 7 Blackf. (Ind.) 572; State v. Judy, 60 Ind. 138; see also, Strahan v. State, 68 Miss. 347. 8 So. 844, State v. Martin, 31 La. Ann. 849. "Schrimsher v. State, (Tex. Cr. App.) 80 S. W. 1013. ^' State V. Roten, 86 N. Car. 701; Smith V. State, 69 Ind. 140; Pliim- mer v. State, 135 Ind. 308, 34 N. B. 968; Stockdale v. State. 32 Ga. 225. But not that it was his habit to carry it openly rather than con- cealed. Washington v. State, 36 Ga. 242. "Pressler v. State, 19 Tex. App. 52; Boissean v. State, (Tex.) 15 S. W. 118. =" State V. Brodmax, 91 N. Car. 543; State v. Roberts, 39 Mo. App. 47. ^ See, State v. Gilbert, 87 N. Car. 527; State v. Harrison, 93 N. Car. 605; State v. Murray, 39 Mo. App. 127; Carr v. State, 34 Ark. 448; Mangum v. State, 15 Tex. App. 362; Christian v. State, 37 Tex. 475; but see, Cutsinger v. Commonwealth, 7 Bush (Ky.) 392; Goldsmith v. State, 99 Ga. 253, 25 S. E. 624; State v. Woodfin, 87 N. Car. 526; Walls v. State. 7 Blackf. (Ind.) 572. "House v. State, 139 Ala. 132, 36 So. 732; see also, Carroll v. State, 28 Ark. 99, 18 Am. R. 538; Brown V. State, 72 Ga. 211; State v. Speller, 86 N. Car. 697; Coffee v. State, 4 Lea (Tenn.) 245; State v. Work- man, 35 W. Va. 367, 14 S. E. 9, 14 L. R. A. 600. But evidence of threats well calculated to impress him with reasonable apprehension of an attack upon his life at the time may be admissible in some casea and under some statutes. See, Bai- ley v. Commonwealth, 11 Bush (Ky.) 688; Sudduth v. State, 70 Miss. 250, 11 So. 680; Coleman v. State, 28 Tex. App. 173, 12 S. W. 590. As to what evidence is or is not relevant, see, Ross v. State, 139 Ala. 144, 36 So. 718; Elmore v. State, 140 Ala. 184, 37 So. 156. -' O'Neal V. State, 32 Tex. Cr. App. 42, 22 S. W. 25; Dillingham v. State, (Tex.) 32 S. W. 771; see also. Hop- § 3167.] MISCELLANEOUS OFFENSES. 490 the like usually constitute no defense,-* yet the threats and circum- stances may be of such a character as to be admissible, at least in some jurisdictions, as creating a well founded apprehension of imminent danger to his life.-^ The official character of the accused, as that of an officer charged with the duty of preserving the peace, and the fact that he was engaged in the discharge of his duty may also be shown as a defense under most, if not all, statutes.^^ Under some of the statutes travelers are also permitted to carry concealed weapons. It is generally held that the state is not required in the first instance to show that the accused was not a traveler, and that it is for the accused in defense to show that he was a traveler.-'^ This is usually a question for the jury to determine from the evidence-^ under proper instruc- tions from the court. § 3167. Cruelty to animals. — Cruelty to animals is punishable as a crime in most of the states, but it is a statutory rather than a com- mon-law offense, and should not be confounded with malicious mis- kins V. Commonwealth, 3 Bush (Ky.) 480; Commonwealth v. Mur- phy, 166 Mass. 171, 44 N. E. 138; but compare, Hardin v. State, 63 Ala. 38. =* Shorter v. State, 63 Ala. 129; Strother v. State, 74 Miss. 447, 21 So. 147; State v. Speller, 36 N. Car. 697; Coffee v. State, 4 Lea (Tenn.) 245. ^=Dooley v. State, 89 Ala. 90, 8 So. 528; Coleman v. State, 28 Tex. App. 173, 12 S. W. 590; see also, Bailey v. Commonwealth, 11 Bush (Ky.) 688; Sudduth v. State, 70 Miss. 250, 11 So. 680; State v. Work- man, 35 W. Va. 367, 14 S. E. 9. =<= State V. Williams, 72 Miss. 992, 18 So. 486; Irvine v. State, 18 Tex. App. 51; Lee, In re, 46 Fed. 59; see also, Lott v. State, 122 Ind. 393, 24 N. E. 156; Lyle v. State. 21 Tex. App. 153, 17 S. W. 425; Beasley v. State, 5 Lea (Tenn.) 705; Miller v. State, 6 Baxt. (Tenn.) 449; State v. Wisdom, 84 Mo. 177. "Wiley V. State, 52 Ind. 516; Brownlee v. State, (Tex.) 32 S. W. 1043; see also. State v. Williams, 70 Iowa 52, 29 N. W. 801; State v. Juli- an, 25 Mo. App. 133; Walker v. State, 35 Ark. 386; State v. Maddox, 74 Ind. 105; Territory v. Burns, 6 Mont. 72, 9 Pac. 432; but compare, People V. Pendleton, 79 Mich. 317, 44 N. W. 615. =«Lawson v. State, (Tex.) 31 S. W. 645; Price v. State, 34 Tex. Cr. App. 102, 29 S. W. 473; Hathcote v. State, 55 Ark. 181, 17 S. W. 721; Stiewell v. State. (Ark.) 12 S. W. 1014; Lott V. State, 122 Ind. 393, 24 N. E. 156; Burst v. State, 89 Ind. 133; see also, as to evidence admis- sible upon the question, Wilson v. State, 68 Ala. 41; Davis v. State, 45 Ark. 359. But in the recent case of State V. Smith, 157 Ind. 241, 61 N. E. 566, the two Indiana cases as to what constitutes a traveler within the exception to the statute are dis- approved, and the court sustained the appeal on the ground that the evidence was insufficient to show the accused to be a traveler within the exception to the statute. 491 CRUELTY TO AXIMALS. [§ 3l(;7. chief, the latter being indictable at common law, while mere cruelty to animals, unless publicly inflicted so as to be a public nuisance, or the like, was not.-^ Some of the statutes upon the subject go very far, yet they have generally been held constitutional. ^^ The term "ani- mal" has been given a comprehensive meaning, and has generally been held to include domestic fowls and the like.^^ The statutes are given a reasonable construction, however, so as not to interfere with the proper use of the animal, and it has been said that "cruelty in the statute means cruelty without reajon."^^ But the presumption that one intends the natural consequences of his act has been applied in such cases,^^ and intoxication has been held no defense.^* Under most of the statutes the ownership of the animal need not be alleged,^^ but if it is alleged as descriptive of the particular animal it must be proved as alleged.^" Malice or unlawful motive or mischievous intent, as already stated, is not made an essential element of the offense in some states, but if it is it should be proved.^'^ It may, however, be inferred from circumstances in evidence.^^ Parol evidence has been held admissible to show the listing of a dog for taxation,^^ and evi- dence of the value of the animal in the neighborhood or at near and accessible markets has been held competent'*^ where the punishment depended on value. =^ Bishop Stat. Crimes, § 1100. Mass. 408; see also, Hunt v. State, =° Bland v. People, (Colo.) 76 Pac. 3 Ind. App. 383, 29 N. E. 933. 359, 65 L. R. A. 424, and authorities ^* State v. Avery, 44 N. H. 392. cited in note and opinion; 11 L. R. == State v. Brocker, 32 Tex. 611; A. 522, and note; 33 L. R. A. 836; State v. Bruner, 111 Ind. 98, 12 N. 39 L. R. A. 520. E. 103. =' Budge V. Parsons, 3 B. & S. 382; =« State v. Bruner, 111 Ind. 98, 12 Reiche v. Smythe, 7 Blatchf. (U. S.) N. E. 103; Collier v. State, 4 Tex. 235; see also, State v. Avery, 44 N. App. 12; Darnell v. State, 6 Tex. H. 392; Commonwealth v. Whitman, App. 482. 118 Macs. 458; Benson v. State, 1 " Dover v. State, 32 Tex. 84; Hoak Tex. App. 6; State v. Bruner, 111 v. State, (Tex.) 26 S. W. 508. Ind. 98, 12 N. E. 103; State v. Giles, ■'" Hobson v. State, 44 Ala. 380; 125 Ind. 124, 25 N. E. 159. Hunt v. State, 3 Ind. App. 383, 29 ■•'^ Cornelius v. Grant, 7 Scotch N. E. 933; State v. Council, 1 Overt. Sess. Cas. 4th ser. Just. 13; see also, (Tenn.) 305; as to evidence held ad- State V. Avery, 44 N. H. 392; Com- missible, see. Brown v. State, 26 monwealth v. Lufkin, 7 Allen Ohio St. 176. (Mass.) 579; Hunt v. State, 3 Ind. '" Hewitt v. State, 121 Ind. 245, 23 App. 383, 29 N. E. 933. N. E. 83. ^^Commonwealth v. Wood, 111 '" Walker v. State, 89 Ala. 74, S So. § 3168.] MISCELLANEOUS OFFENSES. 492 § 3168. Incest. — It seems that at common law incest, as such, was not a erime,*^ although it was punished by the ecclesiastical courts.*^ But it is now denounced as a crime by the statutes of the various states. It is said by Mr. Bishop that it is either an unlawful mar- riage or a particular form of fornication or adultery.*^ As these sub- jects are treated in other chapters, little, therefore, need be added in this connection. The distinguishing feature of the crime is that it is the intermarriage or carnal copulation without marriage of a man and woman so related to each other that their marriage is prohibited by law. Voluntary confessions of the defendant are generally admissible- to show the act.** But the courts generally refuse to sutain a con- viction entirely based on uncorroborated confessions of the defend- ant.*^ So, it is held in most jurisdictions that if the woman is a con- senting party, the accused cannot be convicted on her testimony un- less corroborated,**' but it is held otherwise where she is in no sense an accomplice.*^ The relationship and pedigree of the parties, accord- ing to what seems the better view, may be shown by reputation,*^ but the contrary view is taken in a recent case.*^ Under most of the stat- utes, as knowledge of the relationship is not made an element of the offense, it need not be averred and proved,^" but it has been held other- wise in Indiana." Evidence of previous acts of lascivious familiarity 144. But the exclusion of evidence N. Dak. 563, 80 N. W. 476; State v. of value has been held immaterial Jarvis, 20 Ore. 437, 26 Pac. 302, 23 where proof of value is not required. Am. St. 141; Jackson v. State, 37 Dinwiddie v. State, 103 Ind. 101, 2 Tex. Cr. App. 612, 40 S. W. 498; but N. E. 290. see. State v. Dana, 59 Vt. 614, 10 " People V. Burwell, 106 Mich. 27, Atl. 1027. 63 N. W. 986; State v. Slaughter, 70 "Smith v. State, 108 Ala. 1, 19 Mo. 484, 488; State v. Keesler, 78 So. 306, 54 Am. St. 140; State v. N. Car. 469. Chambers, 87 Iowa 1, 53 N. W. 1090, "Woods V. Woods, 2 Curt. Ecc. 43 Am. St. 349; Mullinix v. State, 516; Blackmore v. Brider, 2 Phil. (Tex. Cr. App.) 26 S. W. 504. Ecc. 359. ^^Ewell v. State, 6 Yerg. (Tenn.) ^^ Bishop Stat. Crimes, § 731. 364; State v. Bullinger, 54 Mo. 142; *^ Yeoman v. State, 21 Neb. 171, 31 Bishop Stat. Crimes, § 735. N. W. 669; Bergen v. People, 17 111. ^'' Elder v. State, 123 Ala. 35, 26 426, 65 Am. Dec. 672. So. 213. *^ Bergen v. People, 17 111. 426, 65 ™ People v. Roller, 142 Cal. 621, 76 Am. Dec. 672; Sauls v. State, 30 Pac. 500; Simon v. State, 31 Tex. Tex. App. 496, 17 S. W. 1066. Cr. App. 186, 20 S. W. 716, 37 Am. ^''Yother v. State, 120 Ga. 264, 47 St. 802; State v. Pennington, 41 W. S. E. 555; State v. Streeter, 20 Nev. Va. 599, 23 S. E. 918. 403, 22 Pac. 758; State v. Kellar, 8 "Williams v. State, 2 Ind. 439. 493 IXCEST — LIBEL. [§ 3169. or illicit intercourse between the parties is generally held admissible as tending to show an antecedent probability and disposition to com- mit the crime. ^^ It has also been held that subsequent acts of the same kind is admissible when they are continuous,^^ but this doctrine is more questionable and, in some jurisdictions, such evidence is not ad- missible, at least where indictments for the later acts are pending;^* and where the relationship and intercourse between the parties is establislied it is generally immaterial that the woman had sexual in- tercourse with other men.^^ § 3169. Libel. — The general subject of libel has been treated in another volume of this work, and for that reason, although the treat- ment was more particularly with reference to libel in civil cases, it is unnecessary to again consider the subject at length. Criminal libel has been defined as^'' "A publication in print or writing without jus- tification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, ridicule or contempt." The state must prove the following facts : First, the publication by the de- fendant; second, that the matter published is libelous; third, the in- tent, and fourth, wh.en the truth is admissible in defense, the falsity of the assertions made."=^ The manner of proving the publication and ^' State V. Markins, 95 Ind. 464, 48 is usually Inadmissible for the de- Am. R. 733; People v. Cease, 80 fendant. Kidwell v. State, 63 Ind. Mich. 576, 45 N. W. 585; People v. 384; as to character of defendant, Patterson, 102 Cal. 239, 36 Pac. 436; see and compare, Poyner v. State, Burnett v. State, 32 Tex. Cr. App. (Tex. Cr. App.) 48 S. W. 516; Peo- 86, 22 S. W. 47. ple v. Benoit, 97 Cal. 249, 31 Pac. °' Mathis V. Commonwealth, 11 1128. Ky. L. R. 882, 13 S. W. 360; Burnett '" Underhill Cr. Ev., § 361. T. State, 32 Tex. Cr. App. 86, 22 S. " People v. Croswell, 3 Johns. Cas. W. 47, overruled in, Clifton v. State, (N. Y.) 337; Raker v. State, 50 Neb. (Tex. Cr. App.) 79 S. W. 824. 202. 69 N. W. 749; People v. Ritchie, "Clifton V. State, (Tex. Cr. App.) 12 Utah 180, 42 Pac. 209; see also, 79 S. W. 824; Lovell v. State, 12 Benton v. State, 59 N. J. L. 551, 36 lud. 18. Nor is evidence of subse- Atl. 1041. One who circulates a quent improper relations between libel may be guilty of the offense defendant and another ordinarily denounced by the Michigan statute competent. Porath v. State, 90 (Comp. Laws, § 11762), making it "Wis. 527, 63 N. W. 1061. a misdemeanor to falsely charge ^= State v. Winningham, 124 Mo. another with the commission of a 423, 27 S. W. 1107; Kidwell v. State, crime. Mack v. Sharp, (Mich.) 101 63 Ind. 384; Mathis v. Common- N. W. 631. wealth. 11 Ky. L. R. 882, 13 S. W. ^» Odgers Libel and Slander, 580. 360. So, evidence of her character § 3169.] MISCELLANEOUS OFFENSES. 494 connecting the defendant therewith is elsewhere considered."^^ Parol evidence is generally admissible, where necessary, to explain the meaning of the language used, and to identify the persons and objects or matters referred to.''^ Although malice must be shown, this means malice in the legal rather than the ordinary sense, and it may be in- ferred from circumstances." The evidence is frequently permitted to take a broad range for the purpose of showing the intention of the accused,*'- and he may, in most Jurisdictions, testify as to his own in- tention.''^ It was formerly held that the jury could only determine the fact of publication by the defendant and the meaning of the words used ; and that it was for the court, in libel cases, to then determine whether there was the necessary malicious intent in law.''* But the argument of Erskine in the Dean of St. Asaph's Case,*'^ and the fact that juries, influenced by this apparently harsh rule taking the case out of their hands often acquitted guilty parties, or found that there was no publication by the defendant, or no such meaning in the words as made them libelous, doubtless influenced parliament in thereafter passing a law leaving the matter to the jury as a question of fact, or a mixed question of law and fact, as in other cases. Constitutional or statutory provisions to this effect are now in force in nearly every jurisdiction. So, the truth of the alleged libelous statement may now be shown by the defendant in a proper case, although the old common =»Vol. Ill, § 2450; see also, Com- Brady, 44 Kans. 435, 24 Pac. 948; monwealth'v. Morgan, 107 Mass. see also, Vol. Ill, § 2451. 199- Rex V. Beare, 1 Ld. Raym. 414, "-See, Smith v. Commonwealth, 98 12 Mod. 219; Boyle v. State, 6 Ohio Ky. 437, 33 S. W. 419; Common- C. C. 163; Giles v. State, 6 Ga. 276; wealth v. Harmon, 2 Gray (Mass.) State V. Barnes, 32 Me. 530; State v. 289; State v. Conable, 81 Iowa 60, Mclntire, 115 N. Car. 769, 20 S. E. 46 N. W. 759; People v. Glassman, 721; Rex V. Girdwood, 1 Leach C. C. 12 Utah 237, 32 Pac. 956; Benton v. 169; State v. Jean'dell, 5 Harr. State, 59 N. J. L. 551, 36 Atl. 1041; (Del.) 475; Swindle v. State, 2 Yerg. Manning v. State, (Tex.) 39 S. W. (Tenn.) 581, 24 Am. Dec. 515. 118; Duke v. State, 19 Tex. App. 14. «> State v. Fitzgerald, 20 Mo. App. "^ State v. Clyne, 53 Kans. 8, 35 408; Dickson v. State, 34 Tex. Cr. Pac. 789; People v. Stark, 59 Hun App. 1. 28 S. W. 815; Commonwealth (N. Y.) 51, 12 N. Y. S. 688. V. Morgan, 107 Mass. 199; State v. '''See, Rex v. Dean of St. Asaph. 3 Mason, 26 Ore. 273, 38 Pac. 130; Term R. 428, note; Rex v. Woodfall, but see. People v. McDowell, 71 Cal. 5 Burr. 2661; Article in 39 Cent. 194, 11 Pac. 868. Law Jour. 360. "• Even, it seems, from the wilful "= See, Erskine's speech, Goodrick doing of an unlawful act, such as British Eloquence; also see, 3 publishing a libel, naturally calcu- Campbell Lives of Chief Justices lated to injure another. State v. 432, et seq.; 39 Cent. Law Jour. 360. 495 LIBEL. [§ 3109. law rule did not permit it.^*' Upon the subject of evidence of the truth of the statement as a defense, it has been said:^^ "But usually the truth alone is not a sufficient excuse if the libel was published in bad faith and with an intent to injure.^* Where the truth is a suffi- cient justification, the accused is not compelled to prove it beyond a reasonable doubt.*"' It is enough if upon all the evidence the jury be- lieve his statements are true. And where the evidence for the defend- ant creates a prima facie presumption in the minds of jurors that his statements are true, it is incumbent upon the prosecution to convince them of their falsity beyond all reasonable doubt. ^•^ It is only neces- sary to prove the truth of that part of the publication which is alleged to be libelous.''^ It is not allowable to prove that the matters referred to in the alleged libel were rumored about the neighborhood, and were accepted as the truth by persons who knew the party libeled."'- The question has arisen in a number of cases as to the venue and jurisdic- tion over prosecutions for libel. In a recent case it is held that where the editor of a newspaper writes, prints and mails a libelous news- paper article in one county to be published in another, the offense is consummated in the latter county."* Indeed, it is generally held °*See, Odger Libel & SI. 388-390; Underbill Cr. Ev., § 365; Harris Cr. Law (Force's ed.) 97, note. " Underbill Cr. Ev., § 365. •^ Barthelemy v. People, 2 Hill (N. Y.) 248; State v. Bush, 122 Ind. 42, 23 N. E. 677; State v. Lebre, 2 Brev. (S. Car.) 446; State v. Lyon, 89 N. Car. 568; but see, Gillett Cr. Law, § 561; see generally, State v, Haskins, 109 Iowa 656, 80 N. W. 1063; Commonwealtb v. Bonner, 9 Mete. (Mass.) 410; State v. Verry, 36 Kans. 416, 13 Pac. 838. •^Manning v. State, (Tex.) 39 S. W. 118; State v. Busb, 122 Ind. 42, 23 N. E. 677; see also, Drake v. State, 53 N. J. L. 23, 20 Atl. 747. '"State v. Busb, 122 Ind. 42, 23 N. E. 677; McArtbur v. State, 59 Ark. 431, 27 S. W. 628; State v. Wait, 44 Kans. 310, 24 Pac. 354; Commonwealtb v. Rudy, 5 Pa. Dist. Ct. 270; Smitb v. Commonwealth, 98 Ky. 437, 33 S. W. 419. " State V. Wait, 44 Kans. 310, 24 Pac. 354. ■= Commonwealth v. Place, 153 Pa. St. 314, 26 Atl. 620; People v. Jack- man, 96 Mich. 269, 55 N. W. 809; State V. Hinson, 103 N. Car. 374, 9 S. E. 552; contra, Humbard v. State, 21 Tex. App. 200, 17 S. W. 126. In Commonwealth v. Snelling, 32 Mass. 337, 342, the court, by Shaw, C. J., said: "But how is this defense to be made? By proof of the truth of the matter; not his belief of the truth; not bis information, nor the strength of the authority on which such belief was taken." The ac- cused will not be permitted to prove the general bad character of the party libeled. People v. Stokes, 24 N. Y. S. 727, 30 Abb. N. Cas. 200; contra, by statute in Texas, Man- ning V. State, (Tex.) 39 S. W. 118. "* State V. Huston, (S. Dak.) 104 N. W. 451. See also, Haskell v. Bailey, 25 U. S. App. 99, 11 C. C. A. 1170.] MISCELLANEOUS OFFENSES. 496 that although the crime is committed where publicaton is made, yet if the publication is in a newspaper circulated in different counties it may be deemed to be made in each county into which the newspaper is sent and circulated, even though the paper is printed in another state.'^^** By the common law, it is said, the sale of each copy is a distinct offense, and the prosecutor may at least elect for which of the distinct offenses he will prosecute.^^ § 3170. Liquor law violations. — Selling intoxicating liquor was not a crime under the old common law, but there are now statutes in nearly every jurisdiction not only prohibiting the sale of intoxicating liquors without a license, and making it a criminal offense to do so, but also making it an offense to sell to minors, drunkards, or the like, or to sell at certain places or on certain days or during certain hours, and even the keeping of such liquors with intent to unlawfully sell them is punishable in many states. Statutes upon these subjects, when properly drawn, have generally been upheld as constitutional.'^^* The question as to how far judicial knowledge will be taken of the intoxi- cating qualities of certain liquors has already been fully considered.''* 476, 63 Fed. 249. In some states the matter is determined or regulated largely by statute, but, in most states, the statutory law is the same as the common law. ''-** Commonwealth v. Blanding, 3 Pick. (Mass.) 304, 15 Am. Dec. 214; McClain Crim. L., § 1058. See also, Baker v. State, (Ga.) 25 S. E. 341; Commonwealth v. Macloon, 101 Mass. 1, 100 Am. Dec. 89; Mills v. State, 18 Neb. 575, 26 N. W. 354; Rex V. Burdett, 4 B. & Aid. 95, 6 E. C. L. 404. "Belo V. Wren, 63 Tex. 721. We quote from the opinion in this case as follows: "The fact that the crime of libel may have been com- pleted by a publication of the paper in Galveston county does not make it any less of a crime to circulate the number containing the alleged libelous article in other places. By the common law the sale of each copy is a distinct offense, and the prosecutor may at least choose for which of the distinct offenses he will call the guilty party to account. A copy of the paper may first be sold to A., then one to B., and an- other to C, but, because the publi- cation is completed by selling to A., the government is not bound to se- lect that particular fact as the one upon which it will rely to prove the completion of the offense. It may indict for either of the sales, and it makes no difference which was first in point of time. So, for the same reason, it is unimportant in what place the publication first took place." "*See, 78 Am. St. 253-255. note; Bishop Stat. Crimes, § 989-992, 1056; Cooley Const. Lim. (6th ed.) 716-720; see also, State v. Dollison, 194 U. S. 445, 24 Sup. Ct. 703, aff'g 68 Ohio St. 688; Webster v. State, 110 Tenn. 491, 82 S. W. 180; People V. Shuler. (Mich.) 98 N. W. 986. '' See, Vol. I, § 70. 497 LIQUOR LAW VIOLATIONS. [§ 3170. The statute under which the particular case is brought largely deter- mines what must be proved. As a general rule every fact constituting *'an indispensable element in the offense must be proved, but no more need be."" Thus, it has been held that a prosecution for being a common seller continuously between specified dates may be sustained, although it appears that, during a part of the time, the defendant had a license.'^* A single sale without a license is sufficient to constitute the offense of selling without a license," and it is therefore held that it is unnecessary to show sales witliout a license during the entire period alleged.'^ So, although the allegation is precise as to the quan- tity sold, it is not always essential that the exact quantity should be proved.'^'* It is generally sufficient if the sale of such a quantity is shown as calls for the same punishment as that alleged.^" But proof of a transaction which comes short of a sale will not sustain a charge of selling, and it was so held where, although the liquor called for was supplied by the defendant, he refused to accept pay therefor." So, where the name of the purchaser is required to be averred and proved a variance therein will generally be fatal.*^ Circumstantial evidence, as well as direct evidence, is admissible in such cases. ^^ "Bishop Stat. Crimes, § 1046; Murphy v. State, 28 Miss. 637; Long V. State, 56 Ind. 117, 206; Garst v. State, 68 Ind. 37; Massie v. Com- monwealth, 30 Gratt. (Va.) 841. '^Commonwealth v. Putnam, 4 Gray (Mass.) 16. "'McPherson v. State, 54 Ala. 221; Dansey v. State, 23 Fla. 316, 2 So. 692; People v. Kropp, 52 Mich. 582, 18 N. W. 368; State v. Small, 31 Mo. 197; Lewis v. Commonwealth, 90 Va. 843, 20 S. E. 777. " State v. Hynes, 66 Me. 114. So a sale either before a license is ob- tained or after it has expired is gen- erally unlawful. Kaiser v. State, 78 Ind. 430; Edwards v. State, 22 Ark. 253; Commonwealth v. Put- nam, 4 Gray (Mass.) 16; Common- wealth V. Hamer, 128 Mass. 76; Neu- man v. State, 76 Wis. 112, 45 N. W. 30. "» Bishop Stat. Crimes. § 1039; Bishop Cr. Proc. I, §§ 488b, 488c. Vol. 4 Elliott Ev.— 32 **" State v. Connell, 38 N. H. 81; State V. Moore, 14 N. H. 451; Brock V. Commonwealth, 6 Leigh (Va.) 634; Schlict v. State, 31 Ind. 246; State V. Andrews, 28 Mo. 17. " Commonwealth v. Packard, 5 Gray (Mass.) 101; Seibert v. State, 40 Ala. 60; see also. Maxwell v. State, 140 Ala. 131, 37 So. 266; but compare, Ashley v. State, (Tex. Cr. App.) 80 S. W. 1015. *^- Brown v. State, 48 Ind. 38; State V. Wolff, 46 Mo. 584; Commonwealth V. Mehan, 11 Gray (Mass.) 321; Commonwealth v. Brown, 2 Gray (Mass.) 358; Commonwealth v. Shearman, 11 Cush. (Mass.) 546; Dyer v. People, 84 111. 624. ^^ State V. Hynes, 66 Me. 114, 115; Rater v. State, 49 Ind. 507; State v. Cunningham, 25 Conn. 195; State v. Wilson, 5 R. I. 291; Stone v. State. 30 Ind. 115; Needham v. State, 19 Tex. 332. § 3170.] MISCELLANEOUS OFFENSES. 498 I Upon this subject the following propositions have been stated by Mr. Bishop :^* "Thus, as steps in the path to the conclusion of guilt, such facts may be shown as the presence ,of liquor in the defendant's place of business, the hustling out of bottles of it on the entrance of the officers of the law, tumblers on the bar, strong beer in the beer-pump f^ declarations of the defendant that he had kept and would keep liquor for sale, though not pointing specially to the transaction in contro- versy;^® his assertion that he had deemed the law unconstitutional, and he meant to violate it f the liquor on tap, and the implements around for measuring and drinking itf^ a bar, and bottles in itf^ a coming and going with bottles,^" especially when they are empty at the entering and full of liquor at the exit.'*^ The one competent fact may not be alone sufficient; and, unless all combined satisfy the jury beyond a reasonable doubt, of the defendant's guilt, the case fails.''^ It is not even permissible to show a mere common report, or public notoriety, that the defendant has sold liquors. ''^^ The statutes, in »* Bishop Stat. Crimes, § 1048. *= Commonwealth v. Cotter, 97 Mass. 336; Commonwealth v. Van Stone, 97 Mass, 548; Vallance v. Ev- erts, 3 Barb. (N. Y.) 553. «^New Gloucester v. Bridgham, 28 Me. 60; State v. Bonney, 39 N. H. 206. "Commonwealth v. Kimball, 24 Pick. (Mass.) 366. »« Commonwealth v. Levy, 126 Mass. 240. ^^ People V. Hulbut, 4 Denio (N. Y.) 133; State v. Knott, 5 R. I. 293. «° Commonwealth v. Intoxicating Liquors, 105 Mass. 595; see also. Commonwealth v. Brothers, 158 Mass. 200, 33 N. E. 386; Common- wealth V. Finnerty, 148 Mass. 165, 19 N. E. 215; Pike v. State, 40 Tex. Cr. App. 613, 51 S. W. 395. "State v. Long, 7 Jones L. (N. Car.) 24, 27; Huey v. State, 31 Ala. 349; Pannell v. State, 29 Ga. 681. °= Bishop Cr. Proc. I, §§ 1073- 1079; New York v. Walker, 4 E. D. Smith (N. Y.) 258; United States v. Furlong, 2 Biss. (U. S.) 97. °^ Cobleigh v. McBrlde, 45 Iowa 116. As to what is sufficient ta make the principal criminally liable where the sale is made by a clerk or bar-tender, see, 1 Bishop Cr.. Proc, §§ 488d, 1096-1101; State v. Tibbetts, 35 Me. 81; Hall v. Mc- Kechnie, 22 Barb. (N. Y.) 244; State V. Williams, 3 Hill (S. Car.) 91; Seibert v. State, 40 Ala. 60, 63; Sellers v. State, 98 Ala. 72, 13 So. 530; Anderson v. State, 39 Ind. 553; Molihan v. State, 30 Ind. 266; State V. Mahoney, 23 Minn. 181; Thomp- son v. State, 45 Ind. 495; Anderson V. State, 22 Ohio St. 305; Common- wealth V. Major, 6 Dana (Ky.) 293; Scott V. State, 25 Tex. 168; State v. Bonney, 39 N. H. 206; State v. Fos- ter, 3 Fost. (N. H.) 348; Patterson V. State, 21 Ala. 571; Riley v. State, 43 Miss. 397; Commonwealth v. Kim- ball, 24 Pick. (Mass.) 366; Common- wealth V. Galligan, 156 Mass. 270, 30 N. E. 1142; Commonwealth v. Rooks, 150 Mass. 59, 22 N. E. 436; Commonwealth v. Putnam, 4 Gray" (Mass.) 16; Commonwealth v. Nich- 499 LIQUOR LAW VIOLATIONS. [§ wKl. some of the states, make the delivery of the liquor under specified circumstances, prima facie evidence of a sale, and such statutes have been held constitutional.^* So, a statute providing that a licensee who transgresses certain restrictions shall be deemed guilty of selling without a license has been held to be constitutional and valid.®^ There is some conflict among the authorities as to whether the state is bound to prove in the first instance that the defendant was not licensed or otherwise authorized to sell the liquor. Mr. Bishop gives his own rea- sons for taking the view that the state is not bound to show this by affirmative evidence, and refers to the authorities on both sides by states.^" It is now settled, however, in most jurisdictions, either by statute or judicial decision in the absence of any express statutory provision upon the subject, that the burden is upon the defendant to show his license or authority as a defense,**^ and the impossibility of obtaining a license or the wrongful refusal of his application therefor is no defense.®^ § 3171. Liquor law violations — Intent — Knowledge — Presump- tions. — The defendant's intent to unlawfully sell the liquor is an es- sential element of the offense of keeping liquor for unlawful sale and ols, 10 Mete. (Mass.) 259; Parker ^« Bishop Stat. Crimes, §§1051, V. State, 4 Ohio St. 563; State v. 1052, and note. Hayes, 67 Iowa 27, 24 N. W. 575; "In addition to authorities cited State V. Baker, 71 Mo. 475; State v. by Bishop, see, Orme v. Common- Kittele, 110 N. Car. 560, 15 S. E. wealth, 21 Ky. L. R. 1412, 55 S. W. 103, 28 Am. St. 698; People v. Long- 195; State v. Kriechbaum, 81 Iowa well, 120 Mich. 311, 79 N. W. 484. 633, 47 N. W. 872; State v. Harlan, »* Commonwealth v. Williams, 6 10 Kans. App. 346, 58 Pac. 274; State Gray (Mass.) 1; Commonwealth v. v. Ahern, 54 Minn. 195, 55 N. W. Rowe, 14 Gray (Mass.) 47; Com- 959; State v. Emery, 98 N. Car. 668, monwealth v. Y/allace, 7 Gray 3 S. E. 810; State v. Hoxsie, 15 R. I. (Mass.) 222; State v. Hurley, 54 Me. 1, 22 Atl. 1059, 2 Am. St. 838; State 562; State v. Day, 37 Me. 244; see v. Shelton, 16 Wash. 590, 48 Pac. 258. also, State v. Momberg, (N. Dak.) "=* State v. Tucker, 45 Ark. 55; 103 N. W. 566. Welsh v. State, 126 Ind. 71, 25 N. E. »»Crabb v. State, (Fla.) 36 So. 169. 883; State v. Brown, 41 La. Ann. But such statutes making certain 771, 6 So. 638; State v. Kantler, 33 things prima facie evidence are not Minn. 69, 21 N. W. 856; Brock v. usually conclusive, but mean that it State, 65 Ga. 437; State v. Myers, is competent and legally sufficient 63 Mo. 324; State v. Jamison. 23 evidence if the jurors are satisfied Mo. 330; Commonwealth v. Black- beyond a reasonable doubt. State ington, 24 Pick. (Mass.) 352. V. Momberg, (N. Dak.) 103 N.,W. 566; Black Intox. Liquors, § 509. § 3171.] MISCELLANEOUS OFFENSES. 500 must in some manner be shown.»» But it is usually impossible to prove it by direct evidence and it may be shown by circumstantial evi- dence. It may well bo inferred that if the defendant has unlawfully sold part of the liquor he meant to sell the rest. It has therefore been held that sales before, after and at the time of the alleged keeping for sale may be shown in proof of the intent to selL^*^^ And it may be inferred from many other circumstances. "The jury," it has been said, "might be well satisfied of the fact from the manner in which the liquors were kept in the building, or from the declarations of the defendant in regard to them, or from various circumstances which might be supposed, without its being shown that there had been an offer or attempt to sell.''^"^ There is some apparent conflict among the authorities as to whether the state must show knowledge on the part of the accused where the charge is for unlawfully selling liquor to a minor or to a drunkard. This would seem to depend largely upon the wording and construction of the statute. If the statute makes it an offense only when it is knowingly done, there is little doubt that this should be made to appear."- But if the statute does not use the word "knowingly" or its equivalent, the weight of authority seems to be to the effect that ignorance and good faith are no defense.^**^ Where *'l Bishop Cr. Proc, § 1101; Com- Hughes, 165 Mass. 7, 42 N. E. 121; monwealth v. Canny, 158 Mass. 210, Commonwealth v. Gallagher, 124 33 N. E. 340. But not necessarily Mass. 29; Commonwealth v. Tim- to sell in person. State v. Kaler, 56 othy, 8 Gray (Mass.) 480; Common- Me. 88. wealth v. Wallace, 123 Mass. 401; '"" State v. Munzenmaier, 24 Iowa State v. Mead's Liquors, 46 Conn. 87; State v. Raymond, 24 Conn. 204; 22; Commonwealth v. Meskill, 165 Hans v. State, 50 Neb. 160, 69 N. W. Mass. 142, 42 N. E. 562; Menken v. 838; State v. White, 70 Vt. 225, 39 Atlanta, 78 Ga. 6b8, 2 S. E. 559. Atl. 1085; State v. Plunkett, 64 Me. ^"= See, Williams v. State, 23 Tex. 534,539; State v. Mead's Liquors, 46 App. 70, 3 S. W. 661; Schurzer v. Conn. 22; see also. State v. Colston, State, (Tex. Cr. App.) 25 S. W. 23 53 N. H. 483; Bishop Stat. Crimes, (burden on state); Brow v. State, §§ 681, 682; Commonwealth v. Mat- 103 Ind. 133, 2 N. E. 296; Perry v. thews, 129 Mass. 487; People v. Edwards, 44 N. Y. 223. Caldwell, 107 Mich. 374, 65 N. W. i"- Commonwealth v. Gould, 158 213; but see as to evidence of other Mass. 499, 33 N. E. 656; Common- sales on a charge of selling, Chip- wealth v. Julius, 143 Mass. 132, 8 man v. People, 24 Colo. 520, 52 Pac. N. E. 898; State v. Sasse, 6 S. Dak. 677; State v. Shaw. 58 N. H. 73; 212, 60 N. W. 853, 55 Am. St. 834; Fossdahl v. State, 89 Wis. 482, 62 Redmond v. State, 36 Ark. 58; State N. W. 185. v. Baer, 37 W. Va. 1. 16 S. E. 368. ^"^ State v. McGlynn, 34 N. H. 422, and other authorities cited in 17 427; see also, Commonwealth v. Am. & Eng. Ency. of Law 335; br.t 501 MALICIOCS MISCniKF. [§ ;>i' the consent of the minor's ])arent is a defense under the statute, tlio hurden is held to be upon the seller to show it.^"* Where the charge was for selling liquor to be drank on the premises, it was held that if the purchaser drank the liquor on the premises without objection from the seller, it was a fair presumption that it was sold to be drank there,"** or was with the seller's consent."-"' So, where the seller furnished bottles, glasses, sugar and water, witli the liquor it was lield that the jury were justified in inferring tlie intent that the liquor should be drank Avhere sold."" In prosecutions under any of these statutory provisions it is generally held that the sale may be proved by an informer."'^ § 3172. Malicious mischief — Malicious trespass. — Malicious mis- chief is the wilful and malicious injury to or destruction of the prop- erty of another,"^ and there are now statutes in most of the states defining the offense of malicious mischief or malicious trespass, some of which have considerably extended the scope or limits of the corn- see, Whitton V. State, 37 Miss. 379; Freiberg v. State, 94 Ala. 91, 10 So. 703; Ross v. State, 116 Ind. 495, 19 N. E. 451; Kreamer v. State, 106 Ind. 192, 6 N.,E. 341; Aultfather v. State, 4 Ohio St. 467; Fielding v. State, (Tex. Cr. App.) 52 S. W. 69. But the burden to show good faith may be upon the accused. Marshall V. State, 49 Ala. 21; Fehn v. State, 3 Ind. App. 568, 29 N. E. 1137; Far- bach v. State, 24 Ind. 77. ^<"Farrall v. State, 32 Ala. 557; Edgar v. State, 37 Ark. 219; Monroe V. People, 113 111. 670; Reynolds v. State, 32 Tex. Cr. App. 36, 22 S. W. 18; Hannaman v. State, (Tex. Cr. App.) 33 S. W. 538; see also, Ran- dall V. State, 14 Ohio St. 435; Reich V. State, 63 Ga. 616, 620; as to other questions of evidence in such cases, see. Commonwealth v. Nagle, 157 Mass. 554, 32 N. E. 861; State v. Austin, 74 Minn. 463, 77 N. W. 301, holding evidence of other sales in- admissible. Ehlert v. State, 93 Ind. 76; Bain v. State, 61 Ala. 75; Com- monwealth V. O'Brien, 134 Mass. 198; State v. Cain, 9 W. Va. 559, all as to evidence of age. ''"♦Sanderlin v. State, 2 Humph. (Tenn.) 315. w^ Casey v. State, 6 Mo. 646; Lucker v. Commonwealth, 4 Bush (Ky.) 440. ^'^ Sanderlin v. State, 2 Humph. (Tenn.) 315. '"■ Commonwealth v. Murphy, 155 Mass. 284, 29 N. E. 469; Evanston v. Myers, 172 111. 266, 50 N. E. 204; People V. Curtis, 95 Mich. 212, 54 N. W. 767; People v. Ruch, 113 Mich. 539, 71 N. W. 863; Rater v. State, 49 Ind. 507; but see, People v. Braisted, 13 Colo. App. 532, 58 Pac. 796; Walton v. Canon City, 14 Colo. App. 352, 59 Pac. 840. ^»*19 Am. & Eng. Ency. of Law (2nd ed.) 633; State v. Watts. 48 Ark. 56; State v. Robinson, 3 Dev. & B. L. (N. Car.) 130, 32 Am. Dec. 661 : Flora First Nat. Bank v. Burk- ett, 101 111. 391. 3172.] MISCELLANEOUS OFFENSES. 503 mon law offense. There is some controversy, however, as to just what kind of property is the subject of the offense. It is distinguished from larceny"^ and also from an ordinary trespass,"" The state must show the injury to the property,"^ and the malicious intent,"^ but the latter may be inferred from the nature of the act and the circum- stances of the case,"^ and declarations of the accused may be shown, in a proper case to prove malice."* In some states the malice must be towards or against the owner and the weight of authority is prob- ably to that effect,"^ but there are many authorities to the contrary. The ownership of the property may be proved by parol."« The value of the property is generally immaterial,"^ unless the degree of the crime or penalty depends upon the value."* As a general rule it may. '•» See, Rex v. Ross, R. & R. C. C. 10; Hannel v. State, 4 Ind. App. 485, 30 N. E. 1118; Pence v. State, 110 Ind. 95, 10 N. E. 919; State v. We- ber, 156 Mo. 249, 56 S. W. 729; State v. Hawkins, 8 Port. (Ala.) 461, 33 Am. Dec. 294; State v. Butler, 65 N. Car. 309. ""State V. Robinson, 3 Dev. & B. L. (N. Car.) 130, 32 Am. Dec. 661; People V. Smith, 5 Cow. (N. Y.) 258. "1 See, State v. Watts, 48 Ark. 56, 3 Am. St. 216; State v. Foote, 71 Conn, 741, 43 Atl. 488, as to what injury is sufficient. See also, State V. McKee, 109 Ind. 497, 10 N. E. 405. "= Dawson v. State, 52 Ind. 478; Gaskill V. State, 56 Ind. 550; Wood- ward V. State, 32 Tex. Cr. App. 554, 28 S. W. 204. "'State V. Enslow, 10 Iowa 115; State V. Linde, 54 Iowa 139, 6 N. E. 168; Hobson v. State, 44 Ala. 380; State V. Toney, 15 S. Car. 409, 413; Chappell V. State, 35 Ark. 345 ; Les- sen V. State, 62 Ind. 437, 440; Com- monwealth V. Walden, 3 Cush. (Mass.) 558; Harris v. State, 73 Ga. 41; Shirley v. State, (Tex. Cr. App.) 22 S. W. 42; Brown v. State, 26 Ohio St. 176; People v. Olsen, 6 Utah 284, 22 Pac. 163; but see, State v. Newby, 64 N. Car. 23. "* Heron v. State, 22 Fla. 86; Peo- ple v. Ferguson, 119 Mich. 373, 78 N. W. 334; Underbill Cr. Ev., § 305. "' State V. Wilcox, 3 Yerg. (Tenn.) 278, 279; Hampton v. State, 10 Lea (Tenn.) 639, 641; Hobson v. State, 44 Ala. 380, 381; Thomas v. State, 30 Ark. 433; United States v. Gid- eon, 1 Minn. 292; State v. Latham, 13 Ired. L. (N. Car.) 33, 35; Hill v. State, 43 Ala. 335; Shirley v. State, (Tex. Civ. App.) 22 S. W. 42; Rex V. Shepherd, 2 Leach C. C. 609, 610; Rex V. Pearce, 1 Leach C. C. 594; contra. Brown v. State, 26 Ohio St. 176, 183; Duncan v. State, 49 Miss. 331; State v. Doig, 2 Rich. L. (S. Car.) 179; Commonwealth v. Will- iams, 110 Mass. 401; Mosely v. State, 28 Ga. 190; see also. State v. Phipps, 95 Iowa 491, 64 N. W. 411. Evidence of ill-will towards prose- cuting witness held admissible in State V. Wideman, 68 S. Car. 119, 46 S. E. 769. "'State V. Brant, 14 Iowa 180; State V. Semotan, 85 Iowa 57, 51 N. W. 1161. "^ Ash worth v. State, 63 Ala. 120 ; Heron v. State, 22 Fla. 86. "'Walker v. State, 89 Ala. 74, 8 So. 144; State v. Heath, 41 Tex. 426; Commonwealth v. Cox, 7 Allen (Mass.) 577. 503 SODOMY. [§ 3n-a. perhaps, be said that any proper evidence tending to show that the accused was acting in good faith, or under a misapprehension of his rights, is relevant.^^" Thus, it has been held that it is a good defense to show that the act was properly done in the discharge of official duty,^2° or by authority of the owner,'' ^^ or in the necessary protection of property against trespassing animals or the likc,^-^ but the mere fact that the animal was running at large, or even trespassing has been held to be no defense if the injury was malicious.^" § 3172a. Sodomy. — Sodomy, or "the infamous crime against nature," as the older writers call it, is the carnal knowledge or copula- tion against nature by one human being with another or by a human be- ing with a beast.^2* Strictly speaking, when the copulation is with a beast the offense is called bestiality or buggery. The term sodomy, how- "° Underbill Cr. Ev., § 309, citing Lessen v. State, 62 Ind. 437; Palmer V. State, 45 Ind. 388, 391; Barlow V. State, 120. Ind. 56. 58, 22 N. E. 888; Goforth v. State, 8 Humph. (Tenn.) 37; Reg. v. Langford, 1 Car. & M. 602; Sattler v. People, 59 111. 68, 70; State v. Flynn, 28 Iowa 26, 27; Commonwealth v. Drass, 146 Pa. St. 55, 60; 29 Wkly. Notes Cas. 463, 465; Reg. v. Matthews, 14 Cox Cr. Cas. 5, 7; State v. Haney, 32 Kans. 428, 430, 4 Pac. 831. i^'Schott V. State, 7 Tex. App. 616; North Carolina v. Vanderford, 35 Fed. 282. "^Ashworth v. State, 63 Ala. 120; Mettler v. People, 135 111. 410, 25 N. E. 748. So presumed where wife was owner. Adkin v. Pillen, (Mich.) 100 N. W. 176. 122 Wright V. State, 30 Ga. 325, 76 Am. Dec. 656; Thomas v. State, 14 Tex. App. 200; Smith v. Williams, 56 J. P. 840. Or that the accused believed himself to be the owner and had taken legal advice. State v. Sears, Phil. L. (N. Car.) 146; Peo- ple V. Kane, 142 N. Y. 366, 37 N. E. 104; People v. Stevens, 109 N. Y. 159, 16 N. E. 53; see also, Windsor V. State, 13 Ind. 375; Hughes v. State, 103 Ind. 344, 2 N. E. 956; Dawson v. State, 52 Ind. 478. 1" Cryer v. State, 36 Tex. Cr. App. 621, 38 S. W. 203; Branch v. State, 41 Tex. 622; see also, Bennefield v. State, 62 Ark. 365, 35 S. W. 790; Snap V. People, 19 111. 80, 68 Am. Dec. 582; State v. Brigman, 94 N. Car. 888; Thompson v. State, 67 Ala. 106, 42 Am. R. 101. Evidence as to habits of animal held admissible in Reedy v. State, 22 Tex. App. 271, 2 S. W. 591. Evidence of former of- fenses held inadmissible in Smith V. State, (Tex. Cr. App.) 24 S. W. 27. !=♦ Abbott's Law Diet. 484; 25 Am. & Eng. Ency. of L. (2d ed.) 1144; Bac. Air., Lit. Sodomy; 1 East's P. C. C. 14, § 1; Prindle v. State, 31 Tex. Cr. App. 551, 21 S. W. 360, 37 Am. St. 833; Houselman v. People. 168 111. 172, 48 N. E. 304; State v. Chandonette, 10 Mont. 280, 25 Pac. 438. If committed against the order of nature it makes no difference whether the other party is a man or a woman. Adams v. State, (Tex. Cr. App.) 86 S. W. 334; Lewis v. State, 36 Tex. Cr. App. 37, 35 S. W. 372, 61 Am. St. 831. § 3172a.] MISCELLANEOUS OFFENSES. 504 ever, is generally used as including both forms of the crime against nature.^-^ Statutes upon the subject exist in most states, but the of- fense is not always defined and where such is the case and the statute merely denounces the offense in general terms, the common law is usually looked to for the definition. Penetration is an essential ele- ment of the crime, but the slightest penetration is sufficient,^^** and it may be proved by circumstantial evidence. ^"'^ Actual emission is not now regarded as essential.^^* The consent of the victim, whether of age or not, is no defense,^'^ but if the latter is below the age of dis- cretion the act as to him may not be a criminal offense, although it is as to the other party. ^^° The nature of the evidence, however, and the rules relating thereto, as to the actual commission of the offense are, in the main, the same as in the case of rape.^^^ In most jurisdictions, the testimony of the other party, at least Avhen he is old enough to be considered an accomplice and does not act under coercion must be corroborated in order to sustain a conviction.^^- A confession of guilt '-^ See Anonymous, 12 Coke 36; Ansman v. Veal, 10 Ind. 355, 71 Am. Dec. 331. So is the term buggery. ^"^ Hodges v. State, 94 Ga. 593, 19 S. E. 758; Cross v. State, 17 Tex. App. 476; 1 East's P. C. C. 10, § 3; 1 Hale's P. C. 628; Rex v. Reeps- pear, 1 Moody, 342. ^"Collins V. State, 73 Ga. 76; Cross V. State, 17 Tex. App. 476. See also, Brauer v. State, 25 Wis. 413. "»Rex V. Cozins, 6 P. & C. 351, 25 E. C. L. 434; People v. Hodgkln, 94 Mich, 27, 53 N. W. 794, 34 Am. St. 321; State v. Vicknair, 52 La. Ann. 1921, 28 So. 273; State v. Gray, 8 Jones L. (N. Car.) 170; Williams v. State, 14 Ohio 222, 45 Am. Dec. 536; Commonwealth v. Thomas, 1 Va. Cas. 307. ^■^ See, Reg. v. Jellyman, 8 C. & P. 604, 34 E. C. L. 547; Reg. v. Lock, 12 Cox Cr. Cas. 244; People v. Mil- ler, 66 Cal. 468, 6 Pac. 99; Mascola V. Monteranto, 61 Conn. 50, 23 Atl. 714, 29 Am. St. 170; Commonwealth V. Snow, 111 Mass. 411; Territory V. Mahaffy, 3 Mont. 112; People v. Deschesseri, 69 App. Div. (N. Y.) 217, 74 N. Y. S. 761. "» See, State v. Gruss, 28 La. Am. 952; 1 East's P. C, c. 14, § 2. i^'i Cross v. State, 17 Tex. App. 476. "The evidence is the same as in rape, with two exceptions: (a) It is not necessary to prove the offense to have been committed without the consent of the person upon whom it was perpetrated, (b) Both parties, if consenting, are equally guilty; but if one of the parties is a boy un- der the age of fourteen years, it is a felony in the other only." Harris' Crim. B. (Forces' ed.) 149. "= Commonwealth v. Snow, 111 Mass. 411; Territory v. Mahaffey, 3 Mont. 112; Med is v. State, 27 Tex. App. 194, 11 S. W. 112, 11 Am. St. 192; Reg. v. Jellyman, 8 C. & P. 604, 34 E. C. L. 547. But it is other- wise in Illinois. Houselman v. Peo- ple, 168 111. 174, 48 N. E. 304; Kelly V. People, 192 111. 119, 61 N. E. 425. And one who acts under coercion may not be an accomplice within 505 STATUTORY CRIMES GEXKRALLT. [§ SlTiJ. may be shown, where it is voluntary and there is evidence of the corpus delicti ;"^ but it must be shown to be voluntary, and it has been held that testimony of the police officer, before whom a written con- fession was made, that he told the defendant that "any statement he . might make might bo used in evidence either for or against him," was not a sufficient predicate for the admission of the confession.^-''* Evi- dence of the defendant's good character has been held admissible."^ So, on the other hand, on the trial of a prosecution for assault with in- tent to commit sodomy upon another while on a moving train, evidence of a prior assault by the defendant while on the same train an hour or two before was held competent on behalf of the prosecution, although it was committed in another state, for the purpose of showing the de- fendant's real intention in making the assault in question.^^'' § 3173. Statutory crimes generally — Caution. — In determining what must be proved in order to sustain a conviction under an indict- ment for a statutory offense, and, indeed, to some extent in determin- ing the relevancy of evidence generally in such cases, the particular statute under which the prosecution is instituted must be consulted. The essential elements of the offense are usually determined .by such statute, and, in some instances, the defense is largely determined in the same way. So, as shown in the preceding sections, the statute often makes certain facts prima facie evidence of guilt or at least of one or more of the essential elements of the crime. These statutes vary considerably in their terms, and it is therefore not only impossi- ble to lay down any general rules for all jurisdictions, but is also un- safe to rely upon the adjudications in one jurisdiction as always ap- plicable in other jurisdictions or under other statutes. Caution must be observed to note the differences in the statutes, and what has been said in the preceding sections of this chapter must be understood, in the main, as confined to the particular statute under consideration and not as a statement of general rules and principles to be safely applied in all cases. the rule. People v. Miller, 63 Cal. '=* Adams v. State, (Tex. Cr. App.) 468; Mascolo v. Monteranto, 61 86 S. W. 334. citing a number of Conn. 50, 23 Atl. 714, 29 Am. St. other Texas decisions. 270 '"' People v. Bahr, 74 N. Y. App. ^'^ See, Bradford v. State, 104 Ala. Div. 117, 77 N. Y. S. 443. 68, 16 So. 107, 53 Am. St. 24; State >=<= State v. Place, 5 Wash. 773, 32 V. Vicknair, 52 La. Ann. 1921, 28 So. Pac. 736. 273. EVIDENCE IN EQUITY PROCEEDINGS. 507 CHAPTER CLVI. PROCEEDINGS IN EQUITY GENERALLY. Sec. 3174. Rules of evidence much the same as at law. 3175. No right to jury— Province of court — Advisory verdict. 3176. Submitting issues to jury. 3177. Effect of verdict. 3178. Competency — Mode of taking testimony and making proof. 3179. United States equity rules. 3180. United States equity rules — Answer as evidence. 3181. United States equity rules- Commission to take testi- mony — Oral hearing. 3182. United States equity rules- Deposition under act of Con- gress. 3183. United States equity rules- Time allowed for taking testimony. 3184. United Slates equity rules- Form of last interrogatory. 3185. United States equity rules— On reference to master. 3186. United States equity rules- Proceedings before master. 3187. United States equity rules — Witnesses before master or examiner. 3188. United States equity rules — Affidavits and documents. 3189. United States equity rules — Examination of creditor or claimant. oi90. United States equity rules — Accounts — Production — Ex- amination of party. Sec. 3191. 3192. 3193. 3194. 3195. 3196. 3197. 3198. 3199. 3200. 3201. 3202. 3203. 3204. 3205. 3206, 3207. 3208, 3209 3210 3211 3212 09 United States equity rules- Master's report — Exceptions. Sources of evidence in equity. Admissions generally — Plead- ings. Admissions by agreement. Documents — Discovery. Proof of documents. Bill as evidence. Answer as evidence for de- fendant. Answer as evidence for de- fendant — Limitations and exceptions. Answer as evidence for de- fendant — Rule where com- plainant does not reply — Hearing on bill and an- swer. Responsive answer — Illustra- tive cases. Answers not responsive. Test of responsiveness. Answer false in part — Incred- ible answer. Questioning competency and impeaching defendant who answers under oath. Answer of co-defendant. Answer not evidence against infants. Plea as evidence. CrosG-bill and answer. Witnesses. What must be proved — Bur- den. Substance of issue. §§ 3174, 3175.] PROCEEDINGS IN EQUITY. 510 Sec. Sec. 3213. Substance of issue— Variance. 3216. Weight and sufficiency of evi- 3i!l4. Evidence confined to issues. dence. 3215. Parol and secondary evidence. 3217. Objections and exceptions. § 3174. Rules of evidence much the same as at law. — The rules of evidence are, in the main, the same in equity as at law.^ It is only in a few particular instances that they differ to any great ex- tent. These, it is said, are either the investigation of frauds, or trusts, or cases growing out of the peculiar nature of the proceed- ings.2 But the admission of evidence that might be considered fatal error at law, has sometimes been held harmless in equity,^ and there are some respects in which the rules in equity are peculiar, notably, the effect given to an answer under oath, in response to a bill call- ing for such an answer.^ So, in most jurisdictions there is no right to a jury trial in equity cases. Some instances of the application in equity of various general rules of evidence will be referred to, but this chapter will be devoted, in the main, to a consideration of pe- culiar features in the rules of evidence in equity and to incidental matters of practice in equity, and particular attention will be given to the practice in the Federal Courts. §3175. No right to jury — Province of court — Advisory verdict. The common-law right to trial by jury is preserved and guaranteed 1 Morrison v. Hart, 2 Bibb (Ky.) 79 Pac. 461; National «6;c. Asso. v. 4; Dwightv. Pomeroy, 17 Mass. 303, Burr, 57 Neb. 437, 77 N. W. 1098; 9 Am. Dec. 148; Eveleth v. Crouch, King v. Pony Gold Mine Co., 28 15 Mass. 307; Stevens v. Cooper, 1 Mont. 74, 72 Pac. 309; Sawyer v. Johns. Ch. (N. Y.) 425, and authori- Campbell, 130 111. 186, 22 N. E. 458; ties cited in next note below. The McDonald v. Jacobs, 85 Ala. 64, 4 burden of proof is generally the So. 605; Barker v. Ray, 2 Russ. 63. same, Pusey v. Wright, 31 Pa. St. * So, testimony is more often taken 387. See also, Cochran v. Blout, 161 in equity by means of depositions U. S. 350, 16 Sup. Ct. 454. But see, or in writing, and there are peculiar Jones v. Thomas, 2 Y. & C. 498; rules as to cross-interrogatories, Gibson V. Jeyes, 6 Ves. 266, 278; discovery, and the number of wit- Story Eq. Jur., §§ 311-314. nesses required in certain cases, al- = See, Manning v. Lechmere, 1 Atk. though some of these have been 453; Man v. Ward, 2 Atk. 228; Reed adopted at law under the modern V. Clarke, 4 T. B. Mon. (Ky.) 18, 20; practice or statutes. It seems, too, Greenleaf Ev., § 250. Parol evidence that in some equity cases the evi- ls, perhaps, more often admitted in dence is required to be clearer or such cases than in cases where there more satisfactory than in ordinary is a writing. cases at law. = See, Small v. Harrington, (Idaho) 511 PROVINCE or COURT — JURY. [§ 3175. by the constitution of the United States, and by the constitutions of the several states. This constitutional provision, however, is gen- erally construed as preserving the right in substance as it existed at common law and only in the classes of cases to which it was ap- plicable at common law. It does not, therefore, extend to equity cases.^ The court may, however, submit questions of fact to the jury in the exercise of its discretion.® But, unless the statute or constitution gives such right, a party is not entitled, as a matter of right, to have any question submitted to a jury in any equity case.'^ And even when questions of fact are submitted to a jury by the court in such cases, the verdict of the jury is merely advisory and not binding upon * Goodyear v. Providence Rubber Co., 2 Cliff. (U. S.) 351; Loftus v. Fischer, 113 Cal. 286, 45 Pac. 328; State V. Churchill, 48 Ark. 426; Hughes V. Hanna, 39 Fla. 365, 22 So. 613; Heacock v. Hosmer, 109 111. 245; Helm v. First Nat. Bank, 91 Ind. 44; Monnett v. Turpie, 132 Ind. 482, 32 N. E. 328; Peden v. Cavins. 134 Ind. 494, 34 N. E. 7, 39 Am. St. 276; Hull V. Bell, 54 Ohio St. 228, 43 N. E. 584; O'Day v. Conn. 131 Mo. 321, 32 S. W. 1109; Lucken v. Wichman, 5 S. Car. 411; Phimp- ton V. Somerset, 33 Vt. 283; Mead v. "Walker, 17 Wis. 189; see also. Leach v. Kundson, 97 Iowa 643, 66 N. W. 913; Lynch v. Metro- politan &c. Co., 129 N. Y. 274, 29 TSI. E. 315, 26 Am. St. 523; Carroll v. Deimel, 95 N. Y. 252; Morgan v. Field, 35 Kans. 162, 10 Pac. 448; Sumner v. Jones. 27 Minn. 312, 7 N. W. 265. For states in which it is provided that there shall be a right to a jury in equity cases, see, 3 Greenleaf Ev. (16th ed.), §§ 264- 266 and notes. See also. Bell v. Woodward, 48 N. H. 437; Franklin v. Greene, 2 Allen (Mass.) 519; Dudley v. Dudley, 176 Mass. 34, 56 N. E. 1011; Whitted v. Fuquay, 127 N. Car. 68, 37 S. E. 141; Marvin v. Dutcher, 26 Minn. 391, 4 N. W. 685; Loan &c. Bank v. Peterkin, 52 S. Car. 236, 29 S. E. 546, 68 Am. St. 900. "Henry v. Mayer, (Ariz.) 53 Pac. 590; Phillips v. Edsall, 127 111. 535, 20 N. E. 801; Maclellan v. Seim, 57 Kans. 471, 46 Pac. 959; Blakey v. Johnson, 13 Bush (Ky.) 197, 26 Am. R. 254, 256; Baker v. Safe Deposit. &c. Co., 93 Md. 368, 48 Atl. 920; Ely V. Coontz, 167 Mo. 371, 67 S. W. 299; Lewis v. North, 62 Neb. 552,. 87 N. W. 312; Peckham v. Van Ber- gen, 8 N. Dak. 595, 80 N. W. 759; Carlisle v. Foster, 10 Ohio St. 198; Palmer v. Lawrence, 5 N. Y. 389; Raymond v. Flavel, 27 Ore. 219, 40 Pac. 158; Frank's Appeal, 59 Pa. St. 190; Hammond v. Foreman, 43 S. Car. 264, 21 S. E. 3. See, Reese v. Youtsey, 113 Ky. 839, 69 S. W. 708. ' Keith V. Henkleman, 173 111. 137, 50 N. E. 692; Detroit Nat. Bank v. Blodgett, 115 Mich. 160, 73 N. W. 120, 885; Cole v. Bean, 1 Ariz. 377, 25 Pac. 538; Cornett v. Combs, 21 Ky. L. R. 837, 53 S. W. 32; McBride V. Stradley, 103 Ind. 465, 2 N. E. 358; Sharmer v. Mcintosh, 43 Neb. 509, 61 N. W. 727; Lucken v. Wich- man, 5 S. Car. 411; Pairo v. Bethell, 75 Va. 825, and authorities cited in first note to this section. § 3175.] PROCEEDINGS IX EQUITY. 513 the chancellor or court.^ In a recent case in an action to quiet title and enjoin the defendants, the court, treating the case as having both legal and equitable issues, proceeded with the trial by a jury stating that if it appeared that the case was wholly equitable, the jury might be considered as merely advisory. The jury found a verdict for the defendant as to each parcel of land, and under instructions, brought in a special verdict, in which separate findings were made as to each defendant, all being in harmony with the general verdict and judg- ment. On appeal it was held that there was no such irregularity as would warrant a reversal.'' It has also been held that where the same judge before whom the jury trial was had on certain issues acted as chancellor in making the decree in the suit in equity and relied upon the same proofs, a previous order for the trial by jury and a certificate of the result by such judge to himself as chancellor were unnecessary, although it would have been more formal if the court in equity had ordered a jury to be impaneled on the law side of the court and the verdict had been certified by the clerk to the equity side.^° And in the same case it was held that where the chancellor submits issues to a jury for his own information and adopts the finding as satisfactory to him upon the whole evidence, the court on appeal will not consider formal exceptions to rulings on the evidence in the course of the trial before tlie jury.^^ As said in another case: "Where a court of chancery suspends proceedings in a cause in order to allow the parties to bring an action at law to try the legal right, it does not assume to interfere with the course *Pittenger v. Pittenger, 208 111. in the preceding notes to this sec- 582, 70 N. E. 699; Maynard v. Rich- tion. ards, 166 111. 466, 46 N. E. 1138; ° ToUec Ranch &c. v. Cook, 24 Platter v. Elkhart, 103 Ind. 360, 2 Utah 453, 67 Pac. 1123. In a very N. E. 544; Seisler v. Smith, 150 Ind. similar case it was held that it was 88, 46 N. E. 993; Bick v. Williams, an equity case and that a trial by 181 Mo. 526, 80 S. W. 885; Curtis jury was properly refused. Miller V. Kirkpatrick, (Idaho) 75 Pac. 760; v. Indianapolis, 123 Ind. 196, 24 N. Brownlee v. Martin, 21 S. Car. 392; E. 228. Hall V. Linn, 8 Colo. 264, 5 Pac. 641; "Wilson v. Riddle, 123 U. S. 608, Bentley v. Davidson, 74 Wis. 420, 8 Sup. Ct. 255. As to the latter prac- 43 N. W. 139; Idaho &c. Improve- t.ce see, Kerr v. South Park Comr's, ment Co. v. Bradbury, 132 U. S. 509, 117 U. S. 379, 6 Sup. Ct. 801. 10 Sup. Ct. 177; Barnes v. Stuart, 1 ''See also, Brockett v. Brockett, 3 Y. & C. 119, 139. This is also held How. (U. S.) 691; Watt v. Starke, intimated in most of the cases cited 101 U. S. 247; Johnson v. Harmon, 94 U. S. 371. 513 SUBMITTING ISSUES TO JURY. [§ 31TG. of proceedings in the court of law, and a motion for new trial must be made to that court; but where it directs an issue to be tried at law, a motion for a new trial must be made to the court of chancery ; and for that purpose the party applying for a new trial must procure notes of the proceeding and of the evidence given at the trial for the use of the chancellor. This is done either by having the proceed- ings and evidence reported with the verdict, or by moving the chan- cellor to send to the judge who tried the issue, for his notes of trial; or procuring a statement of the same in some other way. The chan-. cellor then has before him the evidence given to the jury, and the proceedings at the trial, and may be satisfied, by an examination thereof, that the verdict ought not to be disturbed. The evidence and proceedings then become a part of the record, and go up to the court of appeal if an appeal is taken."^^ § 3176. Submitting issues to jury. — As indicated in the last pre- ceding section, where courts of equity and courts of law are en- tirely separated, the case is usually sent to the law court by the court of equity, 1^ when it determines to have certain issues sub- mitted to a jury for an advisory verdict, or to the law side where the same court has an equity side and a law side each distinct from the other. But in many of the states the same court exercises both law and equity jurisdictions, without any separation, and may call a jury whenever it sees fit. In either case issues should not be submitted to the jury where they are immaterial* or there is no disputed question of fact to be determined on conflicting evidence.^^ The chancellor usually directs what issues should be submitted,^® and it is irregular to submit the whole case to the jury without ^Watt V. Starke, 101 U. S. 247. Wilkins, 79 Ga. 675, 4 S. E. 261; 250. See also, Bootle v. Blimdell, 19 Doss v. Tyack, 14 How. (U. S.) 297. Ves. 494, 500; Barker v. Ray, 2 Russ. i" Barth v. Rosenfeld, 36 Md. 604; 63, 75. Dorr v. Tremont Nat. Bank, 128 "See, 2 Daniell's Ch. Pr. 1265, Mass. 349; Ringwalt v. Ahl, 36 Pa. 1266 and notes; 1 Spence Eq. Jur St. 336; Black v. Shreve, 13 N. J. Eq. 337; 1 Hoffman Ch. Pr. 502, 503. 455; Black v. Lamb, 12 N. J. Eq. "Fenno v. Primrose, 125 Fed. 635; 108; Jackson v. Spivey, 63 N. Car. Carter v. Carter, 82 Va. 624; Comly 261; Moore v. Simpson, 5 Litt. (Ky.) V Waters, 2 Del. Ch. 72. 49; Trimmer v. Liles, 58 S. Car. " Carradine v. Carradine, 58 Miss 284, 36 S. E. 652. As shown by these 286, 38 Am. R. 324; Shoemaker's authorities it may frame the issues Estate, 3 Brewst. (Pa.) 312; Landis and even give directions as to evi- V. Lyon, 71 Pa. St. 473; Miller v. dence and the like. Vol. 4 Elliott Ev.— 33 § 3177.] PROCEEDINGS IN EQUITY. 514 specifying the object of inquiry or requiring any specific finding as to particular facts by the jury." § 3177. Effect of verdict. — As the verdict of the jury is merely advisory, where the right of submission to a jury is not given by tbe statute or the constitution, the court may either adopt or reject it according as it appears to be satisfactory and in accordance with the chancellor's views of the evidence or otherwise.^ ^ But it is said that if it is adopted by the court it has the conclusive effect of a final adjudication,^'' although it is also held that the parties are entitled to the opinion of the court itself and that it is error for the court to simply enter a decree on the jury's verdict without exercising any judgment of its own.^° So, although the verdict is regarded as ad- visory rather than binding, it has been held that it is entitled to weight and that the disapproval and finding of the chancellor, con- trary to the verdict may be reviewed on appeal and reversed if there has been an abuse of discretion or the finding is clearly wrong.- ^ "Milk V. Moore, 39 111. 584; Lake Erie &c. R. Co. v. Griffin, 92 Ind. 487; Hulley v. Chedic, 22 Nev. 127, 36 Pac. 783, 58 Am. St. 729; Brew- ster V. Bours, 8 Cal. 501; Hall v. Doran, 6 Iowa 433; Greene v. Har- ris, 11 R. I. 5; see also, Dunn v. Dunn, 11 Mich. 284; Brandt v. Wheaton, 52 Cal. 430. ^* Henry v. Mayer, (Ariz.) 53 Pac. 590; Hinkle v. Hinkle, 55 Ark. 583, 18 S. W. 1049; Moore v. Copp, 119 Cal. 429, 51 Pac. 630; McDonald v. Thompson, 16 Colo. 13, 26 Pac. 146; Brady v. Yost, 6 Idaho 273, 55 Pac. 542; Biggerstaff v. Biggerstaff, 180 111. 407, 54 N. E. 333; Brundage v. Deschler, 131 Ind. 174, 29 N. E. 921; Acker v. Leland, 109 N. Y. 5, 15 N. E. 743; Arnold v. Sinclair, 12 Mont. 248, 29 Pac. 1124; Wilson v. Wilson, 142 Pa. St. 572, 21 Atl. 985; Lowe v. Traynor, 6 Coldw. (Tenn.) 633; Hull V. Watts, 95 Va. 10, 27 S. E. 829; Powers v. Large, 75 Wis. 494, 43 N. W. 1120, 17 Am. St. 195; Clyde V. Richmond &c. Co., 18 C. C. A. 467, 72 Fed. 121; Kohn v. Mc- Nulta, 147 U. S. 238, 13 Sup. Ct. 298, and other authorities cited ante, § 3175, notes 7, 8. ^^ Clink V. Thurston, 47 Cal. 21; Wilson V. Ward, 26 Colo. 39, 56 Pac. 5.3; Kammermeyer v. Hilz, 116 Wis. 313, 92 N. W. 1107. But see, Saylor v. Hicks, 36 Pa. St. 392. Compare, Peckham v. Armstrong, (R. I.) 40 Atl. 419. =" Fisher v. Carroll, 46 N. Car. 27. See also, McNaughton v. Osgood, 114 N. Y. 574, 21 N. E. 1044; Brownlee V. Martin, 21 S. Car. 392; Farmers' Bank v. Butterfield, 100 Ind. 229; Vickers v. Buck Stove &c. Co., 65 Kans. 97, 68 Pac. 1081. =1 Miller v. Wills, 95 Va. 337, 28 S. E. 337; Grigsby v. Weaver, 5 x^eigh (Va.) 197; Humphreys v. Ward, 74 N. Car. 784; McDaniel v. Marygold, 2 Iowa 500, 65 Am. Dec. 786; Orgain v. Ramsay, 3 Humph. (Tenn.) 580. But see, F. Meyer Boot &c. Co. V. Shenkberg Co., 11 S. Dak. 620, 80 N. W. 126. 515 COMPKTI-XCY — TAKING TESTIMONY. [§ 3178. § 3178. Competency — Mode of taking testimony and makin|; proof. The same rules as to competency apply, in general, in equity as at law." But when interest was a disqualification the courts of equity were sometimes more inclined to hear interested parties than were the courts of law. It is provided by acts of Congress that in the courts of the United States no witness shall be excluded in any ac- tion on account of color, or in any civil action, because he is a party to or interested in the issue tried. But in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with or state- ment by the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. In all other respects it is provided that the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States in trials at common law and in equity and admiralty.^^ It is also provided that the mode of proof in causes of equity and of admiralty and maritime jurisdiction shall be according to rules now or hereafter prescribed by the Supreme Court, except as herein especially pro- vided.^* And in a more recent statute there is a provision to the effect that in addition to the mode of taking the depositions of wit- nesses in causes pending at law or equity in the district and circrat courts of the United States, it shall be lawful to take the depositions or testimony of witnesses in the mode prescribed by the laws of the state in which the courts are held.-° The section providing that the practice, pleadings, forms and modes of proceeding in the courts of the United States in civil causes at law shall conform as near as may be to those of the state courc does not apply to equity cases, and it has been held that although depositions of the adverse parties "Foster Fed. Pr., § 274, citing ==•27 Stat, at Large 7; U. S. Comp. Cornett v. Williams, 20 Wall. (U. St. 1901, p. C64. Depositions may S.) 226. also be taken de bene esse. U. S. "U. S. Rev. Stat, §§ 858, 1977. Rev. Stat, § 863, et seq.; 1 Story James v. Atlantic &c. Co., 3 Cliff. Eq. PI., § 307; Foster Fed. Pr., (U. S.) 614; De Beaumont v. Web- §§ 278, 280. Or to perpetuate testl- ster, 71 Fed. 226, 81 Fed. 535. mony, Foster Fed. Pr., § 279, et =*U. S. Rev. Stats., § 862. Hanks seq.; U. S. Rev. Stat. § 866, et seq.; Dental Assn. v. International Tooth 2 Desty Fed. Proc, § 385, et seq. Crown Co., 194 U. S. 303, 24 Sup. Ct 700. § 3179.] PROCEEDINGS IN EQUITY. 516 are taken "as under cross-examination" pursuant to a state statute, yet by so doing the party taking and using such depositions made the adverse parties his own witnesses, and, while not concluded by their evidence, cannot properly contend in a United States court, that they were unworthy of credit.^® Under the old chancery practice, the evidence and the proceedings generally were required to be made part of the record^^ and the evidence was taken secretly on commis- sion or before an examiner, and not viva voce in open court, and was not made public until publication passed.^^ But, while evidence is still usually taken more often before an examiner or by depositions than viva voce in open court, yet witnesses are now sometimes ex- amined orally and even in open court at the hearing. The matter is largely regulated by statutes. The tendency is to do way to a greater or less degree with the old distinctions between the manner of making proof in equity and that of making proof or taking testi- mony at law, especially in regard to taking depositions.^® § 3179. United States equity rules. — Pursuant to the authority vested in the Supreme Court of the United States, rules of practice for the courts of equity of the United States have been promulgated by that court. In the main they follow closely the practice of the English chancery courts, and one of the rules provides that in so far as the rules prescribed by the United State Supreme Court or by the circuit courts, not inconsistent therewith, do not apply, tJie practice of the High Court of Chancery in England shall furnish analogies to regulate the practice.^^ In so far as these rules relate to evidence and the practice in taking testimony and making proof, the substance of all that are deemed important will be stated in the following sections. 2«Dravo v. Fabel, 132 U. S. 487, 10 Am. Dec. 187; Maher v. Bull, 39 111. Sup. Ct. 170. 531; Wallen v. Cummings, 187 111. "See, Mason v. Bair, 33 111. 194; 451, 58 N. E. 1095; Blease v. Gar- Smith V. Newland, 40 111. 100; Ben- lington, 92 U. S. 1. nett V. Welch, 15 Ind. 332; Cham- =° U. S. Eq. Rule 90. So in Flor- bers V. Cochran, 18 Iowa 159; Mc- Ida, Long v. Anderson, (Fla.) 37 So. Intyre v. Ledward, Smed. & M. Ch. 216, 219; Kahn v. Weinlander, 39 (Miss.) 91. Fla. 210, 22 So. 653. There are also -^ See, 2 Daniell Ch. Fr. (1st ed.), other States that adopt the practice c. 20; 1 Daniell Ch. Pr. (6th ed.) in the United States courts of 837, et seq., 945, 946. equity so far as applicable, and the -^ See, Kelly v. Wayne Co. Cir. practice of the High Court of Chan- Judge, 90 Mich. 264, 51 N. W. 278; eery, in other respects, so far as ap- Payne v. Danley, 18 Ark. 441, 68 plicable. 517 UNITED STATES RULE TAKING TESTIMONY. [§§ 3180, 3181. §3180. United States equity rules — Answer as evidence.— If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specific interrogatories, the answer of the defendant, thougn under oath, except such part thereof as shall be directly responsive to such inter- rogatories, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only ; but it may be used as an affidavit, with the same effect as heretofore, on a motion to grant or dissolve an injunction, or on any other incidental motion in the cause; but this shall not prevent a defendant from becoming a wit- ness in his own behalf under section three of the act of Congress of July 2, 1864." § 3181. United States equity rules — Commissibn to take testi- mony — Oral hearing. — After the cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interrogatories, filed by the party taking out the same in the clerk's office, ten days'. notice thereof being given to the adverse party to file cross-interroga- tories before the issuing of the commission ; and if no cross-interroga- tories are filed at the expiration of the time, the commission may issue ex parte. In all cases the commissioner or commissioners may- be named by the court or by a judge thereof; and the presiding judge of the court exercising jurisdiction may, either in term time or in vacation, vest in the clerk of the court general power to name com- missioners to take testimony. Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be specially appointed by the court. The examiner, if he so request, shall be furnished with a copy of the pleadings. Such examination shall take place in the presence of the parties or their agents by their counsel or solicitors, and the witnesses shall be sub- ject to cross-examination and re-examination, all of which shall be conducted as near as may be in the mode now used in common-law courts. The depositions taken upon such oral examination shall be reduced to writing by the examiner in the form of question put and answer given; provided that, by consent of parties, the examiner ''Amendment to U. S. Eq. Rule an answer as evidence will be fully 41. See, 13 Wall. XI. The effect of considered in subsequent sections. § 3181.] PROCEEDINGS IN EQUITY. 518 may take down the testimony of any witness in the form of narrative. At the request of either party, with reasonable notice, the deposition of any witness shall, under the direction of the examiner, be taken down either by a skillful stenographer or by a skillful typewriter, as the examiner may select, and, when taken stenographically, shall be put into typewriting or other writing; provided, that such sten- ographer or typewriter has been appointed by the court, or is ap- proved by both parties. The testimony of each witness, after such reduction to writing, shall be read over to him and signed by him in the presence of the examiner and of such of the parties or counsel as may attend; provided, that if the witness shall refuse to sign his deposition so taken, then the examiner shall sign the same, stat- ing upon the record the reasons, if any, assigned by the witness for such refusal. The examiner may, upon all examinations, state any special matters to the court as he shall think fair; and any question or questions which may be objected to shall be noted by the examiner upon the depositions, but he shall not have power to decide on the competency, materiality, or relevancy of the questions ; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions or parts of them, as may be just. In cases of refusal of witnesses to attend, to be sworn, or to answer any ques- tion put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. Notice shall be given by the respective counsel or solicitors to the opposite counsel or solicitors, or parties, of the time and place of the examination, for such reasonable time as the ex- aminer may fix by order in each cause. When the examination of witnesses before the examiner is concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record in the same mode as prescribed in section 865 of the revised statutes. Testi- mony may be taken on commission in the usual way by written inter- rogatories and cross-interrogatories, on motion to the court in term time, or to a judge in vacation, for special reasons satisfactory to the court or judge. Where the evidence to be adduced in a cause is to be taken orally, as before provided, the court may, on motion of either party, assign a time within which the complainant shall take his evidence in support of the bill, and a time thereafter within which the defendant shall take his evidence in defense, and a time thereafter within which the complainant shall take his evidence in 519 TAKING TESTIMONY. [§§ 3182, 3183. reply and no further evidence shall be taken in the cause, unless by agreement of the parties, or by leave of court first obtained, on motion for cause shown. The expense of the taking down of deposi- tions by the stenographer and putting them into typewriting or other writing shall be paid in the first instance by the party calling the witness, and shall be imposed by the court, as part of the costs, upon such party as the court shall adjudge should ultimately bear them. Upon due notice given, as prescribed by previous order, the court may at its discretion permit the whole or any specific part of the evidence to be adduced orally in open court, on finel hearing.^^ § 3182. United States equity rules — Deposition under act of Con- fess. — Testimony may also be taken in the cause, after it is at issue, by deposition, according to the acts of congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a cross-examination of the witness, either under a com- mission or by a new deposition taken under the acts of congress, if a court or judge thereof shall, under all the circumstances, deem it reasonable.^* § 3183. United States equity rules — Time allowed for taking tes- timony. — Three months and no more shall l)e allowed for the taking of testimony after the cause is at issue, unless the court or a judge thereof shall, upon special cause shown by either party, enlarge the time; and no testimony taken after such period shall be allowed to be read in evidence at the hearing. Immediately upon the return of the commissions and depositions containing the testimony into the clerk's office, publication thereof may be ordered in the clerk's office, by any judge of the court upon due notice to the parties, or it may be enlarged, as he may deem reasonable under all the cir- cumstances. But by consent of the parties publication of the testi- mony may at any time pass in the clerk's office, such consent being in writing, and a copy thereof entered in the order book or indorsed upon the deposition or testimony.^* According to the old chancery ^=U. S. Eq. Rule 67 and amend- "'U. S. Eq. Rule 68. ments. See, 139 U. S. 707; 149 U. ^'U. S. Eq. Rule 69. See, Ingle v. S. 793; 12 Sup. Ct. iii. See also, Jones, 9 Wall. (U. S.) 486; West- Sickles V. Gloucester Co., 3 Wall, ern Elec. Co. v. Capital &c. Co., 86 Jr. (U. S.) 186; Clark, In re, 9 Fed. 769; Mackaye v. Mallory, 80 Blatchf. (U. S.) 372. Fed. 256. In Long v. Anderson, §§ 3184, 3185.] PROCEEDINGS IN EQUITY. 520 practice the time for taking testimony was closed by getting an order passing publication, which usually had to be preceded by a rule to produce witnesses.^^ But now in England as well as in most of the states the time is fixed by statute or rule. As a general rule evi- dence should not be taken before there is an issue, and the cause is ready for proof,^*' and if taken after the time limited, a deposition will generally be suppressed or excluded, unless the time has been extended.^ ^ But the court may generally extend the time for good cause.^* § 3184. United States equity rules — Form of last interrogatory. The last interrogatory in the written interrogatories to take testi- mony, now commonly in use, shall in the future be altered, and stated in substance, thus: "Do you know, or can you set forth any other matter or thing which may be a benefit or advantage to the parties at issue in this cause, or either of them, or that may be ma- terial to the subject of this your examination, or the matters in ques- tion in this cause? If yea, set forth the same fully and at large in your answer."^" § 3185. United States equity rules — On reference to master^ Upon a reference to a master it shall be the duty of the master, as soon as he reasonably can, after the same is brought before him, to assign a time and place for proceedings in the same, and to give (Fla.) 37 So. 216, it is held that (Va.) 730; Hamersly v. Lambert, 2 while it is ordinarily within the Johns. Ch. (N. Y.) 433; Wood v. discretion of the lower court to give Mann, 2 Sumn. (U. S.) 316, 30 Fed. or refuse further time, yet this dis- Cas. No. 17953. oration may be reviewed on appeal, =* Magbee v. Kennedy, 26 Fla. 158, and, under the circumstances of 7 So. 529; Warren v. Bunch, 80 Ga. that case the refusal to extend the 124, 7 S. E. 270; Becker v. Saginaw time was held to be error. In some Cir. Judge, 117 Mich. 328, 75 N. W. states the time is fixed at four 885; Mechanics Labor Sav. Bank, months. See, Hart v. Bloomfield, 66 In re, 10 N. J. L. J. 112; Shea's Ap- Miss. 100, 5 So. 620; Rather v. Wil- peal, 121 Pa. St. 203, 15 Atl. 629, 1 liams, 94 Tenn. 543, 29 S. W. 898. L. R. A. 422; Ingle v. Jones, 9 Wall. ^=1 Daniell Ch. Pr. (6th ed.) 946. (U. S.) 486; Coon v. Abbott, 37 Fed. ="" Harris v. Moore, 72 Ala. 507. 98. ^^Call V. Perkins, 68 Me. 158; Ab- =' U. S. Eq. Rule 71. See also, bott V. Alsdorf, 19 Mich. 157; Wen- Rhoades v. Selin, 4 Wash. (U. S.) ham V. Switzer, 48 Fed. 612; Woos- 715; Dodge v. Israel, 4 Wash. (U. ter V. Clark, 9 Fed. 854. See also, S.) 323. Richardson v. Duble, 33 Gratt. 521 PROCEEDINGS BEFORE MASTER. [§§ 3186, 3187. due notice thereof to each of the parties or their solicitors; and if either party shall fail to appear at the time and place appointed, the master shall be at liberty to proceed ex parte, or, in his discretion, to adjourn the examination and proceedings to a future day, giving notice to the absent party or his solicitor of such adjournment; and it shall be the duty of the master to proceed with all reasonable dili- gence in every such reference, and with the least practicable delay, and either party shall be at liberty to apply to the court, or a judge thereof, for an order to the master to speed the proceedings and to make his report, and to certify to the court or judge the reasons for any delay.'*" § 3186. United States equity rules — Proceedings before master. The master shall regulate all the proceedings in every hearing before him, upon every such reference; and he shall have full authority to examine the parties in the cause, upon oath, touching all matters con- tained in the reference; and also to require the production of all books, papers, writings, and other documents applicable thereto; and also to examine on oath, viva voce, all witnesses produced by the parties before him, and to order the examination of other witnesses to be taken, under a commission to be issued upon his certificate from the clerk's office, or by deposition, according to the acts of congress, or otherwise, as hereinafter provided ; and also to direct the mode in which the matters requiring evidence shall be proved before him; and generally to do all other acts and direct all other inquiries and proceedings in the matter before him, which he may deem necessary and proper to the justice and merits thereof and the rights of the parties.^^ §3187. United States equity rules — Witnesses before master or examiner. — Witnesses who live within the district may, upon due notice to the opposite party, be summoned to appear before the com- missioner appointed to take testimony, or before a master or ex- aminer appointed in any cause, by subpoena in the usual form, which may be issued by the clerk in blank and filled up by the party pray- ing the same, or by the commissioner, master, or examiner, roquir- ^U. S. Eq. Rule 75. See also, " U. S. Eq. Rule 77. See authori- Foote V. Silsby, 3 Blatchf. (U. S.) ties cited under Rule 75, supra. 507; Consolidated Fastener Co. v. Columbian &c. Co., 85 Fed. 54. §§ 3188-3191.] PROCEEDINGS IN EQUITY. 522 ing the attendance of the witnesses at the time and place specified, who shall be allowed for attendance the same compensation as for attendance in court; and if any witness shall refuse to appear or to give evidence, it shall be deemed a contempt of the court, which, being certified to the clerk's office by the commissioner, master, or examiner, an attachment may issue thereupon by order of the court or of any judge thereof, in the same manner as if the contempt were for not attending, or for refusing to give testimony in the court. But nothing herein contained shall prevent the examination of wit- nesses viva voce when produced in open court, if the court shall, in its discretion, deem it advisable.*^ § 3188. United States equity rules — Affidavits and documents. All affidavits, depositions, and documents which have been previously made, read or used in the court, upon any proceeding in any cause or matter, may be used before the master.*^ § 3189. United States equity rules — Examination of creditor or claimant. — The master shall be at liberty to examine any creditor or other person coming in to claim before him, either upon written in- terrogatories or viva voce, or on both modes, as the nature of the case may appear to him to require. The evidence upon such examinations shall be taken down by the master, or by some other person by his order and in his presence, if either party requires it, in order that the same may be used by the court if necessary.** § 3190. United States equity rules — Accounts — Production — Ex- amination of party. — All parties accounting before a master shall bring in their respective accounts in the form of debtor and cred- itor; and any of the other parties who shall not be satisfied with the accounts so brought in shall be at liberty to examine the accounting party, viva voce, or upon interrogatories in the master's office, or by deposition, as the master shall direct.*^ § 3191. United States equity rules — Master's report — Exceptions. The master, as soon as his report is ready, shall return the same into the clerk's office, and the day of the return shall be entered by *^U. S. Eq. Rule 78. See, Erie R. *' U. S. Eq. Rule 80. Co. V. Heath, 8 Blatchf. (U. S.) " U. S. Eq. Rule 81. See, Story v. 413; Gass v. Stinson, 2 Sumn. (U. Livingston, 13 Pet. (U. S.) 359. S.) 605. *'U. S. Eq. Rule 79. 523 SOURCE OF EVIDENCE PLEADINGS. f§§ 3192, 3193. the clerk in the order book. The parties shall have one month from the time of filing the report to file exceptions thereto; and if no ex- ceptions are within that period filed by either party, the report shall stand confirmed on the next rule day after the month is expired. If exceptions are filed they shall stand for hearing before the court, if the court is then in session ; or, if not, then at the next sitting of the court which shall be held thereafter by adjournment or otherwise.*'^ § 3192. Sources of evidence in equity. — "The sources of evidence in equity," says Professor Greenleaf, "are principally four: namely, first, the intelligence of the court, or the notice which it Judicially takes of certain things, and the things which it presumes; secondly, the admissions of the parties contained in their pleadings and agree- ments; thirdly, documents; and fourthly, the testimony of wit- nesses."*^ The first of these has already been sufficiently considered in the first volume of this work. The others, so far as they are not already sufficiently treated or have peculiar features in equity, will be considered in this part of the work. §3193. Admissions generally — Pleadings. — Admissions are either actual or constructive. Actual admissions, it is said, are made either in the pleadings or by agreement, and constructive admissions, are those which are implied from a party's act.** The most ordinary instance of a constructive admission, says Daniell, "is where a plea has been put in by a defendant, eitlier to the whole, or part of the bill, in which case the bill, or that part of it which is pleaded to, so far as it is not con- troverted by the plea, is admissible to be true. A plaintiff, there- fore, where he has replied to a plea, may rest satisfied with that ad- mission, and need not go into evidence as to that part of his case which the plea is intended to cover, — unless the plea is a negative plea ; for in that case it will be necessary for him to prove the matter negatived, for the purpose of disproving the plea, in the same manner *«U. S. Eq. Rule 83. See, Shef- Davis, 26 C. C. A. 675, 81 Fed. 907; field &c. Co. v. Gordon, 151 U. S. Pewabie Min. Co. v. Mason, 145 U. 285, 14 Sup. Ct. 343; Garretson v. S. 349, 12 Sup. Ct. 887. Clark. 15 Blatchf. (U. S.) 70; St. ■'■3 Greenleaf Ev.. § 268. "Evi- Colombe v. United States, 7 Pet. dence consists of admissions upon (U. S.) 625; Gay Mfg. Co. v. Camp, the record, documents, and the tes- 15 C. C. A. 67, 68 Fed. 67; Central timony of witnesses." Foster Fed. Trust Co. V. Georgia Pac. R. Co.. 83 Pr., § 264. Fed. 386; Farrar v. Bernheim, 21 C. ^* Foster Fed. Pr., §§ 265, 266. C. A. 136, 75 Fed. 136; Burke v. § 3193.] PROCEEDINGS IN EQUITY. 524 as he may enter into evidence, for the purpose of disproving matter which has been pleaded affirmatively."*'^ So, allegations of facts in a bill are admissions in favor of the defendant of the facts so al- leged, and, therefore, need not be proved by other evidence ; for, , whether they are true or not, the plaintiff, by averring them in his " bill, and making them part of the record, thereby admits that they are true at least for the purposes of the particular case. The bill may be read as evidence, for the defendant, of any of the facts therein positively averred.^" But the defendant's right to read the plaintiff's bill as evidence against him, according to the old chancery practice is confined to the bill as it stands on the record. If the bill has been amended, the amended bill being the only one upon the record, the defendant has in general no right to read the original bill in evi- denced^ Where, however, the amendment has altered the effect of the answer to the original bill, or rendered it obscure, the defendant has a right, or at least may be permitted, to read the original bill for the purpose of explaining the answer. ^^ Although a plaintiff, by his replication, denies the truth of the whole of the defendant's an- ;' swer, he does not thereby preclude himself from reading whatever " portion of it he thinks will support his case, — unless the answer is that of an infant.^^ Indeed, express admissions in an answer, in the absence of mistake, may be conclusive against the defendant.^* And it may be used against the defendant as an admission even though it ^n Daniell Ch. Pr. 837. 22 S. W. 1002; Buzard v. MeAnulty, ^"Ives V. Medcalfe, 1 Atk. 63, 65. 77 Tex. 438, 14 S. W. 138; but as See, Hart v. Ten Eyck, 2 Johns. Ch. shown in some of the authorities (N. Y.) 62, 91; Beech v. Haynes, 1 above cited, and in many others Tenn. Ch. 569, 576. cited in Vol. I, § 236, original plead- "1 Daniell Ch. Pr. 839. See also, ings, although withdrawn or Callan v. McDaniel, 72 Ala. 96; 3 amended, may often be introduced Greenleaf Ev., § 275. in evidence in most jurisdictions as °^ Fitzgerald v. O'Flaherty, 1 Moll, admissions in the same cause, 347; Hales v. Pomfret, Dan. Exch. though not conclusive. See also, 141; Steuart v. Gladstone, 10 Ch. Soaps v. Eichberg, 42 HI. App. 375. Div. 626, 644; Smith v. Davidson, 41 The bill is generally held compe- Fed. 172. See also, Hurst v. Jones, tent if signed and verified by the 10 Lea (Tenn.) 8; Kankakee &c. party. Callan v. McDaniel, 72 Ala. R. Co. v. Horan, 131 111. 288, 23 N. 96; Robbins v. Butler, 24 111. 387; E. 621; Fleischmann v. Stern, 90 N. see also, Wadsworth v. Duncan, 164 Y. 110; Brown v. Pickard, 4 Utah 111. 360, 45 N. E. 435. 292, 9 Pac. 573; Bailey v. O'Ban- "See, 1 Daniell Ch. Pr. 169, 839, non, 28 Mo. App. 39; Wheeler v. 840. West, 71 Cal. 126, 11 Pac. 871; Bax- "^^ Marsh v. Mitchell, 26 N. J. Eq. ter V. New York &c. R. Co., (Tex.) 497; Home Ins. Co. v. Myer, 93 111. .■525 ADMISSIONS BY AGREEMENT. [§ 319-i. is not verified.^'^ But the defendant is usually entitled to have it taken as an entirety.^** § 3194. Admissions by agreement. — Admissions by agreement be- tween the parties are said to be "those which, for the sake of saving expense or preventing delay, the parties, or their solicitors, agree upon between themselves. Admissions of this description depend entirely upon the circumstances of each case, and little can now be said respecting them beyond drawing to the practitioner's notice the necessity there exists that they should be clear and distinct. In gen- eral, they ought to be in writing and signed either by the parties or their solicitors; and the signature of the solicitor employed by the party is considered sufficient to bind his principal, the court in- ferring that he had authority for that purpose. It does not, how- ever, appear to be necessary that an agreement to admit a particular fact should be in writing."" In some jurisdictions, however, either by statute, rule of court, or the settled practice, the agreement or -stipulation must be in writing, and, in some instances, filed or other- wise made part of the record. Admissions are also sometimes made in open court to avoid the necessity of proving on the trial the facts admitted. Such admissions as the latter stand as absolute proof upon such trial and no evidence to the contrary will, ordinarily, be heard.^® The general subject of admissions by parties and others has already been fully treated.^^ 271; Robinson v. Philadelphia &c. "1 Daniell Ch. Pr. 848. See also, R. Co., 28 Fed. 57 7. The answer as Laing v. Raine, 2 B. & P. 85; Mar- evidence will hereafter be consid- shall v. Cliff, 4 Campb. 133; Young ered, but see also as to admissions v. Wright, 1 Campb. 139. See gen- therein. Wills v. McKinney, 30 N. erally, Vol. I, § 256. J. Eq. 465; Manley v. Mickle, 55 N. '^^ Lyman v. Kansas City &c. R. J. Bq. 563, 37 Atl. 738; Potter v. Co., 101 Fed. 636; Hearne v. De Potter, 1 Ves. Sr. 274; Royall v. Young, 111 Cal. 373, 43 Pac. 1108; McKenzie, 25 Ala. 363; Daub v. Rockwell v. Graham, 9 Colo. 36, 10 Englebach, 109 111. 267; McNutt v. Pac. 284; Wineteer v. Simonson, 75 Dare, 8 Bl'ackf. (Ind.) 35. HI. App. 653; Farmers' Bank v. "Daub v. Englebach, 109 111. 267; Sprigg, 11 Md. 389; Blake v. Sawin, Craft V. Schlag, 61 N. J. Eq. 567, 49 10 Allen (Mass.) 340. See also, Atl. 431; Whittemore v. Patten, 81 Thompson v. Thompson, 9 Ind. 323, Fed. 527. 68 Am. Dec. 638. As to whether ■^^ Miller v. Avery, 2 Barb. Ch. (N. they extend to other trials depends Y.) 582; McNutt v. Dare, 8 Blackf. mainly upon the language used and (Ind.) 35; Ormond v. Hutchinson, the proper construction of the ad- 13 Ves. 47; Freeman v. Tatham, 5 mission. See, Vol. I, § 256. Hare 329. '" See, Vol. I, Chap. XI, XII. § 3195.] PROCEEDINGS IN EQUITY. 52G § 3195. Documents — Discovery. — The subject of documentary evi- dence and the production, inspection and authentication of docu- ments has been fully treated in another volume of this Avork,^° It will, therefore, be sufficient in this chapter to call attention to par- ticular rules in equity in regard to proving documents and using them as evidence. The subject of discovery has also been consid- ered,®^ and it has been shown that in most jurisdictions there is no longer any necessity to resort to the old equity bill of discovery. It was also pointed out in the same connection that there is much con- flict among the authorities as to whether the statutory mode is ex- clusive or merely cumulative, but this phase of the subject was not fully treated. In a few jurisdictions it is expressly provided that the remedy by bill of discovery shall still remain, and in others it is ex- pressly abrogated. A majority of the statutes, however, contain no express provision upon the subject. The weight of authority in the state courts and in England is to the effect that they are merely cumulative and do not take away the jurisdiction in equity to proceed by bill of discovery.*'- But there are decisions of some courts of high standing to the contrary.''^ The federal decisions are likewise con- flictins:.*'^ =° See, Vol. II, chap. 59-70. ^1 See Vol. II, chap. 55. "-Wood V. Hudson, 96 Ala. 469, 11 So. 530; Handley v. Hefim, 84 Ala. 600, 4 So. 725; Semple v. Murphy, 8 B. Mon. (Ky.) 271; Union Pass. R. Co. V. Baltimore, 71 Md. 238, 17 Atl. 933; Post v. Toledo &c. R. Co., 144 Mass. 341, 13 N. E. 540, 59 Am. R. 86; Millsaps v. Pfeiffer, 44 Miss. 805; Northrop v. Flaig, 57 Miss. 754; Reynolds v. Burgess Sulphite Fibre Co., 71 N. H. 332, 51 Atl. 1075, 93 Am. St. 535, 57 L. R. A. 949; Wheeler v. Wadleigh, 37 N. H. 55; Miller v. U. S. Casualty Co., 61 N. J. Eq. 110, 47 Atl. 509; Ames v. New Jersey Franklinite Co., 12 N. J. Eq. 66, 72 Am. Dec. 385; Howell V. Asbmore, 9 N. J. Eq. 82, 57 Am. Dec. 371; Block v. Universal Ins. Co., 16 Phila. 72; Milne's Appeal, (Pa.) 2 Atl. 534; Starkweather v. Williams, 21 R. I. 55, 41 Atl. 1003; Elliston V. Hughes, 1 Head. (Tenn.) 225; Hurricane Tel. Co. v. Mohler, 51 W. Va. 1, 41 S. E. 421; Russell V. Dickeschied, 24 W. Va. 61; Carver v. Pinto Leite, L. R. 7 Ch. App. 90, 41 L. J. Ch. 92, 25 L. T. N. S. 722, 20 Wkly. Rep. 134; Lovell V. Galloway, 17 Beav. 1; Birch V- Mather, L. R. 22 Ch. D. 629, 52 L. J. Ch. 292; Attorney-General v. Gas- kill, L. R. 20 Ch. Div. 519. «^Turnbull v. Crick, 63 Minn. 91,. 65 N. W. 135; Leuthold v. Fair- child, 35 Minn. 99, 27 N. W. 503, 28 iN. W. 218; Bond v. Worley,' 26 Mo. 253; Chapman v. Lee, 45 Ohio St. 356, 13 N. E. 736; Hall v. Joiner, 1 S. Car. 186; Love v. Keowne, 58- Tex. 191; Cargill v. Kountze, 86 Tex. 386, 22 S. W. 1015, 25 S. W. 13, 40 Am. St. 853, 24 L. R. A. 183; Cleveland v. Burnham, 60 Wis. 16,. 17 N. W. 126, 18 N. W. 190. " To the effect that the remedy 527 PROOF OF DOCUMENTS. [§ 3196. §' 3196. Proof of documents. — As a general rule, written instru- ments which do not prove tliemeelves, and the execution of which is not admitted, must be proved by the same evidence in equity as in law.''^ But, in equity, such evidence, where the practice is not changed, is in most instances, taken b}^ deposition or the like in advance of the hearing. It was the practice in chancery, however, to permit proof viva voce at the hearing of the mere execution of an exhibit, not impeached by the pleadings,*^" and the same practice is recognized and adopted in this country.*^^ So, in some instances, where essential documents had for some excusable cause been omitted in taking proofs the courts allowed them to be proved at the hearing. But in such cases an order must first be obtained for that purpose*'® and notice given,''^ and a satisfactory excuse shown for having failed to make the proof in the usual way.'^" As a general rule, however, documents set out or distinctly referred to in the pleadings and ad- mitted,'^ or of such a character that they prove themselves,^' may provided by statutes is merely cumulative see, McMullen Lumber Co. V. Strother, 136 Fed. 295; In- dianapolis Gas Co. V. Indianapolis, 90 Fed. 196; Kelley v, Boettcher, 29 C. C. A. 14, 85 Fed. 55; National &c. Co. V. Interchangeable &c. Co., 83 Fed. 26; Continental Nat. Bank V. Heilman, 66 Fed. 184; Brown v. McDonald, 133 Fed. 897; Bryant v. Leyland, 6 Fed. 125; see also, Slater V. Banwell, 50 Fed. 150; Brown v. Swann, 10 Pet. (U. S.) 497. To the effect that bills of discovery are abolished see, Safford v. Ensign Mfg. Co., 56 C. C. A. 630, 120 Fed. 480; Rindskopf v. Platto, 29 Fed. 130; Heath v. Erie R. Co., 9 Blatchf. (U. S.) 316, 11 Fed. Cas. No. 6307; Preston v. Smith, 26 Fed. 884; see also, Sunset Tel. Co. v. Eureka, 122 Fed. 960. For citations and reviews of many of the conflicting authori- ties upon both sides of the subject, see notes in 24 L. R. A. 183, and 41 Am. St. 389; also, 57 L. R. A. 949; 57 Cent. Law Jour. 209. <»1 Daniell Ch. Pr. 874, 880; Gres- ley Eq. Ev. (Am. Ed.) 118, 119. ''•'Lake v. Skinner, 1 Jac. & W. 9; Rowland v. Sturgis, 2 Hare 520; Wood V. Mann, 2 Sumn. (U. S.) 316; Barfield v. Kelly, 4 Russ. 355, 4 Eng. Ch. 355. «' Hughes v. Phelps, 3 Bibb (Ky.) 198; Wood v. Mann, 2 Sumn. (U. S.) 316, 30 Fed. Cas. No. 17953; Foote V. Lefavour, 6 Ind. 473; Mor- ton V. White, 5 Ind. 338; Pierce v. Prude, 3 Ala. 65; Nick v. Rector, 4 Ark. 251. ^** Bachelor v. Nelson, Walk. (Mich.) 449; Pardee v. De Cala, 7 Paige (N. Y.) 132; Emerson v. Berkley, 4 Hen. & M. (Va.) 441; Chandler v. Neale, 2 Hen. & M. (Va.) 124. °''* Bachelor v. Nelson, Walk. (Mich.) 449; Pardee v. De Cala, 7 2 Johns. Ch. (N. Y.) 481; 1 Daniell Ch. Pr. (6th ed.) 884. "" Bachelor v. Nelson, Walk. (Mich.) 449; Consequa v. Fanning, 2 Johns. Ch. (N. Y.) 481. " Dey V. Dunham, 2 Johns. Ch. (N. Y.) 182. '- Bachelor v. Nelson, Walk. (Mich.) 449; Pardee v. De Cala, 7 ^ 3197.] PROCEEDINGS IN EQUITY. 528 he read at the hearing without order or further proof; but it seems that documents which are not set out or referred to in the plead- ings, although they prove themselves, cannot be so read without at least giving notice of an intention to read them at the hearing.''^ § 3197. Bill as evidence. — As elsewhere shown, a bill may often be read in evidence against the complainant. But it is, ordinarily, not in itself, evidence against the defendant except, perhaps, in certain cases where it is verified and may have the force and efEect of an affidavit.^* No such rule applies to a bill as that which applies to a responsive answer called for and made under oath. But it is said by Professor Greenleaf that "the bill alone may also sometimes be read by the plaintiff, as evidence against the defendant, of his ad- mission of the truth of the matters therein alleged, and not noticed in his answer. The principle, governing this class of cases, is this, that the defendant, being solemnly required to admit or deny the truth of the allegation, has, by his silence, admitted it."" As further said by the same author, however, this doctrine applies only to facts either directly charged to be within the knowledge of the defendant, or which may fairly be presumed to be so."*' If he replies, instead of excepting, he must generally prove the allegations.'^^ There are cases, however, in which the bill may be taken pro confesso, and in such cases the allegations will be taken as admitted.'^^ And where Paige (N. Y.) 132. See, 1 Daniell rett, 1 J. J. Marsh. (Ky.) 212; Ch. Pr. (6th ed.) 862, 884. Tobin v. Wilson, 3 J. J. Marsh. "Miller v. Avery, 2 Barb. Ch. (N. (Ky.) 63; Pierson v. Meaux, 3 A. Y.) 582; Kellogg v. Wood, 4 Paige K. Marsh. (Ky.) 4. (N. Y.) 578. See also, Bennett v. "Cochran v. Couper, 1 Harr. Welch, 15 Ind. 332; Crist v. Bra- (Del.) 200; Wilson v. Kinney, 14 shiers, 3 A. K. Marsh. (Ky.) 170; 111. 27; and in Trenchard v. War- Potorf V. Fishback, 2 A. K. Marsh, ner, 18 111. 142; Young v. Grundy, 6 (Ky.) 171; but compare, Barrow v. Cranch. (U. S.) 51, it was said in Rhinelander, 1 Johns. Ch. (N. Y.) general terms that if the answer 550. neither admits nor denies the alle- ^*As on applications for a tem- gations in the bill, they must be porary injunction or the like. proved at the hearing, the distinc- '5 3 Greenleaf Ev., § 276. tion taken in the text not being '"' 2 Daniell Ch. Pr. 977, note by adverted to, as the case did not call Perkins, 5th (Am.) ed.. Vol. I. for it. Thorington v. Carson, 1 Port. •'* McCambell v. Gill, 4 J. J. (Ala.) 257; Kirkman v. Vanlier, 7 Marsh. (Ky.) 87; Atwood v. Harri- Ala. 217; Ball v. Townsend, Litt. son, 5 J. J. Marsh. (Ky.) 329; Hig- Sel. Cas. (Ky.) 325; Mosely v. Gar- gins v. Conner, 3 Dana (Ky.) 1; 529 ANSWER AS EVIDENCE. [§ 3198. the plaintiff reads the defendant's answer in evidence against the de- fendant, the plaintiff may also read so much of the bill as is necessary to explain the answer.^^ But, as observed by Mr. Daniell, in strict- ness this can hardly be called reading the bill in evidence on the part of the plaintiff. § 3198. Answer as evidence for defendant. — It is the general rule that the sworn answer of a defendant in equity, so far as it is re- sponsive to the bill and when called for therein, is evidence for him, and is usually conclusive, unless contradicted by two witnesses, or one witness corroborated more or less strongly by circumstances, according to the nature of the case.*" It is also sometimes stated Jones v. Person, 2 Hawks (N. Car.) 269. "In these cases, however, if there is no general order on the subject, it is usual to make a spe- cial order, that unless an answer is made within a certain time, the bill will be taken pro confesso." See, Cory v. Gertcken, 2 Madd. 40; 1 Daniell Ch. Pr. 569-577, 5th Am. ed. 518-525; 1 Hoffman Ch. Pr., chap. 6, pp. 184-190; 1 Daniell Ch. Pr. (6th ed.) 531, 838. "M'Gowen v. Young, 2 Stew. & P. (Ala.) 160, 176; 1 Daniell Ch. Pr. (6th ed.) 838; see also, Lancas- ter V. Arendell, 2 Heisk. (Tenn.) 434; Grimes v. Hilliary, 51 HI. App. 641; Walsh v. Agnew, 12 Mo. 520. «°McGary v. McDarmott, 207 Pa. St. 620, 57 Atl. 46; Campbell v. Pat- terson, 95 Pa. St. 447; Nulton's Ap- peal, 103 Pa. St. 286; Rowley's Appeal, 115 Pa. St. 150. 9 Atl. 329; Gleghorne v. Gleghorne, 118 Pa. St. 383, 11 Atl. 797; Mason v. Smith, 200 Pa. St. 270, 49 Atl. 642; Ring- gold V. Bryan, 3 Md. Ch. 488; United States Bank v. Beverly, 1 How. (U. S.) 134; Carpenter v. Providence &c. Ins. Co., 4 How. (U. S.) 185; Vigel v. Hopp, 104 U. S. 441; Morrison v. Durr. 122 U. S. 518, 7 Sup. Ct. 1215; West v. Flannagan, 4 Md. 36; Brooks v. Thomas, 8 Md. 367; Miles v. Miles, 32 N. H. 147; Busby V. Littlefield, 33 N. H. 76; Williams v. Philpot, 19 Ga. 567; Autrey v. Cannon, 11 Tex. 110; Calkins v. Evans, 5 Ind. 441; Tur- ner V. Knell, 24 Md. 55; Clark v. Hackett, 1 Cliff. (U. S.) 269; Hay- ward V. Eliot &c. Bank, 4 Cliff. (U. S.) 294; Slessinger v. Buckingham, 8 Sawy. (U. S.) 569; Delano v. Winsor, 1 Cliff. (U. S.) 501; Bird V. Styles, 3 C. E. Green (N. J.) 297; Morris v. White, 36 N. J. Eq. 324; Frink v. Adams, 36 N. J. Eq. 485; Fulton v. Woodman, 54 Mass. 158; Johnson v. Crippen, 62 Miss. 597; O'Brian v. Fry, 82 111. 274; Hurd V. Ascherman, 117 111. 501, 6 N. E. 160; Croarkin v. Hutchin- son, 187 111. 633, 58 N. E. 678; Heeren v. Kitson, 28 111. App. 259; Rick V. Neitzy, 1 Mackey (D. C.) 21; Coldiron v. Asheville &c. Co., 93 Va. 364, 25 S. E. 238; Thompson v. Clark, 81 Va. 422; Cummins v. Cummins, 15 111. 33; Reid v. Mc- Callister, 49 Fed. 16; Pinney v. Pinney, (Fla.) 35 So. 95; but this rule is abrogated or modified in some jurisdictions, especially in many of the code states. Vol. 4 Elliott Ev. — 34 § 3198.] PROCEEDINGS IX EQUITY. 530 that the corroborating circumstances must be equivalent to the testi- mony of a second witness.'^^ But there are cases in which it is held with good reason that, in some instances, the answer may be over- come by documentary evidence, or admissions or even circumstantial evidence. ^^ And there is much force in the reasoning of the Ver- mont court upon this subject. Thus, in one case it is said : "The general rule in equity upon this subject, as has often been declared, is that two witnesses, or evidence equal to that of two witnesses, is required to overcome the sworn answer of the defendant re- sponsive to the bill. Other authorities say the rule requires one witness with corroborating circumstances. The rule has its basis in the fact that the answer is called out by the orator for his own use. If it admits the fact charged in the bill to be true the orator adopts this admission as sufficient proof of the fact. If the answer denies the fact charged the orator is left to establish it by other means, if he can, and at the same time the denial is evidence for the de- fendant. . . . But the rule as often announced respecting the effect of the answer as proof is, we think, misleading, as a careful examination of the authorities will show. The weight of evidence does not depend upon the number of witnesses that depose to give facts. The burden of proof, when an answer is responsive to the bill, devolves upon the orator to satisfy the trier that such answer is untrue; but this burden may sometimes be discharged by documentary proof or circumstantial evidence without the deposition of any wit- ness testifying to the facts set out in the bill. It is obvious that a sworn answer responsive to the bill stands as the deposition of one witness, and, if encountered by one witness testifying in contradic- tion, and no circumstances appear affecting the case, no preponder- ance of proof is made out on either side, and the orator must fail ^^See, Croarkin v. Hutchinson, v. Latta, 5 Mackey (D. C.) 304, 60 187 111. 633, 58 N. E. 678; Galbraith Am. R. 373; Jones v. Abraham, 75 V. Galbraith, 190 Pa. St. 225, 42 Atl. Va. 466; Parker v. Phetteplace, 2 683; Slessinger v. Buckingham, 8 Cliff. (U. S.) 70, affirmed in 1 Vv'^all. Sawy. (U. S.) 469; Stephens v. Or- (U. S.) 684; Garrett v. Garrett, 29 man, 10 Fla. 9; Morrison v. Durr, Ala. 439; Gillett v. Robbins, 12 Wis. 122 U. S. 518, 7 Sup. Ct. 1215; 319. Where, in addition to testi- Evans v. Evans, (N. J. Eq.) 59 Atl. mony against a responsive answer, 564. there are corroborative circum- *^ Field V. Wilbur, 49 Vt. 157; stances in evidence, a decree for the Robinson v. Hardin, 26 Ga. 344; plaintiff may be sustained. Gunda- White V. Crew, 16 Ga. 416; Jones v. ker v. Ehrgott, 209 Pa. St. 284, 58 Belt, 2 Gill (Md.) 106; Kilbourn Atl. 476. 531 LIMITATIONS OF ANSWER AS EVIDENCE. [§ 3199. because the burden of proof is upon him. But tlio answer considered as evidence is to be weighed precisely as it would be if it appeared in a deposition disconnected from the defendant's pleading; and the fact that the defendant is interested in the event of the suit has the same effect in discrediting his story that it does in an ordi- nary case of law. Again, if the answer is evasive or equivocating, it lessens its force as evidence precisely as such circumstances impair the story of a witness told on the witness stand. In short, the answer, when used as evidence, is subject to the same proper criti- cism and the same legal infirmities that attach to all evidence in whatsoever form it is introduced in court. All that the orator is bound to do is to meet and overcome the answer by competent proof. This proof may require one or twenty witnesses; it may be made without any."*^ § 3199. Answer as evidence for defendant — ^Limitations and ex- ceptions. — There are certain limitations or exceptions to the general rule in equity making the answer of the defendant evidence for himself, which will be considered in this and the following sections. It is the prevailing doctrine in the United States that the rule is not applicable to an unsworn answer, no matter whether an answer under oath is required by the bill or not, the rule apparently being otherwise in England.®* So, in most jurisdictions, if an answer under oath is expressly waived in the bill an answer that is sworn to cannot be used by the defendant as evidence in his favor any more than an unsworn answer.®^ It has even been said that if not '^Veile V. Blodgett, 49 Vt. 270, son v. Towle, 36 N. H. 129; Willen- 277; see also, Deimel v. Brown, Ibti borg v. Murphy, 36 111. 344; Good- Ill. 586, 27 N. B. 44; McLane v. win v. Bishop, 145 111. 421, 34 N. E. Johnson, 59 Vt. 237, 9 Atl. 837; 47; Hyer v. Little, 20 N. J. Eq. 443; Field V. Wilbur, 49 Vt. 157; White Craft v. Sahlag, 61 N. J. Eq. 567, V. Crew, 16 Ga. 416. 49 Atl. 431; Story Eq. PI., § 875, ^* Union Bank v. Geary, 5 Pet. (U. et seq. S.) 99; Patterson v. Gaines, 6 How. ^Treadwell v. Lennig, 50 Fed. (U. S.) 550, 586; Bartlett v. Gale, 4 872; Clay v. Towle, 78 Me. 86, 2 Paige (N. Y.) 503; Willis v. Hen- Atl. 852; Peter v. Wright, 6 Ind. derson, 4 Scamm. (111.) 13; Peck 183; Bickerdike v. Allen, 157 111. V. Hunter, 7 Ind. 295; Tomlinson v. 95, 41 N. E. 740, 29 L. R. A. 782; Lindley, 2 Ind. 569; Smith v. Morrison v. Hardin, 81 Miss. 583, Phelps, 32 Iowa 537; McLard v. 33 So. 80; see also. Sweet v. Par- Linnville, 10 Humph. (Tenn.) 163; ker. 22 N. J. Eq. 453; Ayer v. Messef, Taggart v. Boldin, 10 Md. 104; Wil- 59 N. H. 279; Miller v. Avery. 2 § 3199.] PROCEEDIXGS IX EQUITY. 532 called for under oath it is not evidence of the facts therein stated.^® But this seems to be a loose or incorrect way of stating the limita- tions, at least as it exists in most jurisdictions. As said in a recent case by the Supreme Court of the United States: "The bill neither required nor waived an answer under oath, but the defendant an- swered under oath, traversing all the averments of the bill, upon which the prayer for relief was based. The answer, though not called for under oath, is evidence on behalf of the defendant. For, if a plaintiff in equity is unwilling that the answer should be evidence against him, he must expressly waive the oath of the defendant in his bill. . . . If he fails to do this, the answer must be given under oath and is evidence."^^ There are also other limitations. In order to enable the defendant to claim the benefit of the general rule, the facts stated in the answer must be responsive to the allega- tions and interrogatories of the bill, and the answer must be positive and distinct, and not evasive and illusory.*^ So, where the facts stated or denied in the answer could not possibly be within the personal knowledge of the defendant, as sometimes happens in the case of an executor or heir, or the like or where they are stated or denied only upon information and belief, or by way of inference from facts not particularly stated, the same amount of counter- Barb. Ch. (N. Y.) 582; Bingham v. Cole v. Shetterly, 13 111. App. 420; Yeomans, 10 Cush. (Mass.) 58; Stouffer v. Machen, 16 111. 553; Watts V. Eufaula Nat. Bank, 76 Wakeman v. Grover, 4 Paige (N. Y.) Ala. 474. At least it has no more 23; Lucas v. Bank of Darien, ^ probative force than an affidavit. Stew. (Ala.) 280; Kellogg v. Singer United States v. Workingmen's &c. &c. Co., 35 Fla. 99, 17 So. 68; New Council, 54 Fed. 994; see and com- England Bank v. Lewis, 8 Pick, pare, Vanderzer v. McMillan, 28 Ga. (Mass.) 113; Phillips v. Richardson, 339; Armstrong v. Scott, 3 Greene 4 J. J. Marsh. (Ky.) 213; Sallee v. (Iowa) 433; Jones v, Abraham, 75 Duncan, 7 T. B. Mon. (Ky.) 382; Va. 466, where there is no such rule Cocke v. Trotter, 10 Yerg. (Tenn.) as to waiving an answer under 212; O'Brien v. Elliot, 15 Me. 125; oath. Buck v. Swazey, 35 Me. 41; Smith v. ^''See, Mankey v. Willoughby, 21 Kincaid, 10 Humph. (Tenn.) 73; D. C. (App.) 314; Clay v. Towle, 78 Jacks v. Nichols, 1 Seld. (N. Y.) Me. 86, 2 Atl. 852. 178; Stevens v. Post, 1 Beas. Eq. (N. "Conly V. Nailer, 118 U. S. 127, 6 J.) 408; Coleman v. Ross, 46 Pa. Sup. Ct. 1001; see also, Jacobs v. St. 180, 184; Wells v. Houston, 37 Van Sickle, 61 C. C. A. 598, 127 Fed. Vt. 245; Veile v. Blodgett, 49 Vt. 62; Kahn V. Weinlander, 39 Fla. 210, 270; Roach v. Sum-mers, 20 WalL 2z So. 653, 655. (U. S.) 165; Seitz v. Mitchell, 94 ^Barton v. Barton, 75 Ala. 400; U. S. 580. 533 LIMITATIONS OF ANSWER AS EVIDENCE. [§ 3199, vailing proof to overcome the answer is not required.'"' Thus, the answer of a defendant formally denying that which he is not alleged to know, and which from his situation he could not know, has been held not to be conclusive as to require more than one witness on the part of the complainant to establish what is thus denied. ''° So, where the defendant only answers on information and belief, a single witness on the part of the complainant may be sufficient to establish the fact;^^ and the same is held where the answer con- tains no positive denial of material facts distinctly and positively alleged and charged in the bill.^- And so, a denial in an answer *' Combs v. Boswell, 1 Dana (Ky.) 474; Lawrence v. Lawrence, 4 Bibb. (Ky.) 357; Harlan v. Wingate, 2 J. J. Marsh. (Ky.) 138; Carneal's Heirs v. Day, Litt. Sel. Cas. (Ky.) 492; Knickerbacker v. Harris, 1 Paige (N. Y.) 209; Drury v. Con- ner, 6 H. & J. (Md.) 288; Penning- ton V. Gittings, 2 Gill & J. (Md.) 208; Fryrear v. Lawrence, 10 111. 325; Clarke v. Van Riemsdyk, 9 Cranch. (U. S.) 153; Paulding v. Watson, 21 Ala. 279; Copeland v. Crane, 9 Pick. (Mass.) 73; Snell v. Fewell, 64 Miss. 655, 1 So. 908; Toulme v. Clark, 64 Miss. 471, 1 So. 624; Berry v. Sawyer, 19 Fed. 286; Holladay Case, The, 27 Fed. 830; Miller v. District of Columbia, 5 Mackey (D. C.) 291; Blair v. Silver Peak Mines, 84 Fed. 737, 93 Fed. 332; Savings &c. Soc. v. Davidson, 38 C. C. A. 365, 97 Fed. 696; but see, McGehee v. White, 31 Miss. 41. '"Lawrence v. Lawrence, 21 N. J. Eq. 317; Garrow v. Carpenter, 1 Port. (Ala.) 359; Reynolds v. Pharr, 9 Ala. 560; Combs v. Tarlton, 2 Dana (Ky.) 464; Lawrence v. Lawrence, 4 Bibb. (Ky.) 357; Watson v. Pal- mer, 5 Ark. 501, 506; Biscoe v. Coul- ter, 18 Ark. 423; Loomis v. Fay, 24 Vt. 240; Clarke v. Van Riemsdyk, 9 Cranch. (U. S.) 153. These and sim- ilar answers generally have little, if any, effect except to put the case at issue and require the complainant to prove his case. See, Young v. Hopkins, 6 T. B. Mon. (Ky.) 18; Harlan v. Wingate, 2 J. J. Marsh. (Ky.) 138; Brown v. Pierce, 7 Wall. (U. S.) 205, 211, 212; Drury v. Con- ner, 6 H. & J. (Md.) 288; Paulding V. Watson, 21 Ala. 279; Williamson V. McConnell, 4 Dana (Ky.) 454. "' Deimel v. Brown, 136 111. 586, 27 N. E. 44; Knickerbacker v. Harris, 1 Paige (N. Y.) 210; Town v. Need- ham, 3 Paige (N. Y.) 546; Hanchett V. Blair, 41 C. C. A. 76, 100 Fed. 817; Allen V. O'Donald, 28 Fed. 17; Wat- son V. Palmer, 5 Ark. 501; McKis- sick V. Martin, 12 Heisk. (Tenn.) 311; Wilkins v. May, 3 Head (Tenn.) 173; Atlantic &c. Ins. Co. v. Wilson, 5 R. I. 479; McGuffie v. Planters' Bank, Freem. (Miss.) 383; Toulme v. Clark, 64 Miss. 471, 1 So. 624; L(Jomis v. Fay, 24 Vt. 240; Copeland v. Crane, 9 Pick. (Mass.) 73; New Brunswick &c. Co. v. Eden, 62 N. J. Eq. 542, 50 Atl. 606; Gantt V. Cox &c. Co., 199 Pa. St. 208, 48 Atl. 992. "- Benson v. Woolverton, 15 N. J. Eq. 158: Rhea v. Allison, 3 Head (Tenn.) 176, 179; Farnam v. Brooks, 9 Pick. (Mass.) 212; Morse v. Hill, 136 Mass. 60; Le Neve v. Le Neve, 1 Ves. 64. 66; Barraque v. Siter, 9 Ark. 545; Toulme v. Clarke, 64 Miss. 471. 1 So. 624. §§ 3200, 3201.] PROCEEDIXGS IN EQUITY. 534 is of no avail as against a matter conclusively presumed by a rule of law/^ and it must be to some fact rather than a mere inference of law.** § 3200. Answer as evidence for defendant — Rule where complain- ant does not reply — Hearing on bill and answer. — Several of the limi- tations or exceptions considered in the above section are only applicable where the complainant has put in a replication, and taken issue upon the allegations of the answer. Wliere he does not do so, but sets the case down for hearing on bill and answer, he so far waives his rights, and the answer so far as well pleaded is to be taken as true whether responsive or not.^" He, in effect, submits the cause on the contention that he is entitled to a decree as prayed for in his bill, notwithstanding the denials and matters stated in the answer, as, for instance, upon the admission also contained in the answer. §3201. Responsive answers — Illustrative cases. — As already stated where the hearing is upon the bill, answer and replication, in order to have the peculiar efPect given to an answer in equity the an- swer must be responsive. Thus, in a recent case, it is held that an an- swer in equity, although under oath, is not evidence for defendant, in so far as it sets up new facts by way of avoidance of the matters averred in the bill, and that such allegations must be proved by ^= Smallwood v. Lewin, 15 N. J. Eq. nolds, (Md.) 59 Atl. 669; Ware v. 60; Adams v. Adams, 21 Wall. (U. Richardson, 3 Md. 505; Mason v. S.) 185; Commercial &c. Ins. Co. v. Martin, 4 Md. 124; Barton v. Balti- Union Mut. Ins. Co., 19 How. (U. more &c. Alliance, 85 Md. 14, 36 Atl. S.) 318, 319. 658; Perkins v. Nichols, 11 Allen ^Gainer V. Russ, 20 Fla. 157; Rob- (Mass.) 542; Farrell v. McKee, 36 inson v. Cathcart, 2 Cranch. (U. S.) 111. 225; Roach v. Glos, 181 111. 440, 590. 54 N. E. 1022; Eversole v. Maull, 50 *« Reese v. Barker, 85 Ala. 474, 5 Md. 95; Philadelphia's Appeal, 78 So. 305; Cherry v. Belcher, 5 Stew. Pa. St. 33; United States v. Scott, & P. (Ala.) 133; Peirce v. West, 1 3 Woods (U. S.) 334; McCully v. Pet. (U. S.) 351; Dale v. McEvers, 2 Peel, 42 N. J. Eq. 493; Bowers v. Cow. (N. Y.) 118; Jones v. Mason, 5 McGavock, (Tenn.) 85 S. W. 893; Rand. (Va.) 577; Bierne v. Ray, 37 Parker v. Concord, 39 Fed. 718; W. Va. 571, 16 S. E. 804; Scott v. Lake Erie &c. R. Co. v. Indianapolis Clarkson, 1 Bibb (Ky.) 277; Moore &c. Bank, 65 Fed. 690; but see. Van V. Hyltori, 1 Dev. Eq. (N. Car.) 429; Dyke v. Van Dyke, 26 N. J. Eq. 180; Huyck V. Bailey, 100 Mich. 223, 58 N. Taunton v. Taylor, 116 Mass. 254. W. 1002; Carman v. Watson, 1 How. The rule is changed by statute in (Miss.) 333; Lanning v. Smith, 1 some states. Pars. Eq. (Pa.) 13, 17; Read v. Rey- 535 EESPOXSIVE ANSWERS. [§ 3201. other evidence.^^ This is the general rule in regard to new matter pleaded as a defense in avoidance." But, although affirmative in form and in a sense in avoidance it may, perhaps, be responsive to the bill, and there are some cases in which such an answer has been held to be evidence for the defendant.^^ In one case the complainant in his bill against a corporation and its stockholders seeking to en- force his rights as a stockholder, alleged that he was an original subscriber for stock, that the defendants refused to give him a cer- tificate and confederated to deprive him of his rights as a stock- holder. The answer admitted the act of subscribing, but alleged that it was accompanied by an agreement that it was wholly for the use of the defendant stockholders, and the court held that this was not subsequent matter in avoidance, but a material portion of the facts in the case, and responsive to the bill.^'' The same court has also held an answer responsive to a bill by a wife against her husband to recover a sum of money alleged to have been paid by her in build- ing and furnishing their house, and for which the defendant had given her no security, where such answer alleged that the money had been given him by the complainant, and that there was no agreement, contract or understanding that he was to repay or in any way secure the money."'' Where a bill to set aside a decree and re- cover property alleged that the decree was obtained by fraud and col- lusion, and the pleas and answers under oath denied the fraud and collusion charged, and averred a purchase of the property in good faith for valuable consideration, such averments were held responsive «« Pennsylvania Co. v. Cole, 132 Cloud v. Calhoun, 10 Rich. Eq. (S. Fed. 668. Car.) 358; Lewis v. Mason, 84 Va. "Goodloe V. Dean, 81 Ala. 479, 8 731, 10 S. B. 529; Humes v. Scruggs, So. 197; Craft v. Russell, 67 Ala. 9; 94 U. S. 22; Clements v. Moore, 6 Robinson v. Jefferson, 1 Del. Ch. Wall. (U. S.) 299; Bates Fed. Eq. 244; Dexter v. Gordon, 11 D. C. Proc, § 324; Mitford & Tyler PL & (App.) 60; Orman v. Barnard, 5 Pr. in Eq. 461. Fla. 528; Walton v. Walton, 70 111. ''See, Stillwell v. Badgett, 22 Ark. 142; Peck v. Hunter, 7 Ind. 295; 164; Smith v. Atwood, 14 Ga. 402; White V. Hampton, 10 Iowa 238; Bellows v. Stone, 18 N. H. 465; but Taylor v. Morton, 5 J. J. Marsh, compare, Beecu v. Haynes, 1 Tenn. (Ky.) 65; O'Brien v. Elliott, 15 Me. Ch. 569. 125, 32 Am. Dec. 137; Smoot v. Rea, ""Rowley's Appeal, 115 Pa. St. 150, 19 Md. 398; Dyer v. Williams, 62 9 Atl. 329. Miss. 302; Ingersoll v. Stiger, 46 N. i"" Gleghorne v. Gleghorne, 118 Pa. J. Eq. 511, 19 Atl. 842; Hart v. Ten St. 383. 11 Atl. 797; see also, Reid Eyck, 2 Johns. Ch. (N. Y.) 62; v. McCallister, 49 Fed. 16. § 3203.] PROCEEDINGS IN EQUITY. 53G to the allegations of the bill.^°^ Again, where a bill filed to redeem stock alleged that it had been pledged for five hundred dollars, and the answer stated that it was pledged for eight hundred dollars in addition thereto, this was held to be responsive."^ So, where a bill was filed to subject stocks of an estate to the payment of a debt for which they were held as collateral security, and the answer by one of the executors admitted that the money was borrowed from the plaintiff and the security given as alleged in the bill, but averred that the loan was made to the business firm of which the executor was a member and that the stock pledged by the executor as security then belonged to the estate and that these facts were known to the plaintiff, it was held that the answer was responsive to the bill."^ And in a number of other cases where the admission and avoidance were in regard to one single fact or transaction and were necessary to be taken together in order to understand it and give it the true effect, the answer has been held evidence of both."* So, in a recent case it is held that unless a bill expressly waives an answer under oath, it must be so made, and, when responsive to the bill, it is evidence for the defendant, which can only be overcome by witnesses, or its equivalent; and the allegations of a bill charging fraud cannot be considered proved where they are specifically denied by answers under oath, and the only testimony introduced by complainant is that of the defendants, which supports the averments of the answers. ^"^ Where judgment creditors sought to set aside an execution sale on the ground of fraud in the judgment, and the bill called for an an- swer under oath, an answer denying every allegation of fraud was held responsive.^°^ § 3202. Answers not responsive. — In a recent case an answer to a bill seeking to have a tax claim canceled, was held so evasive and irresponsive that it did not even put the plaintiff to proof of the ^"iBeals v. Illinois &c. R. Co., 133 Ivierritt v. Brown, 19 N. J. Eq. 286; U. S. 290, 10 Sup. Ct. 314. Appeal of Rowley, 115 Pa. St. 150, "-Dunham v. Jackson, 6 Wend. 9 Atl. 329; see also. Maxwell v. Jack- (N. Y.) 22; reviewed in, Schwarz sonville Loan &c. Co., (Fla.) 34 So. V. Wendell, 1 Walk. (Mich.) 267. 255. "^Bell V. Farmers' &c. Bank, 131 ^"^ Jacobs v. Van Sickle, 61 C. C. Pa. St. 318, 18 Atl. 1079. A. 598, 127 Fed. 62, affirming 123 "^Cooper V. Tappan, 9 Wis. 333 Pickering v. Day, 2 Del. Ch. 333 Day v. Jones, 40 Fla. 443, 25 So. 275 Fed. 340. "''Morrison v. Durr, 122 U. S. 518, 7 Sup Ct. 1215. 537 ANSWER WHEN RESPONSIVE. [§ 3232.- allegations of his bill.^" In another case, which was a suit between partners for an accounting, it was held that an allegation of the answer that a third party was a joint partner with the complainant and defendant and a necessary party to the suit, was not responsive, and that it could not be assumed to be true at the hearing upon ex- ceptions to the answer.^"® So, an averment in an answer to a bill for specific performance that the contract was conditional on its being approved by the defendant's wife, no such condition being in the writing sued on, was held not to be responsive to the bill and capable of being proved only by evidence independent of the an- swer.^°® In a suit to restrain the collection of a judgment on the ground that it was recovered on a prior judgment on a note which the judgment creditor held as collateral security, where the bill also alleged that the debt for which the note was collateral had been paid and discharged, an allegation in the answer denying defendant's knowledge of any defense to the collateral note was held not re- sponsive to the bill."° In a suit by a creditor for an account of a deceased husband's estate, and for payment of plaintiff's debt, the wife, who was also administratrix, answered that a certain bond executed by her father to the husband had been assigned to her by a post-nuptial settlement as her sole and separate estate in pursu- ance of an agreement made at the time of the execution of the bond, but it was held that this was not responsive to any allegation in the bill.^^^ So, in a suit to foreclose a mortgage, the defendant answered under oath, admitting the execution of the mortgage, but alleging that it was given in lieu of another mortgage that the complainant agreed to cancel and return to the defendant, which he failed to do, and praying that he be compelled to so cancel and return it, but it was held that such alleged agreement was new matter and not re- sponsive to the bill.^^^ An answer of payment has also been held affirmative new matter and not responsive in several cases,^^^ but such an answer has been held responsive in other cases.^^* "^ Applewhite v. Foxworth, 79 "- Ingersoll v. Stiger, 48 N. J. Eq. Miss. 773, 31 So. 533. 511, 19 Atl. 842. ii^ Brewer V. Norcross, 17 N. J. Eq. "'Ison v. Ison, 5 Rich. Eq. (S. 219. Car.) 15; Adams v. Adams, 22 Vt. ^"»Ives V. Hazard, 4 R. I. 14, 67 50; Hickman v. Painter, 11 W. Va. Am. Dec. 500. 386. ""Harding v. Hawkins, 141 111. "* King v. Payan, 18 Ark. 583; 572, 31 N. E. 307, 33 Am. St. 347. Britt v. Bradshaw, 18 Ark. 530; "^ Lewis v. Mason, 84 Va. 731, 10 Grafton Bank v. Doe. 19 Vt. 463; S. E. 529. Stevens v. Post, 12 X. J. Eq. 408;. §§ 3203, 3204.] proceedi>,^gs in equity. 538 § 3203. Test of responsiveness. — There seems to be no accurate and invariable test for determining when an answer is responsive within the meaning of the rule. Each case necessarily depends very largely upon its particular features, and, as will be seen by com- paring the authorities referred to in the last two preceding sections, the courts have in some instances taken different views in different cases that cannot well be distinguished in principle. A test that has been suggested is furnished by ascertaining whether the questions answered would be proper to propound to a witness; whether they would be relevant and such as the witness would be bound to answer, and the answers competent testimony.^^^ It has also been suggested that if the whole subject-matter of an allegation in the answer might have been omitted, such allegation is not responsive; but if its omission would furnish ground of exception to the answer, such allegation is responsive."^ As already shown, the form of the allega- tion does not furnish a satisfactory test and is not always con- clusive. § 3204. Answer false in part — ^Incredible answer. — The maxim falsus in uno falsus in omnibus has sometimes been applied to an- swers in equity, and it has often been stated in general terms that when an answer is disproved in a material point it loses its weight as evidence."^ Thus, it has been said in substance that where the answer is contradicted in any one or more important particulars by two witnesses or one witness and corroborating circumstances it is deprived in all respects of the weight ordinarily given answers in courts of equity, for "being falsified in one thing, no confidence can be placed in it as to the others according to the maxim falsus in uno, falsus in omnibus.""^ But that maxim, as ordinarily applied, does not absolutely require, but merely authorizes, the discrediting of the other evidence or testimony of the same person, and the cor- rectness of the alleged rule thus broadly stated, under all circum- stances and without any qualification, admits of some question."^ McCaw v. Blewit, 2 McCord Eq. (S. Roundtree v. Gordon, 8 Mo. 19; For- Car.) 90. syth v. Clark, 3 Wend. (N. Y.) 637; "= Dunham v. Gates, 1 Hoff. Ch. Countz v. Geiger, 1 Call (Va.) 190; (N. Y.) 185, 3 Greenleaf Ev., § 285. Fay v. Oatley, 6 Wis. 42. "" Bellows V. Stone, 18 N. H. 465. "' Roundtree v. Gordon, 8 Mo, 19, "' Prout V. Roberts, 32 Ala. 427 Gunn V. Brantley, 21 Ala. 633 Pharis v. Leachman, 20 Ala. 662 Gamble v. Johnson, 9 Mo. 605 25. "' See, Fant v. Miller, 17 Gratt. (Va.) 187. 539 ANSWER OF CO-DEFEXDAXT. [§§ 3205, 3206. The rule in regard to the effect of responsive answers, liowever, has been said to apply only to fair answers, not to those which upon their face are incredible.^-'^ And an answer may contain Avithin itself such matters as will deprive it of all efficacy as evidence. ^^i § 3205. Questioning competency and impeaching defendant who answers under oath. — It is held that if a sworn answer is called for in the bill the plaintiff thereby makes the defendant a competent witness as to matters in the answer responsive to the bill, or waives objections thereto, and that the answer is competent as to such matters even though the defendant would not be a competent wit- ness.^22 So, it is held that the plaintiff who has called for such an answer is not entitled to impeach the defendant by proof of bad character for the purpose of weakening the effect of the answer.^ -^ But the answer may be weakened either by its own contradictions, or intrinsic defects^^* or by proper extrinsic evidence, including the testimony of the defendant on the hearing.^^^ § 3206. Answer of co-defendant. — It has already been shown that admissions in the answer of a defendant may be used against him- self. But it is the general rule that the answer of one defendant is not evidence against another defendant,^^'' and this has been held ^^ Stevens v. Post, 12 N. J. Eq. 2 Strob. Eq. (S. Car.) 143; but see, 408. Miller v. Tollison, Harper Eq. (S. ^=1 Commercial Bank v. Reckless, 5 Car.) 119. N. J. Eq. 650; Brown v. Bulkley, 14 '^^ Baker v. Williamson, 4 Pa. St. N. J. Eq. 294; Dunham v. Gates, 1 456; Crawford v. Kirksey, 50 Ala. Hoff. Ch. (N. Y.) 185; Morris v, 590; Dunham v. Gates, 1 Hoff. Ch. White, 36 N. J. Eq. 324, 329; Ho- (N. Y.) 185; Stevens v. Post, 12 N. boken Sav. Bank v. Beckman, 33 N. J. Eq. 408; Harris v. Collins, 75 Ga. J. Eq. 53; see also. Wheat v. Moss, 97; Jones v. Belt, 2 Gill (Md.) 106; 16 Ark. 243; Russell v. Russell, 4 Moore v. Hylton, 1 Dev. Eq. (N. Dana (Ky.) 40; Ellis v. Woods, 9 Car.) 429; Brown v. Brown, 10 Yerg. Rich. Eq. (S. Car.) 19; Yost v. Hudi- (Tenn.) 84. burg, 2 Lea (Tenn.) 627. ^^ Roberts v. Miles, 12 Mich. 297; '" Saffold v. Home, 71 Miss. 762, Spencer's Appeal, 80 Pa. St. 317. 15 So. 639; see also, Blaisdell v. But some cases hold that the answer Bowers, 40 Vt. 126. is conclusive where it is called for "'Murray v. Johnson, 1 Head by a pure bill of discovery. Thomp- (Tenn.) 353; Brown v. Bulkley, 14 son v. Clark, 81 Va. 422; Jackson v. N. J. Eq. 294; Butler v. Catling, 1 Hart, 11 Wend. (N. Y.) 343. Root (Conn.) 310; Chambers v. ^-» Danner Land &c. Co. v. Stone- Warren, 13 111. 318; Clark v. Bailey, wall Ins. Co., 77 Ala. 184; Whiting 3206.] PROCEEDINGS IN EQUITY. 540 to be especially true where the defendant whose answer it is souglit to use against a co-defendant is substantially a plaintiff.^" It ha& also been held that it does not necessarily make any difference that one defendant is the agent of the other.^^s -q^^ the answer of one defendant may be used as evidence against other defendants claim- ing through him/29 q^ where the defendants are either legally or fraudulently combined so as to create a unity of interest between them/^° or, in general, where there is a privity of estate or interest. So it has been held that where one partner, in a joint and several answer by both, makes admissions as to his own acts in regard to the business of the firm, and the other defendant states his belief that such admissions are true, a decree may be made against both on such admissions.^3^ So, generally where one refers to and adopts the answer of the other. ^'^ It was also held in an interpleader suit where it appeared by the answer of each defendant that he claimed the fund in dispute from the complainant, that no other evidence of V. Beebe, 12 Ark. 421; Blakeney v. Ferguson, 14 Ark. 640; Stackpole v. Hancock, 40 Fla. 362, 24 So. 914, 45 L. R. A. 814; Christie v. Bishop, 1 Barb. Ch. (N. Y.) 105; Salmon v. Smith, 58 Miss. 399; Hanover Nat. Bank v. Klein, 64 Miss. 141, 8 So. 208; Webb v. Pell, 3 Paige (N. Y.) 368; Leeds v. Marine Ins. Co., 2 Wheat. (U. S.) 380; Clarke v. Van Riemsdyk, 9 Cranch (U. S.) 153; McKim v. Thompson, 1 Bland (Md.) 150, 160; Kennedy v. Davenport, 13 B. Mon. (Ky.) 167; McElroy v. Lud- lum, 32 N. J. Eq. 828; Savage v. Car- roil, 1 Ball & B. 548, 553; Reese v. Reese, 41 Md. 554; Stewart v. Stone, 3 Gill & J. (Md.) 514; Hay ward v. Carroll, 4 H. & J. (Md.) 518, 520; Calwell v. Boyer, 8 Gill & J. (Md.) 136; Harwood v. Jones, 10 Gill & J. (Md.) 404, 32 Am. Dec. 180; Jones V. Hardesty, 10 Gill & J. (Md.) 404; Glenn v. Grover, 3 Md. 212; Wrottes- ley V. Blendish, 3 P. Wms. 235; Leigh V. Ward, 2 Vent. 72. ^^ Field V. Holland, 6 Cranch (U. S.) 8. ^-^ Leeds v. Marine Ins. Co., 2 Wheat. (U. S.) 380; see also, Moore V. Hubbard, 4 Ala. 187; Chapin v. Coleman, 11 Pick. (Mass.) 331; but compare, Rust v. Mansfield, 25 111. 336; Mobley v. Dubuque &c. Co., 11 Iowa 71; Clarke v. Van Riemsdyk, 9 Cranch (U. S.) 153. ^^ Osborn v. United States Bank, 9 Wheat. (U. S.) 738 Field v. Holland, 6 Cranch. (U. S.) 8; Jones v. Har- desty, 10 Gill & J. (Md.) 404, 415; Emerson v. Atwater, 12 Mich. 314; iitch v. Stamps, 6 How. (Miss.) 487; but see, Winn v. Albert, 2 Md. Ch. 169. ^^0 Christie v. Bishop, 1 Barb. Ch. (N. Y.) 105; Lockman v. Miller, 25 Miss. 786, 22 So. 822; Hickson v. Bryan, 75 Ga. 392; Townsend Vi Mc- intosh, 14 Ind. -57; Pensoneau v. Pulliam, 47 111. 58. 1^^ Judd V. Seaver, 8 Paige (N. Y.) 548; Bevans v. Sullivan, 4 Gill (Md.) 383, 391. '2- Blakeney v. Ferguson, 14 Ark. 640; Chase v. Manhardt, 1 Bland (Md.) 333; Dunham v. Gates, 3 Barb. Ch. (N. Y.) 196; Anonymous,, 1 P. Wms. 301. 541 PLEA AS EVIDENCE. [§§ 3207, 3208. such fact need be produced.^-^ And it has been stated generally tliat where the admissions of one defendant would be competent against the other, the answer of the former containing such admissions is competent."* So, the sworn answer of one defendant, responsive to the bill, has been held to be evidence in favor of other defendants against the plaintiff. ^^'^ §3207. Answers not evidence against infants. — The answers of infants by their guardians are pleadings merely, and not evidence, although responsive to the bill and sworn to by their guardian ad litem or next friend.^ ^° The allegations of the bill should be proved by other means before a decree should be entered against their in- terests.^^^ It has even been said that the admission in a deceased heir's answer of the will of the testator has been held not to be bind- ing upon the infant heir who has succeeded him,"^ and there are many cases in which it has been held that the answers of adult co-defendants cannot be used against an infant."* § 3208. Plea as evidence. — At the hearing upon a plea, replica- tion, and proofs, no fact is in issue except the matters pleaded by or in support of the plea, and a plea which avoids the discovery' prayed for is no evidence in the defendant's favor, even when it is under oaLh and negatives a material averment in the bill.^*° Thus, where a plea is filed and there is no answer, the averments of the •^Balchen v. Crawford, 1 Sandf. Sandf. Ch. (N. Y.) 103; James v. Ch. (N. Y.) 380. James, 4 Paige (N. Y.) 114. ^" See, Martin v. Dryden, 6 111. '" Harris v. Harris, 6 Gill & J. 187; Christie v. Bishop, 1 Barb. Ch. (Md.) Ill; Stephenson v. Stephen- (N. Y.) 105; Gilmore v. Patterson, son, 6 Paige (N. Y.) 353. 36 Me. 544; Dick v. Hamilton, Deady "'Story Eq. PI. (10th ed.), § 871; (U. S.) 322, 7 Fed. Cas. No. 3890; see also, Tompkins v. Tompkins, 18 Porter v. Rutland Bank, 19 Vt. 410. N. J. Eq. 303; but compare, Robert- ''=* Pleasonton v. Raughley, 3 Del. son v. Parks, 3 Md. Ch. 65; Lock v. Ch. 124; Miles v. Miles, 32 N. H. Foots, 4 Sim. 132. 147, 64 Am. Dec. 362; Mills v. Gore, ''"See, Sawyers v. Swayers, 106 20 Pick. (Mass.) 28; Carithers v. Tenn. 597, 61 S. W. 1022; Shirley Jarrell, 20 Ga. 842; Glenn v. Baker, v. Shields, 8 Blackf. (Ind.) 273 1 Md. Ch. 73; Salmon v. Smith, 58 Campbell v. Campbell, 1 Ind. 220. Miss. 399; but see, Frank v. Lilien- ""Farley v. Kittson, 120 U. S. 303, feld, 33 Gratt. (Va.) 377; Larkins's 7 Sup. Ct. 534; see also. Roache v. Appeal, 38 Pa. St. 457. Morgell, 2 Schoales & L. 721, 725. "»Bulkley v. Van Wyck, 5 Paige 727; Stead v. Course, 4 Cranch (U. (N. Y.) 536; Wright v. Miller. 1 S.) 403, 413; Heartt v. Corning, 3 §§ 3309, 3210.] PROCEEDINGS IN EQUITY. 542 bill will control conflicting averments in the plea even thougli the latter is verified. ^^^ But it has been held that a plea may be used against the party pleading where it contains admissions against liis interest, even on the hearing of another plea or answer in the cause. ^■*- § 3209. Cross-bill and answer. — A cross-bill which is taken as confessed may be used as evidence against the complainant in the original case on the hearing to the same effect as if he had admitted the same facts in the answer.^*^ It has been held, however, that where the defendant files a cross-bill setting out new matter, and does not call on complainant to answer as to the same, the allega- tions will not be taken as true and the defendant will be required to prove them.^** So, it has been said that when the defendant in the original bill takes on himself the affirmative by a cross-bill, and submits his rights to the conscience of those originally complaining, he must abide by the response of the complainants, unless by more than equal evidence they disprove the same.^'*^ And it has been held that a complainant cannot use his own answer to a cross-bill as evi- dence unless the defendant first produces it in evidence.^'*'' In a recent case where the issues raised by a bill and those raised by a cross-bill were entirely different, and the evidence of a witness given on the prior trial of the issue raised by the cross-bill was not rele- vant to the issue raised by the bill it was held proper to refuse to permit such evidence to be read on the trial of the issue raised by the bill.i*^ § 3210. Witnesses. — The fourth source of evidence in equity, ac- cording to Professor Greenleaf, is the testimony of witnesses. Little is required to be said upon this subject, as the rules of competency are in general the same in equity as at laAv, and, under modern statutes, interest no longer renders a witness incompetent in ordi- nary cases. But it may be noted, in passing, that the courts of equity Paige (N. Y.) 566; Rhode Island v. 137; White v. Buloid, 2 Paige (N. Massachusetts, 14 Pet. (U. S.) 210; Y.) 164. Hughes V. Blake, 6 Wheat. (U. S ) ^^ Hartfield v. Brown, 8 Ark. 283. 453; Gernon v. Boccaline, 2 Wash. "=16 Cyc. 402, citing, Hutton v. (U. S.) 199, 10 Fed. Cas. No. 5366. Moore, 26 Ark. 382; Pugh v. Pugh, "^ Mutual Life Ins. Co. v. Blair, 9 Ind. 132, 130 Fed. 971. "" Kidder v. Barr, 35 N. H. 235. "= McNair v. Ragland, 16 N. Car. '" Beamer v, Morrison, 210 111. 443, 533. 71 N. E. 402. "" Griswold v. Simmons, 50 Miss. 543 WHAT MUST BE TROVED — BURDEN. [§ 3211. were somewhat more liberal than the courts of law in examining parties and interested persons in some cases,"^ and the examina- tion of a defendant by the plaintiff, as a witness, usually operated as an equitable release as to the matters covered by the examina- tion.^*^ So, under the old chancery practice, the testimony of wit- nesses was usually taken by deposition or the like and oral evidence was seldom received at the hearing. But the modern tendency is to receive oral testimony in many cases as well as depositions. The sub- ject of depositions has been treated in another volume,^ ^^ and the mode of taking testimony in the courts of equity, especially under the acts of congress and United States equity rules, has already been sufficiently considered in other sections in this chapter. §3211. What must be proved — Burden. — "It may be laid down as an indisputable proposition," says :Mr. Daniell, "that whatever is necessary to support the case of the plaintiff, so as to entitle him to a decree against the defendant, or of a defendant to support his own case against that of the plaintiff", must be proved ; unless it is admitted by the other party ."^^^ A material averment in the bill neither ad- mitted nor denied by the answer must be supported by proof.^^^ Wlien a replication is filed to an answer, it thereby puts in issue all the matters alleged in the bill and not admitted by the answer, as well as those matters contained in the answer which are not re- sponsive to the bill.^^^ But, where an answer under oath is waived, or it is not under oath or is not responsive, a preponderance of the "'3 Greenleaf Ev., § 313; Man v. "=Glos v. Cratty. 196 111. 193, 63 "Ward, 2 Atk. 228, 229. N. E. 690, and other Illinois cases '"3 Greenleaf Ev., § 316; Wey- there cited; Milligan v. Wissman, mouth V. Boyer, 1 Ves. Jr. 417; (Tenn. Ch. App.) 42 S. W. 811; Nightingale v. Dodd, Ambl. 583; Bank v. Jefferson, 92 Tenn. 537, 22 Lewis V. Owen, 1 Ired. Eq. (N. Car.) S. W. 211; Crowe v. Wilson, 65 Md. 290, 293; Palmer v. Van Doren, 2 479, 5 Atl. 427, 57 Am. R. 343; Mc- Edw. Ch. (N. Y.) 192. Arthur v. Phoebus. 2 Ohio 415; Mor- ^^See, Vol. II., Chap. 54. ris v. Morris, 5 Mich. 171; Moffat v. i"l Daniell Ch. Pr. (6th ed.) 836; McDowall, 1 McCord Eq. (S. Car.) see also, Thompson v. Thompson, 1 434; Lovell v. Johnson, 82 Fed. 206. Yerg. (Tenn.) 97; Peck v. Hunter, 7 '^^ Pinney v. Pinney, (Fla.) 35 So. Ind. 295; Campbell v. Brackenridge, 95; Stackpole v. Hancock, 40 Fla. 8 Blackf. (Ind.) 471; Johnson v. 362, 24 So. 914, 45 L. R. A. 814; 18 McGrew, 11 Iowa 151, 77 Am. Dec. Ency. of PI. & Pr. 683; Humes v. 137; Gilbert V. Mosier, 11 Iowa 498; Scruggs, 94 U. S. 22, 24 L. Ed. 51; Pusey V. Wright, 31 Pa. St. 387; Smith v. St. Louis &c. Ins. Co., 2 Nelson v. Pinegar, 30 111. 473. Tenn. Ch. 599. 3311.] PKOCEEDIXGS IX EQUITY. 544 evidence to sustain the material allegations of the bill is usually sufficient.^^* A replication to an answer puts in issue every aver- ment therein not responsive to the bill and requires the defendant to produce evidence to establish his defense set up in such answer by way of avoidance.^^^ But a replication to a plea usually puts in issue only the truth of the plea, which the defendant must produce evi- dence to establish/^*' and the evidence in such case is confined to that issue. ^^'^ ^"Parker V. Safford, (Fla.) 37 So. 567; see also, Reynolds v. Pharr, 9 Ala. 560. >==Orman v. Barnard, 5 Fla. 528; Bradley v. Webb. 53 Me. 462; Peaks v. McAvey, (Me.) 7 Atl. 270; Craft V. Russell, 67 Ala. 9; Lake Shore &c. R. Co. v. McMillan, 84 111. 208; Peck V. Hunter, 7 Ind. 295; Todd v. Ster- rett, 6 J. J. Marsh. (Ky.) 425; Dyer V. Williams, 62 Miss. 302; Wilkinson V. Bauerle, 41 N. J. Eq. 635, 7 Atl. 614; Jones v. Jones, 1 Ired. Eq. (N. Car.) 332; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62; Simson v. Hart, 14 Johns. (N. Y.) 63; Barr v. Haseldon, 10 Rich. Eq. (S. Car.) 53; Deaderick v. Watkins, 8 Humph. (Tenn.) 520; Garlick v. McArthur, 6 Wis. 450; Humes v. Scruggs, 94 U. S. 22; Clements v. Moore, 6 Wall. (U. S.) 299; see also, O'Hare v. Downing, 130 Mass. 16; Leach v. FoDes, 11 Gray (Mass.) 506, 71 Am. Dec. 732; Hart v. Carpenter, 36 Mich. 402. "" Miller v. United States &c. Co., 6x N. J. Eq. 110, 47 Atl. 509; Stead V. Course, 4 Cranch (U. S.) 403. "^'Little v. Stephens, 82 Mich. 596, 47 N. W, 22; Fish v. Miller, 5 Paige (N. Y.) 26. Upon the general sub- ject under consideration it is said in Ocala Foundry &c. Works v. Lester, (Fla.) 38 So. 56, 62: "The general rule is that when a replication has been filed to a plea it is incumbent upon the defendant to prove the facts which the plea suggests. 1 Daniell Ch. PI. & Pr. (6th Am. Ed.) 698; Dowsv. McMichael, 6 Paige (N. Y.) 139; Farley v. Kittson, 120 U. S. 303, 7 Sup. Ct. 534, 30 L. Ed. 684; Story Eq. PI. (10th Ed.), § 697; Fletcher PI. & Pr., § 279; 1 Foster Fed. Pr. (3rd Ed.), § 142; Stead v. Course, 4 Cranch ( U. S.) 403, 2 L. Ed. 660; United States v. California &c. Co., 148 U. S. 31, 13 Sup. Ct. 458, 37 L. Ed. 354; Beames Pleas in Eq. 325. See, especially, Langdell Eq. PI. (2d ed.), §§ 101, 108, making a distinction in applying this rule be- tween pure or affirmative pleas and negative pleas. However, the plea filed in the instant case could not be held to be a negative plea, and there- fore we are of the opinion that it was incumbent upon the appellees to prove the matters contained in their plea. As to the matters con- tained in the answer which were not in support of the plea, but which were responsive to the bill, the bur- den was upon the appellant to prove the allegations in its bill. As the answer was under oath, the oath therefore not having been waived, it further follows that the sworn an- swer was evidence in favor of the appellees as to those matters con- tained therein which were directly and positively responsive to the ma- terial allegations of the bill, and that as to those matters such an an- swer was conclusive, unless its pro- 545 SUBSTANCE OF ISSUE. [§ 3212. § 3212. Substance of issue. — In equity, as at law, it is generally sufficient to prove the substance of the issue.^^^ But decrees in equity are usually more specific than ordinary judgments, and in order to obtain the particular relief prayed for it is sometimes necessary to go more into detail and to more clearly prove the specific facts than it is in order to obtain an ordinary judgment in actions at law.^^^ Yet, on the other hand, courts of equity have power to so mould their decrees as to give complete and adequate relief according to the allegations and the proof and the justice of the cause, and they have not always been so strict as some of the old common law courts were in holding a variance fatal. And, in some instances, where through inadvertance or the like the plaintiff had omitted to make full proof of some essential fact the court would give him leave to do so even after the case had come up for hearing."" So, in exceptional cases, where justice seemed to require it, a second or re-examination of the same witness was sometimes allowed."^ bative force and effect was overcome by the testimony of two witnesses, or the testimony of one witness cor- roborated by other circumstances which were of greater probative weight than the answer. Pinney v. Pinney, (Fla.) 35 So. 95, and author- ities cited therein. It follows, then, that in part the burden of proof rested upon the appellant and in part upon the appellees. 1 Foster Fed. Pr. (3rd Ed.), § 137." 16* See, Phoenix &c. Ins. Co. v. Hinesley, 75 Ind. 1; Johnston v. Glancy, 4 Blackf. (Ind.) 94, 96, 97, 28 Am. Dec. 45; Hart v. Hawkins, 3 Bibb (Ky.) 502, 6 Am. Dec. 666, 672; Eldridge v. Turner, 11 Ala. 1049; Booth v. "Wiley, 102 111. 84; Loewenstein v. Rapp, 67 111. App. 678; Hooper v. Holmes, 11 N. J. Eq. 122; Campbell v. Bowles, 30 Gratt. (Va.) 652; Kline v. Triplett, (Va.) 25 S. E. 886; Synnott v. Shaugh- nessy, 130 U. S. 572, 9 Sup. Ct. 609; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909; Gresley Eq. Ev. 169. 1°° See, Rockecharlie v. Rocke- charlie, (Va.) 29 S. E. 825; Dalzell Vol. 4 Elliott Ev.— r?5 v. Manufacturing Co., 149 U. S. 315, 13 Sup. Ct. 886; Rejall v. Greenhood, 35 C. C. A. 97, 92 Fed. 945; Vawter v. Bacon, 89 Ind. 565; Ahl's Appeal, 129 Pa. St. 49, 18 Atl. 477; Hawes v. Brown, 75 Ala. 385; Land v. Cowan, 19 Ala. 297; Kelly v. Kelly, 54 Mich. 30, 19 N. W. 580; Rice v. Rigley, 7 Idaho 115, 61 Pac. 290; Lockhart v. Leeds, 195 U. S. 427, 25 Sup. Ct. 76; Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909. "" See, Thexton v. Edmonston, L. R. 5 Eq. 373; Chichester v. Chiches- ter, 24 Beav. 289; Wood v. Stane, 8 Price 613; Abrams v. Winshup, 1 Russ. 526; Hughes v. Fades, 1 Hare 486, 488, 6 Jur. 455; 1 Daniell Ch. Pr. (6th Ed.) 858, 890; Greeley Eq. Ev. (Am. Ed.) 132-138. ^"1 See, Wood v. Mann, 2 Sumn. (U. S.) 316; Lord Arundell v. Pitt, Amb. 585; Cox V. Allingham, Jac. 337. But this was only done in exceptional cases. Beach y. Fulton Bank, 3 Wend. (N. Y.) 573; Gray v. Murray, 4 Johns. Ch. (N. Y.) 412; Noel v. Fitzgerald, 1 Hogan 135; Lord Aber- gavenny V. Powell, 1 Mer. 130. 3213.] PROCEEDINGS IN EQUITY. 54G § 3213. Substance of issue — Variance. — It is not only necessary that the substance of the case made by each party should be proved, but it must be substantially the same as that which he has stated upon the record/*^^ for the Court will not allow a party to be taken by surprise, by the other side proving a case different from that set up in the pleadings.^" And, as a general rule, "no facts are properly in issue unless charged in the bill, nor can relief be granted for matters not charged, although they may be apparent from other parts of the pleading and evidence; for the court pronounces its de- cree secundum alegata et probata.""* As said by one court: "It is an "==Hobart v. Andrews, 21 Pick. (Mass.) 526, 534; Bellows v. Stone. 14 N. H. 175; Hooper v. Strahan, 71 Ala. 75; Crothers v. Lee, 29 Ala. 337; Hope v. Johnston, 28 Fla. 55, 9 So. 830; Bowman v. O'Reilly, 31 Miss. 261; Reynolds v. Morris, 7 Ohio St. 310; Williams v. Starr, 5 Wis. 534; Gurney v. Ford, 2 Allen (Mass.) 576; Andrews v. Farnham, 10 N. J. Eq. 94; McWhorter v. Mc- Mahan, 10 Paige (N. Y.) 386; Sears V. Barnum, 1 Clark Ch. (N. Y.) 139 Singleton v. Scott, 11 Iowa 589 Simplot V. Simplot, 14 Iowa 449 Peckham v. Buffam, 11 Mich. 529 Holman v. Vallejo, 19 Cal. 498 Ohling V. Luitjens, 32 111. 23; Tuck V. Downing, 76 111. 71; Abbott v. Ab- bott, 189 111. 488, 59 N. E. 958, 82 Am. St. 470. i°U Daniell Ch. Pr. 860. i^^l Beach Mod. Eq. Pr., § 99; Story Eq. PI. (10th Ed.), § 257; An- derson V. Northrop, (Fla.) 12 So. 318; Glascott v. Lang, 2 Phil. Ch. 310; Phelps v. Elliott, 35 Fed. 455; Simms v. Guthrie, 9 Cranch (U. S.) 19; Eyre v. Potter, 15 How. 42; Boone v. Chiles, 10 Pet. (U. S.) 177; Hart v. Stribling, 21 Fla. 136; Gros- holz V. Newman, 21 Wall. (U. S.) 481; Brainerd v. Arnold, 27 Conn. 617; Rubber Co. v. Goodyear, 9 Wall. (U. S.) 788; Marshman v. Conklin, 21 N. J. Eq. 546; Armstrong v. Ross,. 2U N. J. Eq. 109; Vansciver v. Bryan, 13 N. J. Eq. 434; Lehigh Valley R. Co. v. McFarlan, 30 N. J. Eq. 180; Wilson V. Cobb, 28 N. J. Eq. 177, and Smith v. Axtell, 1 N. J. Eq. 494; Myers v. Steel Mach. Co., (N. J. Eq.) 57 Atl. 1080; Riddle v. Keller, 61 N. J. Eq. 513, 48 Atl. 818; Stucky v. Stucky, 30 N. J. Eq. 546, 554; see also, Kelly v. Kelly, 54 Mich. 30, 19 N. W. 580; Judy v. Gilbert, 77 Ind. 96, 40 Am. R. 289; Kelsey v. West- ern, 2 N. Y. 500; Reynolds v. Morris, 7 Ohio St. 310; Kruschke v. Stefan,. 83 Wis. 373, 53 N. W. 679; Brodie v. Skelton, 11 Ark. 120; Rogers v. Brooks, 30 Ark. 612; Hilleary v. Hurdle, 6 Gill (Md.) 105; Schneider v. Patton, 175 Mo. 684, 75 S. W. 155; McClung V. Colwell, 107 Tenn. 592, 64 S. W. 890, 89 Am. St. 961; Stead- man V. Handy, 102 Va. 382, 46 S. E. 3b0. "It is also an established rule of chancery practice, and of plead- ing and practice generally, that the allegata and probata must corre- spond. However full and convincing may be the proof as to any essential fact, unless the fact is averred, proof alone is insufficient. All the evidence offered in a case should correspond with the allegations, and be confined to the issues." Tate v. Pensacola Gulf &c. Co., 37 Fla. 439,. 547 SUBSTANCE OF ISSUE VAEIANCE. [§ 3213. established doctrine of this court, that where the bill sets up a case of actual fraud, and makes that the ground for the prayer for relief, the complainant is not in general entitled to a decree by establishing some one or more of the facts, quite independent of fraud, which might of themselves create a case under a distinct head of equity from that which would be applicable to the case of fraud originally stated."^®'* A party cannot proceed on one theory and recover on an- other. Thus, it has been held that he cannot proceed on the theory of an express trust and recover on an implied trust, although it turns out that the express trust, being in parol, is void under the statute of frauds.^®® So, where a bill charges fraud, there can be no re- covery even though the facts might have justified equitable relief on some other distinct theory.^'''' And, in a recent case, an allegation in a bill that the grantor in a deed failed to retain a certain reserva- tion set forth in a written contract authorizing such deed, was held not sustained by proof that it was omitted by reason of an agree- ment between the parties that the grantee should make a separate- deed for such reservation.^ ^^ But the rule that the pleading and proof must correspond and that a substantial variance is generally fatal is to be applied equitably and not rigidly or technically, espe- cially when it is invoked by a party having full knowledge of the facts during the entire progress of the cause, and therefore not mis- led by a pleading which, although it is not specific or is inaccurate as to some of the details, yet contains averments sufficient to support 20 So. 542, 53 Am. St. 251; quoted Krusckke v. Stefan, 83 Wis. 373, 53: with approval in, Pinney v. Pinney, N. W. 679; Dashiell v. Grosvenor, li (Fla.) 35 So. 95, 100. C. C. A. 593, 66 Fed. 334, 27 L. R. A. ^•^Hoyt v. Hoyt, 27 N. J. Eq. 399, 67; but compare. Hood v. Smith, 79 402, citing, Montesquieu v. Sandys, Iowa 621, 44 N. W. 903. 18 Ves. 302. "^ Caton v. Raber, (W. Va.) 49 S. ^""Mescall v. Tully, 91 Ind. 96; see E. 147. "In so far as the testimony also, Smoot v. Strauss, 21 Fla. 611; tends to show any acts of fraud Hays V. Carr, 83 Ind. 275; Parker v. upon the part of appellant other Beavers, 19 Tex. 406; Lanterman v. than those alleged in the bill, that Abernathy, 47 111. 437. cannot avail appellee." Pinney v. "^Keen v. Maple Shade &c. Land Pinney, (Fla.) 35 So. 95, 101, citing; Co., 63 N. J. Eq. 325, 50 Atl. 467, 92 Howard v. Pensacola &c. R. Co.. Am. St. 682; Hoyt v. Hoyt, 27 N. J. 24 Fla. 560, 5 So. 356; Tate v. Pensa- Eq. 399; Babbitt v. Dotten, 14 Fed. cola, Gulf &c. Co.. 37 Fla. 439, 455. 19; see also, generally, Ewing v. 20 So. 542, 53 Am. St. 251; Par- Sandoval &c. Co., 110 111. 290; Rob- rish v. Pensacola &c. R. Co., 28 Fla. inson v. Cullom, 41 Ala. 693; 251, 9 So. 696. § 3214.] PROCEEDINGS IN EQUITY. 548 a claim for the relief prayed for.^*'^ "It is undoubtedly a well set- tled rule in equity, that the decree must conform to the bill, and be warranted by it both in tlie relief and in the grounds of relief. Re- lief not embraced in the prayer of the bill cannot be decreed, nor can the relief asked for be granted upon grounds not disclosed by the bill. It is, however, no objection that the relief established by the proof is broader and stronger than that stated in the bill, or that grounds of relief not contained in the bill are established in evi- dence, provided the decree is warranted by the charges and prayers of the bill, and the bill sustained by the evidence."^^" § 3214. Evidence confined to issues. — "It is the fundamental maxim, both in courts of equity and in courts of law," says Mr. Daniell, "that no proof can be admitted of any matter which is not noticed in the pleadings.''^^^ In certain cases, however, evidence of particular facts may be given under general allegations, although the particular facts so intended to be proved are not specifically stated in the pleadings."- The cases referred to, namely, those in '«* Crawford v. Moore, 28 Fed. 824, 827; Moore v. Crawford, 130 U. S. 122, 9 Sup. Ct. 447; Pope v. Allis, 115 U. S. 363, 6 Sup. Ct. 69; Taft v. Taft, 73 Mich. 502, 41 N. W. 481; Stearns v. Reidy, 135 111. 119, 25 N. E. 762; Beers v. Botsford, 13 Conn. 146. "'Ryerson v. Adams, 6 N. J. Eq. 618; Thornton v. Ogden, 32 N. J. Eq. 723. In other words, it is suflBcient ii the substance of the issue be es- tablished. Phoenix &c. Ins. Co. v. Hinesley, 75 Ind. 1; see also, Goree V. Clements, 94 Ala. 337, 10 So. 906; Davis V. Guilford, 55 Conn. 351; Zeininger v. Schnitzler, 48 Kans. 63, 28 Pac. 1007; Lawrence v. Hester, 93 N. Car. 79; Morrow v. Turney, 35 Ala. 131; OfCutt v. Scott, 47 Ala. 104; Keaton v. Miller, 38 Miss. 630; On- tario Bank v. Schermerhorn, 10 Paige (N. Y.) 109; Booth v. Wiley, 102 111. 84; Benson v. Keller, 37 Ore. 120, 60 Pac. 918. A variance be- tween the proof and immaterial alle- gations of the bill is not fatal to the decree. Johnston v. Glancy, 4 Blackf. (Ind.) 94. 28 Am. Dec. 45. "'1 Daniell Ch. Pr. (6th Ed.) 852; Smith v. Clarke, 12 Ves. 477, 480; Whaley v. Norton, 1 Vern. 483; Gordon v. Gordon, 3 Swanst. 400, 472; Clarke v. Turton, 11 Ves. 240; Williams v. Llewellyn, 2 Y. & J. 68; Sidney v. Sidney. 3 P. Wms. 269, 276; Hall v. Maltby, 6 Price 240, 259; Powys v. Mansfield, 6 Sim. 528, 565; Langdon v. Goddard, 2 Story (U. S.) 267; James v. M'Kernon, 6 Johns. (N. Y.) 543; Lyon v. Tall- madge, 14 J6hns. (N. Y.) 501; An- derson V. Northrop, 30 Fla. 612; Bar- rett V. Sergeant, 18 Vt. 365; Pinson V. Williams, 23 Miss. 64; Kidd v. Manley, 28 Miss. 156; Surget v. By- ers, 1 Hemp. (U. S.) 715; Craige V. Craige, 6 Ired. Eq. (N. Car.) 191; Moores v. Moores, 16 N. J. Eq. 275; Chandler v. Herrick, 11 N. J. Eq. 497. '"Whaley v. Norton, 1 Vern. 483; 549 EVIDENCE CONFIXED TO ISSUE. [§' 3214. which evidence of particular facts may be given under a general alle- gation or charge, or namely, a case in which the character, or quality of mind, or general behavior of a party comes in issue, but this may be done in some other case as well, as, for instance, where the ques- tion of notice is raised in the pleadings by a general allegation or charge. "Thus, where the defense was a purchase for valuable con- sideration, without notice of a particular deed, but, in order to meet that case by anticipation, the bill had suggested that the defendant pretended that she was a purchaser for valuable consideration, with- out notice, and simply charged the contrary, the deposition of a witness, who proved a conversation to have taken place between him- self and the third person, who w^as the solicitor of the defendant, and the consequent production of the deed, was allowed to be read as evi- dence of notice."^ In such a case, the question whether the party has notice or not, is a fact, which should be put in issue, but the mode in which it is to be proved need not be put upon the record ; for the rule that no evidence will be admitted, in support of any facts but those which are mentioned in the pleadings, requires that the facts only intended to be proved should be put in issue, and not the materials of which the proof of those facts is to consist."* ^^^lere, however, the party has not had any opportunity of disproving a par- ticular act of notice which was proved in evidence, although not al- Matthew v. Hanbury, 2 Vern. 187; 61; Lee v. Beatty, 2 Dana (Ky.) 204. Moores v. Moores, 16 N. J. Eq. 275; See also, Whittaker v. Amwell Nat. Hewett V. Adams, 50 Me. 271, 276; Bank, 52 N. J. Eq. 400, 29 Atl. 203; Gresley Eq. Ev. 161, et seq.; Story Eppinger v. Canepa, 20 Fla. 262. So, Eq. PI. 28, 252, It has been held that evidence of collateral facts by way relevant admissions of the defend- of inducement may be admissible, ant may be proved against him Goodman v. Sayers, 2 J. & W. 249, though not alleged in the bill. 259; Bradley v. Chase, 9 Shepl. Cleveland &c. Co. v. United States (Me.) 511; Gresley Eq. Ev. 237, 238. &c. Co., 52 Fed. 385; Cannon v. Col- '"Hughes v. Garner, 2 Y. & C. 328, lins, 3 Del. Ch, 132. And it may, per- 335; see now. R. S. C. Ord. XIX 26. haps, be stated generally, that if the As to the discovery of particular allegations fairly apprise the other facts under a general allegation, see party of the nature of the evidence Saunders v. Jones, L. R., 7 Ch. Div. that is sought to be introduced, so 435; Kuhliger v. Bailey, W. N. that he might reasonably expect it, (1881) 165; Benbow v. Low, L. R., they will be sufficient, although 16 Ch. Div. 93. somewhat general in their nature. "'Blacker v. Phepoe, 1 Moll. 354; Moores v. Moores, 16 N. J. Eq. 275; see, Story Eq. PI., §§ 28, 252, 263, Madison v. Wallace, 2 Dana (Ky.) 2G5a. 3214.] PROCEEDINGS IN EQUITY. 550 leged in the pleadings, and inquiry was directed whether he had or had not notice."^^^ Documents containing relevant admissions have been received although not pleaded.^^'^ But it is said that if letters or writings in the hands of a party are intended to be used against the opposite party as admissions or confessions they should be men- tioned in the pleadings.^" And this principle, it is said, is not con- fined to writings, but applies to every case where the admission or confession of a party is to be made use of against him; thus, it has been held, that evidence of a confession by a party that he was guilty of a fraud, could not be read because it was not distinctly put in issue.^^® So, also, evidence of alleged conversations between a wit- ness and a party to the suit, in which such party admitted that he had defrauded the other, was rejected because such alleged con- versations had not been noticed in the pleadings."^ Wliere, how- ever, the conversation is in itself the evidence of a fact, it need not be specially mentioned: as, where the notice was communicated to the defendant by a conversation, which was made use of to prove the fact of the conversation having taken place, and not as an admission by the party that he had received notice. ^^^ It has been held that "* Weston V. Empire Assu. Co. L. R., 6 Eq. 23; 1 Daniell Ch. Pr. 854, 855. "*See, Davy v. Garrett, L. R., 7 Ch. Div. 473; Steuart v. Gladstone, L. R., 10 Ch. Div. 626. '" 1 Daniell Ch. Pr. 855; Houlditch V. Donegal, 1 Moll. 364; Austin v. Chambers, 6 CI. & F. 1; Whitley v. Martin, 3 Beav. 226; Blacker v. Phepoe, 1 Moll. 354; but see, Mc- Mahon v. Burchell, 2 Phil. 127, 133, 1 C. P. Coop. temp. Cott. 457, 475. See, Moyers v. Kinnick, 1 Tenn. Ch. App. 65, although the bill alleged one transaction, which it was charged did not constitute payment of a note, and the proof showed a dif- ferent transaction, it was held that while the latter did not meet the al- legations of the bill as to the par- ticular transaction, it was admissi- ble under a general allegation of non-payment, also made in the bill. "»Hall V. Maltby, 6 Price 240; Mulholland v. Hendrick, 1 Moll. 359; but see, Cleveland &c. Co. v. United States Co., 52 Fed. 385; Cannon v. Collins, 3 Del. Ch. 132. ""Farrel v. , 1 Moll. 363; McMahon v. Burchell, 2 Phil. 127; 1 C. P. Coop. temp. Cott. 475; Langley v. Fisher, 9 Beav. 90, 101; Graham V. Oliver, 3 Beav. 124, 129; Smith v. Burnham, 2 Sumn. (U. S.) 612; Jenkins v. Eldredge, 3 Story (U. S.) 181, 283, 284; see. Story Eq. PI., § 265a, and note; Brown v. Cham- bers, Hayes Exch. 597; Malcolm v. Scott, 3 Hare 39, 63; Brandon v. Cabiness. 10 Ala. 155; Bishop v. Bishop, 13 Ala. 475; Camden &c. R. Co V. Stewart, 19 N. J. Eq. 343, 346, 347. '*» Hughes V. Garner, 2 Y. & C. 328, 335; Graham v. Oliver, 3 Beav. 124. •551 PAROL AND SECONDARY EVIDENCE. [§ 321; evidence of a fact which is admitted by the answer may, and gen- erally should, be rejected. ^^^ § 3215. Parol and secondary evidence. — The general rule that parol evidence is not admissible to contradict or vary the terms of a written instrument obtains in equity'''- as well as at law. But ■owing, perhaps, more to the nature of the cases rather than to any peculiar rule of equity, parol evidence is often admitted where equita- ble relief is sought on the ground of fraud or mistake.^'^ So, as elsewhere shown, parol evidence is often admissible to prove facts and eircumstances establishing a resulting trust,'** or to rebut or fortify an equity.'*^ So, too, in most jurisdictions it is well settled that parol evidence is admissible in courts of equity, in a proper case, to show that an instrument in the form of a deed absolute on its face, or the like, is a mere security for a debt and therefore to be treated as a mortgage or the like.^^^ "1 Robinson v. Philadelphia &c. R. Co., 28 Fed. 577; Morris v. Morris, 38 Fed. 776. "= Sullivan v. McLenans, 2 Iowa 437, 65 Am. Dec. 780; Hart v. Clark, 54 Ala. 490; Peterson v. Grover, 20 Me. 363; Elysville Mfg. Co. v. Okisko Co., 1 Md. Ch. 392; Cooper v. Tap- pan, 4 Wis. 362; Hunt v. Rous- manier, 8 Wheat. (U. S.) 174. It is said, however, in Stoutenburgh v. Tompkins, 9 N. J. Eq. 332, that courts of equity are often more lib- eral than courts of law in admitting parol evidence. '«' Story V. Gammell, (Neb.) 94 N. W. 982; Goode v. Riley, 153 Mass. 585, 28 N. E. 228; Miller v. Gotten, 5 Ga. 341; Givan v. Masterson, 152 Ind. 127, 51 N. E. 237; Bennett v. Massachusetts &c. Ins. Co., 107 Tenn. 371, 64 S. W. 758; Hunt v. Rous- manier, 8 Wheat. (U. S.) 174; see also, Vol. I, §§ 574, 575, 591-595 and numerous authorities there cited; Townshend v. Stangroom, 6 Ves. 328; Joines v. Statham, 3 Atk. 388. As explained in the sections of this work above referred to, however, the theory is that the evidence in such cases does not contradict or vary the terms of a valid written contract, but goes rather to show that there never was any legal con- tract or to prevent fraud or raise a superior equity and give the con- tract its true effect. See also. Pio- neer Gold Min. Co. v. Baker, 23 Fed. 258. '^Vol. I, § 586. See also. Shackle- ford V. Elliott, 209 111. 333. 70 N. E. 745; McMurray v. McMurray, 180 Mo. 526, 79 S. W. 701; but compare, De Hihns v. Free, (S. Car.) 49 S. E. 841. ^^Vol. I, § 588. •^Vol. I, § 587. See also. Meeker v. Warren, (N. J. Eq.) 57 Atl. 421; Welborn v. Dixon, (S. Car.) 49 S. E. 232; County of Harlan Co. v. Whit- ney, 65 Neb. 105. 90 N. W. 993, 101 Am. St. 610. But compare, Ostenson v. Severson, (Iowa) 101 N. W. 789; Morrison v. Jones, (Mont.) 77 Pac. 5u7. § 3216.] PROCEEDIXGS IX EQUITY. 552 § 3216. Weight and sufficiency of evidence. — As a general rule it may be said that, with a few exceptions, evidence usually has the same weight and effect in equity as at law, and that it is, in most in- stances at least, sufficient to sustain and establish an issue by a pre- ponderance of the evidence. But there are expressions in some cases indicating that certain matters or issues must be shown or established beyond a reasonable doubt, and even where no such rule has been announced it seems in many instances that to constitute a satis- factory preponderance of the evidence in equity the evidence may have to be clearer and more satisfactory than is ordinarily required to constitute a fair preponderance in ordinary actions at law. The old doctrine seems to have been that the evidence must "satisfy the conscience of the chancellor," and, further than that, no definite rule could be laid down. It has frequently been said, however, that if the evidence as to a disputed fact is equally balanced, or if it does not produce a just and rational belief of its existence but leaves the mind in a state of perplexity, the party having the burden or affirmative as to such fact must fail.^^'^ So, it has been said that while circumstantial evidence may be as potent in equity as at law, the court will not be influenced by mere circumstances to adopt a conjectural conclusion, in a matter susceptible of proof, and will not indulge in presumptions and inferences not drawn from facts directly proved.^^^ And it has also been held that the chancellor, in passing on conflicting proofs, may, and, in a proper case, will follow the probabilities, although they may be contrary to the impressions of witnesses of undoubted integrity of purpose.^^^ There are cases in which, perhaps because of the old rule requiring the conscience of the chancellor to be satisfied as well as for the reason that they are easily manufactured, open to suspicion or the like, it is usually said that the evidence must be clear and convincing or satisfactor)'.^"** '"Hawes v. Brown, 75 Ala. 385; Guigan v. Gaines, 71 Ark. 614, 77 S. Evans v. Winston, 74 Ala. 349; Mar- ^V. 52, 53, 54. lowe V. Benagh, 52 Ala. 112; Bran- '"' Orman v. Barnard, 5 Fla. 528. don V. Cabiness, 10 Ala. 155; Goerke See also, Nichols v. McCarthy, 53 V. Rodgers, (Ark.) 86 S. W. 837; Conn. 299, 23 Atl. 93. Selby V. Geines, 12 111. 69; Gee v. ^^ Salisbury v. Salisbury, 49 Mich. Gee, 32 Miss. 190; Sterne v. Woods, 306, 13 N. W. 602; Lurch v. Holder, 11 Mo. 638; Rogers v. Traders' Ins. (N. J. Eq.) 27 Atl. 81. Co., 6 Paige (N. Y.) 583; Hargraves ^°» McGuigan v. Gaines, 71 Ark. V. Miller, 16 Ohio 338; Wilson v. 614, 77 S. W. 52; Doane v. Dunham, Delarack, 3 Ohio 290. See also, Mc- 64 Neb. 135, 89 N. W. 640; Rice v. 553 WEIGHT AND SUFFICIENCY. [§ 3216. Just what is meant by this is not entirely clear, but it apparently means that a mere slight preponderance of evidence not clearly or satisfactorily establishing the disputed fact or issue is insufficient. Cases in which the expression in question is used are mainly cases of mistake, trust, fraud, or the like, as, for instance where a result- ing trust is sought to be established by parol evidence, or specific performance or cancellation or reformation is sought. Yet, on the other hand, it has been said that courts of equity will sometimes act upon circumstances and badges of fraud that might be deemed in- sufficient to justify a verdict in a court of law.^^^ The fact that a witness is interested as a party or otherwise does not necessarily prevent a decree from being rendered on his evidence.^^- Indeed, it has been said that the very fact that men of high character are interested often makes their testimony more weighty as showing their attention is focussed on the matter in controversy.^ ^^ But it has been held that the testimony of parties who attempt to impose on a court of equity by false statements, manufactured accounts, or the like, is insufficient and should be given no weight. ^"^^ So, cir- cumstances and known facts may sometimes establish the truth more clearly than the oaths of the parties or the written depositions.^"^ But positive testimony has been held entitled to more weight than negative testimony or circumstances merely persuasive.^''*' Doeu- Rigley, 7 Idaho 115, 61 Pac. 290; inson, 5 De G. M. & G. 558, 25 L. Sallenger v. Perry, 130 N. Car. 134, J. Ch. 598; United States v. Munroe, 41 S. E. 11; Bruce v. Child, 11 N. 5 Mason (U. S.) 572, 577. Car. 372, 381; Westbrook v. Harbe- '''3 Greenleaf Ev., § 254; 1 Story son, 2 McCord Eq. (S. Car.) 112; Eq. Jur., §§ 190-193. See also, Ches- Layman v. Minneapolis &c. Co., 60 terfield v. Janssen, 1 Atk. 301, 352; Minn. 136, 62 N. W. 113; Southard v. Fullagar v. Clark, 18 Ves. 481, 483. Curlej', 134 N. Y. 148, 154, 31 N. E. '»= Conger v. Cotton, 37 Ark. 286; 330, 30 Am. St. 642, 16 L. R. A. 561; Montandon v. Deas, 14 Ala. 33, 4S Citizens' Nat. Bank v. Judy, 146 Ind. Am, Dec. 84. 322, 346, 347, 43 N. E. 259; 2 Pome- '"' Goerke v. Rodgers, (Ark.) 86 S. royEq. Jur., §§ 859, 1040. See also, W. 837, 838. See also, Peyton v. Capelli V. Dondero, 123 Cal. 324, 55 Green, 1 Eq. Cas. Abr. 11; Benson v. Pac. 1057; Bodwell v. Heaton, 40 Le Roy, 1 Paige (N. Y.) 122. Kans. 36, 18 Pac. 901; Givan v. Mas- "'* Atkinson v. Plumb, 45 W. Va. terson, 152 Ind. 127, 51 N. E. 237; 626, 32 S. E. 229. See also, Kenny v. Whelen v. Osgoodby, 62 N. J. Eq. Lembeck, 53 N. J. Eq. 20, 30 Atl. 571, 50 Atl. 692; Potter v. Potter, 27 525; Hill v. Binney, 6 Ves. 738. Ohio St. 84; Fritzler v. Robinson, '<0 '"^ Benter v. Patch, 7 Mackey (D. Iowa 500, 31 N. W. 61; Simmons C.) 590. Creek Coal Co. v. Doran. 142 IT. S. i»« Kennedy v. Kennedy, 2 Ala. 417, 12 Sup. Ct. 239; Bold v. Hutch- 571; Walker v. Walker, 2 Atk. 98. § 3217.] PROCEEDINGS IX EQUITY. o5-i mentary evidence properly submitted at the hearing by stipulation or otherwise is generally to be considered in the same light as evi- dence taken by deposition."^ But, as already shown, admissions of the parties are often given greater weight and effect than ordinary evidence, and are usually conclusive when made in judicio.^^* Affi- davits for preliminary action or as a foundation for ulterior pro- ceedings are also often given conclusive effect for such purpose,^^^ but not usually on final hearing. Indeed, ex parte affidavits are seldom received and considered on the final hearing, and, as there has been no opportunity for cross-examination they ought not, in any event, under ordinary circumstances, when contradicted, to be given the weight of evidence taken and heard in the usual course. § 3217. Objections and exceptions, — As a general rule, all the evidence offered should be received in the first instance in order to preserve it in the record,-***' and where there is doubt as to whether a question is proper the witness should generally be required to answer.^**^ Objections should be made, however, when the testimony is offered, and should be incorporated in the record, so that they may be passed upon later.^**- Yet it has been held proper to reserve until the hearing objections going to the competency,^"^ or relevancy .of testimony,^*'* The objections should clearly state the particular testimony objected to and the ground of the objection."**^ Objec- "^ Stone v. Welling, 14 Mich. 514. 537. See also, Johnson v. Meyer, 54 "^See ante, § 3193, admissions. Ark. 437, 16 S, W. 121; Williamson See also, Domville v. Solly, 2 Russ. v. Johnson, 5 N. J. Eq. 537; Vol. 372; Gresley Eq. Ev. 459, 460; 3 II, §§ 1180-1185. Greenleaf Ev., § 373. '°' Goelz v. Goelz, 157 111. 33, 41 N. '=^3 Greenleaf Ev., §§ 384, 385; 1 E. 756; Kennedy v. Meredith, 3 Bibb Daniell ,Ch. Pr. (5th Am. Ed.) 940. (Ky.) 465; Williams v. Vreeland, 30 They have been received as satis- N. J. Eq. 576; Williams v. Maitland, factory proof of exhibits at the 36 N. Car. 92. hearing. ^^"^ Williams v. Vreeland, 30 N. J. ^'^Bilz V. Bilz, 37 Mich. 116; Eq. 576; Jones v. Spencer, 2 Tenn. Parisian Comb Co. v. Eschwege, 92 Ch. 776; Diamond Drill &c. Co. v. Fed. 721; Lloyd v. Pennie, 50 Fed. 4; Kelly, 120 Fed. 282. Blease v. Garlington, 92 U. S. 1. ^ Freeny v. Freeny, 80 Md. 406, 31 =°^ Whitehead &c. Co. v. O'Calla- Atl. 304; Hamilton v. Southern han, 130 Fed. 243. Nevada Gold &c. Min. Co., 13 Sawy. =«^ Williams v. Thomas, 3 N. Mex. (U. S.) 113. 33 Fed. 562; Ashmead 324, 9 Pac. 356; Maxim-Nordenfelt v. Colby, 26 Conn. 287; Vol. II, &c. Co. v. Colt's Patent &c. Co., 103 §§ 882, 883. Fed. 39; De Roux v. Girard, 90 Fed. I 555 OBJECTIONS AXD EXCEPTIONS. [§ 3217. tions are generally regarded as waived unless the attention of the chancellor is called to them,-''° and will not be considered on appeal.'"^ So there may be a waiver by other conduct inconsistent with any ob- jection ;2°* and a cross-examination with knowledge of the incom- petency of the witness and without objection has been held to be a waiver.^"* But it is said that an express waiver of an objection must be entered on the record.^i*^ The subject of objections and excep- tions where there has been a reference to a master will be considered in another chapter. «•« Babcock v. Carter, 117 Ala. 575, 23 So. 487, 67 Am. St. 193; Seals v. Robinson, 75 Ala. 363; Brewer v. Browne, 68 Ala. 210; Skinner v. Campbell, 44 Fla. 723, 33 So. 526; Clarke v. Saxon, 1 Hill Eq. (S. Car.) 69; Van Namee v. Groot, 40 Vt. 74. =»'Pinney v. Finney, (Fla.) 35 So. 95; Ocala Foundry &c. Works v. Lester, (Fla.) 38 So. 56, 64. See also, Hillier v. Farrell, 185 Mass. 434, 70 N. E. 424. But compare, Goelz V. Goelz, 157 111. 33, 41 N. E. 756. As elsewhere shown, the admis- sion of improper evidence is often regarded as harmless, within limits, on the theory that the chancellor, in making his decree, regarded only the proper evidence. ^^Kelsey v. Hobby, 16 Pet. (U. S.) 269, 10 L. Ed. 961. See also, Bunnel V. Stoddard, 2 Am. L. Rec. 145, 4 Fed. Cas. No. 2135. ^^See, 3 Greenleaf Ev., § 369; United States v. Hair Pencils, 1 Paine (U. S.) 400; Charitable Co. v. Sutton, 2 Atk. 400; Sutton v. Wilson, 1 Vern. 254; Flagg v. Mann, 2 Sumn. (U*S.) 486; Vol. II, § 721. -"American Saddle Co. v. Hogg, Holmes (U. S.) 177. 1 Fed. Cas. No. 316. CHAPTER CLVII. REFERENCE TO MASTER. Sec. Sec. 3218. Discretionary. 3227. 3219. In what cases. 3228. 3220. Hearing on bill and answer — 3229. Master not to take testi- mony. 3230. 3221. Issues to be first determined — 3231. Scope of order. 3232. 3222. Duty of parties to prosecute 3233. reference. 3234. 3223. Evidence before master. 3235. 3224. Objections to evidence. 3225. Taking additional testimony 3236. after time fixed. 3226. When evidence should be re- ported. Master's report. Submitting draft of report. Objections and exceptions be- fore master. Irregularities in proceedings. Exceptions to report. Form of exceptions. Action on exceptions. Recommittal — Re-reference. Correction of report — Con- firmation. Weight to be given master's finding. § 3218. Discretionary. — Whether a reference to a master shall be made is a matter that is generally left very largely to the discretion of the court. Wliere a reference to a master is proper it is generally within the power of the court in its discretion either to order a refer- ence, even without consent of the parties/ or to determine the matter without a reference. 2 In the absence of some special rule to that 1 Williams v. Benton, 24 Cal. 424; Smith V. Rowe, 4 Cal. 6; State v. Orwig, 25 Iowa 280; State v. Mcln- tyre, 53 Me. 214; Nephi Irr. Co. v. Jenkins, 8 Utah 369, 31 Pac. 986; Shiras Eq. Pr. 41. See also. Bond v. Welcomes, 61 Minn. 43, 63 N. W. 3; Green v. Green, 50 S. Car. 514, 27 S. E. 952, 62 Am. St. 846; Commer- cial Banks v. McAulifEe, 92 Wis. 242, 66 N. W. 110; note in 79 Am. Dec. 207. = Levert v. Redwood, 9 Port. (Ala.) 79; Bryan v. Morgan, 35 Ark. 113; Bussey v. Bussey, 71 Mich. 504, 39 N. W. 847; Barnebee v. Beckley, 43 Mich. 613, 5 N. W. 976; Goodrich V. Parker, 1 Minn. 195, exceptions; Powell V. Kane, 5 Paige (N. Y.) 265, impertinence; Fortune v. Watkins, 94 N. Car. 304; Goddard v. Leech, Wright (Ohio) 476. In re Weed, 163 Pa. St. 600, 30 Atl. 278; Phillips's Appeal, 68 Pa. St. 130; Buchanan v. Alwell, 8 Humph. (Tenn.) 516; New York Cent. Trust Co. v. Madden, 17 556 557 WHAT REFEKIJED. [§ 3219. effect in the particular jurisdiction a reference is not etrictly a mat- ter of right/ and it lias been held that it should not be made on the motion of a party as of course.* A party is entitled to the judgment of the court especially upon issues of law, and the court should not abdicate its functions by referring the whole cause to a master to try and determine all the issues,^ although it may do so where the parties consent.^ The constitution or law of the particular jurisdic- tion may also prohibit a reference to a master, and a constitutional provision that "the testimony in causes in equity shall be taken in like manner as in cases at law," has been held to have that effects But in the same jurisdiction under the statute a compulsory refer- ence may now be ordered in cases where the taking of a long account is involved either in law or equity.* § 3219. In what cases. — Eeferences are most often made in cases of accounting or where it becomes necessary to investigate and take C. C. A. 236, 70 Fed. 451; Kelley v. Boettcher, 29 C. C. A. 14, 85 Fed. 55; Brown v. Grove, 25 C. C. A. 644, 80 Fed. 564. But see, St. Colombe v. United States, 7 Pet. (U. S.) 625; French v. Gibbs, 105 111. 523. ^ Manning v. Ludington, 6 Ohio Dec. (Reprint) 620, 7 Am. L. Rec. 117, and authorities in last two notes, supra. * Barnes v. Haynes, 16 Gray (Mass.) 34; Faitoute v. Haycock, 2 N. J. Eq. 105; Corning v. Baxter, 6 Paige (N. Y.) 178; Manning v. Ludington, 6 Ohio Dec. (Reprint) 620, 7 Am. L. Rec. 117. ° Early Times &c. Co. v. Zeiger, (N. Mex.) 66 Pac. 532; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355; Garinger v. Palmer, 61 C. C. A. 436, 126 Fed. 906; Walker v. Kinnare, 22 C. C. A. 75, 76 Fed. 101. But see, Littlejohn v. Regents, 71 Wis. 437, 37 N. W. 346; Jordan v. Warner's Estate, 107 Wis. 550, 83 N. W. 946. "Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355; Haggett v. Welsh, 1 Sim. 134, 2 Eng. Ch. 134. See also. Memphis v. Brown, 20 Wall. (U. S.) 269. ^ Brown v. Runals, 14 Wis. 693, 697. ^Winnebago County v. Dodge County, (Wis.) 106 N. W. 255. And in most jurisdictions a compulsory reference may be made in a proper case in equity. See Clarkson v. Hoyt, (Cal.) 36 Pac. 382; Smith v. Pollock, 2 Cal. 92; Grim v. Norris, ly Cal. 140, 79 Am. Dec. 206; Huston V. Wadsworth, 5 Colo. 213; Wilson V. Union Distilling Co., (Colo.) 66 Pac. 170; Mackenzie v. Flannery, 90 Ga. 590, 16 S. E. 710; Klutts v. Mc- Kenzie, 65 N. Car. 102; Galbraith v. McCormick, 23 Kans. 706; Creve Coeur &c, Co. v. Tamm, 138 Mo. 385, 39 S. W. 791; Burt v. Harrah, 65 Iowa 643; St. Paul &c. R. Co. v. Gardner, 19 Minn. 132, 18 Am. R. 334; Camp v. Ingersoll, 86 N. Y. 433; Green v. Green, 50 S. Car. 514, 27 S. E. 952, 62 Am. St. 846. In many of these cases it is held that the con- stitutional provision as to right of trial by jury does not apply to pre- vent a reference. § 3220.] REFERENCE TO MASTER. 558 an account. But there are other cases in which a reference is fre- quently made. In a recent text-book it is said: ''Wherever it is necessary, in the progress of a cause, to take an account, or to investi- gate the title of persons to property affected by the suit, or to make any other inquiries necessary to properly inform the court so that it may be in a position to determine and adjust the rights of the parties in interest ; or where some special ministerial act is to be done, as to sell property; and in other similar cases, — the court will refer the particular matter to a master in chancery, who is an officer of the court, and whose duty it is to thereupon comply with the order of the court, and report to the court the facts of such compliance.'"' A more definite, and at the same time more comprehensive, statement is as follows : "The matters which are ordinarily referred to masters in chancery are inquiries, as to whether pleadings or other proceed- ings in a suit in equity contain impertinence or scandal; as to who are the heirs, next of kin, creditors, or members of a particular class of legatees of a person whose estate is in the hands of the court for distribution; as to whether the title to real estate is good; and as to the state of the law of a foreign country; as to whether one of two books or other publications is pirated from the other; or as to the amount of damages suffered by the granting or withholding of an injunction; the taking of accounts; the computation of interest; the settlement of conveyances, and other deeds; the selling of property; the appointment of trustees, receivers and guardians; and the super- intendence of the performance of their duties by receivers."^" § 3220. Hearing on bill and answer— Master not to take testi- mony. — As already intimated it is usually within the discretion of the court after the issues are formed to order a reference to take testi- mony.^^ But where the complainant has the cause set down for hearing upon the bill and answer, and the answer is to be taken as true, according to the rule elsewhere stated, it has been held that the facts are to be ascertained from the bill and answer alone and that the court should not refer the cause to a master to take testimony and report.^ - 'Shipman Eq. PI. 109. See also, S. E. 818; Farmers' Mut. Ins. Assoc. Beach Mod. Eq. Pr., §§ 672, 680, et v. Berry, 53 S. Car. 129, 31 S. E. 53; seq.; Adams Eq. (8th Ed.) 378, 379. McSween v. McCown, 21 S. Car. ^"Foster Fed. Pr., § 307. 371; Bank v. Fenwell, 55 S. Car. 379, "Grob v. Cushman, 45 111. 119; 33 S. E. 485. Davis v. Davis, 30 111. 180; Barn- '= Irvine v. Eptein, (Fla.) 33 So. well V. Marion, 58 S. Car. 459, 36 1003; Byrd v. Belding, 18 Ark. 118; 559 SCOPE OF ORDER, [§ 3221. § 3221. Issues to be first determined— Scope of order.— As a gen- eral rule the main issues as to the general rights of tlie parties should first be made up and determined/^ so far at least as to make it ap- pear that a reference would be proper and to settle as far as may be the questions of law, and the order should generally give directions or instructions as to the principles by which the master is to be guided and the scope of the matter referred.^* A master derives his authority from the order of reference and cannot, ordinarily, extend his inquiry beyond the matters expressly referred.^ ^ But the matter of practice before the master is now regulated very largely in the federal courts by a general equity rule giving the master authority to regulate the proceedings before him to a great extent."' Tlic order should not be more extensive than the scope of the pleadings and the master cannot ordinarily go beyond their scope ;" nor can he go Franklin v. Meyer, 36 Ark. 96; Hicks V. Hogan, 36 Ark. 298; Owens V. Rliodes, 10 Fla. 319; Egerton v. Reilly, 1 Gill & J. (Md.) 385; Jones V. Douglass, 1 Tenn. Ch. 357, 360; Carey v. Williams, 1 Lea (Tenn.) 51; Baltimore &c. Co. v. Williams, 94 Va. 422, 26 S. E. 841; Neely v. Jones, 16 W. Va. 625, 37 Am. R. 794; Walker v. Kinnare, 22 C. C. A. 75, 76 Fed. 101; Ward v. Paducah &c. R. Co., 4 Fed. 862; Columbian &c. Co. V. Mercantile Trust &c. Co., 53 C. C. A. 33, 113 Fed. 23. But a reference has been held proper where the pleadings show a necessity therefor. Briggs V. Neal, 56 C. C. A. 572, 120 Fed. 224. And see as to practice in Vermont on foreclosure of mortgage. Hathaway v. Hagan, 64 Vt. 135, 24 Atl. 131. See generally Adams Eq. (8th ed.) 380. "Franklin v. Meyer, 36 Ark. 96; Owens v. Rhodes, 10 Fla. 319; Kay V. Fowler, 7 T. B. Mon. (Ky.) 593; Sharp v. Morrow, 6 T. B. Mon. (Ky.) 300; Hudson v. Trenton &c. Co., 16 N. J. Eq. 475; Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495; Carey v. Williams, 1 Lea (Tenn.) 51. As to the old English practice requiring "a state of facts" see 2 Daniell Ch. Pr. (5th ed.) 1199, 1200, 1201; 2 Beach Mod. Eq. Pr., § 688. See also Adams Eq. (8th ed.) 382, 383. "Henderson v. Huey, 45 Ala. 275; White V. Reviere, 57 Ga. 386; Howe V. Russel, 36 Me. 115; Winn v. Al- bert, 2 Md. Ch. 169; Stonington Sav. Bank v. Davis, 15 N. J. Eq. 30; Jones v. Massey, 9 S. Car. 376; Maury v. Lewis, 10 Yerg. (Tenn.) 115; Ballard v. McMillan, 5 Tex. Civ. App. 679, 25 S. W. 327; Bate &c. Co. V. Gillette, 28 Fed. 673; Taylor V. Robertson, 27 Fed. 537; Farmers' &c. Trust Co. v. Central Railroad, 2 Fed. 656; Gordon v. Hobart, 2 Story (U. S.) 243. '" United States Eq. Rule 77. Per- due V. Brooks, 95 Ala. 611, 11 So. 282. '■ Levert V. Redwood, 9 Port. (Ala.) 79; Waterman v. Curtis, 26 Conn. 241; Mackenzie v. Flannery, 90 Ga. 590, 16 S. E. 710; Potter v. Howe, 141 Mass. 357, 6 N. E. 233; Newton Rubber Works v. De Las Cases, 182 Mass. 436, 65 N. E. 816; Consequa v. Fanning, 3 Johns. Ch. (N. Y.) 587; Caldwell v. Leiber. 7 Paige (N. Y.) 483; but see. Nashua §§ 3222, 3223.] eeference to master. iGO behind the order, which must be accepted by him as conclusive of all matters covered by it.^^ § 3222. Duty of parties to prosecute reference. — The United States equity rules provide that, whenever a reference is made, the party at whose instance or for whose benefit it was directed shall cause the same to be presented to a master for a hearing on or before the rule-day next succeeding the date of the order for a reference. If he fails to do so the adverse party may forthwith cause proceedings to be had before the master at the costs of the party who procured the reference.^'' It is also held in other jurisdictions to be the duty of the party obtaining the reference to prosecute it in the first in- stance,^'' although under the old practice it was usually held to rest primarily upon the plaintiff.^^ It is the duty of the master to as- sign a time and place for the proceedings before him and due notice thereof must be given.^^ § 3223. Evidence before master. — In the absence of any restric- tion in the order the master usually has power to receive legitimate evidence for the proper determination of the matter referred,^^ and if it can be ascertained only by evidence he may do so, although the order does not particularly empower him to take testimony.^* The evidence may generally be documentary or by depositions, or viva voce." But if the testimony is taken orally it should be reduced &c. R. Co. V. Boston &c. R. Co., 49 Bernie v. Vandever, 16 Ark. 616; Fed. 774. Kerosene Lamp &c. Co. v. Fisher, 1 >« Izard v. Bodine, 9 N. J. Eq. 309; led. 91; Ballard v. Lippman, 32 Fla. Mulford V. Williams, 8 N. J. Eq. 536; 481, 14 So. 154; Wardlaw v. Erskine, Terry v. Robbins, 122 Fed. 725. See 21 S. Car. 359; Hubbard v. Camper- also, Deitch v. Staub, 53 C. C. A. 137, down Mills, 25 S. Car. 496, 1 S. E. 5; 115 Fed. 309; Gass v. Stinson, 2 Moore v. Bruce, 85 Va. 139, 7 S. E. bumn. (U. S.) 605; Baurle v. Long, 195; King v. Bryant, 3 M. & C. 191; 165 111. 340, 46 N. E. 227; Ellis v. 1 Newland Ch. Pr. 324. Ellis, (Tenn. Ch. App.) 62 S. W. 51; == Goodwin v. McGehee, 15 Ala. 232. Smith V. Swain, 7 Rich. Eq. (S. =* Story v. Livingston, 13 Pet. (U. Car.) 112. S.) 359. >" United States Eq. Rule 74. '' United States Eq. Rule 77. See ^"Camden &c. R. Co. v. Stewart, also, Grob v. Cushman, 45 111. 119; 19 N. J. Eq. 343; Quackenbush v. Bennett Office Master, 6; McDougald Leonard, 10 Paige (N. Y.) 131. v. Dougherty, 11 Ga. 570; Taylor v. 21 See, 2 Daniell Ch. Pr. 792. Young, 2 Bush (Ky.) 428; Story v. "U. S. Eq. Rule 75. See also, Livingston, 13 Pet. (U. S.) 359, 10 561 OBJECTION TO EVIDENCE. [§ 3224. to writing,^® and, indeed, all the evidence should usually be in the record. It is also sometimes expressly provided, as in the United States equity rules, that all affidavits, depositions and documents previously read or used in the court may be used before the master.^^ In general, the ordinary rules of evidence obtain before the master,^* but, he should, perhaps, incline toward admitting rather tlian ex- cluding evidence in case of doubt.^^ The master may be, and gener- ally is, authorized to compel the production of books and papers,^" in a proper case. And he may take evidence as to matters of detail and facts necessary or proper to the application of the principles of the decree.^ ^ § 3224. Objections to evidence. — The master has power and au- thority to rule on objections to the evidence,^ ^ at least in the first instance. But, ordinarily, unless the evidence is clearly inadmissible he should receive it subject to the objections, so that it may be brought into the record and the matter be passed on by the court and the evidence be considered without a re-reference if tlie court should deem it admissible.^^ An objection should, however, be made L. Ed. 200; Foote v. Silsby, 3 Blatchf. (U. S.) 507, 9 Fed. Cases No. 4920; Gresley Eq. Ev. 503. ='Brockman v. Aulger, 12 111. 277; Taylor v. Cawthorne, 17 N. Car. 221. " United States Eq. Rule 80. =«2 Barbour Ch. Pr. (2nd. ed.) 493. See also, Smith v. Althus, 11 Ves. 564; Gresley Eq. Ev. 503. As to examination of parties by master, see, Hollister v. Barkley, 11 N. H. 501; Jackson v. Jackson, 3 N. J. Eq. 96; McDougald v. Dougherty, 11 Ga. 570; Winter v. Wheeler, 7 B. Mon. (Ky.) 25. =^ Where testimony is taken be- fore an examiner for use on the trial, and there is doubt as to the relevancy or propriety of a question asked on cross-examination, the wit- ness should generally be required to answer. Whitehead & Hoag Co. V. O'Callahan, 130 Fed. 243. See also, Brown v. Worster, 113 Fed. 20; Kansas L. & T. Co. v. Sedalia Elec. R. &c. Co., 108 Fed. 702. It is gener- VoL. 4 Eeliott Ev.— 36 ally better to receive the evidence, subject to objections, so that the court may pass upon it afterwards. ^"Brockman v. Aulger, 12 111. 277; Hallett V. Hallett, 2 Paige (N. Y.) 432; Hart v. Ten Eyck. 2 Johns. Ch. (N. Y.) 513; Goss Printing-Press Co. v. Scott, 119 Fed. 941; United States Eq. Rule 77; but see, Cartee v. Spence, 24 S. Car. 550. =1 Franklin v. Meyer, 36 Ark. 96, 109; Atwood v. Shenandoah Val. R. Co., 85 Va. 966, 9 S. E. 748. '=Ellwood V. Walter, 103 111. App. 219; Kohlmeyer v. Kohlmeyer, 6 Pa. Co. Ct. 609; O'Malley v. O'Mal- ley, 10 Wkly. Notes Cas. (Pa.) 32; Wooster v. Gumbirnner, 20 Fed. 167. birnner, 20 Fed. 167. =' Kansas L. & T. Co. v. Sedalia Elec. R. &c. Co., 108 Fed. 702. See also, Ellwood v. Walter, 103 111. App. 219; Hann v. Barnegat &c. Imp. Co., (N. J. Eq.) 2 Atl. 928; Kohlmeyer V. Kohlmeyer, 6 Pa. Co. Ct. 609. § 3224.] REFEREXCE TO MASTER. 562 when the evidence is offered, and an exception should be taken.^* This is the safer course and is generally required. In some juris- dictions it is the practice on objections to evidence, or at least when the master excludes evidence, to bring the matter at once before the chancellor for his ruling or direction ;3^ but, as already shown, it is generally better to admit the evidence, with the objection, in case of doubt, and the practice of interrupting the proceedings and re- ferring such matters to the chancellor, as each question arises, is not usually looked upon with favor and has often been discountenanced.^'^ The manner of objecting and excepting to the master's report, or otherwise attacking it, will be considered in a subsequent section. ^* Taylor v. Kilgore, 33 Ala. 214; Whaleu V. Stephens, 193 111. 121, 61 N. E. 921; Williams v. Thomas, 3 N. Mex. 324, 9 Pac. 356; Pratt v. Adams, 7 Paige (N. Y.) 615; Read V. Winston, 4 Hen. & Mun. (Va.) 450; Troy Iron &e. Factory v. Corn- ing, 6 Blatchf. (U. S.) 328, 24 Fed. Cas. No. 14196. See, Marra v. Bige- low, 180 Mass. 48, 61 N. E. 275. ^ Dickinson v. Torrey, 91 111. App. 297; Schwarz v. Sears, Walk. (Mich.) 19. 3«Rusling V. Bray, 37 N. J. Eq. 174; Dotterer v. Saxton, 1 Wkly. Notes Cas. (Pa.) 218; Hoe v. Scott, 87 Fed. 220; Union &c. Refinery v. Mathiesson, 3 Cliff. 146, 24 Fed. Cas. No. 14398; Welling v. LaBau, 23 Blatchf. (U. S.) 305, 32 Fed. 293; Lull V. Clark, 20 Fed. 454. See also, Collins V. Jackson, 43 Mich. 558, 561, 5 N. W. 1052. Speaking of this prac- tice, in a recent case, the court says: "This does not seem to me to be in accordance with the precedent or proper practice. The court appoints the master with special reference to his fitness to perform the duties imposed upon him. He is the court's representative, and it is his duty to pass upon all the questions of pro- cedure as they come before him. His action is subject to review of tue court, but it must be only when he has concluded his labors, and the court has before it all the data upon which his conclusions are founded. The duty of the master is to hear the parties fully, 'directing the mode in which the matters requiring evi- dence shall be proved before him,' as provided for in the seventy-seventh rule in equity. It is necessary that he should be given the power to avoid delays and confusion, and to relieve the court of the necessity of passing upon the materiality of every disputed question as it may arise in the progress of the hearing. Errors made by the master can be corrected upon the coming in of his report upon exceptions properly taken. Upon the coming in of the re- port the parties can file their excep- tions founded upon previous objec- tions and have the court pass upon their validity. It would be pro- ductive of interminable delay and much vexation if all the disputed questions upon a hearing before the master should, as they arise, be brought before the court for revis- ion and approval." Hoe v. Scott, 87 Fed. 220. 221. 563 TAKING .UJDITIONAL TESTIMONY. [§§ 3225, 3226, § 3225. Taking additional testimony after time fixed. — It is usu- ally left to the master to fix a reasonable time for taking and closing the testimony and he ought not to open the case for further proof after that time without special cause." But Die master usually has discretionary power to reopen the case for further evidence,^^ at least up to the time when the draft of his report has been submitted to counsel,^" and, in exceptional cases even up to the time his report is finally settled."'^ But after the report is filed it is for the court to determine whether the matter shall be again referred to a master." If the time for closing testimony has been fixed by agreement of the parties, it is said to be discretionary with the master as to whether he will take testimony after the expiration of such time.'*^ And it has been held that even when the time has been fixed by the court, the parties may waive such limitation as to time and continue to take testimony thereafter.*^ The rule forbidding a re-examination of a witness, under ordinary circumstances, after his examination has once been closed, applies to proceedings before a master, and such a re-examination should not be allowed unless an order is obtained therefor.** § 3226. When evidence should be reported. — As a general rule, in the absence of an order to that effect, the master is not to report the evidence, but it is within the discretion of the court to order the master to report the evidence before him.*^ If not so ordered the master is not required, in the absence of any rule or statute to that •■" Remsen v. Remsen, 2 Johns. Cii. " National &c. Co. v. Dayton &c. (N. Y.) 495. Co., 91 Fed. 822. »« Oliver v. Wilhite, 201 111. 552, « Messinger's Appeal, (Pa.) 1 Atl. 66 N. E. 837; Richardson v. Wright, 260. 58 Vt. 367, 5 Atl. 287. '' Harding v. Harding, 79 HI. App. ^ Tyler v. Simmons, 6 Paige (N. 590; Hoofstitler v. Hoofstitler, 172 Y.) 127; Burgess v. Wilkinson, 7 R. Pa. St. 575, 33 Atl. 753. I. 31; Central Trust Co. v. Marietta, " Remsen v. Remsen, 2 Johns. Ch. &c. R. Co., 15 Fed. 41; Piper v. (N. Y.) 495; Pearson v. Darrington, Brown, Holmes 196, 19 Fed. Cas. No. 32 Ala. 227. See also, Nece v. 11181; Whiteside v. Pulliam, 25 HI. Pruden. 8 Phila. (Pa.) 350. 285. " Bowers v. Cutler, 165 Mass. 441, ^"Pattison v. HuU, 9 Cow. (N. Y.) 43 N. B. 188; Lovejoy v. Churchill, 747; Atwood v. Shenandoah Val. R. 29 Vt. 151. See also, Gleason &c. Co. Co., 85 Va. 966, 9 S. E. 748; Central v. Hoffman, 168 HI. 25, 48 N. E. 148; Trust Co. v. Richmond &c. R. Co., Freeland v. Wright, 154 Mass. 492, 69 Fed. 761. 28 N. E. 678; Arnold v. Slaughter, 36 W. Va. 589. § 3227.] REFEREXCK TO MASTEK. 564 effect, to report all the evidence;*" but when properly requested by a party as the basis for an exception, the master must report so much of the evidence as relates thereto.*^ This is generally neces- sary in order to obtain a review of the master's findings as to such matter.^* But, as already intimated, where a cause is heard before a master under a rule directing him to hear the parties and report his findings of fact and law to the court, the master is not required to report the evidence, in the absence of a request before or during the hearing/^ § 3227. Master's report. — It is usually the duty of the master to make a general report embracing the whole matter referred to him by the particular order or decree.^*^ But, as already shown, it is not, ordinarily, within his province to determine the entire case including both principles of law and all the issues of fact and thus usurping the functions of the court, and there are cases in which he may make a separate report as to particular matters requiring the immediate action of the court. Upon this general subject it is said by Mr. Adams :=*^ "When the master has disposed of all objections, ^'Vaughan v. Smith, 69 Ala. 92 Mahone v. Williams, 39 Ala. 202 Kirkman v. Vanlier, 7 Ala. 217 Goodman v. Jones, 26 Conn. 264 Prince v. Cutler, 69 111. 267; Sim- mons v. Jacobs, 52 Me. 147; Bailey V. Myrick, 52 Me. 132; Hemiup, Mat- ter of, 3 Paige (N. Y.) 305; Richie V. Levy, 69 Tex. 133, 6 S. W. 685; Mott v. Harrington, 15 Vt. 185; Her- rick V. Belknap, 27 Vt. 673; Enright V. Amsden, 70 Vt. 183, 40 Atl. 37; Garner v. Beaty, 7 J. J. Marsh. (Ky.) 223; Sibert v. Kelly, 5 J. J. Marsh. (Ky.) 81; Faucett v. Man- gum, 5 Ired. Eq. (N. Car.) 53, 49 Am. Dec. 432; Pilkington v. Gotten, 2 Jones Eq. (N. Car.) 238; Mitchell V. Walker, 2 Ired. Eq. (N. Car.) 621. See also, McKinney v. Pierce, 5 Ind. 422; Parker v. Nickerson, 137 Mass. 487. " Heffron v. Gore, 40 111. App. 257; Huling V. Farwell, 33 111. App. 238; East Tennessee Land Co. v. Leeson, 183 Mass. 37, 66 N. E. 427; Safford v. Old Colony R. Co., 168 Mass, 492, 47 N. E. 417; Johnson v. Lewis, 2 Strobh. Eq. (S. Car.) 157; Donnell v. Columbian Ins. Co., 2 Sumn. (U. S.) 366, 7 Fed. Cas. No. 3987; Greene v. Bishop, 1 Cliff. (U. S.) 186, 10 Fed. Cas. No. 5763. See also, Warren v. Lawson, 117 Ala. 339, 23 So. 65; Sutterfleld v. Ma- gowan, 12 S. Dak. 139, 80 N. W. 180; Ward V. Ward, 40 W. Va. 611, 21 S. E. 746, 52 Am. St. 911. *^ Arter v. Chapman, 4 Ohio Dec. (Reprint) 294, 1 Clev. L. R. 226; Williams v. Wager, 64 Vt. 326, 24 Atl. 765; Sheffield &c. Coal &c. Co. v. Gordon, 151 U. S. 285, 14 Sup. Ct. 343. ^^ Moore v. Dick, (Mass.) 72 N. E. 967. See also, Parker v. Nickerson, 137 Mass. 487. ^0 2 Danlell Ch. Pr. (5th ed.) 1294; Adams Eq. (8th ed.) *385. " Adams Eq. *384, ="385. See also, 2 Beach Mod. Eq. Pr. 694. 565 master's report, [§ 322T. and come to a conclusion on the matters referred, he settles and signs his report, and such report is then filed. The ordinary mode of framing a report is to refer separately to each of the directions in the decree, and then, with respect to each direction, first to mention on what evidence the master has proceeded," and then to state the conclusion at which he has arrived. In stating his conclusion, he should so far detail the facts which warrant it as may enable the court to judge of its correctness ;" and it is frequently advantageous, though not necessary, that he should also state the reasons which have induced his decision.^* But he must not omit the conclusion itself, or state evidence, or circumstances which are presumptive evi- dence, without finding whether they amount to a satisfactory proof.^-^ And if liberty be given, as it frequently is, to state special circum- stances, he should state, not the evidence, but the facts proved, as on a special verdict at law.^^ If any of the inquiries directed by the decree are such as cannot conveniently be delayed until the general report, the master may make a separate report, which is prepared,, disputed and confirmed in the same manner as a general one; the only difference being that when it is intended to act on such a report,, the cause is not set down for further directions, but a petition is presented praying such directions as are consequent on the separate report. Subject to this right of making separate reports the rule is, that a master's report must dispose of all matters referred, either by actual findings on such section of the degree, or by pointing out what matters of reference have been waived, and what has been disposed of by separate reports; and that the omission of any such "See, Grant, In re., 10 Sim. 573; 143; Lawrence v. Lawrence, 3 Paige Meux V. Bell, 1 Hare 73, 93. See (N. Y.) 267. also, Agnew v. "Whitney, 11 Phila. ^^ Lee v. Willock, 6 Ves. 605; Meux (Pa.) 298. V. Bell, 1 Hare 73, 91; Champernown ^5 See, Nims v. Nims, 20 Fla. 204; v. Scott, 4 Mad. 209; Johnson v. Gage v. Arndt, 121 111. 491, 13 N. E. Sanford, 13 Conn, 461. See also, 138; Green v. Lanier, 5 Heisk. Pilkington v. Gotten, 2 Jones Eq. (Tenn.) 662; Brainerd v, Arnold, (N, Car.) 238; Board of Trustees 27 Conn, 617; Van Slyke v. Hyatt, &c. v. Huston, 12 Ind. 276; Roberts 46 N. Y. 259. v. Barker, 63 N. H. 332. ''*See, Frazier v. Swain, 36 N. J. ^"Marlborough v. Wheat, 1 Atk. Eq. 156; but compare, Jackson v. 454. See also, Hemiup, Matter of, 3 Jackson, 3 N. J. Eq, 96; Lundell v. Paige (N, Y.) 305; Goodman v. Cheney, 50 Minn. 470, 52 N. W, 918; Jones, 26 Conn. 264; Bailey v. My- Herrick v. Belknap, 27 Vt. 673; rick, 52 Me. 132; State v. Peterson, Evans v. Evans, 2 Coldw. (Tenn.) 142 Mo. 526, 39 S. W. 453. §§ 3228, 3229.] reference to master, 5GG matters, or the introduction of any matters not referred to him, will render his report erroneous.''^' But this last statement is, perhaps a little too broad, as immaterial omissions will not necessarily vitiate the report,^^ nor will the inclusion of unnecessary matter neces- sarily vitiate it in all cases. ^'' And in taking accounts a full state- ment thereof should generally be made, and not a mere statement of the balance.''" § 3228. Submitting a draft of report. — It is customary, and, in- deed, essential in some jurisdictions, to submit a draft of the report to counsel before filing it, so that objections thereto may be made be- fore the master and the report corrected by the master, if necessary,*'^ but this depends largely upon local practice and the rule in the par- ticular jurisdiction. It was the usual practice in England,*'^ and in the federal courts before the adoption of the United States equity rule 83, and is still the practice in some of the federal courts,*'^ but in others, and in some of the state courts it seems to be unnecessary.*'* § 3229. Objections and exceptions before master. — As a general rule, in most jurisdictions, objections must be made before the master as preliminary to exceptions to his report, and according to tlie better "Winter v. Innes, 4 M. & C. 101; R. Co., 9 Fed. 856; 2 Daniell Ch. Pr. Jenkins v. Bryant, 6 Sim. 603; Gay- 936, et seq.; 2 Beach Mod. Eq. Pr., ler V. Fitzjohn, 1 Keen 469. § 695; Bennett Office Master 20. ^^ See, Cook v. Stevenson, 30 Micii. See also, Jewell v. Rock River &e. 242. Co., 101 111. 57; Teoli v. Nardolillo, ^'>Topliff V. Jackson, 12 Gray 23 R. I. 87, 49 Atl. 489. (Mass.) 565; National Bank &c. v. '^- See authorities cited in last note, Sprague, 23 N. J. Eq. 81. See also, supra. Parker v. Simpson, 180 Mass. 334, "^Celluloid Mfg. Co. v. Cellonite 62 N. E. 401. Mfg. Co., 40 Fed. 476. See also. Gay •"^ O'Neill V. Perryman, 102 Ala. Mfg. Co. v. Camp, 15 C. C. A. 226, 522, 14 So. 898; Nims v. Nims, 20 68 Fed. 67; Topliff v. Topliff, 145 (U. Fla. 204; Dewing v. Hutton, 40 W. S.) 173, 12 Sup. Ct. 825; McNamara Va. 521, 21 S. E. 780. See also, v. Home Land &c. Co., 105 Fed. 202; Robertson v. Baker, 11 Fla. 192; Troy &c. Factory v. Corning, tt June V. Myers, 12 Fla. 310; Moore Blatchf. (U. S.) 328. v. Huntington, 17 Wall. (U. S.) 417; "Van Ness v. Van Ness, 32 N. J. Jeffreys v. Yarborough, 2 Hawks Eq. 729; Fidelity Ins. &c. Co. v. (N. Car.) 307; Herrick v. Belknap. Shenandoah Iron Co., 42 Fed. 372; 27 Vt. 673; Reed v. Jones, 15 Wis. Hatch v. Indianapolis &c. R. Co., 9 40. Fed. 856. See also, Jennings v. Do- " Story v. Livingston. 13 Pet. (U. Ian, 29 Fed. 861. S.) 359; Hatch v. Indianapolis &c. 567 OBJECTIOX AND EXCEPTIONS. [§ 3C29. practice, no exceptions to a report can be considered where no ob- jections or exceptions were made or taken before the master, at least where an opportunity was given for such objections by the submis- sion of a draft of his report. "The reason for this rule of practice is that the master might have allowed the objections, and corrected his report, if errors had been pointed out to him; thus saving the parties unnecessary expense, and the court unnecessary trouble."®' It is certainly safer to make objections at tlic first opportunity, and in most jurisdictions where the strict rule is enforced such objections must be made before the master. But there may be objections that could not well be made before him, and an objection is not always required in all jurisdictions as a basis for an exception to his report in some respects at least. Thus, in some of the federal courts, since the United States equity rules went into force, it is held that excep- tions, in some instances at least, may be made within one month after the report is filed, even though no objection was made before the master.^® So, wliere the master disobeyed the instructions of the court it was held that no objections on tliat ground was required to be made before the master,"' and exceptions have been allowed where the objection was not made before the master, because of ex- cessable accident, surprise or mistake.''^ It has been held, however, that where the rule requires the master to submit a draft of his report to counsel and written objections must then be filed, the failure of "Celluloid Mfg. Co. v. Cellonite App.) 53 S. W. 1007. See also, laege Mfg. Co., 40 Fed. 476; 2 Daniell Ch. v. Bossieux, 15 Gratt. (Va.) 83, 76 Pr. (2d Am. ed.) 1483; Methodist Am. Dec. 189; Lannan v. Clavin, 3 &c. Church v. Jaques, 3 Johns. Ch. Kans. 17; Slee v. Bloom, 7 Johns. (N. Y.) 77, 81; Byington v. Wood, 1 Ch. (N. Y.) 137; Copeland v. Crane, Paige (N. Y.) 145; Copeland v. 19 Pick. (Mass.) 73; Winship v. Crane, 9 Pick. (Mass.) 73; Story v. Waterman, 56 Vt. 181. Livingston, 13 Pet. (U. S.) 359; '^'' Jennings v. Dolan, 29 Fed. 861; Gaines v. New Orleans, 1 Woods (U. Home Land fie. Co. v. McNamara, 49 S.) 104; Gordon v. Lewis, 2 Sumn. C. C. A. 642, 111 Fed. 822; Hatch v. (U.. S.) 143; Troy &c. Factory v. Indianapolis &c. R. Co., 9 Fed. 856. Corning, 6 Blatchf. (U. S.) 328; Gay "'Clark v. Knox, 70 Ala. 607, 45 Mfg. Co. v. Camp, 15 C. C. A. 226, i^m. R. 93. 68 Fed. 67; Gray v. New York Nat. •''Gaines v. New Orleans, 1 Woods Bldg. Asso., 125 Fed. 512; Whalen (U. S.) 104, 9 Fed. Cas. No. 5177. v Stephens, 193 111. 121, 61 N. E. See also. Prince v. Cutler. 69 111. 921; Marble v. Thomas, 178 111. 540, 267; Mechanics &c. Sav. Asso. v. 53 N. E. 354; State Bank v. Rose, 2 Farmington Sav. Bank. 41 111. App. Strobh. Eq. (S. Car.) 90; McKarsie 32. V. Citizens' Bldg. Asso.. (Tenn. Ch. §§ 3230, 3231.] REFERENCE TO MASTER. 568" the master to submit such draft of his report does not entitle a party to a consideration of objections not so made, but his remedy is by motion to recommit the report.®^ § 3230. Irregularities in proceedings. — Errors appearing on the face of the master's report, when not otherwise reviewable, are usu~ ally brought in question by exceptions.'^" But irregularities in the proceedings of the master or his failing to report as required, are usually brought before the court by motion to recommit or refer the report back, or to set it aside, or the like, and not by exceptions.^ ^ Thus, such a motion has been held to be the proper remedy for the- failure of the master to follow the order of reference,''^ ^nd for his failure to give a proper notice^^ or the like.^* The matter is, however,, largely regulated by statute or local rules or practice, and, in order to obtain a review of the master's findings, specific exceptions to his report are generally required. § 3231. Exceptions to report. — Objections are usually required to be followed up by exceptions to the master's report.'^ But it is held that errors of law may be suggested on the hearing or motion to con- firm.^^ The time limited for filing exceptions is generally deter- «*Hillier v. Farrell, 185 Mass. 434, 70 N. E. 424; Moore v. Rawson, 185 70 N. E. 424. Mass. 264, 70 N. E. 64; Roosa v. Da- '» See, Rennell V. Kimball, 5 Allen vis, 175 Mass. 117, 55 N. E. 809; (Mass.) 356; Foster v. Goddard, 1 Sanders v. Dowell, 7 Sm. & M. Black (U. S.) 506, and next follow- (Miss.) 206; Wilkes v. Rogers, 6 Ing section. Johns. Ch. (N. Y.) 566; Clements v. " Suydam v. Dequindre, Walk. Pearson, 4 Ired. Eq. (N. Car.) 257; (Mich.) 23; Douglas v. Merceles, 24 Musgrove v. Lusk, 2 Tenn. Ch. 576; iM. J. Eq. 25; Tyler v. Simmons, 6 Wyatt v. Thompson, 10 W. Va. 645. Paige (N. Y.) 127; De Mott v. Ben- See also, Butler &c. Co. v. Georgia son, 4 Edw. Ch. (N. Y.) 297. &c. R. Co., 119 Ga. 959, 47 S. E. 320; ''- United States &c. Co. v. Pitzile, George Green Lumber Co. v. Nutri- 66 111. App. 475; Emerson v. At- ment Co., 113 111. App. 635; McMan- water, 12 Mich. 314 ; Miller v. Miller, nomy v. Walker, 63 111. App. 259; 26 N. J. Eq. 423; Stevenson v. Gre- Thorne v. Hilliker, 12 Mich. 215; gory, 1 Barb. Ch. (N. Y.) 72; Ar- Mendrix v. Holden, 58 S. Car. 495,. nold V. Blackwell, 17 N. Car. 1. 36 S. E. 1010; Greenleaf v. Leach, "Lamson v. Drake, 105 Mass. 564. 20 Vt. 281; Harding v. Handy, 11 "See, Ashmead v. Colby, 26 Conn. Wheat. (U. S.) 103. 287; Green v. Brien, 1 Tenn. Ch. ""Williams v. Spitzer, 203 111. 505, 477. 68 N. E. 49; Von Tobel v. Ostrander, "Hillier v. Farrell, 185 Mass. 434, 15 J 111. 499, 42 N. E. 152; Fowler v. 569 FORM OF EXCEPTIONS. [§ 3232. mined by the statute, practice or rule in the particular jurisdiction.'^^ Where there is a re-committal to the master and a second report, it is safer and often necessary to renew the exceptions,'* but there are cases in which an exception need not be renewed.'^'' In West Vir- ginia a party may take advantage of an error appearing upon the face of the report without excepting thereto, but unless the error appears upon its face the report will be presumed to be correct, or admitted as correct by the parties, both in regard to the sufficiency of the evidence to support it and in other respects as well.**" § 3232. Form of exceptions. — It has been said that exceptions to a master's report are in the nature of a special demurrer,^ ^ and it is well settled that they must be specific.**- Thus, an exception which does not distinctly point out or designate any particular item or error is generally unavailing.^^ So, it has been held that a gen- eral objection that evidence is irrelevant and incompetent is not Payne, 52 Miss. 210; Windon v. Stewart, 48 W. Va. 488, 37 S. E. 603; Gordon v. Lewis, 2 Sumn. (U. S.) 143. See also, Levert v. Redwood, 9 Port. (Ala.) 79; Bogert v. Furman, 10 Paige (N. Y.) 496; Adams v. Claxton, 6 Ves. 226; Adams Eq. (7tli Am. ed.) 386. ■"See, United States Eq. Rule 83 (giving one month); Gasquet v. Crescent City Brew. Co., 49 Fed. 493; Weber v. Weitling, 18 N. J. Eq. 39; Jones v. White, 112 Ala. 449, 20 So. 527; Wooding v. Bradley, 76 Va. 614; Smith v. Brown, 44 W. Va. 342, 30 S. E. 160; but see, as to waiver of time limit, Jordan, Ex parte, 94 U. S. 248. '^Kee v. Kee, 2 Gratt. (Va.) 116; Pindley v. Findley, 42 W. Va. 372, 26 S. E. 433; but compare, Hopkins V. Pritchard, 51 W. Va. 385, 41 S. E. 347. "See, Moore v. Randolph, 70 Ala. 575; Lippincott v. Bechtold, 54 N. J. Eq. 407, 34 Atl. 1079. See, Bannon V, Overton. 1 Tenn. Ch. 528. ^oBank of Union v. Nickell, (W. \a.) 49 S. E. 1003. ""Ridley v. Ridley, 1 Coldw. (Tenn.) 323; Stewart v. Stewart, 40 W. Va. 65, 20 S. E. 862; but see, Foster v. Goddard, 1 Black (U. S.) 506. «= Foster v. Gressett, 29 Ala. 393; Whitworth v. Lowell, 178 Mass. 43, 59 N. E. 760; Crawford v. Osmun, 90 Mich. 77, 51 N. W. 356; Newcomb v. White, 5 N. Mex. 435. 23 Pac. 671; Hoagland v. Saul, (N. J. Eq.) 53 Atl. 704; Rader v. Yeargin, 35 Tenn. 486, 3 S. W. 178; Green v. Lanier, 5 Heisk. (Tenn.) 662; Richie v. Levy, 69 Tex. 133, 6 S. W. 685; Story v. Livingston, 13 Pet. (U. S.) 359; Dexter v. Arnold, 2 Sumn. (U. S.) 108; Sheffield &c. Co. v. Gordon, 151 U. S. 285, 14 Sup. Ct. 343. ^^Snell V. Deland. 136 111. 533, 27 N. E. 707; Hayes v. Hammond. 162 111. 133, 44 N. E. 422; Baker v. Mayo. 129 Mass. 517; Neal v. Briggs, 119 Fed. 477; Nickels v. Kane, 82 Va 309. § 3233.1 REFERENCE TO MASTER. 570 sufficiently specific to be entitled to consideration at the hearing.*** Regularly, exceptions should be properly entitled in the cause, signed by counsel, and properly show that the party excepts and appeals to the judgment of the court and each exception should usually be separately stated.^^ § 3233. Action on exceptions. — "After exceptions have been filed, the next step," says Mr. Adams,«« "is that they should be heard and determined by the court, and in doing this there are three courses for adoption. (1) They may be disallowed, or allowed absolutely, which has the effect of at once confirming the report, either as it stands, or with such changes as the allowance of the exceptions may make." (2) If the facts are imperfectly stated in the report, so that no judgment can be formed as to the proper conclusion; or if the existing evidence is unsatisfactory, but it is possible that other evidence exists, which in consequence of a favorable finding has not been adduced; or if the nature of the matter contested, or the frame of the exceptions, is such that their allowance shows a necessity for further investigation ; it may be referred back to the master to re- view his report, continuing in the meantime the reservation of fur- ther directions, and either allowing the exceptions, or making no order thereon. On a reference back to review, the master may re- ceive additional evidence ; but if it be accompanied by an allowance of the exceptions, he can come to no conclusion inconsistent with the terms of the exceptions. If no order is made on the exceptions, his finding or reviewal is unfettered.®^ (3) If the suit has taken such a course, that at the time of hearing the exceptions it is apparent that whatever order be made the same decree will follow, the court may decline to adjudicate on them, and may proceed to decree on further directions, as if no exceptions had been filed."®® '* Hamilton v. Southern Nav. &c. '' Egerton v. Jones, 1 Russ. & M. Min. Co., 33 Fed. 562. 694; Twyford v. Trail, 3 M. & C. '^ See, Bennett Office Master, Ap- 645 ; Livesey v. Livesey, 10 Sim. pendix I, for form. See also, 2 331; Grant, In re, 10 Sim. 573; Bal- Daniell Ch. Pr. (6th ed.) *1316; lard v. White, 2 Hare 158; Stocken Adams Eq. (8th ed.) *386; 4 Desty v. Dawson, 2 Phil. 141. See also, Fed. Proc. 630. Mitchell v. McKinny, 6 Heisk. «" Adams Eq., 386, 387. (Terin.) 83; Harris v. Ferris, 18 "'See also, Gottfried v. Crescent Pla. 84; Van Ness v. Van Ness, 32 Brew. Co., 22 Fed. 433; White v. N. J. Eq. 729. Hampton, 10 Iowa 238; Clark v. «" Hall v. Laver, 1 Hare 571; Willoughby, 1 Barb. Ch. (N. Y.) 68. Robinson v. Milner, 1 Hare 578, 571 RECOMMITTAL — RE-KEFEUEXCE. [§ 3234. §3234. Recommittal — Re-reference. — The matter of recommit- ting the report to the master I'or correction or of refering the case again to the same or another master is largely within the discretion of the court, and the court will not, ordinarily, grant a motion to recommit without some good reason being shown or appearing.'"* Nor will it be granted, under ordinary circumstances, at the instance of a party whose own neglect has created the only occasion or reason for so doing. '•^ Thus, where, upon a reference to ascertain the dam- ages for infringement of a patent, the complainant introduced before the master testimony given by the defendant in another suit as to the profits made by him by the use of the infringing machines, and the defendant's counsel made no effort to correct such testimony, but relied wholly on his exception to the master's report on the ground that the testimony was incompetent, it was held that, after the court had overruled such exception, it would not reopen the hearing be- fore the master to permit the defendant to show that his testimony in the previous suit was inaccurate.®- But there are cases in which the power to remand has been exercised in order to reach the merit? and do justice, even though the necessity may have arisen to some extent from the carelessness or ignorance of counsel,''^ and the courts often exercise their discretion by recommitting where the introduc- tion of further evidence seems necessary.®* So, of course, where the court finds that the master has failed to find on all the necessary material facts required by the submission,®-'^ or has otherwise com- note; Courtenay v. Williams, 3 Hare "^Cimiotti &c. Co. v. Bowsky, 113 539, 554. Fed. 699. »" Henderson v. Poster, 182 Mass. ''^ See, Beard v. Green, 51 Miss. 447, 65 N. E. 810; Mosher v. Joyce, 856. 2 C. C. A. 322, 51 Fed. 441, 444; ''* Beard v. Green, 51 Miss. 856; Hubbard v. Camperdown Mills, 26 Asp v. Warren, 108 Mass. 587; Nunn S. Car. 581. v. Nunn, 66 Ala. 35; Fuller v. Ful- " Central Trust Co. v. Georgia ler, 23 Fla. 236, 2 So. 426; Worth- Pac. R, Co., 83 Fed. 386; Reading ington v. Hiss, 70 Md. 172, 16 Atl. Ins. Co. V. Egelhoff, 115 Fed. 393; 537, 17 Atl. 1026; Thomas v. Daw- Gould V. Elgin City Banking Co., son, 9 Gratt. (Va.) 531; Waterman 136 111. 60, 26 N. E. 497; Slaughter v. Buck, 63 Vt. 5f4, 22 Atl. 15; Wil- V. Slaughter, 8 B. Mon. (Ky.) 482; liams v. Clark, 93 Va. 690, 25 S. E. Sowles V. Sartwell, (Vt.) 56 Atl. 1013. 282. See also. Lemon v. Rogge, '^^ Bolware v. Bolware, 4 Litt. (Miss.) 11 So. 470; Nece v. Pruden, (Ky.) 256; Forest Hill &c. Asso. v. 8 Phila. (Pa.) 350; Vandermark's McEvoy, 24 Ky. L. R. 161, 66 S. W. Estate, 2 Luz. Leg. Reg. (Pa.) 83. 1031; Dutch Church v. Smock, 1 N. § 3235.] REFERENCE TO MASTER. 57^ mitted an error that is inaterial,»« the court may recommit. But,, as will be shown in the next section, the court may generally take up the matter and make its own findings, or correct small errors, without recommitting the report, and will generally refuse to re- commit when no good could be accomplished by a recommittal." It has been held that the court may receive evidence of extrinsic facts upon application to recommit.®^ It has also been held that notice to parties is unnecessary on a recommittal to correct a re- port where no evidence is to be taken.^^ A recommittal for a par- ticular purpose does not, ordinarily, open up the whole case, and the master should confine himself within the limitations of the order of recommittal.^'''* § 3235. Correction of report — Confirmation. — As already inti- mated, the court may, in many instances at least, correct the mas- ter's report without recommitting it.^"^ Indeed, the court may make additional and supplemental findings based upon the evidence. ^''- A report may also be confirmed in part and recommitted in part.^"^ Unless otherwise provided by statute or determined by the practice in the particular jurisdiction, the general rule is that any report J. Eq. 148; Jones v. Byrne, 94 Va. ^"^ Huston v. Cassidy, 14 N. J. Eq. 751, 27 S. E. 591; King v. Burdett, 320; Utica Ins. Co. v. Lynch, 2 44 W. Va. 561, 29 S. E. 1010. Barb. Ch. (N. Y.) 573; Grossman v. ""Brokaw v. McDougall, 20 Fla. Card, 143 Mass. 152, 9 N. E. 514; 212; Brueggestradt v. Ludwig, 184 American &c. Co. v. Pollard, 132 111. 24, 56 N. E. 419; Laswell v. Ala. 155, 32 So. 630; Gaines v. Robbins, 39 111. 209, 219; Carman v. Brockerhoff, 136 Pa. St. 175, 19 Atl. Hurd, 1 Pinn. (Wis.) 619. 958; Richie v. Levy, 69 Tex. 133, 6 "See. Taylor v. Robertson, 27 S. W. 685; but see, Miller v. People's Fed. 537; Jennings v. Dolan, 29 Fed. Lumber Co., 98 111. App. 468; Poling 861; McElroy v. Swope, 47 Fed. 380; v Huffman, 48 W. Va. 639, 37 S. E. Cawley v. Cawley, 181 Mass. 451, 63 526. N. E. 1070. "^ Henderson v. Harness, 184 111. "^Peck v. Metcalf, 8 R. I. 386. 520, 56 N. E. 786; Johnson v. Galla- '■" Prince v. Cutler, 69 111. 267. gos, 10 N. Mex. 1, 60 Pac. 71. See i»° Harris v. Ferris, 18 Fla. 84; also, Barnum v. Barnum, 42 Md. Emig, In re, 186 Pa. St. 409, 40 Atl. 251; Callender v. Colegrove, 17 522. See also, Clark v. Willoughby, Conn. 1; Witters v. Sowles, 43 Fed. 1 Barb. Ch. (N. Y.) 68. See gener- 405; Carpenter v. Schermerhorn, 2 ally as to scope of re-reference. 2 Barb. Ch. (N. Y.) 314; 2 Beach Mod. Beach Mod. Eq. Pr., § 715, and com- Eq. Pr., § 712. pare, Van Ness v. Van Ness, 32 N. "" Callender v. Colgrove. 17 Conn. J. Eq. 729; Pinneo v. Goodspeed, 120 1. See also. Mitchell v. McKinny, 6. 111. 524, 12 N. E. 196. Heisk. (Tenn.) 83. 573 WEIGHT GIVEN MASTER'S FINDING. [§ 323G. to which exceptions might be taken must be confirmed before it can be finally acted upon.^*** The rule is stated by Mr. Beach as fol- lows: "Wherever the discretion of the court is exercised upon the first order, and where the master is only called upon to perform some act or make some inquiry necessary for carrying out the order which the court has made, the report of the master will not require con- firmation. But where the report is required for the purpose of enabling the court to make some discretionary order or decree, whether the order directing the reference be made upon a decree or upon any interlocutory application, the report requires confirmation before it is adopted as the foundation of such future order or de- cree.^'^°° Under the old practice a rule nisi was entered that the re- port should stand confirmed unless cause to the contrary should be shown within eight days. A similar practice obtains in some juris- dictions in this country, and in others the general equity rules pro- vide that the report shall stand confirmed unless exceptions are taken within the time designated by such rules.^"*' The order of confirma- ation is interlocutory rather than a final adjudication,^"' and it has been held that a confirmation may be implied in some instances without any express order directly confirming the report. ^'^^ It has also been held that the master's report is not usually evidence until after confirmation,^"^ but is admissible as such after exceptions have been overruled. ^^° § 3236. Weight to be g-iven master's finding. — It is well settled in most jurisdictions that the report of the master is not necessarily conclusive as to the facts found by him but may be reviewed by the ^"* Dorsey v. Hammond, 1 Bland First Nat. Bank v. Simms, 49 W. (Md.) 463; Champlin v. Memphis Va. 442, 38 S. E. 525. &c. R. Co., 9 Heisk. (Tenn.) 683; ""Johnson v. Meyer, 54 Ark. 437, Scott V. Livesey, 2 Sim. & St. 300, 1 16 S. W. 121; White v. Hampton, 10 Eng. Ch. 300; 16 Cyc. 459. Iowa 238; Portoues v. Holmes, 33 '"=2 Beach Mod. Eq. Pr., § 699; 2 HI. App. 312; but compare, Ander- Daniell Ch. Pr. (5th ed.), §§ 1304, son v. Henderson, irt HI. 164, 16 N. 1305. E. 232. '°« See, 2 Beach Mod. Eq. Pr., "' Diffenderffer v. Winder. 3 Gill § 699; 16 Cyc. 459. & J. (Md.) 311; San Antonio &c. R. '"Rust v. Mobile &c. Co., 124 Ala. Co. v. Ryan, (Tex. Civ. App.) 47 S. 202, 27 So. 263; Adkisson v. Dent. W. 749. 11 Ky. L. R. 85, 11 S. W. 950; Nash ""Richie v. Levy, 69 Tex. 133. 6 V. Hunt, 116 Mass. 237; Carter v. S. W. 685; Whitehead v. Perie, 15 Privatt, 3 Jones Eq. (N. Car.) 345; Tex. 7. 3236.] REFERENCE TO MASTER. 574 court."^ Further than this, however, it is difficult to state any pre- cise general rule, for the authorities are somewhat conflicting as to just what weight should be given to the master's finding. It is frequently said that it should be given the same weight as the ver- dict of a jury,"^ but in some jurisdictions this doctrine is expressly repudiated/^^ and in many of them it is said that the finding of the master, at least where the evidence is reported, is merely advisory.^ ^* Yet the finding of the master is presumed to be correct and when on conflicting evidence, will rarely be disturbed unless it is very clearly incorrect, especially where the reference is by consent.^^^ It is said, however, that while the presumption in the trial court should be that the finding of the master is correct, if the trial court ad- judges it erroneous the presumption goes down."® On exceptions to the master's report, if the evidence is not before the trial court, the "1 Field V. Holland, 6 Cranch (U. S.) 8; Ennesser v. Hudek, 169 111. 494, 48 N. E. 673; Brammerman v. Jennings, 101 Ind. 253; Honore v. Colmesnil, 1 J. J. Marsh. (Ky.) 506; Near v. Lowe, 56 Mich. 632, 23 N. W. 448; Burhans v. Van Zandt, 7 Barb. (N. Y.) 91; McMillan v. Mc- Neill, 69 N. Car. 129; Phillip's Ap- peal, 68 Pa. St. 130; Thorpe v. Thorpe, 12 S. Car. 154; Crislip v. Cain, 19 W. Va. 438; but see, under Vermont statute, Hathaway v. Ha- gan, 64 Vt. 135, 24 Atl. 131; Water- man V. Buck, 58 Vt. 519. "=Vaughan v. Smith, 69 Ala. 92; Cary v. Herrin, 62 Me. 16; Field v. Romero, 7 N. Mex. 630, 41 Pac. 517; Perry v. Sullivan &c. Co., 6 S. Car. 310. See also, Davis v. Schwartz, 155 U. S. 631, 15 Sup. Ct. 237; Hay- mond v. Camden, 48 W. Va. 463, 37 S. E. 642; Newell v. West, 149 Mass. 520, 21 N. E. 954; Stannard v. Sperry, 56 Conn. 541. "^ See, Holmes v. Holmes, 18 N. J. Eq. 141; Stewart v. Stewart, 40 W. Va. 65, 20 S. E. 862; but compare, Haulenbeck v. Cronkright, 23 N. J. Eq. 407. "*Boesch V. Graff, 133 U. S. 697, 10 Sup. Ct. 378, 381; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355; Enesser v. Hudek, 169 111. 494, 48 N. E. 673; Bremmerman v. Jennings, 101 Ind. 253; Medler v. Albuquerque Hotel &c. Co., 6 N. Mex. 331, 28 Pac. 551; McMillan v. McNeill, 69 N. Car. 129; Shipman v. Fletcher, 91 Va. 473, 22 S. E. 458. See also, Calvert v. Nickles, 26 S. Car. 304, 2 S. E. 116; Wheeler v. Alderman, 34 S. Car. 533, 13 S. E. 673. "'Tilghman v. Proctor, 125 U. S. 136, 8 Sup. Ct. 894; Girard &c. Ins. Co. V. Cooper, 162 U. S. 529, 16 Sup. Ct. 879; Camden v. Stuart, 144 U. S. 104, 12 Sup. Ct. 585; Ward v. Abbe- ville, 130 Ala. 597, 30 So. 341; Brueggestradt v. Ludwig. 184 111. 24, 56 N. E. 419; Williams v. Lind- blom, 163 111. 346, 45 N. B. 245; Pray v. Brigham, 174 Mass. 129, 54 N. E. 338; Gentile v. Kennedy, 8 N. Mex. 347, 45 Pac. 879; Felton v. Felton, 47 W. Va. 27, 34 S. E. 753; 2 Beach Mod. Eq. Pr., § 711. "" Bremmerman v. Jennings, 101 Ind. 253, 256, citing McKinney v. Pierce, 5 Ind. 422. 575 WEIGHT GIVEN MASTER'S FINDING. [§ 3236. findings of fact by the master will l)e taken by that court as true."^ And it is held in some jurisdictions that the findings of a referee or master are entitled to the same credit in the trial court as the findings of the trial court, in a case tried by such court, are entitled to on ap- peal." « "'Atlas Nat. Bank v. Abram 117, 80 N. W. 1107, citing other Wis- French Sons Co., 134 Fed. 746. consin decisions. "'Zoesch V. Thielman, 105 Wis. i EVIDENCE IN ADMIRALTY CASES. Vol. 4 Elliott Ev. — 37 577 CHAPTEK CLVIII. ADMIRALTY JURISDICTION. Sec. 3237. Generally. 3238. Origin and history — "Ad- miral." 3239. Nature of. 3240. Admiralty jurisdiction — Unit- ed States rule. 3241. Admiralty law follows civil law. 3242. Admiralty jurisdiction — Con- trolled by maritime laws. Sec. 3243. Jurisdiction must appear — Ef- fect of tide. 3244. Admiralty law — Administercil in the United States. 3245. Influence of constitution and statute on the admiralty laws. 3246. "High seas" — Meaning. 3247. High seas — Great Lakes. § 3237. Generally. — Admiralty jurisdiction was originally founded on the theory that the ships of any country were considered as a part of its territory. This accounts, too, for the history of the national strife in obtaining or holding control of the seas and excuses the am- bition and pride of civilized and commercial countries in their navies and merchant marine. While it was the object of every country to encourage navigation and maritime commerce, it was also the desire of all commercial countries to protect and regulate their ships and seamen. Hence, admiralty jurisdiction grew out of the common respect of the rights of navigation as first administered by the arbi- trary power of the admiral — or as settled by crude arbitration in cases of conflict of authority.^ § 3238. Origin and history — "Admiral." — Before admiralty courts were known or organized the jurisdiction of the sea, so far as any particular nation was concerned, was administered by a great naval officer holding his office and authority directly from the sovereign, but by reason of his peculiar situation he was clothed with many of the prerogatives of sovereignty. Many nations having consider- *3 Kent Comm. 2; Zouch's Juris- Bro. Civil & Adm. Law, diction of Admiralty — Ass. 1. 2 Benedict Adm. Pr., § 2. 579 chap. g 3239.] ADMIRALTY JURISDICTION. 580 able maritime commerce had some high or supreme officer bearing a title resembling in a greater or less degree the English word admiral. So that admiralty jurisdiction in its primitive form was little else than the exercise of the power of the admiral. It must be conceded that the fierce rule of an uncouth navigator was not tempered with either the mercy or justice now administered in these courts. The due administration of the law of the high seas has gradually passed into the functions of properly constituted courts while the high of- ficer, still known as the admiral, is now limited in his authority to the general direction of the fleet or the less pretentious control of his individual vessel. His quondam power and greatness are seen alone in the splendid system of laws which bears his name. "The mild and equitable system of admiralty law derives its descent through a long line of modifications and meliorations, from the absolute and irre- sponsible rule of naval command, as the peaceful law of real estate and the common law generally, have descended from the iron despot- ism of military dominion carried to its perfection in the feudal sys- tem."2 § 3239. Nature of. — The very best reasons exist for lodging the admiralty jurisdiction within the highest powers of the general gov- ernment. It is through the medium of navigation that nations come in contact with each other upon the universal highway — the open sea. The vessels of a nation must be under its supreme control and any wrong inflicted by them upon a citizen of another country must bo punished and any injuries sustained by them at the hands of seamen or citizens of another country must be vindicated. In order to en- courage commerce and navigation and to secure peace among nations they must control their ships and regulate commerce on the seas. Mr. Justice Story states this principle thus: "The admiralty juris- diction naturally connects itself on the one hand, with our diplo- matic relations to the duties to foreign nations and their subjects, and, on the other hand, with the great interest of navigation and commerce, foreign and domestic. There is, then, a peculiar wisdom in giving to the national government a jurisdiction of this sort whicli cannot be yielded, except for the general good and which multiplies the securities for public peace abroad, and gives to commerce and navigation the most encouraging support at home."^ = Benedict Adm. Pr., §§ 3, 4; Hall =2 Story Comm. on Const., § 1672; Adm. Intro. 7, 8. Moses Taylor, The, 4 Wall. (U. S.) 411. 581 UNITED STATES RULE. [§' 3240. § 3240. Admiralty jurisdiction — United States rule. — Admiralty jurisdiction was conferred upon the federal courts by the constitu- tion. But by its express terms the judicial power was extended to all cases of admiralty and maritime jurisdiction. This has been held to mean all such cases of a maritime character as fell within the admiralty courts of the states at the time of tlie adoption of tliC constitution.* There is a distinction between the admiralty juris- diction as exercised by the federal courts and the English courts of admiralty, as well as that exercised by the continental courts, whicli were organized under and governed by the principles of the civil law.' The American rule on this subject has been stated by tlie United States Supreme Court as follows: "Principal subjects of admiralty jurisdictions are maritime contracts and maritime torts, including captures jure belli, and seizures on w'ater for municipal and revenue forfeitures. (1) Contracts, claims, or service purely maritime and touching rights and duties appertaining to commerce and naviga- tion, are cognizable in the admiralty. (2) Torts or injuries com- mitted on navigable waters, of a civil nature, are also cognizable in the admiralty courts. Jurisdiction in the former case depends upon the nature of the contract, but in the latter it depends entirely upon locality. Mistakes need not be made if these rules are observed ; but contracts to be performed on waters not navigable, are not mari- time any more than those made to be performed on land. Nor are torts cognizable in the admiralty unless committed on the waters within the admiralty and maritime jurisdiction, as defined by law. Such jurisdiction, whether of torts or of contracts, was, and still is, restricted in the parent country to tide-waters, as they have no large fresh-water lakes or fresh-water rivers which are navigable. Waters where the tide did not ebb and flow, were regarded in that country as not within the admiralty and maritime jurisdiction. Attempt was subsequently made to restrict the jurisdiction of the admiralty courts in torts to cases arising on the high seas. But this court held tliat it extended to all waters within the ebb and flow of the tide, though infra corpus eomitatus, and as far up the rivers emptying into the sea or bays and arms of the sea, as the tide ebbed and flowed."*' *Warmg v. Clarke, 5 How. (U. (U.S.) 574,579; Thomas Jefferson, S.) 441, 454. The, 10 Wheat. (U. S.) 428; Insur- ''Bags of Linseed, 1 Black (U. S.) ance Co. v. Dunham, 11 Wall. (U. 108. S.) 1; Propeller Genesee Chief v. •Belfast, The, 7 Wall. (U. S.) Fitzhugh, 12 How. (U. S.) 443; Eas- 624, 637; Commerce, The, 1 Black ton, Ex parte, 95 U. S. 68, 72; Mauiy §§ 'o24:l, 3242.] ADMIRALTY JURISDICTION. 582 § 3241. Admiralty law follows civil law. — The "law of the sea" naturally gi-ew as niaritiine commerce extended and the sea was necessarily considered the common highway of nations, in which, for the purpose of business, all nations were considered equal and their rights finally guaranteed in a system of rules enforced by the courts of the different nations. Hence, these laws naturally became impressed with the characteristics of the laws of the countries wherein they were first administered. A modern writer has expressed this principle thus: "The countries that earliest reduced the law of the sea to a system, and adopted codes of maritime regulations, having been countries in which the Roman or civil law prevailed, the prin- ciples of that great system of jurisprudence were incorporated with, and gave character to, the maritime law : and so much were pure reason, abstract right, and practical justice mingled in that system, and so important was it that the general maritime law should be uniform and universal, that, in England, where the common law was the law of the land, the civil law was held to be the law of the admiralty and the course of proceedings in admiralty closely resem- bled the civil law practice."^ § 3242. Admiralty jurisdiction — Controlled by maritime laws. A court of admiralty is a court of the law of nations, and in one branch of its jurisdiction, that of prize, both the law and jurisdic- tion are derived solely from the laws of nations, and on the instance side of the court, in many cases, as when the controversy is between parties of different nations, its rule of the case or the jurisdiction of the court is not always to be taken from the municipal law of either of the parties, but from the general maritime law which governs all on the common highway of nations.® The jurisdiction of the District Courts under the 9th section of the judiciary act of 1789 has been lield to embrace all cases of a maritime nature, whether of an ad- miralty cognizance or not. This jurisdiction and the law regulat- ing its exercise "are to be sought for in the general maritime law of V. Culliford, 10 Fed. 388; Enright, States v. New Bedford Bridge, 1 The. 12 Fed. 157; Delovio v. Boit, 2 Woodb. & M. (U. S.) 401, 460, 27 Gall. (U. S.) 398, 7 Fed. Cas. No. Fed. Cas. No. 15867; Clarke v. New 3776; Richard Winslow, The. 71 Jersey &c. Co., 1 Story (U. S.) 531. Fed. 426; Josephine, In re, 39 N. ^Huntress, The, 2 Ware (U. S.) Y. 19; Warren v. Kelley, 80 Me. 89,106; DeLovio v. Boit, 2 Gall. (U. 51-:, 15 Atl. 49. S.) 398, 7 Fed. Cas. No. 3776. 'Benedict Adm. Pr.. § 5; United 583 JURISDICTION MUST APPEAR. [§§ 3243, 3244. nations, and are not confined to that of England, or any other par- ticular maritime nation."^ § 3243. Jurisdiction must appear — Effect of tide. — It must appear on the face of the proceedings that the court of admiralty had juris- diction of the case. But tliis jurisdiction is sometimes a question of fact. The proper practice seems to be to set up the want of juris- diction as a defense, or in the nature of a plea in abatement and have the question determined on the proof introduced on the issue raised by such a plea. The question of jurisdiction in cases where materials have been furnished or repairs made on a vessel depends generally on its location or position at the time such materials were furnished or such repairs were made. In order to give jurisdiction to the ad- miralty court the proof must show whether the vessel at the time was at a place where the tide ebbs and flows. As admiralty jurisdic- tion depends upon location and is determined by the ebb and flow of the tide, if the tide has any influence at all it must determine the question.^" ' § 3244. Admiralty law — Administered in the United States. — The statutory regulations of maritime laws are far from exclusive in the United States. It has been the constant aim of the courts of this country to apply the general maritime law of the world when it could be done without infringing or violating the statutory law and the usages of this country. At the same time the courts of this country have not imported any modern codes into this system. Nor have the courts of this country been bound by the petty jealousies of common courts of England to the extent of unnecessarily restricting the law of the admiralty. This principle of the growth of admiralty jurisprudence and the application of maritime law by the courts of this country was thus stated in a comparatively recent case, "When- ever the Supreme Court has applied the general maritime law to cases arising before them, it will be observed that they have limited them- selves to that. The growth of admiralty jurisprudence within this country has been in the direction of the freedom from the confined limits within Avliich, owing to the well-known jealousy of the courts of common law in England, the law of the admiralty was in that »Seneca, The. 3 AVall. Jr. (U. S.) "Planter, The, 7 Pet. (U. S.) 324; 395; Lotta wanna. The, 21 Wall. (U. Rex v. Smith, 2 Dong. 441. S.) 558; St. Lawrence, The, 1 Black (U. S.) 522, 526. §§ 3245, 3246.] admiralty jurisdiction. 584 country restricted. But, while our admiralty law has expanded and developed, and this by the application of the general maritime law, our Supreme Court has carefully kept it within the boundaries of the law and usages of this country and has not imported the modem codes into our system."^^ §3245. Influence of constitution and statute on the admiralty laws. — On the question of the influence of the constitution and statu- tory enactments on the maritime law, the Supreme Court say: "As the constitution extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction, and as this juris- diction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national legislature, and not in the state legislatures. It is true, we have held that the boundaries and limits of the admiralty and maritime jurisdiction are matters of judicial cognizance, and cannot be affected or controlled by legis- lation, whether state or national. But within these boundaries and limits the law itself is that which has always been received as mari- time law in this country, with such amendments and modifications as congress may from time to time have adopted. ^^ § 3246. High seas — Meaning. — The jurisdiction of local courts in a certain class of cases depends on whether the vessel seized, or the "Butler v. Boston &c. Co., 130 U. 6 How. (U. S.) 344; Rich v. Lam- S. 527, 9 Sup. Ct. 612; American bert, 12 How. (U. S.) 347; Genesee Ins. Co. v. Canter, 1 Pet. (U. S.) Chief v. Pitzhugh, 12 How. (U. S.) 511; Waring v. Clarke, 5 Tow. (U. 443; Ward v. Peck, 18 How. (U. S.) 441; Lottawanna, The, 21 Wall. S.) 267; Dupont de Nemours v. (U. S.) 558; Steele v. Thacher, 1 Vance, 19 How. (U. S.) 162; China, Ware (U. S.) 91; Scotland, The, 105 The, 7 Wall. (U. S.) 53; Merrimac, IT. S. 24. To this point the court The, 14 Wall. (U. S.) 199; Sherlock cited the following cases: General v. Ailing, 93 U. S. 99; Scotia, The, Smith, The, 4 Wheat. (U. S.) 438; 14 Wall. (U. S.) 170; Alabama, The, St. Jago de Cuba, The, 9 Wheat. (U. 92 U. S. 695; Atlas, The, 93 U. S. S.) 409; United States v. La Ven- 302; Virginia Ehrman, The, 97 U. S. geance, 3 Ball. (U. S.) 297; United 309; North Star, The, 106 U. S. 17, States V. Sally, The, 2 Cranch (U. 1 Sup. Ct. 41. S.) 406; United States v. Betsey, ^= Butler v. Boston &c. Co., 130 U. The, 4 Cranch (U. S.) 443; Samuel, S. 527, 9 Sup. Ct. 612; St. Law- The, 1 Wheat. (U. S.) 9; Octavia, rence. The. 1 Black (U. S.) 522, The, 1 Wheat. (U. S.) 20; Hobart v. 526; Lottawanna, The, 21 Wall. (U. Drogan, 10 Pet. (U. S.) 108; New S.) 558. Jersey &c. Co. v. Merchants' Bank, 585 HIGH SEAS. [§ 3246. collision or other wrong which is the subject of the action, was upon the "high seas" or within a particular port. Hence, the exercise of jurisdiction in such cases depends upon the proof, and it therefore- becomes important to know the meaning of "high seas." A general definition for this term is "all waters below the line of low water mark on the sea coast are comprehended within that description and when the tide flows the waters to high water mark also are properly the high seas."^=' Lord Hale says of it, "that part of the sea which lies not within the body of a country is called the main sea or ocean." The court that quoted Lord Hale further said : "The open sea, the high sea, the ocean, is that which is the common domain, within the body of no country and under the particular right or jurisdiction of no sovereign, but open, free, and common to all alike, as a common and equal right. The expression describes the open ocean where the do- minion of the winds and waves prevails without check or control."" So it has been held that a vessel lying outside of the bar of an harbor of the United States, within three miles of the shore, is on the high seas.^^ In its ordinary acceptance the term is held to mean the seas outside low water mark on the coast. ^"^ And it has been held that the waters of havens where the tide ebbs and flows are not properly the high seas, unless they are without low Avater mark.^^ And the term is held to include waters on the sea coast outside of the i^Abby, The, 1 Mason (U. S.) 360, People, 7 N. Y. 295; Constable's 1 Fed. Cas. No. 14; De Lovio v. Case, 5 Coke 106. Boit, 2 Gall. (U. S.) 398, 7 Fed. Cas. "United States v. Morel, 26 Fed. No. 3776; Gedney v. L'Amistad, 10 Cas. No. 15807, 13 Am. Jur. 279; Fed. Cas. No. 5294a; Harriet, The, United States v. Hamilton, 1 Mason 1 Story (U. S.) 251, 11 Fed. Cas. (U. S.) 152, 26 Fed. Cas. No. 15290; No. 6099; United States v. Crush, United States v. Wiltberger, 3 5 Mason (U. S.) 290, 26 Fed. Cas. Wash. (U. S.) 515, 27 Fed. Cas. No. No. 15268, 1 U. S. Law Int. 214; 16738. United States v. Morel, 26 Fed. Cas. '=* United States v. Smith, 1 Mason No. 15807, 13 Am. Jur. 279; United (U. S.) 147, 27 Fed. Cas. No. 16337; States v. Seagrist, 4 Blatchf. (U. S.) United States v. New Bedford 420, 27 Fed. Cas. No. 16245; United Bridge, 1 Woodb. & M. (U. S.) 401, States v. Bevans, 3 Wheat. (U. S.) 27 Fed. Cas. No. 15867, 10 Law R. 336; United States v. Furlong, 5 127. Wheat. (U. S.) 184; United States "^United States v. Seagrist. 4 V. Coombs, 12 Pet. ( U. S.) 72: Blatchf. (U. S.) 420, 27 Fed. Cas. Waring v. Cla.rke, 5 How. (U. S.) No. 16245. 441; United States v. Rodgers, 150 '- United States v. Hamilton, 1 Ma- U. S. 249, 14 Sup. Ct. 109; Manley v. son (U. S.) 152, 26 Fed. Cas. No. 15290. § 3247.] ADMIRALTY JURISDICTION. 586 boundaries of low water mark.^^ It has been held that the term does not include the combined salt and fresh waters which at high tide flood the banks of an adjacent bay.^^ It has also been held to mean the open ocean as distinguished from a river, haven, basin or bay.^° Mr. Benedict gives the following definition: "The high sea, the open sea, are phrases used to distinguish the expanse and mass of any great body of water, from its margin or coast, its harbors, bays, creeks, inlets. High seas, in the plural number, more properly mean the oceanic mass of waters, which is composed of many subdivisions of seas and oceans."^^ § 3247. High seas — Great lakes. — The peculiar phraseology of the United States statutes has given rise to some controversy in regard to the admiralty jurisdiction over the Great Lakes. The jurisdic- tion conferred by the statutes extends not only to the high seas, but to any arm of the sea, or in any river, haven, creek, basin or bay within the admiralty jurisdiction of the United States and out of the jurisdiction of any particular state. In discussing the question of admiralty jurisdiction over the Great Lakes the Supreme Court of the United States said: "These lakes are in truth, inland seas. Different states border on them on one side and a foreign nation on the other. A great and growing commerce is carried on upon them between different states and a foreign nation which is subject to all the incidents and hazards that attend commerce on the ocean. Hos- tile fleets have been encountered on them, and prizes been made, and every reason which existed for the grant of admiralty jurisdic- tion to the general government on the Atlantic seas applies witli equal force to the lakes. There is an equal necessity for the instance and for the prize power of the admiralty court to adminster inter- national law, and if the one cannot be established, neither can the other."' ^ In a later case the same court expressly held that the term "high seas" was applicable to the open, unenclosed waters of the Great Lakes. ^^ But in cases originating where the vessel was in any " Ross, In re, 140 U. S. 453, 11 "' Benedict Adm. Pr., § 224. Sup. Ct. 897; Byers, Ex parte, 32 ^2 Qenesee Chief, The, 12 How. Fed. 404; United States v. Ross, 1 (U. S.) 443, 453; Illinois &c. R. Gall. (U. S.) 624, 27 Fed. Cas. No. Co. v. Illinois, 146 U. S. 387, 435, 16196. 13 Sup. Ct. 110. See, Eagle, The, 8 "Morgan v. Nagodish, 40 La. Wall. (U. S.) 15. An. 246, 3 So. 636. ^ United States v. Rodgers, 150 U. =» Emory v. Collings, 1 Harr. S. 249, 14 Sup. Ct. 109. (Del.) 325. 587 GREAT LAKES. [§ 324T. arm of the sea, or any river, haven, creek, basin or bay, in order to confer jurisdiction on admiralty courts the proof must show that such vessel, at the time of the alleged offense, was outside of the jurisdiction of any state; hence, the admiralty jurisdiction was held to extend to offenses committed "on a vessel belonging to a citizen of the United States, when such vessel is in the Detroit Eiver, out of the jurisdiction of any particular state, and within the territorial limits of the Dominion of Canada.-'* But under a later statute it has been held that the admiralty jurisdiction of one district court of the United States did not extend to offenses committed on a vessel on one of the Great Lakes within the jurisdiction of another district court.^"^ -* United States v. Rodgers, 150 district court for the Eastern Dis- U. S. 249, 14 Sup. Ct. 109; Robert trict of Michigan. Byers, Ex parte. Holland, The, 59 Fed. 200; North 32 Fed. 404; Henry Miller's Case. 1 Star, The, 10 C. C. A. 262, 62 Fed. Bro. Adm. 156. See, People v. Tyler. 71; Bigelow v. Nickerson, 17 C. C. A. 7 Mich. 161. 1, 70 Fed. 113. A contrary holding '^ United States v. Peterson, 04 was made in an earlier case in the Fed. 145. CHAPTEE CLIX. ADMIRALTY PRACTICE. Sec. Sec. 3248. Nature — Generally. 3254. Proceedings yield to circum- 3249. Nature of admiralty cases. stances. 3250. Courts of admiralty resemble 3255. Proceedings not included in courts of equity. statutes unless expressly 3251. Equitable principles applied named. in cases of negligence. 3256. Evidence of usage — Sailing 3252. Flexibility of admiralty courts rules. — Admissibility of evidence. 3257. Judicial notice. 3253. Liberal rules of evidence. 3258. Foreign laws — When proof re- quired. § 3248. Nature — Generally. — From the very nature of the case admiralty courts are not creatures of statutes. They have become in America, to some extent, subject to statutory control but the law is administered in much the original and universal way. While it followed the civil law in its origin and general characteristics and has felt the touch of the common law, it is of necessity in the nature of equity. It could scarcely exist, much less grow were it ad- ministered according to the strict rules of statutory regulation. The imiversal respect it has gained and its general application in all civilized countries are due to tne peaceful and equitable principles applied in controversies arising between persons of different nation- ality and citizens of different countries. On the nature of admiralty practice Mr. George Ticknor Curtis said: "The Admiralty should be otherwise known than as a court of curious learning, where con- troversies are determined upon principles and under forms which, to the popular feelings, are unusual, abstruse, or difficult of appre- hension. Its process and forms are indeed in many respects different from the common law, the administration of which is most generally familiar to the people of the United States. But one of its main and most characteristic features is that it is, to the extent of its jurisdiction, a court of equity. It entertains pleas of part perform- ance, and decreed an instrument to be good in part and bad in part,. 588 .-,89 NATUUE OF ADMIKALTY CASES. [§§ 3249, 3250. as the fact and equity of the case may be. It annuls positive con- tracts improvidently entered into by its "ward," tlie seaman, and is not restrained from his protection by the binding sanctity of a seal. It rejects altogether in its pleadings the technical niceties of the common law, and requires only that the substantial merits should be set forth, in forms that are peculiar, indeed, but wholly liberal and unembarrassing. In the construction of contracts it seeks to com- bine the intention of the parties and actual justice in the result of their controversies."^ § 3249. Nature of admiralty cases. — Civil actions in admiralty are in the nature of proceedings in rem. In such actions there is seldom a personal defendant. The advantage, if not the necessity of the nature of such proceedings is found in the fact that a valid title against all the world is transferred to the purchaser at a sale under a decree or order of the admiralty court. This principle has been distinctly recognized by the United States Supreme Court thus : "The distinguishing and characteristic feature of such suit is that the vessel or thing proceeded against is itself seized and impleaded as the defendant, and is judged and sentenced accordingly. It is this dominion of the suit in admiralty over the vessel or thing itself which gives to the title made under its decrees validity against all the world."2 §3250. Courts of admiralty resemble courts of equity. — It may be stated as a general proposition that the rules of admiralty in a general way resemble those of other courts. The same could be said of courts of law and courts of equity. But in many respects courts of law and courts of equity differ, and in all such points of difference the practice of the admiralty resembles that of equity. Indeed, there is greater difference between courts of law and admiralty than between law and equity. The processes and modes of admiralty, both of practice and decisions, are said to be equitable.^' On this sub- ject one district court said : "A court of admiralty is, as to all matters falling within its jurisdiction, a court of equity. Its hands are not tied up by the rigid and teclinical rules of the common law, but it administers justice upon the large and liberal principles of courts ^ 1 Ency. PI. & Pr. 251. * Richmond v. New Bedford &c. * Moses Taylor, The, 4 Wall. (U. Co., 2 Low. (U. S.) 315. S.) 411. § 3251.] ADMIRALTY PKACTICE. 590 which exercise a general equity jurisdiction."* This principle was further stated thus: "A Court of Admiralty is a Court of Equity. Extreme powers of a peculiar character have been conferred upon it, to enable it to determine speedily and with the least possible ex- pense, by means of simple methods, all questions which may arise in respect to affairs of the sea. Not only has it the power but it is charged with the duty of devising methods by which all questions, of which it can take cognizance, can be adjudicated speedily and justly."^ Of the difference in these courts Mr. Story said: "No proceedings can be more unlike than those in the common law and in admiralty.^'^ Of this nature of the admiralty practice Lord Stowell said: "This court certainly does not claim the character of a court of general equity; but it is bound by its commission and constitution, to determine the cases submitted to its cognizance upon equitable principles, and according to the rules of natural justice.'"' But the courts of admiralty have never adopted and do not recog- nize the equity rule which requires two witnesses, or one witness and strong corroborative circumstances in order to overcome the verified answers of another.^ § 3251. Equitable principles applied in case of negligence. — One of the best illustrations of the application of the equitable principles of admiralty courts is found in the nature of the relief granted in cases of collisions on account of negligence, and more especially in eases where it appears that both vessels have been at fault. In such cases admiralty courts have adopted the equitable rule that where the proof shows that both vessels are in fault the damages shall be equally apportioned between the offending vessels.^ The rule * David Pratt, The, 1 Ware (U. S.) mond v. New Bedford &c. Co., 2 509; Brown V. Lull, 2 Sumn. (U. S.) Low. (U. S.) 315; Brown v. Bur- 443; Fortitudo, The, 2 Dod. 58; Co- rows, 2 Blatchf. (U. S.) 340, 4 Fed. gnac. The, 2 Hagg. Adm. 377; Vir- Cas. No. 1995; Benedict Adm. Pr., gin, The, 8 Pet. (U. S.) 538, 550. § 358. 'Copp V. Decastro &c. Co., 8 Ben. ^Sherwood v. Hall, 3 Sumn. (U. (U. S.) 321; Harden v. Gordon, 2 S.) 127; Jay v. Almy, 1 Woodb. & Mason (U. S.) 541, 556; Brown v. M. (U. S.) 262; Hutson v. Jordan, 1 Lull, 2 Sumn. (U. S.) 443; Juliana, Ware (U. S.) 385. The, 2 Dod. 504. "Continental, The, 14 "Wall. (U. « Adeline, The, 9 Cranch (U. S.) S.) 345; Explorer, The, 20 Fed. 135; 244, 284. Wanderer, The, 20 Fed. 140. See 'Juliana, The, 2 Dod. 504, 521; §§3372-3374. Fortitudo, The, 2 Dod. 58, 70; Rich- 591 ADMISSIBILITY OF EVIDENCE. [§ 3252. applies where it is sliown that both vessels are in fault but only one of them is injured, as well as to cases where both vessels are injured. In such cases the rule as to the application of damages is that where both vessels are injured, the damages suffered by the two are added together and equally divided and the vessel wliose damage exceeds the one-half is entitled to recover the excess against the other. Where one vessel only is injured it is entitled to recover one-half of its damages.^" The same principle was a])plied in a case of personal injury where the proof showed negligence of both par- ties." § 3252. Flexibility of admiralty courts— Admissibility of evi- dence. — The flexibility of the courts of admiralty is further extended to the admissibility of evidence arising from the nature of these courts and the jurisdiction exercised by them. It is a principle of these courts to proceed with the utmost expedition, and the fact that the cases arising may occur upon the high seas and in all parts of the world, coupled with the further fact that the subject matter of the litigation and the witnesses are constantly employed in voy- ages that involve perhaps thousands of miles of travel and many months and possibly years of absence, all require that these courts must proceed with the greatest possible dispatch and that tliey must at times necessarily admit evidence that in strict courts of law would be of doubtful competency. This principle was well stated l)y Dr. Lushington : "This power of the admiralty to adapt itself to the vary- ing necessities of the case extends also to the form as well as the remedy to be administered in the proceedings. Upon this principle it has accordingly been held that admiralty has an undisputed juris- '» Catherine, The v. Dickinson, 17 S. 302; Jimiata, The, 93 U. S. 337; How. (U. S.) 170; Rogers v. St. Stephen Morgan, The, 94 U. S. 599; Charles, The, 19 How. (U. S.) Virginia Ehrman, he, 97 U. S. 309; 108; Chamberlin v. Ward, 21 How. City of Hartford, The, 97 U. S. 323; (U. S.) 548; Washington, The, 9 Civilta, The, 103 U. S. 699; Connect- Wall. (U. S.) 513; Sapphire, The, icut. The 103 U. S. 710; North 11 Wall. (U. S.) 164; Ariadne, The, Star, The, 106 U. S. 17: Sterling. 13 Wall. (U. S.) 475; Continental, The, 106 U. S. 647; Manitoba, The, The, 14 Wall. (U. S.) 345; Atlee v. 122 U. S. 97. Packet Co., 21 Wall. (U. S.) 389; '^ Max Morris, The, 137 U. S. 1, Teutonia. The, 23 Wall. (U. S.) 77; 11 Sup. Ct. 29, 28 ted. 881; Dayles- Sunnyside, The, 91 U. S. 208; Amer- ford. The. 30 Fed. 633; Truro, The, ica. The, 92 U. S. 432; Alabama, 31 Fed. 158: Serapis. The, 49 Fed. The, 92 U. S. 695; Atlas, The, 93 U. 393: City of Rome. The, 49 Fed. 392. g 3253,] ADMIRALTY PRACTICE. 592 diction in rem as well as in personam, and for the purpose of pro- tecting the rights of parties whether in cases of prize, bottomry, salary, or to cases of wages will permit an action to be changed from one in personam to one in rem and will adjudge accordingly."^ - § 3253. Liberal rules of evidence. — Admiralty courts adopt the most liberal rules on the admissibility of evidence. The reasons for this are obvious and are justified by the necessities of a great ma- jority of the cases in these courts. This general principle is stated by Dr. Lushington thus: "The cases over which the courts of admiralty exercises jurisdiction occur in all parts of the world, on the high seas and in remote places. It is a well-known principle, confirmed by authority, that courts of admiralty are to proceed levato velo, that is, with the utmost expedition. In order to carry this principle into effect, this court has both in prize matters and civil suits been accustomed to receive evidence which would not have been admitted in other courts." The able jurist justifies his course and states his conclusions as follows: (1) The practice of my prede- cessors. (2) The nature of the cases as tried, occurring in all parts of the globe. (3) The difficulty of getting witnesses, when those concerned are alone present, and even those persons never stationary, but traversing the seas in all directions. (4) The immense expense and delay which would be incurred from the rigid adherence to rules most proper elsewhere. (5) I think the court may be safely trusted to weigh evidence that might not be so safe to leave to a jury.^^ The courts of this country have gone equally far and as stated by one judge, "courts of admiralty are not bound by all the rules of evidence which are applied in the courts of common law, and they may, where justice requires it, take notice of matters not strictly proved."^* Upon these principles it has been held that commercial documents may be admitted in evidence without formal proof in cases of emergency. ^^ But it seems that the rules of the common law as to the competency and incompetency of witnesses have been "Sheppard v. Taylor, 5 Pet. (U. (U. S.) 53; Harriet, The, Olcott S.) 675; Copp v. Decastro &c. Co., 8 (U. S.) 222, 11 Fed. Cas. No. 6096; Ben. (U. S.) 321; One Hundred and Vivid, The, 4 Ben. (U. S.) 319. Eighteen Sticks of Timber, 10 Ben. "J. P. Spencer, The, 3 Ben. (U. (U. S.) 86. S.) 337; Boskenna Bay, The, 22 « Peerless, The, Lush. Adm. 30, Fed. 662. 41; J. P. Spencer, The, 3 Ben. (U. ^=^ Boskenna Bay, The, 22 Fed. 662; S.) 337; Elwell v. Martin, 1 Ware Brown v. Thornton, 6 A. & E. 185. /)03 LIBERAL RULES OF EVIDENCE. [§§ 3354, 3355. adopted in the court of admiralty in the exercise of its jurisdiction, as an instance court. ^"^ But under the statutes of the United States there is no longer any exclusion of witnesses on account of color, nor in civil actions because he is a party to or interested in the action. ^■^ Thus under the rules of admiralty practice hearsay testi- mony is from necessity frequently admitted.^* This rule has been extended to the point of holding a bottomry proof on simply tlie seal of the consul.^" And a copy of an entry of a protest has been held sufficient on the certificate of a notary that it was a true copy.-" §3254. Proceedings yield to circumstances. — x\s elsewhere sug- gested the courts of admiralty are in the nature of equity courts. Controversies involving maritime matters purely are triable by the judges without the intervention of juries, and in administering the equitable rights of the parties the proceedings are made sufficiently flexible to adapt themselves to the varying nature of the case and to the administration of the beneficent rules of equity. This flexi- bility adapts itself to the circumstances of the parties and their wit- nesses and administers justice to suit the necessities of the case.-^ § 3255. Proceedings not included in statutes unless expressly- named. — Admiralty proceedings are peculiar to tliemselvcs and are so different from civil cases that they are not usually included in stat- utes governing civil suits, unless particularly mentioned. Of this pecu- liar distinction of admiralty cases a district court said : "They are pro- ceedings so diverse in form and in spirit from ordinary civil suits, and are applicable to classes of property, of persons, and of obliga- tions, so peculiar in their character and their necessities, and are so seldom in the mind of the law makers in passing general statutes, that it seems to be proper to hold as a general rule of construction that, unless alluded to by name or otherwise necessarily within the ])rovisions of any particular statute, such proceedings will be deemed excluded."^- In speaking of the nature of these courts Judge Story *« Boston, The, 1 Sumn. (U. S.) =° London Merchant. The, 3 Ilagg. 328. Adm. 394; Vivid, The, 4 Ben. (U. "United States v. Ten Thousand S.) 319. Cigars, Woolw. (U. S.) 123. =' Benedict Adm. Pr., § 516; Copp '^Estrella, The, 4 Wheat. (U. S.) v. Decastro &c. Co., 8 Ben. (U. S.) 298, 306; Vivid, The, 4 Ben. (U. S.) 321; Norwich Co. v. Wright, 13 319. Wall. (U. S.) 104, 122. "Helgoland, The, Swabey 491, "Atkins v. Fibre &c. Co.. 1 Ben. 496. (U. S.) 118. Vol. 4 Elliott Ev. — 38 §§ 3256, 3257.] admiralty practice. 594 said: "The court of prize is emphatically a court of the law of nations; and it takes neither its character nor its rules from the mere municipal regulations of any country."^^ And it has at least been suggested that the principles of the common law as to process and proceedings have no application in courts of admiralty.^* § 3256. Evidence of usage — Sailing rules. — From the earliest history of navigation there have existed certain regulations for the purpose of preventing collisions between ships sailing the seas and engaged in maritime commerce. These were called sea laws, and in the course of time recognized as settled usage having a binding and obligatory effect. Such usages existed and were recognized long be- fore there was any legislative control upon this subject. The courts of both law and admiralty constantly refer to the established usages of the sea as furnishing the rule by which to determine whether any fault of navigation was committed and who was responsible. It is true that laws and regulations have since been enacted, and where they apply they must be looked to as furnishing the sole rule for guidance. But where they do not apply evidence of usage is ad- missible. The rule on this subject has been aptly stated as follows: "Sailing rules and other regulations have since been enacted; and it is everywhere admitted that such rules and regulations, in cases where they apply, furnish the paramount rule of decision; but it is well known that questions often arise in such litigations, outside of the scope and operation of the legislative enactments. Safe guides, in such cases, are often found in the decisions of the courts, or in the views of standard text-writers ; but it is competent for the court, in such a case, to admit evidence of usage; and, if it be proved that the matter is regulated by a general usage, such evidence may fur- nish a safe guide as the proper rule of decision."^^ § 3257. Judicial notice. — The general rule of judicial notice is applicable to courts of admiralty.^® According to adjudicated cases these courts take judicial notice of many natural phenomena as well « Adeline, The, 9 Cranch (U. S.) ^ City of Washington, The, 92 U. 244. S. 31. =* Clarke v. New Jersey &c. Co., 1 =» Planter, The, 7 Pet. (U. S.) 324, Story (U. S.) 531; Manro v. Al- 342; Apollon, The, 9 Wheat. (U. S.) meida, 10 Wheat. (U. S.) 473; Har- 362, 374. riet. The, Olcott (U. S.) 222, 11 Fed. Cas. No. 6096. 595 JUDICIAL NOTICE — FOREIGN LAWS. [§ 3258. as geographical positions that affect navigation generally, and which enter as an element in the determination of their jurisdiction. For this purpose the courts will judicially notice that New Orleans and New York Bay are within the ehb and flow of the tide. Thus it has been held that the court would judicially notice the geographical position of Sandy Hook.^^ And it has been held that the court would take judicial notice that the voyage of a vessel up the Missis- sippi Eiver was above the ebb and flow of the tide and that wages arranged during such voyage could not be considered as earned in a maritime employment.^® The rule as to this jurisdiction was thus stated by Judge Story: "The true test of its jurisdiction in all cases of this sort is, whether the vessel be engaged, substantially, in maritime navigation, or in interior navigation and trade, not on tide waters. In the latter case, there is no jurisdiction. So that, in this view, the district court had no jurisdiction over the steamboat in- volved by the present controversy ; as she was wholly engaged in voy- ages on such interior waters."-^ §3258. Foreign laws — ^When proof required. — The general rule that a foreign law to be available must be pleaded and proved pre- vails generally in the courts of admiralty.^'' But it seems that this rule of practice has certain marked exceptions in the admiralty courts which are so pronounced as to make it practically a new rule. This general rule of proof in admiralty courts is limited to the pleading and proof of such laws of foreign nations as are de- signed only for the direction of their own affairs. But courts of admiralty will take judicial notice of the public laws of a foreign nation on subjects of common interest and concern to all nations and especially so when such laws are promulgated by the governing powers or the executive officers of any country. Chief Justice Mar- shall in an early case in speaking of the authorities on this subject said: "Several have been quoted (and such seems to have been the "United States v. La Vengeance, How. (U. S.) 400; Liverpool &c. Co. 3 Ball. (U. S.) 297. v. Phenix Ins. Co., 129 U. S. 397; ='Tliomas Jefferson, The, 10 Dainese v. Hale, 91 U. S. 13; Pierce Wheat. (U. S.) 428; Planter, The, v. Indseth, 106 U. S. 546; Pawa- 7 Pet. (U. S.) 324, 342. shick. The, 2 Low. (U. S.) 142; =° Orleans, The, 11 Pet. (U. S.) Lloyd v. Giiibert, L. R. 1 Q. B. 115. 175. 6 B. & S. 100; Cridland, Ex parte, S ^° Church v. Hubbart, 2 Cranch Ves. & B. 95. (U. S.) 187; Ennis v. Smith. 14 § 3258.] ADMIRALTY PliACTICE. 596 general practice) , in which the marine ordinances of a foreign nation are read as law, without being proved as facts. It has been said, that this is done by consent ; that it is a matter of general convenience, not to put parties to the trouble and expense of proving permanent and well-known laws which it is in their power to prove; and this opinion is countenanced by the case cited from Douglas. If it be correct, yet, this decree having been promulgated in the United States as the law of France, by the joint act of that department which is entrusted with foreign intercourse, and of that which is invested with the powers of war, seems to assume a character of notoriety which renders it admissible in our courts."^^ "Amelia, The, 1 Cranch (U. S.) U. S. 397; Maggie Hammond, Tlie, 9 1, 38; Bernard! v. Motteux, 2 Doug. Wall. (U. S.) 435, 452; Pawashick, 574; Maria, The, 1 Rob. Adm. 340; The, 2 Low. (U. S.) 142; Penhallow Scotland, The, 105 U. S. 24; Liver- v. Doane, 3 Ball. (U. S.) 54, 91. pool &c. Co. V. Phenix Ins. Co., 129 CHAPTER CLX. PLEADING AND PROOF. Sec. 3259. Proof must come within the issues. 3260. Parties bound by allegations. 3261. Effect of variance. 3262. Omissions and variations — Effect. 3263. Amendments — When allowed. 3264. Amendments — Time of mak- ing and effect. 3265. Amendments — Not allowed. 3266. Amendments not allowed — Il- lustrations. Sec. 3267. 3268. 3269. 3270. 3271. 3272. Amendments — Hearing on ap- peal. Evidence heard on appeal. Amendments on appeal and motion to examine wit- nesses — Distinction. Pleadings as evidence. Admissions in pleadings — Ef- fect. Special damages — Awarded under general pleading. § 3259. Proof must come within the issues. — The strict technical rules of pleading adopted and practiced in common law courts are not strictly adhered to in courts of admiralty. Yet the rule in ad- miralty practice is that the matters in controversy must be distinctly propounded, and each party must set forth by plain and precise al- legations the grounds on which he asks for the judgment of the court in his favor, as well to disclose to the adverse party the points to which he must direct his proof, as to enable the court to see what is in controversy between them. The issues are determined by the distinct allegations on one side and the contradictions on the other, and a court of admiralty will not go outside of tlie issues thus formed.^ This rule has been more aptly stated as follows: "The rules of pleading in the admiralty do not require all the technical precision and accuracy which is necessary in the practice of the courts ' Orne v. Townsend, 4 Mason (U. S.) 541; Soule v. Rodocanachi, New- berry Adm. 504; Boston, The, 1 Sumn. (U. S.) 328, 3 Fed. Gas. No. 1673; Treadwell v. Joseph, 1 Sumn. (U. S.) 390; Sarah Ann, The, 2 597 Sumn. (U. S.) 206; Confiscation Cases, The, 20 Wall. (U. S.) 92; William Harris, The, 1 Ware (U. S.) 367; Hays v. Pittsburgh &c, Co., 33 Fed. 552. § 3260.] PLEADING AND PROOF. 598 of common law. But they require that the cause of action should be plainly and explicitly set forth, not in any particular and sacra- mental formula, but in clear and intelligible language, so that the adverse party may understand what is the precise charge which he is required to answer, and make up an issue directly upon the charge. The evidence must be confined to the matters put in issue by the par- ties, and the decree must follow the allegations and proofs."^ In a somewhat later case the rule was thus stated : "A cardinal principle in admiralty proceedings is, that proofs cannot avail a party further than they are in correspondence with the allegation of his pleadings, and that the decree of the court must be in consonance with the pleadings and the proofs."^ The general rule is that no evidence is admissible unless it comes within the issues made by the pleadings and there must be a substantial agreement between the pleadings and the proofs.* § 3260. Parties bound by allegations.— Following the practice in all other courts parties are bound by their allegations and proofs, and the former must be sustained by the latter.^ "The libelants must recover on the allegations in their libel; and the respondents *Jenks v. Lewis, 1 Ware (U. S.) 51. ^ Davis V. Leslie, 1 Abb. Adm. 123; Hoppet, The, 7 Cranch (U. S.) 389; Fashion, The, v. Ward, 6 Mc- Lean (U. S.) 195; Rhode Island, The, 01c. (U. S.) 505; Boston, The. 1 Sumn. (U. S.) 328, 11 Am. Jur. 21, 3 Fed. Cas. No. 1673; Sarah B. Kennedy, The, 29 Fed. 264; Morton, The, 1 Brown Adm. 137, 17 Fed. Cas.' N. 9864; Sarah Ann, The, 2 Sumn. (U. S.) 206, 21 Fed. Cas. No. 12342. * Davis V. Leslie, 1 Abb. Adm. 123, 7 Fed. Cas. No. 3639; Washington Irving, The, Abb. Adm. 336, 29 Fed. Cas. No. 17243; Morton, The, Brown Adm. 137, 17 Fed. Cas. No. 9864; Kellum V. Emerson, 2 Curt. (U. S.) 79, 14 Fed. Cas. No. 7669; Campbell V. Uncle Sam, The, 1 McAll. (U. S.) 77, 4 Fed. Cas. No. 2372; Turner v. Black Warrior, 1 McAll. (U. S.) 181, 24 Fed. Cas. No. 14253; Kramme v. New England, Newb. Adm. 481, 14 Fed. Cas. No. 7930; Rhode Island, The, 01c. 505, 20 Fed. Cas. No. 11745; Sarah Ann. The, 2 Sumn. (U. S.) 206, 21 Fed. Cas. No. 12342; United States v. Hunter, Pet. (U. S.) 10, 26 Fed. Cas. No. 15428; Reppert v. Robin- son, Taney 492, 20 Fed. Cas. No. 11703; William Harris, The, 1 Ware 373, 29 Fed. Cas. No. 17695; Mc- Kinlay v. Morrish, 21 How. (U. S.) 343; Pope Catlin, The, 31 Fed. 408; Hays V. Pittsburgh &c. Co., 33 Fed. 552; Earnwell, The, 68 Fed. 228. ^^ Morton, The, Brown Adm. 137; Cambridge, The, 2 Low. (U. S.) 21, 4 Fed. Cas. No. 2334; New England. The, Newberry Adm. 481; Dupont de Nemours v. Vance, 19 How. (U. S.) 162; McKinlay v. Morrish, 21 How. (U. S.) 343; Earnwell, The, 68 Fed. 228. 599 VARIANCE. [§§ 3261, 3'-362. must rely exclusively on the grounds they have selected in their an- swer.'"' Evidence offered going to a defense which is not pleaded must be excluded according to the rules of admiralty pratice.^ § 3261. Effect of variance. — The admiralty courts almost wholly disregard the rules of variance as practiced and applied in the com- mon law courts. In these courts there is no doctrine of merely technical variance. The rule as held in many cases is that no effect is allowed to a variance which cannot have surprised or injured the opposite party.* In speaking of the difference between the rules on this subject in admiralty and the common law courts, a federal judge in a recent case said: "Under the strict rules of procedure of the common law, and the civil law, the doctrine of secundum allegata et probata is conclusive, and upholds the arlntrary rule of proceeding as paramount to all other considerations. But the prac- tice of the admiralty courts of the United States permits of more flexibility of procedure. And in the endeavor to determine the case submitted to it upon equitable principles, the court will sometimes disregard mere technical rules and forms, and look only to the rules of natural justice. In this endeavor, the court uses its reason and dis- cretion as a means of defeating chicanery, rectifying mistakes, sup- plying deficiencies and even suggesting to the party the means of reconstructing his case, if necessary, without the loss of such real progress as he may have already made."^ The courts have frequently held that there are no technical variances or departures in pleadings in admiralty.^ ° § 3262. Omissions and variations — Effect. — It has been held that an omission to state some material facts will not be permitted to « Campbell V. Uncle Sam, 1 McAll. 363, 5 Fed. Cas. No. 2879; Craw- (U. S.) 77; Turner v. Black War- ford v. William Penn, 3 Wash. (U. rior, 1 McAll. (U. S.) 181. See, S.) 484, 6 Fed. Cas. No. 3373; Henry Rich V. Lambert, 12 How. (U. S.) v. Curry, Abb. Adm. 433, 11 Fed. 347. Cas. No. 6381. ^Washington Irving, The, Abb. =» Davis v. Adams, 42 C. C. A. 493, Adm. 336, 7 N. Y. Leg. Obs. 4, 29 102 Fed. 520; Gazelle and cargo. Fed. Cas. No. 17243; Penhallow v. The, 128 U. S. 474, 9 Sup. Ct. 139. Doane, 3 Ball. (U. S.) 54; Swallow. '"West v. Uncle Sam, McAll. (U. The, 01c. (U. S.) 334; Shady Side, S.) 505, 29 Fed. Cas. No. 17427; Du- The, 23 Fed. 731; White v. Ranier, pont de Nemours v. Vance, 19 How. The, 45 Fed. 773. (U. S.) 162; General Meade, The, 20 'Clement. The, 2 Curt. (U. S.) Fed. 923. §§ 3263, 3264.] pleading and proof. 600 work any injury to the pleader if it appears to the court that the omission was not purposely or designedly made; this is especially true where the opposite party was not surprised by the omission/^ This rule has been carried to the extent of permitting a recovery in collision cases on proof of a fault different from that alleged in the libel. ^^ A variation sufficient to defeat an action at law has been held to be disregarded in admiralty in a case where substantial justice could be done.^^ § 3263. Amendments — When allowed. — The most liberal rules as to amendments are found in practice in admiralty courts. In these courts amendments are permitted to the end that substantial justice may be done the parties. The only limitation on these liberal rules of amendments is that the court should not permit the party to be injured by the proposed amendment. Such amendments are not only permitted but may be directed or required by the court. The object or purpose of this rule is that the case may be disposed of upon its merits, and substantial justice be meted to the parties with- out the delay of another hearing.^"* § 3264. Amendments — Time of making and effect. — This rule of permitting amendments has been carried to the extent of holding "that in order that substantial justice may be done, the court will allow amendments to be made even at the hearing of an appeal, taking care that no injury be done to either party. And in case in- " Quickstep, The, 9 Wall. (U. S.) 162; Mary Ann, The, 8 Wheat. 665; Syracuse, The, 12 Wall. (U. (U. S.) 380; Warren v. Moody, 9 S.) 167; Dupont de Nemours v. Fed. 673; Morning Star, The, 14 Vance, 19 How. (U. S.) 162; Cole- Fed. 866; Samuel Marshall, The, man. The, Brown Adm. 456, 6 Fed. 49 Fed. 754; Pennsylvania, The, 12 Cas.No. 2981. Blatchf. (U. S.) 67, 19 Fed. Cas. "Cambridge, The, 2 Low. (U. S.) No. 10951; Virginia &c. Ins. Co. 21, 4 Fed. Cas. No. 2334; Iris, The, v. Sundberg, 54 Fed. 389; Rich- 1 Low. (U. S.) 520, 13 Fed. Cas. No. mond v. New Bedford &c. Co., 2 7062; Martin Wyncoop, The, 10 Low. (U. S.) 315, 20 Fed. Cas. Blatchf. (U. S.) 167, 16 Fed. Cas. No. 11800; Adeline, The, 9 Cranch No. 9177. (U. S.) 244; Caroline, The, 7 ^='Talbott V. Wakeman, 23 Fed. Cranch (U. S.) 496; Anne, The, Cas. No. 13731a. 7 Cranch (U. S.) 576; Edward, The, "City of New Orleans, The, 33 1 Wheat. (U. S.) 261; Newell v. Fed. 683; Charles Morgan, The, 115 Norton, 3 Wall. (U. S.) 257; Cru- U. S. 69, 5 Sup. Ct. 1172; Dupont de sader. The, 1 Ware (U. S.) 437, 6 Nemours v. Vance, 19 How. (U. S.) Fed. Cas. No. 3456. 601 AMENDMENTS. [§ 3205. juries should be likely to ensue from allowing amendments, the case would be continued to allow the party to take such evidence as he might deem material on the new issue.'" ^ Under the admiralty rules amendments in matters of substance may be made on motion at any time before final decree. But what amendments may be allowed, and under what circumstances made, and the manner of their in- corporation into the record, are all within the sound discretion of the court, subject to the rules of practice.^" Tliis rule is so liberal that it will permit parties, after hearing, to amend the pleadings so as to embrace the proofs offered, which did not support the al- legations of the libel as originally drawn.' ^ Amendments will always be permitted for the purpose of changing or increasing the claim for damages.'^ Wliere objections are made on the hearing on account of defects appearing on the face of the pleadings, the court will permit the error to be rectified instanter.'^ So pleadings will sometimes be deemed amended as a matter of course.-" And where an answer ad- mitted a material part of the matter stated in tlie libel, it has been held that by leave of the court it could be amended by withdrawing the admission. But such withdrawal could have no effect on the admission as evidence. ^^ § 3265. Amendments — Not allowed. — While tlie doctrine of amendments in admiralty is equitable it is also reasonable, and un- reasonable amendments will not l)e permitted. Xor will amendments be permitted which will operate unjustly or to tlie injury of the ad- verse party. The rule denying the right to amend was thus stated by one district judge: "If the amendment should be allowed, the libelant must, at the same time, be remitted tf» the same right of exception she would have had if the claim had been originally put in as amended. This would present a new issue, and one of a pre- liminary and dilatory character, and that after a hearing has been >5 Morton, The, 1 Brown Adm. 137, ''^ McCready v. Brother Jonathan, 17 Fed. Cas. No. 9864; Boston, The, 15 Fed. Cas. No. 8732a; J. E. Tru- 1 Sumn. (U. S.) 328, 3 Fed. Cas. deau. The, 4 C. C. A. 657, 54 Fed. No. 1673. 907. "Lamb v. Parkman, 21 Law R. ''Nevitt v. Clarke, 01c. (U. S.) (1859) 589, 1 West L. Mo. 159, 14 316, 18 Fed. Cas. No. 10138. Fed. Cas. No. 8019. =" Rhode Island. The, 17 Fed. 554; "Davis v. Leslie, 1 Abb. Adm. Maryland, The, 19 Fed. 551. 123, 7 Fed. Cas. No. 3639; Davis v. =^' Kenah v. John Markee, Jr., The. Adams, 42 C. C. A. 493, 102 Fed. 520. 3 Fed. 45. §§ 3266, 3267.] pleading and proof. 602 had upon the merits."" And the right to amend has been denied where the material facts are pleaded and the knowledge of the grounds relied upon by the opposite party ; in such a case an amend- ment will not be permitted for the purpose of making the allegation correspond with the proof offered.^^ So, the court has refused to permit an answer to be amended after the case has been heard when such an amendment would destroy the effect of an admission relative to a matter which had been the principle subject of con- troversy.^* §3266. Amendments not allowed — Illustrations. — This rule of the refusal to allow amendments was applied in a case where the de- fendants by their answer claimed to be the owners of the property in controversy, and on failure to establish such ownership by proof at the trial they were not permitted thereafter to amend their answer for the purpose of showing that they were mortgagees out of posses- sion.^^ So claimants were not permitted to amend to the extent of changing the nature of their claim, where such an amendment would prejudice the rights of other creditors.-** So an amendment will be denied which seeks to introduce new and inconsistent grounds where no evidence had been offered upon the subject and the witnesses of the adverse party had been excused.-^ So, an amendment to increase the claim which was not asked for until after trial and apportionment of damages, and where the claim as pleaded had been twice verified, was denied.^® § 3267. Amendments — Hearing on appeal. — The liberal rule of amendments in admiralty is extended to hearings on appeal. An ap- peal in admiralty is regarded by the appellate courts as equivalent to a new trial, and they exercise great liberality in permitting both new pleadings and new proofs in furtherance of justice. These courts " Prindiville, The, 1 Brown Adm. 670; General Sedgwick, The, 29 485, 19 Fed. Cas. No. 11435. Fed. 606; Zodiac, The, 5 Fed. 220. =°Iola, The, 11 N. Y. Leg. Obs. =^ Keystone, The, 31 Fed. 412; 263, 13 Fed. Cas. No. 7057. lona. The, 26 C. C. A. 261, 52 U. S. ^^Mary C, The, 1 Hask. (U. S.) App. 199, 80 Fed. 933; United States 474, 16 Fed. Cas. No. 9201; Horace v. One Hundred Twenty-three Casks B. Parker, The, 20 C. C. A. 572, 74 &c., 1 Abb. (U. S.) 573, 27 Fed. Cas. Fed. 640. No. 15943; Circassian, The, 2 Ben. » McCarthy v. Eggers, 10 Ben. (U. (U. S.) 171, 5 Fed. Cas. No. 2723. S.) 688, 15 Fed. Cas. No. 8681. =* New Haven &c. Co. v. Mayor, 36 =«Alanson Sumner, The, 28 Fed. Fed. 716, 003 EVIDENCE OX APPEAL. [§§ 3268, 32G9. on appeal are not constrained by arbitrary rules, and they may or may not receive evidence which ought to have been, but was not produced in the court of original jurisdiction. Where it was shown to the court on appeal that the appelhint had refused to appear in the district court, it was held that he would not be permitted to contest the merits of the decree in the appellate court.^" The practice estab- lished by some of the earlier cases was not only to permit amendments on appeal, but to permit supplementary libels or answers, or to allow either party to file new allegations and proofs, especially where it is clearly established that the knowledge of the circumstances had been obtained after the decree of the district court; but in such cases the proof was confined to the new allegations, or to those of which no proof had formerly been given.^" § 3268. Evidence heard on appeal. — The new rule is substantially the same as the practice has always been, to show good reasons for the admissibility of evidence on appeal which was not introduced at the original hearing, and to make it discretionary with the court to hear such evidence.^ ^ And where no excuse or reason is shown in the mov- ing papers why the witnesses were not examined in the court below the court may refuse to permit their examination on appeal. ^^ The author- ities clearly show that ordinary appeals in admiralty are not heard de novo in the Supreme Court in the same sense or to the same extent as in cases on appeal to the circuit court.^^ § 3269. Amendments on appeal and motion to examine witnesses Distinction. — Tlie Supreme Court seems to have made a distinc- *»Farrell v. Campbell, 7 Blatchf. 328; Coffin v. Jenkins. 3 Story (U. (U. S.) 158; Flying Fish, The, S.) 108; Venezuela, The, 3 C. C. Brown & Lush. 436; Osiris, The, 2 A. 319, 52 Fed. 873; Cushman v. Hagg. Adm. 135; General Palmer, Ryan, 1 Story (U. S.) 91, 6 Fed. The, 2 Hagg. Adm. 323; Glenmanna, Cas. No. 3515. The, Lush. 115, 122; Farrell v. ^i Venezuela, The, 3 C. C. A. 319. Campbell, 7 Blatchf. (U. S.) 158; 52 Fed. 873; Rose v. Himely, Bee Samuel. The, 1 Wheat. (U. S.) 9; (U. S.) 313; Generous, The, L. R. 2 Mary, The, 8 Cranch (U. S.) 388; Ad. & El. 57; Moorsley, The, 1 Asp. Gray Jacket, The, 5 Wall. (U. S.) 471; William, The, 7 Ir. Jur. 354. 342; Mabey, The, 10 Wall. (U. S.) =- Mabey, The, 10 Wall. (U. S.) 419; Western Metropolis, The, 12 419. Wall. (U. S.) 389; Juniata, The, 91 =^ Lucille, The. 19 Wall. (U. S.) U. S. 366; Venezuela. The, 3 C. C, A. 73; Mabey, The, 10 Wall. (U. S.) 319, 52 Fed. 873. 419; Charles Morgan, The, 115 U. S. ** Boston, The, 1 Sumn. (U. S.) 75, 5 Sup. Ct. 1172. § 3270.] PLEADING AND PROOF. 604 tion between amendments on appeal and motions to examine wit- nesses in the appellate court. The rule as to amendments was thus, stated: "There can be no substantial amendments in this court; but if the pleadings or evidence are so defective that no decree can . be founded upon them, and the case appears to have merits, the court will reverse the decree and remand the cause to the court be- low with directions to permit the amendments and further proof.^* § 3270. Pleadings as evidence. — The authorities are not unani- mous on the question either of the effect or the admissibility of the answer as evidence. It would seem that the rule in chancery and the rule in admiralty are not the same.^^ The rule as to the admissibility and effect of pleadings in evidence is thus stated: "It is admitted that the sworn answer of the respondent stating in detail and with exactness the matters of defense, though not evidence in the strict sense of the word, may be referred to, to explain ambiguities in the testimony and, in aid of presumptions arising from the evidence, to supply connecting links in the proof ; and that it is ordinarily entitled to more consideration than the naked statement of a party unsup- ported by his oath. But the degree of credit allowed to an answer in this respect must depend on the apparent good faith with which it is made. The credit of an answer in the admiralty is not meas- ured by any technical rule, as it is in equity. And as it derives its credit from the good faith of the respondent, we may look for the evidence of that good faith, not only to the answer itself but to all the facts in the cause bearing on that question."^''' The general rule stated by a recent text-writer is as follows : "The answer to the libel has no more force as evidence than the libel itself has. They are not evidence, in the common sense of the word. Being, however, the solemn statement of facts by the parties, under the solemnity of an oath, the court is bound to examine them carefully, and it is impos- sible that they should not influence the mind of the court; in many cases of nicely-balanced proofs, the influence of the pleadings may well turn the scale."" The Supreme Court stated the rule thus: ^Caroline, The, 7 Cranch (U. S.) 55 Fed. 526; Mabey, The, 10 Wall. 496; Edward, The, 1 Wheat. (U. (U. S.) 419. S.) 261; Divina Pastora, The, 4 ^'^ Hutson v. Jordan, 1 Ware (U. Wheat. (U. S.) 52; Mary Ann, The, S.) 385. 8 Wheat. (U. S.) 380; Palmyra, =« Crusader, The, 1 Ware (U. S.) The, 12 Wheat. (U. S.) 1; Sarah 448. 6 Fed. Cas. No. 3456. Ann, The, 2 Sumn. (U. S.) 206; =' Benedict Adm. Pr., § 518. Beeche Dene, The, 5 C. C. A. 207, 605 ADMISSIONS IX PLEADIXGS. [§ 3271. "The answer is not of itself evidence to establish such a fact, but it must be made out by due and suital)le proofs; for in the admiralty the same rule does not prevail as in equity, that the answer to mat- ters directly responsive to the allegations of the bill, is to be treatori as sufficient proof of the facts in favor of the respondent, unlei^s overcome by the testimony of two witnesses, or by one witness and other circumstances of equivalent force. The answer may be evi- dence, but it is not conclusive."^* In an action in rem an earlier district court held the principle that the answer of the owners which admitted facts to their prejudice would prevail in favor of the libel- ants against the testimony of one witness.^^ It was said in one case that a verified claim in admiralty was not evidence; that it was no more than "the exclusion of a conclusion."^" § 3271. Admissions in pleadings — Effect. — Neither party can in- troduce evidence to contradict the averments set forth in his plead- ing, and the adverse party is entitled to accept any admissions perti- nent to the issue as conclusive against the party making them. Thus, where it was averred that the steamboat was in motion, it was held that the pleader was precluded from denying that fact, and that the adverse party was not required to produce witnesses to show a differ- ent state of facts. ^^ And admissions in an answer may be sufficient to entitle a libelant to recover the amount of his claim.'*- In the absence of a replication it has been held that the libelant thereby admits the allegations in the answer.*^ So, it has been held that the admissions in an answer will prevail against the testimony of the pilot of the vessel.** But allegations that are neither admitted nor =-' Andrews v. Wall, 3 How. (U. 8, 6 McLean (U. S.) 152, 29 Fed. S.) 568; Eadsv. H. D. Bacon, The, 1 Cas. No. 17154; Whitney v. Empire Newb. 274, 8 Fed. Cas. No. 4232; State, 1 Ben. (U. S.) 57, 29 Fed. Jay V. Alray, 1 Woodb. & M. 262; Cas. No. 17586. United States v. Matilda, 5 Hughes ^- Belle, The, 6 Ben. (U. S.) 287. 3 (U. S.) 44, 4 Hall L. J. 478, Brun- Fed. Cas. No, 1271. ner Col. Cas. 258, 26 Fed. Cas. No. " Mary Jane, The, 1 Blatchf . & H. 15741; 2 Conklin Adm. 620-622. (U. S.) 390, 16 Fed. Cas. No. 9215; =^« Santa Claus, The, 01c. (U. S.) Sea Gull, The, Chase 145, 21 Fed. 428. Cas. No. 12578; Thomas v. Gray, 1 " Thomas, The, v. United States. 1 Blatchf. & H. 493, 23 Fed. Cas. No. Brook. (U. S.) 367, 23 Fed. Cas. No. 13898. 13919. " Santa Claus, The, 1 01c. 428, 21 "Totten V. Pluto, 24 Fed. Cas. Fed. Cas. No. 12327. No. 14106; Ward v. Fashion, Newb. § 3272.] PLEADING AND TROOF. GOG denied cannot be taken as true.^^ So, it has been held that a party may use one admission in the pleading of his adversary without being bound by others.*" The admiralty court, like other courts, cannot de- termine the amount of damages, on default, from the allegations of the libel; the damages must be determined by the court from the evidence.*'' § 3272. Special damages — Awarded under general pleading. Admiralty courts are not so technical as to require special damages to be specially pleaded. They will award full relief on general aver- ments. The rule is that where the libelant avers with distinctness the substantive facts upon which he relies and prays either specially or generally for appropriate relief the court may award any relief warranted by the law applicable to the case.*^ It is held that ad- miralty courts will not be prevented from enforcing equitable rights and plain obligations because of technical objections as to matter of form or on account of the relief demanded.*^ The general rule is thus stated : "A court of admiralty is not limited in its decree to the precise amount for which the libel is entered. When it appears on investigation that the libelant has merit, and that justice requires a larger renumeration than he has demanded in his libel, the court is not precluded by any technical forms from doing full justice.^** The general rule is that damages will be awarded under prayer for general relief. ^^ But it is held that the court cannot grant a relief which is inconsistent with or entirely different from that which is asked for.°^ And the proof of the respective parties must conform, *^ Clarke v. Dodge Healy. The, 4 2 Low. (U. S.) 21, 4 Fed. Cas. "Wash. (U. S.) 651, 5 Fed. Cas. No. No. 2334; Dexter v. Munroe, 2 2849; Dictator, The, 30 Fed. 699; Sprague (U. S.) 39, 7 Fed. Cas. No. Venezuela, The, 5 C. C. A. 159, 55 3863. Fed. 416. *'■' Dexter v. Munroe, 2 Sprague ** Berry v. Montezuma, The, 3 (U. S.) 39, 7 Fed. Cas. No. 3863. Fed. Cas. No. 1358a. =" Pratt v. Thomas, 1 Ware (U. *■ Cape Fear &c. Co. V. Pearsall, 33 S.) 427, 19 Fed. Cas. No. 11377; C. C. A. 161, 90 Fed. 435; Miller v. McCready v. Brother Jonathan, United States, 11 Wall. (U. S.) 268; The, 15 Fed. Cas. No. 8732a; Grubbs Hightower v. Hawthorne, Hemp. v. John C. Fisher, The, 22 Pitts. L. (U. S.) 42, 12 Fed. Cas. No. 6478b. J. 122; Jonge Bastiaan, 5 Rob. Adm. '** Gazelle and Cargo, The, 128 U. 322. S. 474, 487, 9 Sup. Ct. 139; Syra- " Penhallow v. Doane, 3 Dall. (U. cuse. The, 12 Wall. (U. S.) 167; S.) 54, 86. Dupont de Nemours v. Vance, 19 ^= Wilson v. Graham, 4 Wash. (U. How. (U. S.) 162; Cambridge. The, S.) 53, 30 Fed. Cas. No. 17804. 607 SPECIAL DAMAGES. [§ 3272. within limits already stated, to the issues tendered by their plead- ings. In other words, as said in a recent case, "the defendant's testi- mony must accord with the articles of the answer just as the lebelant's testimony must follow the articles of the libel. The parties make up their issues, and must stay by them to the end.'"^ ^•^ Barber v. Lockwood, 134 Fed. §§3259,3260. But compare § 3261. 985, 986. See also, McKinlay v. 3275. By libelant. Morrish, 21 How. (U. S.) 243; ante. CHAPTER CLXL INTERROGATORIES. Sec. ■ Sec. 3273. Practice — Generally. 3278. Limitations. 3274. Time of delivering interroga- 3279. Materiality of interrogatories. tories. 3280. Interrogatories as evidence. 3275. By libelant. 3281. Interrogatories as evidence 3276. By defendant. for or against party. 3277. Office of interrogatories. § 3273. Practice — Generally. — It seems to be the universal prac- tice in admiralty courts for one party to obtain evidence by means of interrogatories to the opposite party to be by him answered under oath. The object of this is apparently two-fold. (1) For the pur- pose of obtaining facts to fully and accurately state either the libel or the answer; (2) to avoid obtaining or producing evidence that may be admitted or given in answer to interrogatories by the oppo- site party. The general practice as to submitting interrogatories in admiralty courts is not essentially different from the practice in other courts both in England and America. Mr. Benedict says of this subject: "The later authorities seem to have settled the law that the answers to these special interrogatories are not evidence but plead- ing."^ Either party may propound interrogatories touching the mat- ter in issue and append them to his pleading ; these the adverse party must answer under oath, or the matter may be taken against him pro confesso.- § 3274. Time of delivering interrogatories. — The practice or method of filing interrogatories is governed generally by the admiralty 'Benedict Adm. Pr., § 519. For Skinner, 2 Gall. (U. S.) 45, 9 Fed. questions of practice and forms of Cas. No. 5210; Scobel v. Giles, 19 interrogatories, see. Appendix, 2 Fed. 224; Edwin Baxter, The, 32 Wheat. (U. S.) 81; 1 Rob. 381. Fed. 296; Havermeyers &c. Co. v. -David Pratt, The, 1 Ware (U. Compania &c. Espanola, 43 Fed. 90; S.) 495, 7 Fed. Cas. No. 3597; Aus- Stoffregan v. Mexican Prince, The, tralia. The, 3 Ware (U. S.) 240, 2 70 Fed. 246; Admiralty Rules 23, Fed. Cas. No. 667; Gammell v. 27, 30, 32. 608 G09 INTERROGATORIES — BY LIBELAXT. [§ 3275. court act or the general rules of the court. The practice for deliver- ing interrogatories is thus stated l)y a writer in a recent work on ad- miralty practice as the sum of the rules: "The plaintiff or defend- ant, by leave of the court or judge, may deliver interrogatories in writing for the examination of the opposite parties, or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof, stating which of such interrogatories each of such persons is required to answer; provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose; provided also that interrogatories which do not relate to any matters in question in the cause or matter shall be deemed irrelevant, notwithstanding they might be admissible on the oral cross-examination of a witness."^ According to the rules of order in the English practice, '"'the plaintiff may at tlie time of delivering his statement of claim, or at any subsequent time not later than the close of the pleadings, and a defendant may, at the time of delivering his defense, or at any subsequent time not later than the close of the pleadings, • without any order for that purpose, and either party may at any time, by leave of the court or a judge, deliver interrogatories in writing for the examinations of the oppo- site party or parties or any one or more of such parties."* So, it has been held that the court may order interrogatories to be administered before the filing of the petition, where the court is of the opinion that such interrogatories are necessary to elicit facts in the case, and are within the scope of the object for which interrogatories are al- lowed.^ Where interrogatories are delivered by the plaintiff before the defendant has delivered his statement of defense, it has been held that sufficient reason must be shown for delivering them at such a time or they will be struck out." § 3275. By libelant. — The libelant may submit interrogatories at the close of his libel, and require that the defendant answer the same under oath. That part of the admiralty rule governing the practice on the part of the libelant is stated thus: "iVnd the libel- ant may further require the defendant to answer on oath all inter- rogatories propounded by him touching all and singular the allega- 3 Williams & Bruce Adm. Jur. & ' Murillo, The, 1 Asp. (N. S.) 579. Pr. 410. » Mercier v. Cotton, L. R. 1 Q. B. ♦ Bolckow V. Fisher, L. R. 10 Q. B. 442. 161; Cashin v. Craddock, L. R. 2 Ch. Div. 140. Vol. 4 Elmott Ev. — P,9 §§ 3276, 3277.] interrogatories. 610 tions in the libel at the close or conclusion thereof."'^ The rule of practice is thus stated by a recent writer on Admiralty: "If the libelant desires to address himself to the conscience of the defend- ant, and to compel him to give testimony as to the matters in contro- versy, he may close his libel with interrogatories, touching all and singular the allegations in the libel, and demand that the defendant answer them under oath. The practice of thus inserting proper interrogatories tends greatly to the promotion of justice, and its prompt and economical administration, by reducing to its narrowest compass that portion of the cause which is to occupy the time of the judge and the witnesses in court."^ § 3276. By defendant. — The defendant has the same right as the libelant to require answers to interrogatories which he may at the close of his answer propound to the libelant touching any matter charged either in the libel or set up as a defense in his answer." The rule is more fully stated by Mr. Benedict as follows : "As the libel- ant has the right to propose interrogatories to the defendant, so the defendant has the right to resort to the oath of the libelant, and may, at the close of his answer, propose to the libelant any inter- rogatories touching any matters charged in the libel, or touching any matters of defense set up in the answer. These interrogatories should be numbered, and the libelant must answer in writing in detail, under oath or solemn affirmation, each interrogatory in the order of their numbers. Like the defendant, the libelant is not bound to answer any interrogatory which will expose him to any prosecution or punish- ment for crime or any penalty, or any forfeiture of his property for any penal offense."" § 3277. Office of interrogatories. — While tlie answers to interroga- tories may serve as evidence and avoid producing witnesses as to the matters answered, yet the interrogatories have and perform, a dif- ferent office or function. They, with the answers, are intended to aid the pleadings and are sometimes regarded as an amplification of the pleadings and are designed to bring out distinctly before the court the precise points or propositions relied upon. The office of such interrogatories, together with their answers, was defined by one district court thus: "Such answers to interrogatories are designed 'Admiralty Rule 23. » Admiralty Rule 32. « Benedict Adm. Pr., § 412. See ^^ Benedict Adm. Prac, § 477. also, Dana v. Cosmopolitan &c. Co., 134 Fed. 158. 611 LIMITATIOXS. [§ 3278. rather as compulsory amplifications of the pleadings on the specific subjects propounded in the interrogatories, so as to dispense with the taking of proof, or evidence proper or the facts that may be ad- mitted. When the interrogatories are propounded by the libel, the replies usually make part of the answer itself."'^ And as stated by another district court: "Such interrogatories, derived from tlie practice of the civil law, are designed to supercede the necessity of proof, and to bring out distinctly before tlie court the point on which the defense or claim is intended to be rested .''^^ § 3278. Limitations. — The rule requiring that tlie interrogatories shall seek to elicit matters material to the issue necessarily implies certain limitations as to such interrogatories. But these limitations are not wholly matters of implication. The rule is that neither party is bound to answer any interrogatory which will tend to criminate himself or which will expose him to any prosecution or punishment for a crime, or which might subject him to any penalty or to any forfeiture of his property for any penal offense.^^ Interrogatories may be asked as to whether or not particular and material facts properly within the issues did or did not occur; but a party cannot be compelled by answer to an interrogatory to state what evidence he may have as to whether such material facts did or did not occur." Nor can a party be required to give information in answer to an in- terrogatory which is in the nature of hearsay or rumor or which he has derived from third persons not in any way connected with the action or subject to his control. But the rule seems to be that a party may be required to give material matter the knowledge of which is acquired by him from his agents or servants while in the ordinary course of their employment unless he is able to show that such agents or servants left his employment before he acquired such knowledge, or that it would occasion unreasonable expense or an un- reasonable amount of detail. This rule was thus stated by an Eng- lish Judge: "It seems to me that where a party is interrogated as to matters done, or omitted to be done, by his agents and servants in the course of their employment, he does not sufficiently answer, by saying that he does not know and that he has no information upon the subject. He is bound to go further and obtain information from "Serapis, The, 37 Fed. 436. v. Ronalds, 17 Jur. 393; Scott v. ^ Stoffregan v. Mexican Prince, 70 Miller. Johnson 328. Fed. 246. " Bolokow v. Fisher. L. R. 10 Q. ^8 Mary or Alexandra. The, L. R. 2 B. 161, 170; Admiralty Rules 31, 32. A. & E. 319, 38 L. J. N. S. 29; Fisher $<§ 3279, 3280.] inteerogatoeies. G12 such agents or servants of his, or he must show some sufficient reason for not doing it."^° § 3279. Materiality of interrogatories. — The fundamental requi- site of interrogatories is that they must elicit evidence which is ma- terial to the issue. The libelant has the right to require the defend- ant to answer any special interrogatories which may be put touching the matters in issue.^^ As stated by a district court: "The practice is essentially the same as that in equity, in which the interrogatories are limited to the subjects contained in the libel."^^ This rule was very aptly stated by an English judge thus: "The cardinal prin- ciple by which I intend to be governed in this matter is, that the in- tei-rogatories ought to be such as tend bona fide to support the case of the plaintiff, and to favor a complete inquiry into the truth of the issue which the court has to decide."^^ § 3280. Interrogatories as evidence. — As previously suggested one object and purpose of interrogatories is to dispense with the produc- tion of witnesses. Hence, the answers to interrogatories may dis- pense entirely with all other evidence. The answers to such inter- rogatories as are propounded at the close of the pleadings under the admiralty rules, are not regarded as evidence in the strict sense of the word; they are not evidence in a different sense than that in which the pleadings are evidence. But it is immaterial whether they are answered as parts of the pleadings or separately. In this con- dition they stand as evidence precisely like the pleadings, and what is admitted by such answers needs no further proof, and for the pur- pose of evidence or argument they may be referred to by either party .^'* The rule as to the use of interrogatories in evidence has been ^■'Bolckow V. Fisher, L. R. 10 Q. ^'^ Serapis, The, 37 Fed. 436; Aus- B. 161; Minnehaha, The, L. R. 3 A. tralia. The, 3 Ware (U. S.) 240, 2 & E. 148; Isle of Cyprus. The. L. R. Fed. Cas. No. 667; Hutson v. Jor- 15 P. D. 134. dan, 1 Ware (U. S.) 385, 12 Fed. '"David Pratt, The, 1 Ware (U. Cas. No. 6959; David Pratt, The, 1 S.) 495, 7 Fed. Cas. No. 3597; Gam- Ware (U. S.) 495, 7 Fed. Cas. No. mell v. Skinner, 2 Gall. (U. S.) 45, 3597; Cushman v. Ryan, 1 Story 9 Fed. Cas. No. 5210; Radnorshire, (U. S.) 91, 6 Fed. Cas. No. 3515; L. The, L. R. 5 P. D. 172; Williams & B. Goldsmith, The, Newb. 123, 15 B. Adm. Jur. & Prac. 411. Fed. Cas. No. 8152; Eads v. H. D. >' Edwin Baxter. The, 32 Fed. 296. Bacon, Newb. 274, 8 Fed. Cas. No. i*Mary or Alexandra, The, 2 Ad. 4232. & El. 319. 613 EVIDENCE FOR OR AGAINST PAinY. f§ 32^1. stated as follows: "Any party may, at the trial of a cause, matter, or issue, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer: provided always, that in such case the judge may look at the whole of the answers, and if he shall be of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them, he may direct them to be put in."-" § 3281. Interrogatories as evidence for or against party. — The answers to interrogatories are evidence against tlie party making such answers on the principle of admissions against interest. And they may be, in some cases, sufficient to establish the issues on behalf of the party submitting the interrogatories, or they may be sufficient to defeat the action or the cause of defense set up by the party answer- ing the interrogatories. There seems to be some conflict in the ad- judicated cases as to whether or not the answers to tlic interrogatories may be used as evidence in favor of the party making them. Some cases hold that they cannot be so used. This conflict may be more ap- parent than real. In one case in referring to the answers to interroga- tories propounded at the close of the pleading the court said that '"'such answers are not affirmative proof in favor of the party making them."'^' In another case, in speaking of interrogatories filed at the close of the libel, the court said : "The master, by answering these interroga- tories, would make his answers evidence. For though the general answer of the respondent is not properly evidence any further than the charges in the libel, which are equally verified by oath, yet the answers to special interrogatories, which are sometimes subjoined to the libel, and sometimes put out of hearing, are evidence."-- Per- haps the correct rule on this subject was stated by Judge Story as follows : "The answer of the respondent in reply to interrogatories does not in the admiralty constitute positive evidence in his favor. Its true effect is, to furnish evidence for the other party, or, in a case hanging in equilil^rio in point of proof to turn the scale in favor of the respondent."-^ But as to answers to special interrogatories the =» Williams v. Bruce Adm. Jur. & S.) 495, 7 Fed. Cas. 3597: Order Pr. 413; Lyell v. Kennedy, L. R. 27 XXXI, Rule 24. Ch. Div. 1. "Cushman v. Ryan, 1 Story (U. =iSerapis, The, 37 Fed. 436. S.) 91, 103, 6 Fed. Cas. No. 3515: -David Pratt, The, 1 Ware (U. Hutson v. .Jordan, 1 Ware (U. S.) § 3381.] INTERROGATORIES. 614 rule was stated thus: "In the admiralty practice in this country, it is believed, that when a party is required to answer special inter- rogatories, put at the hearing, the answers are evidence as well for the party who is interrogated, as for the other party ."^^ 385; Gushing v. Laird, 6 Ben. (U. 667; L. B. Goldsmith, The. Newb. S.) 408. See also, Australia, The, 3 Adm. 125, 15 Fed. Gas. No. 8152. Ware (U. S.) 240, 2 Fed. Gas. No. "Hutson v. Jordan, 1 Ware (U. S.) 385, 401. i Sec. Sec. 3282. Discovery of documents. 3286. 3283. Demand. 3284. Application for discovery — 3287. Practice. 3288. 3285. Discover y — Discretion of 3289, judge. 3290. 3291. CHAPTER CLXII. DISCOVERY AND INSPECTION OF DOCUMENTS. Production of documents — Af- fidavit. Discovery — Illustrations. Privileged documents. Documents privileged. Documents — When privileged. Waiver of privilege — Effect. § 3282. Discovery of documents. — The practice in admiralty in the matter of inspection and discovery of documents is not essentially different, in the main, from that in other courts. It is the rule that either party may apply to the court, or to a judge for an order directing the opposite party to produce for inspection or use documents relating to the matters in controversy which are in his possession or which have been in his possession or under his control. It seems to be the rule that the party making tlie application need not file any affidavit or description of the document required. The court or judge on hearing the application may either refuse or adjourn the same if he is satisfied that the discovery is not necessary; or he may, in his discretion, make such order and require documents generally to be produced, or he may limit the order to particular documents or to a particular class of documents.^ § 3283. Demand. — While it is the rule that an order for inspec- tion of documents will be made, it is also the rule that the applicant should show a previous demand or application to the adverse party; in the absence of such a showing the applicant may be condemned in costs. ^* The general rule seems to be that a party is not entitled to see any document which does not tend to make out his case." The plaintiff must show that the documents desired are essential to the 'For Discovery, Production and = .Jenkins v. Bushby, 35 L.J. Ch. Inspection of Documents, see Vol. II. 400; Budden v. Wilkinson, L. R. Chap. 68. (1893), 2 Q. B. 432. '♦Memphis, The, 3 Ad. & El. 23. 615 §§ 3284-3286.] discovery and inspection of documents. 616 statement of his elaim.^ In an action by the owner for damages to his goods where it was made to appear that a former action against the same vessel had been settled by a written compromise and agree- ment, it was held that the plaintiff on such showing was entitled to discovery and inspection of the written article for the purpose of using any admissions as to negligence made by the owners of the vessel.* § 3284. Application for discovery — Practice. — According to the practice rule an application for discovery may be made without filing any affidavit. But if made without filing the affidavit it must comply strictly with the rule and must show what the matters in question are.^ Under this practice the order for the discovery or the pro- duction of the document until the statement of defense is delivered. Unless the matters in question are known it cannot be determined whether the documents desired relate to the matters in question.^ § 3285. Discovery — Discretion of judge. — There are instances or circumstances under which the trial court may exercise his discre- tion as to whether or not he will grant the discovery prayed for. And there are cases where the decision and judgment of the trial court will not be questioned on appeal. Thus where, by consent of the parties to the action, the documents of which inspection was sought were submitted to the trial judge, his decision was held to be final. But the general rule seems to be that the trial court has no discretion to refuse to grant the discovery prayed for except where it is made to appear that the documents, the discovery of which is prayed for are privileged.'^ It has been held that the court has discretionary power to make an order for discovery and production of documents at any time after the writ is issued, even before the issues have been defined by the pleadings.^ § 3286. Production of documents — Affidavit. — The opposite party must, when ordered, produce the documents specified in the order. ^Cashin v. Craddock, L. R. 2 Ch. " Bustros v. White, L. R. 1 Q. B. Div. 140. 423; West of England, The, 1 Ad. * Hutchinson v. Glover, L. R. 1 Q. & El. 308; Daniell v. Bond, 3 L. B. 138, 3 Asp. (N. S.) 85. T. N. S. 700. '^ Order XXXI, Rule 12. * Mellor v. Thompson, 49 L. T. N. « Hancock v. Guerin, L. R. 4 Ex. S. 222. Div. 3. 617 PRODUCTION AFFIDAVIT [§ 3286. On production of the documents in his possession he is required to file an affidavit stating: (1) The documents which are in his pos- session or power which relate to the matters in controversy; (2) the documents relating to the questions in controversy which were, but are no longer in his possession or under his control; (3) what has become of the documents no longer in his possession and when they were last in his possession or under his control. If such party has not and never had in his possession any documents in reference to the matter in controversy he should fully so state in his affidavit. He should show by his affidavit that according to his best knowledge, in- formation and belief, he has not and never did have in his possession, custody or power, or in the possession, custody or power of his so- licitors or agents or of any person on his behalf any "deed, account, book of account, voucher, receipt, letter, memorandum, paper or writ- ing or any copy of or extract from any document, or any other docu- ment whatsoever, related to the matter in question." If any docu- ment has been produced he should then say "other than and except"' the document set forth in the schedules to the affidavit. It is diffi- cult to state any rule as to the sufficiency of the affidavit of discovery. The object of the affidavit is to enable the court to make an order foi- the production of documents described with a sufficient description to compel the production if ordered. As an illustration of this rule, which is applicable, though not in an admiralty case, an affidavit was held sufficient which stated: "We have also in our possession or power certain documents, numbered 1 to 26, inclusive, which are tied up in a bundle marked A, and initialed by tlie deponent G. S. Budden. The said documents last mentioned relate solely to the title or to the case of us, the plaintiffs, and not to the case of tlie defendants, nor do they tend to support it; wherefore we object to produce the same and say they are privileged from production.''"' But the affidavit of documents is not conclusive upon the party apply- ing for the order of inspection, and after such affidavit is made he may have an order for the same where he makes an affidavit specify- ing such document and states therein that he believes the document to contain entries which he would be entitled to inspect, and that it is in the possession or power of the other party, notwithstanding * Budden v. Wilkinson. L. R. Coope & Co. v. Emmerson. L. R. 12 (1893) 2 Q. B. 432; Greenwood v. App. Cas. 300; Taylor v. Batten, L. Greenwood, 6 W. R. 119; Peile v. R. 4 Q. B. 85: West of England Stoddart, 1 Mac. & G. 192; Bewicke Bank v. Canton Ins. Co., L. R. 2 Ex. V. Graham, L. R. 7 Q. B. 400: Ind. Div. 472. § 3278.] DISCOVERY AND INSPECTION OF DOCUMENTS. 618 that the affidavit of document states fully and explicitly that the party making it has not in his possession or power "any deed, etc >'10 § 3287. Discovery — Illustrations. — In an action against a man- aging owner of ships for an account, it has been held that he must discover all documents that related to the matter in controversy whether in his individual possession or in that of a firm of which he is a member. ^^ So, in an action for goods damaged by leakage where it appeared that while lying at a foreign port, the vessel was sur- veyed and repaired, it was held that the plaintiff was entitled to the in- spection of the surveys and the shipwright's bill for the reason that the repairs made would show whether the damage was occasioned by un- seaworthiness as alleged in the libel.^=^ So, discovery or inspection of documents may be ordered even where such documents will dis- close the secrets of the party's business or of his trade.^^ In an action on a policy of Marine insurance the plaintiff is entitled to have inspection of the log where it appeared that the vessel was abandoned." So, in such an action it has been held that the assured must lay before the underwriters everything which throws light on any part of the transaction in which both parties are interested, and this was held to include letters between the captain and the plain- tiff.^^ But in such an action it has been held that the defendant is not entitled to have the proceedings stayed until the plaintiff has ob- tained an affidavit of document from the person who is neither a party to the action nor within the jurisdiction of the court when under the plaintiff's control.^® §3288. Privileged documents. — Public documents are privileged from inspection and this includes reports made by captains of Her Majesty's ships to admiralty in cases of collisions. To bring such a report within the rule of privilege it is only necessary that an affidavit be made by the proper officer of the admiralty. The rule on this subject is more fully stated as follows: "When any collision of importance occurs between one of Her Majesty's ships and any "Wiedeman v. Walpole, L. R. 24 "Don Francisco, The, 6 L. T. N. Q. B. 537. S. 133. "Swanston v. Lishman, 4 Asp. » Kellock v. Home &c. Ins. Co., (N. S.) 450. 12 Jur. N. S. 653. " Daniell y. Bond, 3 L. T. N. S. '' Rayner v. Ritson, 6 B. & S. 888. 700 i« Fraser v. Burrows, L. R. 2 Q. B. 624. 619 PRIVILEGED DOCUMENTS. [§ oZR^.K other ship or vessel, it is the duty of the officer in command of Her Majesty's ship forthwith to report such collision to his senior officer or commander-in-chief, and of such senior officer or commander-in- chief to forward the same, with or without remarks as lie may think fit, to the Lords Commissioners of the Admiralty. Such reports are designed solely for the information of the reporting officer's naval superior and the said Lords Commissioners of the Admiralty, and are in the nature of confidential communications. It will be prejudicial to the public service to allow sucli reports to become liable to inspec- tion by litigants in any proceedings at law touching the matters therein reported."^' The principle was also stated in another case as follows : "We are of opinion that if the production of a state paper would be injurious to the public service, the general public interest must be considered paramount to the individual interests of a suitor in a court of justice. . . . It appears to us, therefore, that the question, whether the production of the document would he injurious to the public service, must be determined, not by the judge but by the head of the department having the custody of the paper, and if he is in attendance, and states that in his opinion, the production of the document would be injurious to the public service, we think the judge ought not to compel the production of it."^^ Wliere an order to make discovery is made on the owners of foreign ships it is the rule that reasonable time be given for them to obey the order. ^'^ A court will not make an order for inspection or discovery on the solicitors of a party. The court has no jurisdiction over solicitors for such a pur- pose.^** § 3289. Documents privileged. — The adverse party cannot be re- quired to produce documents which are privileged. If he claims any document in his possession to be privileged he must so state in his affidavit, and must specify which, if any, of the documents referred to is the document he objects to producing, stating fully upon what grounds the. objection is based, and as far as possible verify the facts upon which the objection is founded.-^ It has been held that an affidavit is insufficient which merely states that the documents are privileged. The facts must be stated under oath on whicli the claim of privilege is made; these must be so stated that the court may de- " Bellerophon, H. M. S., 2 Asp. '"Emma. The, 3 Asp. (N. S.) 218. (N. S.) 449. ^^Cashin v. Craddock, L. R. 2 Ch. " Beatson v. Skene, 5 H. & N. 838, Div. 140. 29 L. J. Ex. 430. => Order XXXI, Rule 13. §■ 3290.] DISCOVEBY AND INSPECTION OF DOCUMENTS. 620 termine from the facts set out whether or not the document is privi- leged.^- The privilege from inspection of correspondence between the client and his solicitor continues after the termination of the controversy; and such confidential communication is not subject to inspection in a subsequent action involving the same facts. ^^ So, shorthand notes taken of the evidence, speeches and summing up at the trial of one action, caused to be taken by one of the parties, are privileged from inspection in a subsequent action involving the same facts, where it was made to appear that such notes were intended to form material for the guidance of the plaintifl: and his counsel in the trial of the subsequent action.^* Nor will discovery be ordered of copies of certain depositions where it is made to appear that such copies were obtained for the purpose of the pending action, and "to form part of the brief .''-^ § 3290. Documents — ^When privileged. — It is fundamental that privileged documents are not subject to orders for discovery and in- spection. This rule is always conceded both by courts and council. The controversies arise in determining whether or not a particular document is privileged. The general rule is that all communications between the client and solicitor are privileged. This rule extends to indirect communications as well as to those made directly. The rule of privilege as to such indirect communications has been stated thus : "lAHiere the advice or communication does not proceed from the solicitor directly, but is information sent at his instance by an agent employed by him, or even by the client on his recommendation, or in some way or other procured by the solicitor acting in the case for the plaintiff or defendant, the communication is privileged."^^ And re- ports of survey of a ship made before the commencement of an action where it appears that they are made solely for the purpose of pro- ceeding in the action, are held to be privileged.-' -Gardner v. Irvin, L. R. 4 Ex. =^ Palermo, The, L. R. 9 P. D. 6. Div. 49. "" Bustros v. White, L. R. 1 Q. B. ^Bullock v. Corry, L. R. 3 Q. B. 423, 45 L. J. N. S. 642; Southwark 356; Holmes v. Baddeley, 1 Phil- &c. Co. v. Quick, L. R. 3 Q. B. 315; lips 476; Pearce v. Foster, L. R. 15 Holloway, In re, L. R. 12 P. D. 167; Q. B. 114. Lyell v. Kennedy, L. R. 27 Ch. Div. =«Nordon v. Defries, L. R. 8 Q. B. 1, 9 App. Cas. 81. 508; Southwark &c. Co. v. Quick, -■ Theodor Korner, The, 4 Asp. L. R. 3 Q. B. 315; Anderson v. (N. S.) 17, L. R. 3 P. D. 162, 47 L. Bank &c., L. R. 2 Ch. Div. 644; J. N. S. 85. McCorquodale v. Bell, L. R. 1 C. P. D. 471. Q21 WAIVER OF PRIVILEGE. [§ 331)1. § 3291. Waiver of privilege — Effect. — That a party may waive his right of freedom from inspection and discovery of document is too apparent for a citation of authorities. But the question has arisen whether or not when a party waives the privilege as to certain documents in his possession he can then claim it as to others. There can be no good reason why he may not. The privilege is his of right, and if he chooses to forego this privilege or waive this right as to certain documents he ought not to be denied the privilege as to others. This principle was stated by one of the Lord Justices of England thus: "There was this contention raised, which we have not for- gotten; that the defendant had waived his privilege, and therefore could not claim it at all. That, in my opinion, was entirely fallacious. He had done this, he had said, 'Whether I am entitled to protect them or not, I will produce certain of the documents for which I had previously claimed privilege — I will waive that, and will produce then,' but that did not prevent him relying on sucli protection with regard to others which he did not like to produce. It is not like the case of a man who gives part of a conversation and tlien claims pro- tection for the remainder, and we think there is no ground for the contention that there has been here waiver of privilege."^^ If a party fails to answer, or answers insufficiently, the interrogating party may apply to the court or judge for an order requiring either a more specific or an additional answer. But the court is not justified in disregarding the oath of the defendant on mere suspicion.-** '^Lyell v. Kennedy, L. R. 27 Ch. -»Lyell v. Kennedy, L. R. 27 Ch. Div. 1. Div. 1. CHAPTER CLXIII. WAGES OF SEAMEN. Sec. Sec. 3292. Employment of officers and 3301. seamen. 3293. Contracts of seamen — Con- 3302. struction and burden of proof. 3303. 3294. Contract for wages — Dissolu- tion. 3304. 3295. Wages — Burden of proof. 3296. Forfeiture of wages. 3305. 3297. Abandonment of vessel— 3306. Abandoned by officers. 3307. 3298. Charge of voyage — Justifies 3308. abandonment. 3309. 3299. Unseaworthiness — Effect, bur- 3310. den and presumption. 3300. Discharge of seamen — Miscon- 3311. duct. Discharge of seamen — Drunk- enness. Misconduct of master or mate. Recovery of wages — Vessel unladen. Time of unlading vessel — Presumption. Wages — Increase. Loss of ship — Effect on wages. Effect of desertion. Desertion — End of voyage. Desertion and return. Short allowance of provisions — Effect on wages. Short allowance of provisions — Burden of proof. § 3292. Employment of officers and seamen. — The general and al- most universal practice as well as the statutory requirement for the employment of either officers or seamen is a contract in writing, known as the ship's articles. And in an action by seamen for wages it is the duty of the master or owners of the vessel to produce these articles. But this method of employment is not exclusive and a verbal contract may be proved or it may be established from circum- stances. Usually, however, such contract must be established by oral proof of express hiring or by the signing of the ship's articles. The em- ployment of the master is too marked and notorious ordinarily to leave room for question, and when such employment is to be estab- lished by circumstantial evidence, in such case the evidence required shoidd be of such a character as leaves no fair reason to doubt the fact, and it must go further and present a case equally consistent with the theory of a temporary engagement in part as a preparation 623 623 CONTRACTS BURDEN OF PROOF, [§ 3293. for a voyage, as with an appointment to sail in command of the vessel.^ §3293. Contracts of seamen — Construction and burden of proof. As shown in the preceding section it is almost tlie universal prac- tice that seamen before shipping are required to sign a contract as to wages; and such contract is designated by the general term shipping articles. These articles are ordinarily co-incident with the general principle of the maritime law in reference to the wages of seamen. Any change or interpolation in the shipping articles in- jurious to the rights of seamen and inuring to the benefit of the mas- ter or owner will be watched with scrupulous jealousy by the courts of admiralty; and they will be construed most favorably to the sea- men, or where justice requires will be declared void. The reasons for this rule are thus stated by Judge Story : "Seamen are a class of persons remarkable for their rashness, thouglitlcssness and im- providence. They are generally necessitous, ignorant of the nature and extent of their own rights and privileges, and for the most part incapable of duly appreciating their value. They combine, in a sin- gular manner, the apparent anomalies of gallantry, extravagance, pro- fusion in expenditure, indifference to the future, credulity, which is easily won, and confidence, which is readily surprised. Hence, it is that bargains between them and shipowners, the latter being persons of great intelligence and slirewdness in business, are deemed open to much observation and scrutiny ; for they involve great inequality of knowledge, of forecast, of power, and of condition. Courts of Ad- ' Jones v. Davis, Abb. Adm. (U. Cas. No. 6992; United States v. S.) 446, 13 Fed. Cas. No. 7460; King, 23 Fed. 138; Christina, The, Moran v. Baudin, 2 Pet. Adm. (U. Deady (U. S.) 49; Jansen v. Theo- S.) 415, 17 Fed. Cas. No. 9785; dor Heinrich, The, Crabbe (U. S.) United States v. Grace Lothrop, 95 226, 13 Fed. Cas. No. 7215; Magee U. S. 527; Atlantic, The, Abb. Adm. v. Moss, The, Gilp. (U. S.) 219, 16 (U. S.) 451, 2 Fed. Cas. No. 620; Fed. Cas. No. 8944; Gem, The, 1 City of Mexico, The, 7 Ben. (U. S.) Low. (U. S.) 180, 10 Fed. Cas. No. 31, 5 Fed. Cas. No. 2756; Sarah 5304; Hermine. The, 3 Sawy. (U. S.) Jane, The, Blatchf. & H. (U. S.) 80, 12 Fed. Cas. No. 6409; Brown v. 401, 21 Fed. Cas. No. 12348; Page v. Jones, 2 Gall. (U. S.) 477, 4 Fed. Sheffield, 2 Curt. (U. S.) 377, 18 Cas. No. 2017; Burdett v. Williams, Fed. Cas. No. 10667; Bryant, In re, 27 Fed. 113; Minerva. The, 1 Hagg. Deady (U. S.) 118, 4 Fed. Cas. No. Adm. 347; George Home, The, 1 2067; Osceola, The, 01c. (U. S.) Hagg. Adm. 370; Redmond v. Smith, 450, 18 Fed. Cas. No. 10602; lanthe, 7 M. & G. 457, 49 E. C. L. 456. The, 3 Ware (U. S.) 126, 12 Fed. § 329-1.] WAGES OF SEAMEN. 624 miralty on this account are accustomed to consider seamen as pe- culiarly entitled to their protection so that they have been, by a somewhat bold figure, often said to be favorites of courts of ad- miralty. In a just sense they are so, so far as the maintenance of their rights, and the protection of their interests against the effect of the superior skill and shrewdness of masters and owners of ships are concerned."^ Hence, where the shipping articles contain terms which are contrary to the general rights and privileges of seamen, the burden of proof is upon the master and shipowner to show that both the nature and operation of the stipulations were fully explained to the seamen, and that additional compensation was provided for en- tirely adequate to the new restrictions imposed.^* The general rule is that where there is any ambiguity, uncertainty or obscurity in the shipping articles the courts will adopt a construction most favorable to the seamen.* § 3294. Contract for wages — Dissolution. — The seamen's contract for wages is binding on both parties throughout the voyage or for the stipulated time. If it has been violated by the seaman in an action for wages he must show a sufficient excuse or justification for the breach. The contract may be dissolved (1) by the final abandon- ment of the vessel; (2) by a discharge from the master. It is the '-Brown v. Lull. 2 Sumn. (U. S.) 226. 13 Fed. Cas. No. 7215; Pioneer, 443, 449, 4 Fed. Cas. No. 2018; Etna, The, Deady (U. S.) 72, 19 Fed. Cas. The, 1 Ware (U. S.) 474, 8 Fed. Cas. No. 11177; Hoghton, The, 3 Hagg. No. 4542; Prince Frederick, The, 2 Adm. 100; Nonpareil, The, 33 L. J. Hagg. Adm. 394; Minerva, The, 1 Adm. 201. Hagg. Adm. 347; Brice v. Nancy, = Brown v. Lull, 2 Sumn. (U. S.) The, Bee (U. S.) 429, 4 Fed. Cas. 443, 4 Fed. Cas. No. 2018; Almatia, No.' 1855; Cadmus, The, v. Mat- The, Deady (U. S.) 473, 1 Fed. Cas. thews, 2 Paine (U. S.) 229, 4 Fed. No. 254; Australia, The, 3 Ware (U. Cas. No. 2282; Kambira, The, 100 S.) 240, 2 Fed. Cas. No. 667; Sarah Fed. 118; Alice Blanchard, The, 92 Jane, The, Blatchf. & H. (U. S.) Fed. 519; Two Fannys, The, 25 Fed. 401, 21 Fed. Cas. No. 12348; Cy- 285; Wope v. Hemenway, 1 Sprague press. The, Blatchf. & H. (U. S.) (U. S.) 300, 30 Fed. Cas. No. 18042; 83, 6 Fed. Cas. No. 3530; Trecartin Snow v. Wope, 2 Curt. (U. S.) 301, v. Rochambeau, The, 2 Cliff. (U. S.) 22 Fed. Cas. No. 13149; Disco, The, 465, 24 Fed. Cas. No. 14163; Samuel 2 Sawy. (U. S.) 474, 7 Fed. Cas. No. Ober, The, 15 Fed. 621; San Mar- 3922; Goodrich v. Domingo, The, 1 cos, The, 27 Fed. 567. Sawy. (U. S.) 182, 10 Fed. Cas. No. ^ Jansen v. Theodor Heinrich, 5543; Ada, The, 2 Ware (U.S.) 408, The, Crabbe (U. S.) 226, 13 Fed. 1 Fed. Cas. No. 38; Jansen v. Theo- Cas. No. 7215; Hoghton, 3 Hagg. dor Heinrich, The, Crabbe (U. S.) Adm. 100. 625 WAGES — BURDEN OF PROOF. [§§ 3295, 3296. duty of seamen to do their utmost to save the ship and cargo and an abandonment of the vessel will not be justified until it is made to ap- pear that such duty was faithfully performed. So, if the ship is wrecked or otherwise lost there may be an abandonment. And in the absence of fraud a discharge from the master is a sufficient justifi- cation. The burden of proving an abandonment which is relied upon to dissolve the contract is upon the seaman. Where the abandon- ment is shown to be in good faith for good cause, and the seamen are discharged by the act of the master, it is held that they may recover as salvors for services subsequently rendered in saving the cargo. ^ § 3295. Wages — Burden of proof. — Where by the terms of the shipping articles, the seamen shall not sue for wages until the vessel is unladen, in an action for wages by a seaman it was held that the burden was on the libelant to prove that the vessel was atcually un- laden at the time of filing the libel, or that it had been moored fifteen days or more.*' In such an action it has been held that the ship's articles were prima facie proof of the fact that the libelant was on board.' And where seamen are discharged after the contract is duly executed, the burden is upon the ship to justify the discharge.^ § 3296. Forfeiture of wages. — Notwithstanding the binding ef- fect of the contract for wages, it is the recognized rule that a seaman may forfeit his wages. This forfeiture may be incurred in many ways, but the general rule is that wages are forfeited for gross of- fenses. "But it is not a single neglect of duty, or a single act of disobedience, which ordinarily carries with it so severe a penalty. There must be a case of high and aggravated neglect of disobedience, importing the most serious mischief, peril or wrong; a case calling for exemplary punishment, and admitting of no reasonable mitiga- tion, a case involving a very gross breach of the stipulated contract for hire, and going, in its character and consequences to the very essence of its provisions."^ But ordinarily proof of a single neg- = Warrior, The, Lush. Adm. 476; ' Malone v. Bell, 1 Pet. Adm. (U. Varuna, The, 1 Stuart Vice-Adm. S.) 139, 16 Fed. Cas. No. 8994. (L. C.) 357; Davis v. Leslie, 1 Abb. 'Villa Y Herman, 101 Fed. 132. Adm. (U. S.) 123, 7 Fed. Cas. No. ^Mentor, The, 4 Mason (U. S.) 3639. 84, 17 Fed. Cas. No. 9427; Richard «Granon v. Hartshorne, Blatchf. Matt, The, 1 Diss. (U. S.) 440. 20 & H. (U. S.) 454, 10 Fed. Cas. No. Fed. Cas. No. 11766; Elizabeth 5689. ' Frith, The, Blatchf. & H. (U. S.) Vol. 4 Elliott Ev. — 40 3297, 3298.] WAGES OF SEAMEN. 626 lect of duty, or a single act of disobedience will not subject the of- fender to a forfeiture of wages.^'' In an action by the seamen for wages, proper service and good conduct are presumed until over- come by the owner of the vessel.^' Mere neglect of duty of the mate is not sufficient to justify the forfeiture of wages, unless such neglect is followed by injurious consequences to the owner: the burden of proving such injurious results is upon the person setting it up/^ § 3297. Abandonment of vessel — Abandoned by officers. — Where the owners have abandoned the vessel to the discretion of the captain, and she is assigned in trust, the seamen are justified in leaving the vessel and suing for their wages; and admiralty courts will entertain jurisdiction in such cases, although the seamen are foreigners and even where they had agreed in the shipping articles not to sue in for- eign courts.^ ^ § 3298. Change of voyage — Justifies abandonment. — The ship- ping articles usually provide for the particular voyage and describe 195, 8 Fed. Cas. No. 4361; Drysdale V. Ranger, The, Bee (U. S.) 148, 7 Fed. Cas. No. 4097; Olive Chamber- lain, The, 1 Sprague (U. S.) 9, 18 Fed. Cas. No. 10491; Nimrod, The, 1 Ware (U. S.) 9, 18 Fed. Cas. No. 10267; Sprague v. Kain, Bee (U. S.) 184, 22 Fed. Cas. No. 13250; Childe Harold, The, 01c. (U. S.) 275, 5 Fed. Cas. No. 2676; Moslem, The, 01c. (U. S.) 289, 17 Fed. Cas. No. 9875; Alps, The, 19 Fed. 139; Smith V. J. C. King, The, 3 Fed. 302; Pacific, The, 23 Fed. 154; Occi- dental, The, 101 Fed. 997; Shawnee, The, 45 Fed. 769; Weatherpen v. Laidler, 8 Moo. 37, 17 E. C. L. 534; Countess of Harcourt, 1 Hagg. Adm. 248; Train v. Bennett, 3 Car. & P. 3, 14 E. C. L. 420; Susan, The, 2 Hagg. Adm. 229 n. "Mentor, The, 4 Mason (U. S.) 84, 17 Fed. Cas. No. 9427; Pioneer, The, Deady (U. S.) 72, 19 Fed. Cas. No. 11177; Almatia, The, Deady (U. S.) 473, 1 Fed. Cas. No. 254; Ben- ton V. Whitney, Crabbe (U. S.) 417, 8 Fed. Cas. No. 1335; John Martin, The, Brown Adm. (U. S.) 149, 13 Fed. Cas. No. 7358; Magnet, The, Brown. Adm. (U. S.) 547, 16 Fed. Cas. No. 8955; Ealing Grove, The, 2 Hagg. Adm. 15; New Phoenix, The, 1 Hagg. Adm. 198; Malta, The, 2 Hagg. Adm. 158; Lady Campbell, 2 Hagg. Adm. 14; Gondolier, The, 3 Hagg. Adm. 190; Vibilia, The, 2 Hagg. Adm. 228; Blake, The, 1 W. Rob. 73; Lima, The, 3 Hagg. Adm. 346. " Malta, The, 2 Hagg. Adm. 158. " Duchess of Kent, The, 1 W. Rob. 283; Malta, The, 2 Hagg. Adm. 158. See Lima, The, 3 Hagg. Adm. 346. ^^Wilhelm Frederick, The, 1 Hagg. Adm. 138; Sigard v. Roberts, 3 Esp. 71; Limland v. Stephens, 3 Esp. 269; Bucker v. Klorkgeter, 1 Abb. Adm. (U. S.) 402, 4 Fed. Cas. No. 2083. A collection of cases on the proposition that courts of ad- miralty will take jurisdiction in 627 UNSEAWORTHINESS BURDEN AND PRESUMPTIONS. [§ 3299. it with reasonable certainty from the port of sailing to the various intermediate ports and the port of destination." The general rule is that deviation from the prescribed voyage will justify seamen in the abandonment of the vessel, and their wages become due im- mediately. But in this respect the ship's articles are not to be too strictly construed. It is not the rule that tlie least deviation from the designated voyage will invalidate the articles and discliarge the seamen. The correct rule is that gross and unnecessary deviations will discharge the seamen and justify their abandonment of the ves- sel. Thus, where it was shown that after the vessel reached the port of destination and instead of returning the vessel was freighted to go elsewhere, it was held a sufficient justification for her abandon- ment by the mariners.^^ But the mere putting into a port in order to make necessary repairs is not such a deviation as will discharge the seamen.^® In order to justify the abandonment the change of voyage must have in fact taken place, or it must have been actually determined upon by the master, of which determination the sea- men had notice." The burden of proving a deviation sufficient to justify abandonment is upon the libelant.^** § 3299. Unseaworthiness — Effect, burden and presumption. — It is a well-recognized rule in maritime law that unseaworthiness of a vessel justifies seamen in leaving the sliip and entitles them to re- cover their wages.^^ This rule is founded on tlie principle that it is matters of controversy between S.) 264, 12 Fed. Cas. No. 6514; foreigners in certain emergencies is Becherdass Ambaidass, The, 1 Low. found in 4 Fed. Cas. p. 5.59. (U. S.) 569, 6 Am. L. Rev. 74, 3 Fed. '*Magee v. Moss, The, Gilp. (U. Cas. No. 1203. S.) 219, 16 Fed. Cas. No. 8944; " Botker v. Towner, 3 E. D. Smith Minerva, The, 1 Hagg. Adm. 347, (N. Y.) 132. 361; Westmorland, The, 1 W. Rob. "Douglass v. Eyre, Gilp. (U. S.) 216, 228; Varuna, The, 1 Stuart 147, 7 Fed. Cas. No. 4032. Vice-Adm. (L. C.) 357. ^'^ Botker v. Towner, 3 E. D. Smith "Moran v. Baudin, 2 Pet. Adm. (N. Y.) 132. (U. S.) 415, 17 Fed. Cas. No. 9785; ^^ Bucker v. Klorkgeter, 1 Abb. Potter v. Allin, 2 Root (Conn.) 63; Adm. (U. S.) 402, 4 Fed. Cas. No. Magee v. Moss, The, Gilp. (U. S.) 2083; Bray v. Atlanta, The, Bee (U. 219, 16 Fed. Cas. No. 8944; Thorne S.) 48, 4 Fed. Cas. No. 1819; United V. White, 1 Pet. Adm. (U. S.) 168, States v. Nye, 2 Curt. (U. S.) 225, 23 Fed. Cas. No. 13989; Crammer V. 27 Fed. Cas. No. 15906; United Fair American, The, 1 Pet. Adm. States v. Ashton, 2 Sumn. (U. S.) (U. S.) 242, 6 Fed. Cas. No. 3347; 13, 24 Fed. Cas. No. 14470; United Hindman v. Shaw, 2 Pet. Adm. (U. States v. Staly, 1 Woodb. & M. (U. § 3300.] WAGES OF SEAMEN. 628 the duty of the owner or the master to know that the vessel is sea- worthy, and on the additional principle that seaworthiness is pre- sumed.^'* It is also the rule that when the seamen quit the ship on account of its being unseaworthy and sue for wages the burden is upon the libelants to establish the fact of unseaworthiness or to over- come the legal presumption of seaworthiness. But where the libel- ants do this and assume this burden they are "entitled to every advantage that can arise from the clear establishment of that fact afterward, with the same effect as if it had been brought to light at the time of her sailing.^'^^ Wliere seamen refuse to go to sea in a ship that is unseaworthy, or wliere they leave a vessel that is found to be leaking constantly and for no other cause than that she is dangerous or unseaworthy, such refusal to sail or such abandonment of the ship will not amount to a technical desertion.^^ § 3300. Dischargee of seaman — MiscondTict. — That a seaman may be discharged for misconduct, or that he may forfeit his claim for wages on the ground of misconduct is essential to the safety of those engaged in navigation and to maintain the authority of persons in command of vessels. The causes which justify the master in dis- S.) 338, 27 Fed. Cas. No. 16374; Dixon v. Cyrus, The, 2 Pet. Adm. (U. S.) 407, 7 Fed. Cas. No. 3930; Heroe, The, 21 Fed. 525; Turner v. Owen, 3 Fost. & F. 176; Hartley v. Ponsonby, 7 El. & Bl. 872, 90 E. C. L. 871; Hibernia, The, 1 Sprague (U. S.) 78, 12 Fed. Cas. No. 6455; United States v. Givlngs, 1 Sprague (U. S.) 75, 25 Fed. Cas. No. 15212; Nimrod, The, 1 Ware (U. S.) 9, 18 Fed. Cas. No. 10267; Shawnee, The, 45 Fed. 769; Moslem, The, 01c. (U. S.) 289, 17 Fed. Cas. No. 9875; Bucker v. Klorkgeter, Abb. Adm. (U. S.) 402, 4 Fed. Cas. No. 2083; Keating v. Pacific &c. Co., 21 Wash. 415, 58 Pac. 224; C. F. Sargent, The, 95 Fed. 179. =" United States v. Nye, 2 Curt. (U. S.) 225, 27 Fed. Cas. No. 15906 Work V. Leathers, 97 U. S. 379 Turner v. Owen, 3 Fost. & F. 176 Hedley v. Pinkney &c. Co., L. R (1892), 1 Q. B. 58; Dixon v. Cyrus, The, 2 Pet. Adm. (U. S.) 407, 7 Fed. Cas. No. 3930; Rice v. Polly and Kitty, The, 2 Pet. Adm. (U. S.) 420, 20 Fed. Cas. No. 11754; William Harris, The. 1 Ware (U. S.) 367, 29 Fed. Cas. No. 17695; Nimrod, The, 1 Ware (U. S.) 9, 18 Fed. Cas. No. 10267; Jay v. Allen, 1 Sprague (U. S.) 130, 13 Fed. Cas. No. 7235; Lizzie Frank, The, 31 Fed. 477; Noddleburn, The, 28 Fed. 855; La Fernier v. Soo River &c. Co., 129 Mich. 540, 89 N. W. 353; Couch v. Steel, 3 EL & Bl. 402, 77 E. C. L. 402. '-' Bucker v. Klorkgeter, 1 Abb. Adm. (U. S.) 402, 4 Fed. Cas. No. 2083; United States v. Nye, 2 Curt. (U. S.) 225, 27 Fed. Cas. No. 15906; Heroe, The, 21 Fed. 525. " Bucker v. Klorkgeter, 1 Abb. Adm. (U. S.) 402, 4 Fed. Cas. No. 2083. 629 DISCHAIIGE — MISCONDUCT. [§ 3300. charging his seamen before the termination of the voyage, or wliich amount to a forfeiture of wages "are such as amount to a disqualifi- cation and show him to be unfit for the services he has engaged for or unfit to be trusted in the vesseh They arc : mutinous and rebel- lious conduct, persevered in; gross dishonesty or embezzlement; or where the seaman is habitually a stirrer up of quarrels, to the de- struction of the order of the vessel and the discipline of the crew." Ordinarily the master will not be justified in discharging a seaman for a single offense, unless it be of a very high and aggravated char- acter, implying a deep degree of moral turpitude, or a dangerous and ungovernable temper or disposition. The law is more indulgent to the common seaman, in this respect, than in the case of the first or second officer of a vessel. It is a part of his duty to abstain from setting a bad example to the crew; he is supposed to appreciate the necessity of strict discipline and obedience on ship-board and his acts of disobedience and misconduct will naturally be punished with greater severity than that of the common seaman. But except in extreme cases courts of admiralty in their guardianship of the rights of seamen will punish even a mate or a master by deduction of wages or otherwise, rather than by forfeiture.^* A seaman may be dis- 2^ Smith V. Treat, 2 Ware (U. S.) 1 Low. (U. S.) 289, 8 Fed. Cas. No. 270, 4 N. Y. Leg. Obs. 13, 22 Fed. 4327; Nimrod, The. 1 Ware (U. S.) Cas. No. 13117; Cornelia Amsden, 9, 18 Fed. Cas. No. 10267; Sherwood The, 5 Ben. (U. S.) 315, 6 Fed. Cas. v. Mcintosh, 1 Ware (U. S.) 109, No. 3234; Thome v. White, 1 Pet. 21 Fed. Cas. No. 12778; Bertha, The, Adm. (U. S.) 168, 23 Fed. Cas. No. Ill Fed. 550; T. F. Oakes, The, 36 13989; Sprague V. Kain, Bee (U. S.) Fed. 442; Superior, The, 22 Fed. 184, 22 Fed. Cas. No. 13250; Black 927; Jefferson Borden, The, 6 Fed. V. Louisiana, The, 2 Pet. Adm. (U. 301; Magnet, The, Brown Adm. (U. S.) 268, 3 Fed. Cas. No. 1461; S.) 547, 16 Fed. Cas. No. 8955; Relf Drysdale v. Ranger, The, Bee (U. v. Maria, The, 1 Pet. Adm. (U. S.) S.) 148, 7 Fed. Cas. No. 4097; Orne 186, 20 Fed. Cas. No. 11692; Tios v. V. Townsend, 4 Mason (U. S.) 541, Radovich. 10 La. Ann. 101, 63 Am. 18 Fed. Cas. No. 10583; Lady Camp- Dec. 592; Buck v. Lane, 12 S. & R. bell, The, 2 Hagg. Adm. 5; Vibilia, (Pa.) 266. The, 2 Hagg. Adm. 228; Mentor, ^Cornelia Amsden, The, 5 Ben. The,' 4 Mason (U. S.) 84, 17 Fed. (U. S.) 315, 6 Fed. Cas. No. 3234; Cas. No. 9427; Johnson v. Cyane, Almatia, The, Deady (U. S.) 473, 1 The, 1 Sawy. (U. S.) 150, 13 Fed. Fed. Cas. No. 254; Maria. The, Cas. No. 7381; Hutchinson v. Blatchf. & H. (U. S.) 331, 16 Fed. Coombs, 1 Ware (U. S.) 65, 12 Fed. Cas. No. 9071; Mentor, The, 4 Ma- Cas. No. 6955; Idlehour, The, 63 son (U. S.) 84. 17 Fed. Cas. No. Fed. 1018; Marsland v. Yosemite, 9427; Black v. Louisiana, The. 2 The, 18 Fed. 331; El Dorado, The, Pet. Adm. (U. S.) 268, 3 Fed. Cas. § 3301.] WAGES OF SEAMEN. 630 charged on the grounds of disqualification or that he is an unsafe or unfit man to have on board the vessel. ^^ Where a seaman is en- gaged under an entire contract and is wrongfully discharged, he is entitled to recover his wages during actual service.-*' § 3301. Discharge of seaman — Drunkenness. — Habitual drunken- ness may or may not be relied upon as a ground of forfeiture of sea- men's wages. If relied upon as a defense in a libel by a seaman for his wages it must be specially pleaded and in such case the burden is upon the party making the allegation. There is no fixed or definite rule as to the forfeiture of wages on the ground of habitual drunken- ness. The maritime law looks with great indulgence on the infirmi- ties and temptations of the seaman, and it will not decree forfeiture for occasional ofi^enses, but it prefers to inflict punishment by way of deduction in compensation rather than enforce the rigid and harsh rules of forfeiture. The rule as to the forfeiture of wages on account of drunkenness has been stated thus : "Wlien it is habitual and gross, it may indeed be visited with a total forfeiture of wages; but where it is only occasional, or leaves much meritorious service be- hind, it is thought quite sufficient to recover, in damages, the amount of the actual or presumed loss, resulting from such a violation of the mariner's contract, and imperfect performance of duty. The maritime law is, in this, as in many other cases, founded on an in- dulgent consideration of human temptations and infirmities. It is not insensible to the perils and the hardships, the fatigue and the excitements, incident to the sea service ; and it allows much for the habitual thoughtlessness, irregularity, and impetuosity, which, with much gallantry and humanity, is mixed up in the character of sea- men. It deals out its forfeitures, therefore, with a sparing hand and aims to arrive at just and equitable results, not by enforcing rigid and harsh rules, but by moderating compensation as well as punish- ment, so as to apportion each to the nature and extent of the of- fense."" No. 1461; Drysdale v. Ranger, The. (U. S.) 65, 12 Fed. Cas. No. 6955; Bee (U. S.) 148, 7 Fed. Cas. No. Smith v. Treat, 2 Ware (U. S.) 270, 4097; Relf v. Maria, The. 1 Pet. 22 Fed. Cas. No. 13117; Villa Y Adm. (U. S.) 186, 20 Fed. Cas. No. Herman, The, 101 Fed. 132. 11692; Thorne v. White, 1 Pet. -"Frank C. Barker, The, 19 Fed. Adm. (U. S.) 168, 23 Fed. Cas. No. 332; Heroe, The. 21 Fed. 525; Pro- 13989; Mentor, The, 4 Mason (U. gresso. The, 46 Fed. 292; Haveron S.) 84, 17 Fed. Cas. No. 9427. v. Goelet, 88 Fed. 301. *^ Hutchinson v. Coombs, 1 Ware =' Orne v. Townsend, 4 Mason (U. 631 MISCONDUCT OF MASTER OR MATE. [§§ 3332-3304. § 3302. Misconduct of master or mate. — The same rule applies to the master and to the mate as to common seamen. Where the master, throughout an entire voyage, shows utter incapacity, or, during such time has been continuously drunk, he will forfeit his wages. But where it appears that his misconduct was such that only a certain amount of damages was sustained such damages only should be de- ducted from the amount due him. But whether merely erroneous conduct, without intentional guilt, will subject the master to the forfeiture of his wages is a different question. Where the instruc- tions were clear, positive and precise and there was proof of wilful disobedience, it might be sufficient to forfeit his wages, though no evil consequences actually resulted; but such could not be the case where the instructions were not clear and positive, and where it was made to appear that the master was not put in possession in the most intelligent form, of the real intention of the owners of the vessel, or where it was left to the master to exercise any judgment.^^ § 3303. Recovery of wages — Vessel unladen. — By the terms of the statute the wages of seamen become due "as soon as the voyage is ended or the cargo or ballast be fully discharged at the last port of delivery .'' Hence, in an action for the recovery of wages or to en- force a lien, the burden of proof is upon the libelant to show that the vessel has been discharged of her cargo. It is not sufficient to prove in such an action that the vessel had arrived at the port of destination, or that the vessel had been moored at the port for a certain time less than fifteen days. The duty of the seamen to con- tinue with the vessel and aid in unloading her is, under the maritime law, regarded as incident to his hiring, and he is usually so bound by his articles.^® § 3304. Time of unloading vessel — Presumption. — Courts will carefully guard the rights of seamen after the termination of a voyage. Their wages will not be forfeited on the grounds of desertion be- S.) 541, 18 Fed. Cas. No. 10583; -'* Thomas Worthington, The, 3 W. Cornelia Amsden, The, 5 Ben. (U. Rob. 128, 12 Jur. 1057, 6 Notes of S.) 315, 6 Fed. Cas. No. 3234; Sher- Cases 570. wood V. Mcintosh, 1 Ware (U. S.) -■'Martha, The, Blatchf. & H. (U. 109, 21 Fed. Cas. No. 12778; Gar- S.) 151, 16 Fed. Cas. No. 9144; Bal- net, The, 3 Sawy. (U. S.) 350, 10 tic Merchant, The. Edw. Adm. 86, Fed. Cas. No. 5244; Duchess of 91; Granon v. Hartshorne. Blatchf. Kent, The, 1 W. Rob. 283. . & H. 454, 10 Fed. Cas. No. 5689. §§ 3305, 3306.] wages of seamen. 632 fore the ship is unladen if there has been an unreasonable delay in discharging the cargo. The statute in some instances has fixed a certain number of days for discharging the cargo of vessels. Where this statutory period of time has elapsed, in the absence of proof the courts will presume that sufficient time has been given for the dis- charge of the cargo and this presumption is sufficient to justify a recovery without proof that the vessel was in fact unladen.^" § 3305. Wages — Increase. — Where part of the seamen for any reason leave or desert a vessel in a foreign port and the master or captain then makes a new contract, without coercion, with the re- maining sailors and promises to give extra compensation if they will continue to ship with the vessel for the remainder of the voyage with a diminished number of mariners, it has been held that the contract is valid and that the seamen may recover the additional compensation promised.^^ § 3306. Loss of ship — Effect on wages. — The old and the uni- versal rule of maritime law was that in case of the wreck and loss of a ship on her voyage the seamen lost their entire wages. ^^ This rule was founded upon what was called an old figment of law to tlie effect that "freight is the mother of wages," and that where no freight was earned no wages could be recovered.^" This rule has been changed by the statute in England which provided that in all cases of the wreck or loss of the ship, every surviving seaman shall be entitled to his wages up to the period of the wreck or loss of the ship, whether such ship shall or shall not have previously earned freight; provided the seaman shall produce a certificate from the master or chief surviving officer of the ship, to the effect that he had exerted himself to the utmost to save the ship, cargo and stores. ^"Martha, The. Blatchf. & H. (U. ^= Adams v. Sophia, The, Gilp. (U. S.) 151, 16 Fed. Cas. No. 9144; S.) 77, 1 Fed. Cas. No. 65; Davis v. Granon v. Hartshorne, Blatchf. & Leslie, Abb. Adm. (U. S.) 123, 7 H. (U. S.) 454, 10 Fed. Cas. No. Fed. Cas. No. 3639; Neptune, The, 1 5689; Baltic Merchant, The, Edw. Hagg. Adm. 227, 239. Adm. 86, 91. ^' Dunnett v. Tomhagen, 3 Johns. 51 Hartley v. Ponsonby, 7 El. & Bl. (N. Y.) 154; Lewis v. Elizabeth and 872, 90 E. C. L. 871; Turner v. Jane, The, 1 Ware (U. S.) 41, 15 Owen, 3 Fost. & F. 176; Clutterbuck Fed. Cas. No. 8321; Saratoga, The, v. Coffin, 3 M. & G. 842, 42 E. C. L. 2 Gall. (U. S.) 164, 6 Hall. L. J. 438; but see, Harris v. Carter, 3 El. 12, 21 Fed. Cas. No. 12355. & Bl. 559, 77 E. C. L. 559. 633 EFFECT OF DESEKTIOX. [§ 3307. Under this statute the proof of the loss of the ship and the produc- tion of such a certificate would be sufficient to entitle the seaman to recover. But the question has arisen as to whether or not in case of loss of the ship's officers or their refusal to give such certificate the seaman can recover. Or, stating the proposition differently, is the production of the certificate a condition precedent to the right of re- covery? This principle is fully covered in the opinion of district Judge Betts, where he says: "I do not think it imposes an absolute condition precedent to the right of recovery. It introduces no new requirement of duty to be performed by the seamen. The law mari- time exacts of them the same diligence and fidelity of service through- out the whole period of their employment. Although the voyage may be uninterruptedly prosperous and safe, yet the mariner who, upon any occasion, from its inception to its close, shall refuse to exert himself to his utmost in the discharge of his duties on lioard, will either entirely forfeit his wages for the voyage, or become sub- ject to damages or mulct in diminution of them. The proviso desig- nates a mode of proof, which is the primary and highest evidence of the fact to be established, but secondary evidence is not excluded expressly, and the equitable and salutary purposes of a remedial and eminently beneficial statute will not be defeated by a construction which is strictly technical. The construction should be liberal, in order to give effect to the remedy. The mode of proof designated is one over which those to be benefited by the provision have no con- trol, nor is there any process furnished them to enforce the giving the certificate. It is the sole act of the master, and I think there is cogent for holding that, by the true import of the section, this im- portant act of justice to mariners is not to be left to the master's discretion or to his interest or caprice; that it is his duty, in a case coming within the statute, to furnish the certificate, or to show satis- factory reasons for not doing so, otherwise the courts will accept other evidence as a legal substitute for the certificate, regarding the proviso as alike directory to the master and to the men."^* § 3307. Effect of desertion. — Tlie general rules of maritime law on the subject of desertion were so uncertain and gave the master or owners of a vessel such discretionary powers in forfeiting the wages of seamen that the whole subject has been covered in the United States by statute. By such statutes absence from the vessel without '^ Davis V. Leslie, Abb. Adm. (U. S.) 123, 7 Fed. Cas. No. 3639. § 3308.] WAGES OF SEAMEN. 634 leave constitutes desertion, forfeits the wages earned, and removes all inquiry into the purpose or cause of such leaving. However, the law very reasonably allows the sailor forty-eight hours in which he may return to the vessel and forfeit three days' wages only for his misfeasance. The law requires that the absence of the seaman shall be entered on the log-book on the day that it occurred, and that the entry shall state the absence to be without leave. And it is the rule that no desertion can be established against a seaman except con- formable to the statutory direction. Evidence of codes or usages of other nations which are conflicting or inconsistent with the stat- ute is inadmissible to contradict or change the statutory rule.^^ It has been held that desertion or absence without leave must be noted in the log-book on the day it actually occurs, or it will not operate as a forfeiture of wages.^'' But some more recent cases under a different statute have held that the entry of the desertion in the log- book is not necessarily a condition of forfeiture of wages.^^ § 3308. Desertion — ^End of voyage. — A desertion within the terms of the statute forfeits all claim to wages. But the proof must bring the act of desertion clearly within the statutory provision. Accord- ing to the statute the desertion must have occurred during the con- tinuance of the voyage and the voyage is held to terminate when the vessel arrives and is moored at her port of destination. The dis- tinction must be maintained between a forfeiture of wages on the ground of desertion and the right of the seaman to recover his wages. The desertion which forfeits the wages must have occurred during the voyage; the voyage denotes the transit to be performed by the ="5 Martha, The, Blatchf. & H. (U. 207, 14 Fed. Cas. No. 7872; Martha, S.) 151, 16 Fed. Cas. No. 9144; John The, Blatchf. & H. (U. S.) 151, 16 Martin, The, 2 Abb. (U. S.) 172, 13 Fed. Cas. No. 9144; Quintero, The, Fed. Cas. No. 7357; Cloutman v. 1 Low. (U. S.) 38, 20 Fed. Cas. No. Tunison, 1 Sumn. (U. S.) 373, 5 11517; Sarah Jane, The, Blatchf. & Fed. Cas. No. 2907; Herron v. Peg- H. (U. S.) 401, 21 Fed. Cas. No. gy. The, Bee (U. S.) 57, 12 Fed. 12348; Wood v. Nimrod, The, Gilp. Cas. No. 6427; Phoebe, The, v. Dig- (U. S.) 83, 30 Fed. Cas. No. 17959; num, 1 Wash. (U. S.) 48, 19 Fed. Magee v. Moss, The, Gilp. (U. S.) Cas. No. 11110; Piehl v. Balchen, 219, 16 Fed. Cas. No. 8944. 01c. (U. S.) 24, 19 Fed. Cas. No. "Scott v. Rose, 2 Low. (U. S.) 11137. 381, 21 Fed. Cas. No. 12545; Wel- =" Phoebe, The, v. Dignum, 1 come v. Yosemite, The, 18 Fed. 383. Wash. (U. S.) 48, 19 Fed. Cas. No. See also, Marjory Brown, The, 134 11110; Douglass v. Eyre, Gilp. (U. Fed. 999. But compare W. F. Bab- S.) 147, 7 Fed. Cas. No. 4032; cock, The, 85 Fed. 978. Knagg V. Goldsmith, Gilp. (U. S.) 635 DESERTION AND RETURN. [§ 3309. seaman, and the term is used in this sense in marine law. His duties as mariner end when the vessel is moored at her port of destination ; his labors after tliat are those of a stevedore or common laborer and he is required to perform this by reason of his contract or as an inci- dent to the hiring. This labor of unlading the vessel must be per- formed before he can recover his wages. The penalty for failing to perform this labor is entirely different from that imposed by deser- tion. On these grounds it has been expressly held that a statutory desertion cannot be shown after the vessel has ended her voyage.^® So, where a seaman becomes sick and is sent from the ship to a hospi- tal in a foreign port, and the vessel leaves before the seaman is sufficiently recovered to join them, he cannot be regarded as absent without leave so as either to forfeit or stop his wages. The absence on account of sickness is presumed to be with leave.^^ Where a vessel attempts to invoke the statutory penalty for desertion it must prove such desertion according to the statutes.**^ § 3309. Desertion and return. — As previously observed, desertion, that is, leaving the vessel with the intention of not returning, works a forfeiture of a seaman's wages. But if thereafter the seaman re- turns the law will not consider it as a case of total forfeiture, but rather as one for compensation and indemnity to the owners for the loss of such service ; a seaman is punished and the owners sufficiently indemnified by a proper deduction from his wages. The law seeks to protect the seaman against the avarice and arrogance of the mas- ter and the vessel. This principle is thus stated: "The law looks with indulgence on the faults of seamen when they are free from malignity and arise from thoughtlessness, improvidence, and with ^Martha. The, Blatchf. & H. (U. Kollock, 3 Ware (U. S.) 45, 10 Fed. S.) 151, 16 Fed. Cas. No. 9144; Cas. No. 5409; Union, The, Blatchf. Granon v. Hartshorne, Blachf. & H. & H. (U. S.) 545, 24 Fed. Cas. No. (U. S.) 454, 10 Fed. Cas. No. 5689; 14347; Mary, The, 1 Ware (U. S.) Annie M. Smull, The, 2 Sawy. (U. 454, 1 L. R. 157, 20 Am. Jur. 421, S.) 226, 1 Fed. Cas. No. 423; Ed- 16 Fed. Cas. No. 9191; Edwards v. ward, The, Blatchf. & H. (U. S.) Susan, The, 1 Pet. Adm. (U. S.) 286, 8 Fed. Cas. No. 4289; Elizabeth 165, 8 Fed. Cas. No. 4299; Baltic Frith, The, Blatchf. & H. (U. S.) Merchant. The. Edw. Adm. 86. 195, 8 Fed. Cas. No. 4361; Eliza- =« Nevitt v. Clarke, 01c. (U. S.) beth. The, v. Kickers, 2 Paine (U. 316, 18 Fed. Cas. No. 10138. S.) 291, 8 Fed. Cas. No. 4353; Clout- «John Martin. The, 2 Abb. (U. man v. Tunison, 1 Sumn. (U. S.) S.) 172, 13 Fed. Cas. No. 7357. 373. 5 Fed. Cas. No. 2907; Gifford v. §§ 3310, 3311.] WAGES OF SEAMEN. 636 want of consideration which is so characteristic of them as a class. In such cases it inflicts its penalties with gentleness and reluctance; and in so doing it will look to the conduct of the officers toward the men as well as make some allowances for the habitual improvidence of the men. And this it will especially do, when such conduct may in any way have tended to produce the fault which it has sought to punish."*^ §3310. Short allowance of provisions — Effect on wages. — The statute gives a day's extra wages to the seaman for each day he is kept on short allowance. But it seems that recovery for the increase of wages can only be had where it is shown that the required quantity of provisions is not on board the vessel. The rule is that where the vessel is sufficiently supplied with stores the distribution is in the discretion of the master, and in such case the remedy for being put on short allowance must be by an action for damages.^^ The master may justify himself for a failure to furnish the provisions required by law by showing his inability to procure the enumerated articles in foreign ports and by further showing that he did furnish as sub- stitutes and equivalents other good and wholesome articles of food. He may also justify a short allowance by proof of diminished pro- visions on account of accidents, or on account of an unusually and unexpectedly prolonged voyage.*^ ^\nien the proof shows a short allowance of the three articles required by statute, the libelants are entitled to claim triple extra wages for each day of such short al- lowance.^* § 3311. Short allowance of provisions — Burden of proof. — The burden is on the libelants to show that the allowance was not in a «Gifford V. Kollock, 3 Ware (U. No. 9086; Mary, The, 1 Ware (U. S.) 45, 19 L. R. 21, 10 Fed. Cas. No. S.) 454, 1 L. R. 157, 20 Am. Jur. 5409. 421, 16 Fed. Cas. No. 9191; Foster "Mariners v. Washington. The, 1 v. Sampson, 1 Sprague (U. S.) 182, Pet. Adm. (U. S.) 219, 16 Fed. Cas. 9 Fed. Cas. No. 4982; Mary Paulina, No. 9086; Childe Harold, The, 01c. The, 1 Sprague (U. S.) 45, 16 Fed. (U. S.) 275, 5 Fed. Cas. No. 2676; Cas. No. 9224; Broux v. Ivy, The, Collins v. Wheeler, 1 Sprague (U. 62 Fed. 600; Hermon, The, 1 Low. S.) 188, 6 Fed. Cas. No. 3018; (U. S.) 515, 12 Fed. Cas. No. 6411; H. E. Thompson, The v. Martin, 16 Coleman v. Harriet, The, Bee (U. App. Cas. (D. C.) 222. See, Mur- S.) 80, 6 Fed. Cas. No. 2982. ray v. Ferry Boat, 2 Fed. 86. " Collins v. Wheeler, 1 Sprague "Mariners v. Washington, The, 1 (U. S.) 188, 6 Fed. Cas. No. 3018. Pet. Adm. (U. S.) 219, 16 Fed. Cas. 637 SHORT ALLOWANCE — BURDEN OF PROOF, [§ 3311. reasonable amount, that it was not enough for the ordinary consump- tion of a man. There is no fixed rule as to what this reasonable amount is, but it has been held proper to take the amount of rations fixed by the statute in the army and navy, and that proof of an amount furnished to seamen equal to or less than two-thirds of the army rations was an insufficient allowance; and it was immaterial that some of the seamen did not consume the whole of the allow- ance where it further appeared that their savings were locked in their chests, as it was regarded a matter of prudence that they should practice, under the circumstances, the utmost frugality.*^ But in an action for such increased wages the rule is that where the proof shows that the libelants, the seamen, were put on short allowance, the burden is then on the master to prove that the vessel had on board the legal quantity of provisions, in order to bring himself within the construction of the statute." But some district courts have held that the burden is on the libelants to prove both the serv- ice of the short allowance and that the vessel had an insufficient sup- ply of provisions on board. ^^ «Mary, The, 1 Ware (U. S.) 454, 1 L. R. 157, 20 Am. Jur. 421, 16 Fed. Cas. No. 9191; John L. Dimmick, The. 3 Ware (U. S.) 196, 9 Am. L. Reg. 224, 13 Fed. Cas. No. 7355. See, Recovery, The, 1 Stuart's Vice-Adm. (L. C.) 128. H. (U. S.) 195, 8 Fed. Cas. No. 4361; Piehl V. Balchen, Ole. (U. S.) 24, 19 Fed. Cas. No. 11137. "Childe Harold, The, 01c. (U. S.) 275, 5 Fed. Cas. No. 2676; John L. Dimmick, The, 3 Ware (U. S.) 196, 9 Am. L. Reg. 224, 13 Fed. Cas. No. « Elizabeth Frith, The, Blatchf. & 7355. CHAPTER CLXIV. LOG-BOOK. Sec. Sec. 3312. Prima facie evidence. 3316. Varied by parol. 3313. Admissibility. 3317. As evidence of desertion and 3314. Weight and competency. wages. 3315. Conclusiveness. § 3312. Log-book — Prima facie evidence. — The log-book is a pub- lic document recognized in courts of admiralty.^ It is required by law to be kept in certain classes of vessels, and in fact is universally found on board merchant vessels. The log-book is the journal of the voyage and is kept either by the master or the mate, and is a record of the transactions occurring on the vessel from day to day. In questions of prize and of average and of seamen's wages, and in some other particulars it is regarded as of the highest importance.^^ By the rules of law as well as of custom and usage the log-book should contain the facts relating to the business of lading, unlading and navigating the vessel, and the course, progress and incidents of the voyage, and the employment and conduct of tlie crew. The log- book is prima facie evidence of the truth of all matters properly en- titled to be entered therein; the burden of proof is upon the party who denies the correctness of any proper entry to overcome this prima facie effect.^ §■ 3313. Admissibility. — The log-book is admissible in evidence as any other document. Before it can be admitted as such it must be iRundle v. Beaumont, 4 Bing. 147, 7 Fed. Cas. No. 4032; Thomp- 537; D'Israeli v. Jowett, 1 Esp. 427. son v. Philadelphia, The. 1 Pet. ^Jacobsob Sea Laws 7791; Malta, Adm. (U. S.) 210, 23 Fed. Cas. No. The, 2 Hagg. Adm. 158; Watson v. 13973; Knagg v. Goldsmith, Gilp. King, 4 Campb. 272; D'Israeli v. (U. S.) 207, 14 Fed. Cas. No. 7872; Jowett, 1 Esp. 427; Smallwood v. Hercules, The, 1 Sprague (U. S.) Mitchell, 2 Hayw. (N. Car.) 145. 534, 12 Fed. Cas. No. 6401; City of => Douglass v. Eyre, Gilp. (U. S.) Carlisle. The, 39 Fed. 807. 638 639 WEIGHT AND COilPETENCY. [§ 331-i. properly and sufficiently identified. The proof should show that it was the identical book kept on the vessel during a particular voy- age. The mere notice by the adverse party to produce the log-book is not a sufficient identification, except for tlie party giving the notice. Nor is the name or title written or printed on the book a sufficient identification.* It has been held a sufficient identification, however, where a witness testified that the bills for lading were made from the book and that in the opinion of the witness it was the particu- lar log-book kept on the voyage, though he did not remember seeing the mate make regular entries in it, and where it further appeared that the mate could not be found.'""' § 3314. Weight and competency. — The courts are not uniform on the proposition as to whether the log-book is evidence in favor of the vessel or of the person by whom it was kept. It has been held tliat it could not be so used by a party in his favor.'' On the question of the competency and weight of the log-book as evidence Sir William Scott said: "I must observe, that the evidence of the log-book is to be received with jealousy where it makes for the parties, as it may have manufactures for the purpose; but it is evidence of the most authentic kind against the parties, because they cannot be supposed to have given a false representation with a view to prejudice them- selves. The witnesses, when they speak to a fact, may perhaps be aware, that it has become a point of consequence, and may qualify their account of past events so as to give colourable effect to it. But the journal is written beforehand, and by persons unacquainted, per- haps, with any intention of fraud, and may therefore be securely re- lied on wherever it speaks to the prejudice of its authors."'^ And it has been held that a captain of a vessel testifying as a witness may refresh his recollection by reference to the log-book.* Judge Story said: "But I am yet to learn that parties can thus create evidence for themselves by inserting facts in a log-book."" But in some in- * United States v. Mitchell, 2 ^Eleanor, The, Edw. Adm. 135, Wash. (U. S.) 478, 26 Fed. Cas. No. 163; L'Etoile. The, 2 Dods. 106, 113; 15791. Constitution, The, 10 Jur. (N. S.) = United States v. Mitchell, 3 831. See also, Lamington, The. 87 Wash. (U. S.) 95, 26 Fed. Cas. No. Fed. 752: Newfoundland, The. 89 15792. Fed. 510. " Sociedade Feliz, The, 1 W. Rob. " Anderson v. Whalley, 3 Car. & 303, 311; Henry Coxon, The, L. R. Kir. 54. 3 P. D. 156, 4 Asp. 18; Price v. Earl "United States v. Gibert, 2 Sumn. of Torrington, 1 Salk. 285. . (U. S.) 19, 79, 25 Fed. Cas. No. §§ 3315, 3316.] LOG-BOOK. 640 stances it has been held that the entry in the log-book is indis- pensable.^" The competency of the log-book is governed by the lex fori and the rule in the British merchants' shipping act cannot con- trol the admission of the log in courts in the United States.^^ § 3315. Conclusiveness. — The rule that the log-book is not con- clusive evidence of the facts therein stated is universally conceded. The statute which requires certain things to be stated in the log- book as a condition of its admissibility does not make it conclusive on such matters.^ ^ It has been held that the log is conclusive against the person making it in the absence of conclusive evidence showing a mistake. This rule was thus stated by a district judge: "The log being intended to be a correct record of the facts contained therein, and entry made with full knowledge and opportunity of ascertain- ing the truth must be accepted as the truth if it tells against the party making it, and can be denied no more than a deed. If it is the result of a mistake there must be conclusive evidence of the mistake."^^ § 3316. Varied by parol. — In the cases where tlie log-book is made conclusive by statute on the showing required it is binding and can- not be varied or controlled. But the general rule is that the entries in a log-book may be varied or controlled by parol evidence; or, the rule is sometimes stated that parol evidence is admissible to falsify the entries in a log-book.^* So parol evidence is proper either to 15204; United States v. Sharp, Pet. Townsend, 4 Mason (U. S.) 541, (C. C.) 118, 27 Fed. Cas. No. 16264. 547, 18 Fed. Cas. No. 10583. •"Knagg v. Goldsmith, Gilp. (U. ^= Newfoundland, The, 89 Fed. 510; S.) 207, 14 Fed. Cas. No. 7872; Ma- Bewge v. Utopia, The, 1 Fed. 892. lone v. Bell, 1 Pet. Adm. (U. S.) " Orne v. Townsend, 4 Mason (U. 139, 16 Fed. Cas. No. 8994; S.) 541, 547, 18 Fed. Cas. No. 10583; Hercules, The, 1 Sprague (U. S.) Malone v. Bell, 1 Pet. Adm. (U. S.) 534, 12 Fed. Cas. No. 6401. 139, 16 Fed. Cas. No. 8994; Whit- "City of Carlisle, The, 39 Fed. ton v. Commerce, The, 1 Pet. Adm. 807. (U. S.) 160, 29 Fed. Cas. No. 17604; ^-United States v. Gibert, 2 Jones v. Phoenix, The, 1 Pet. Adm. Sumn. (U. S.) 19, 25 Fed. Cas. No. (U. S.) 201, 13 Fed. Cas. No. 7489; 15204; Jones V. Phoenix, The, 1 Pet. Worth v. Mumford, 1 Hilt. (N. Y.) Adm. (U. S.) 201, 13 Fed. Cas. No. 1; Hercules, The, Sprague (U. S.) 7489; Rovena, The, 1 Ware (U. S.) 534, 12 Fed. Cas. No. 6401; Sarah 309, 20 Fed. Cas. No. 12090; Jane, The, Blatchf. & H. (U. S.) Hercules, The, 1 Sprague (U. S.) 401, 21 Fed. Cas. No. 12348. 534, 12 Fed. Cas. No. 6401; Orne v. 641 AS EVIDENCE OF DESEUTIOX AND AVAGES. [§ 3317. impeach the log or to show that matters have been interpolated therein, or that the entry was not made on the day on which it pur- ports to have been made.^^ § 3317. As evidence of desertion and wages. — The United States statutes make the log-book evidence in matters of desertion and the wages of seamen. On an interpretation of these statutes it has been held that the log-book is not admissible as to any fact other than as required by the statute.^'' The statute requires the entry of the oc- currence to be made in the log-book on the day on which it actually transpired. The statute must be strictly complied with in order to render the log-book admissible. This principle was stated by a district judge as follows: "One-half of the attempts of masters to bar seamen of the recovery of their wages, which have passed under the observation of this court, are founded not directly upon tlie act of misconduct alleged, but are excited by some after occurrence, as a prosecution for wages or f©r assault and battery, or by some irrita- tion of personal feelings on the part of tlie master or his officers, under the influence of which the master seeks to give to all preced- ing misconduct of his men the most odious colorings, and to demand a forfeiture of wages for alleged desertions not denounced as suc!i at the time they occurred. The courts, therefore, for the protection of seamen, exact from tlie master the most rigid compliance witli the requisitions of the act in this behalf."^^ In some instances, as already shown, the statute provides tliat an entry of the occurrence shall be made in the official log-book on the same day; that in any subsequent legal proceedings the entry therein shall be produced or proved ; and that, in default thereof, tbe court may decline to receive evidence of the offense. In a recent case, however, it was held t]u\t a '^ Worth V. Mumford, 1 Hilt. (N. v. Peggy, The, Bee (U. S.) 57, 12 Y.) 1. Fed. Cas. No. 6427; Phoebe, The, "Jones V. Phoenix, The, 1 Pet. v. Digniim, 1 Wash. (U. S.) 48, 19 Adm. (U. S.) 201, 13 Fed. Cas. No. Fed. Cas. No. 11110; Knagg v. 7489; United States v. Gibert, 2 Goldsmith, Gilp. (U. S.) 20?. 14 Sumn. (U. S.) 19, 25 Fed. Cas. No. Fed. Cas. No. 7872; Douglass v. 15204. Eyre, Gilp. (U. S.) 147, 152, 7 Fed. "Martha, The, 1 Blatchf. & H. Cas. No. 4032; Cloutman v. Tunison, (U. S.) 151, 16 Fed. Cas. No. 9144; 1 Story (U. S.) 373, 5 Fed. Cas. No. Malone v. Bell, 1 Pet. Adm. (U. S.) 2907; Mary C. Conery, The, 9 Fed. 139, 16 Fed. Cas. No. 8994; Jones 222; Worth v. Mumford, 1 Hilt. (N. v. Phoenix, The, 1 Pet. Adm. (U. S.) Y.) 1. 201, 13 Fed. Cas. No. 7489; Herron Vol. 4 Elliott Ev. — 41 § 3317.] LOG-BOOK. 642 deduction from wages on account of time lost by drunkenness was justified although there was no entry of the occurrence in any log-book, and that the court in its discretion might receive other evidence, es- pecially as the vessel was a small coasting vessel such as seldom keeps a log, and the seaman's claim was clearly unjust and without merit.^^ "Marjory Brown, The, 134 Fed. 999. CHAPTER CLXV. PRIZE CASES. Sec. Sec. 3318. Practice. 3335. 3319. Jurisdiction in prize cases. 3320. Jurisdiction and relief. 3336. 3321. Capture in neutral territory, effect. 3337. 3322. Neutral protection — Proof and effect. 3338. 3323. Presumptions in prize case. 3339. 3324. Presumptions as to blockade. 3340. 3325. Prima facie evidence. 3326. Burden of proof. 3341. 3327. Burden on claimant. 3328. Burden on claimant— General 3342. rule. 3329. Burden on claimant— Illustra- 3343. tions. 3330. Competency of witnesses. 3344. 3331. Condemnation — False claim. 3345. 3332. Preparatory hearing — Further proof. 3346. 3333. Examination of crew — Time and manner. 3347. 3334. Further proof- When al- lowed. Further proof — When not al- lowed. Further proof allowed in joint or collusive captures. Ship's papers — Prima facie proof requisite. Ship's papers — Production. Ship's papers — Custody. Ship's papers — Destruction and spoliation. Ship's papers — Absence, fraudulent concealment, etc. Ship's papers — Enemy's li- cense. Ship's papers — Passport, flags, etc. Joint capture — Presumption. Joint capture — Burden of proof. Joint capture — Sight and sig- nal distance. Joint capture — Common en- terprise. § 3318. Prize cases — Practice. — Prize cases form an important part of the practice in admiralty courts. It is not within the scope of this work, however, to state the rules of practice generally. But an understanding of the nature of some of the features of prize cases will aid in the application of the rules of proof in such cases. The court of prize is regarded as a court of the law of nations and takes neither its character nor its rules from the mere local municipal regulations of any country. In such causes in these courts the entire proceedings including the pleadings and the proofs in a general way follow the civil law, with such changes and additions as the rules of 643 §§ 3319, 3320.] PRIZE cases. 644 practice of modern civilized nations, together with the rights of belligerents and neutrals, have necessarily added. ^ § 3319. Jurisdiction in prize cases. — The rule has been established that the jurisdiction in cases of capture and questions of prize be- longs exclusively to the courts of the country of the captors, in the absence of proof of violations of the rules of neutrality. This rule, together with the reasons therefor, was stated by Justice Livingstone in an early case as follows : *'N"ot only is it a rule well established by the customary and conventional law of nations, but it is founded in good sense, and is the only one which is salutary and safe in practice. It secures to a belligerent the independence to which every sovereign state is entitled, and which would be somewhat abridged, were he to condescend so far as to permit those who bear his com- mission to appear before the tribunals of any other country, and submit to their interpretation or control, the orders and instructions under which they have acted. It insures also, not only to the belliger- ent himself, but to the world at large, a great decree of caution and responsibility, on the part of the agents whom he appoints ; who not only give security to him for their good behavior, but will sometimes be checked in a lawless career, by the consideration that their con- duct is to be investigated by the courts of their own nation, and under the very eye of the sovereign, under whose sanction they are committing hostilities. In this way, also, is a foundation laid for a claim by other nations, of an indemnity against the belligerent, for the injuries which their subjects may sustain, by the operation of any unjust or improper rules, which he may think proper to pre- scribe for those who act under his authority."^ § 3320. Jurisdiction and relief. — Wlien a court of admiralty has assumed legitimate jurisdiction over property of prize its authority will extend and will be exerted over all the incidents. Thus, in such a case the court, if the evidence justifies, may decree a restoration of 1 Adeline, The, 9 Cranch (U. S.) 298; L'Invincible, 1 Wheat (U. S.) 244, 284; Thirty Hogsheads of 238. See, Bee, The, 1 Ware (U. S.) Sugar v. Boyle, 9 Crancn (U. S.) 332, 336, 3 Fed. Cas. No. 1219; Wil- 191; Manila Prize Cases, 188 U. S. liam. The, 1 Pet. Adm. (U. S.) 12; 254, 23 Sup. Ct. 415. For valuable Santissima Trinidad, The, 7 Wheat, notes on the practice in prize causes (U. S.) 283; South Carolina, The, see Appendix 2 Wheat 1. Bee (U. S.) 422. = Estrella, The, 4 Wheat (U. S.) 645 CAPTURE IN NEUTEAL TERRITORY, [§ 3331. a whole or a part of the property; it may not only l)ur(len tlie prop- erty with salvage but may determine whether sucli salvage be held a portion of the property itself or a mere lien, or a condition annexed to its restitution.^ Before an order of restitution can be made for prize property the claimant or the asserted owner must establish two propositions: (1) His proprietary interest in the captured goods; (2) that he is a neutral merchant and by reason of liis domi- cile and national character is entitled to a restitution of the prop- erty.'* Wliere it was made to appear that the property captured was tlie produce of land in an enemy's country, it was held to be prize prop- erty regardless either of the national character of the owner or his place of residence.^ § 3321. Capture in neutral territory, effect. — A capture in neu- tral waters is not necessarily void. As between the belligerent nations such captures are regarded as rightful. It is only considered void as to the neutral sovereign and it is only by him that the legal validity can be raised or questioned. It does not rest with the enemy to claim the illegality of the capture; he has no rights whatever in the premises. If the neutral sovereign fails or refuses to interfere by way of protection the property may be condemned to the captors.^ This principle was recognized in a more recent case growing out of a capture during the civil war in Mexican waters, and the rule stated thus: "The weight of evidence, we think, put the vessel, at the time of capture, in Mexican waters; but if the ship or cargo was enemy property, or either was otherwise liable to condemnation, that circumstance, by itself, would not avail the claimants in a prize court. It might constitute a ground of claim by the neutral power, whose territory had suffered trespass, for apology or indem- ' Adeline, The, 9 Cranch (U. S.) mona, The, 1 Dods. 25; Herkimer, 244; Anna Maria, The, 2 Wheat. (U. The, Stew. N. Sc. 128, 2 Hall L. J. S.) 327; Del Col v. Arnold, 3 Ball. 133; Home v. Camden, 2 H. Bl. 533; (U. S.) 333; Two Friends, The, 1 Smart v. Wolff, 3 Term. R. 323; C. Rob. 271; Copenhagen, The, 1 C. Duckworth v. Tucker, 2 Taunt. 7; Rob. 289; Bingham v. Cabot, 3 Dall. Le Caux v. Eden, 2 Doug. 594; Lin- (U. S.) 19; United States v. Peters, do v. Rodney, 2 Doug. 613n. 3 Dall. (U. S.) 121; Talbot v. Jan- * Dos Hermanos, The, 2 Wheat, sen, 3 Dall. (U. S.) 133; Betsy, The, (U. S.) 76. 1 C. Rob. 332; Princessa, The, 2 C. ■* Thirty Hogsheads of Sugar v. Rob. 31; St. Juan Baptista, The, 5 Boyle, 9 Cranch (U. S.) 191. Rob. 33; Fire Damer, Die, 5 Rob. " Anne, The, 3 Wheat. (U.S.) 435. 357; Louis, The, 5 Rob. 146; Po- §§ 3322, 3323.] prize cases. 646 nity. But neither an enemy nor a neutral, acting the part of an enemy, can demand restitution of captured property on the sole ground of capture in neutral waters."^ § 3322. Neutral protection — Proof and effect. — The defense of neutrality on the part of the captured or the claimant must be con- sistent. In order to sustain it the proof must show, in addition to neu- trality of the owner or claimant, that the capture was made in neutral waters and without resistence. A ship in neutral waters is bound to abstain from all hostilities; and failing to do this she for- feits protection from the neutral sovereign. This principle is more fully stated as follows : "It is a fact, that the captured ship first commenced hostilities against the privateer. This is admitted on all sides; and it is no excuse to assert that it was done under a mistake of the national character of the privateer even if this were entirely made out in the evidence. While the ship was lying in neutral waters, she was bound to abstain from all hostilities, except in self-defense. The privateer had an equal title with herself to the neutral protec- tion, and was in no default, in approaching the coast, without show- ing her national character. It was a violation of that neutrality which the captured ship was bound to observe, to commence hostilities, for any purpose, in these waters; for no vessel coming thither was bound to submit to search, or to account to her for her conduct or character. Wlien, therefore, she commenced hostilities, she forfeited the neutral protection, and the capture was no injury for which any redress could be rightfully sought from the neutral sovereign."^ It seems to be the settled rule of prize courts that the burden of proof of a neutral interest is upon the claimants. In speaking of tliis rule in a case where time had been given for the proof to establish the neutrality. Justice Story said : "But if, in the event, after full time and opportunity to adduce proofs, the claim is still left in uncer- tainty and the neutrality of the property is not established, beyond reasonable doubt, it is the invariable rule of prize courts to reject the claim and decree condemnation of the property."" § 3323. Presumptions in prize cases. — Certain presumptions arise in prize courts which legally affect the parties, and are considered as 'Sir William Peel, The. 5 Wall. 'Amiable Isabella, The, 6 Wheat. (U. S.) 517. (U. S.) 177. »Anne, The, 3 Wheat. (U. S.) 435. 647 PRESUMPTIONS. [§ 3323. of general application. Thus, where there is a total want of evi- dence to establish the proprietary interest, the property is presumed to belong to an enemy. ^° So, possession is presumptive evidence of property.^^ And goods found in an enemy's ship are presumed to belong to the enemy in the absence of documentary proof accompany- ing them, giving them a distinct neutral character.^- So, a merchant is presumed to be acting for himself and upon his own account. ^^ So, where it appears that a ship has been captured and carried into an enemy's port and is thereafter found in the possession of a neu- tral, the presumption is that there has been regular condemnation, and proof of the contrary rests upon the party claiming the prop- erty against the neutral officer.^'* So, the master and crew of a ship are presumed to possess the national character of the ship to which they belong during the time of their employment. ^^ And a neutral consul, who has become a resident and a trader in a belligerent country, is, as to his mercantile character, presumed a belligerent of that country.^® And a like presumption applies to the subject of one belligerent country who resides in the country of the enemy and carries on trade there.^'' Ships are conclusively presumed to belong to the country under whose flag and pass they sail.^® And where it was clear that a vessel was the property of an enemy and liable to confiscation, the presumption is that the cargo was the property and also subject to condemnation.^^ So, a vessel is presumed to belong to the country where the owner resides.^" So, impliments and muni- tions of war which are calculated for immediate use for warlike pur- poses when in transit to the enemy's country are presumed to be "Magnus, The, 1 C. Rob. 31. '" Citto, The, 3 C. Rob. 38; McCon- " Resolution, The, Ball. (U. S.) 19. nell v. Hector, 3 Bos. & P. 113. '= Flying Fish, The, 2 Gall. (U. '^ Vigilantia, The, 1 C. Rob. 1; S.) 373, 9 Fed. Cas. No. 4892; San Vrow Anna Catharina, 5 C. Rob. Jose Indiano, The, 2 Gall. (U. S.) 161; Success, 1 Dods. 131; Julia, 268, 21 Fed. Cas. No. 12322; London The, 2 Sprague (U. S.) 164, 14 Fed. Packet, The, 1 Mason (U. S.) 14, 15 Cas. No. 7576; London Packet, The, Fed. Cas. No. 8474. 5 Wheat. (U. S.) 132; Sally Magee, « Jonge Pieter, The, 4 C. Rob. 79. The, 3 Wall. (U. S.) 451; Carlos F. "Countess of Lauderdale, The, 4 Roses, The, 177 U. S. 655, 20 Sup. C. Rob. 283. Ct. 803; Appendix, 2 Wheat. (U. S.) ^^Embden, The, 1 C. Rob. 16; 24; Benito Estenger, The, 176 U. S. Endraught, The, 1 C. Rob. 19; Ber- 568, 20 Sup. Ct. 458; Flying Fish, non. The, 1 C. Rob. 102; Frederick, The, 2 Gall. (U. S.) 373, 9 Fed. Cas. The, 5 C. Rob. 8; Ann, 1 Dods. 221. No. 4892. "Indian Chief, The, 3 C. Rob. 22; -» San Jose Indiano. The, 2 Gall. Josephine, The, 4 C. Rob. 25. (U. S.) 268, 21 Fed. C as. No. 12322. § 3324.] PRIZE CASES. 648 contraband of war."^ In the absence of the ship's papers the pre- sumption is that the destination of the vessel was to some port of the country where the consignee lived. ^^ § 3324. Presumption as to blockade. — It is one of the rules of recognized warfare that one of the belligerents has the right to blockade the ports of another. From this it follows as a corollary that neutrals are bound to respect such a blockade in order to claim their privilege as neutrals. A state of war must actually exist and the neutral must have notice or knowledge of the intention of one belligerent to blockade the ports of the other in order to justify the capture of the neutral vessels, and the neutrals may call in question the existence of the blockade and challenge the authority of the party who has established it. Such neutral vessels are entitled to reasonable time in which to leave the port after notice or knowledge of the blockade. Neutral vessels in a blockaded port are presumed to have notice of the blockade as soon as it commences.^^ Where it was shown that a vessel delaj^ed sailing after being completely laden, and that after she sailed she changed course in order to escape a ship of war cruising for blockade runners, it was held that from these facts the intent to run the blockade would be presumed.^* The rule is that a blockade once established and notice duly given will be pre- sumed to continue until notice of discontinuance.^^ So, intention to break the blockade may be presumed from the position of the ship when captured; and concealment of the truth is held to be prima facie evidence of such fraudulent intention.^" Where a prohibited cargo was taken at a port with which commerce had been prohibited, and in the absence of the ship's papers, it will be presumed that the cargo was laden for an unlawful destination.^^ ^ipeterhoff, The, Blatchf. Pr. Cas. -'' Baigory, The, 2 Wall. (U. S.) 463, 19 Fed. Cas. No. 11024. 474. ^2 United States v. Paul Shearman, =" Cheshire, The, 3 Wall. (U. S.) Pet. (C. C.) 98, 27 Fed. Cas. No. 231; James Cook, The, Edw. Adm. 16012. 261; Sunbeam, The, Blatchf. Pr. "^ Prize Cases, The, 2 Black (U. Cas. 316, 23 Fed. Cas. No. 13613; S.) 635. Adula, The, 89 Fed. 351. =*Baigory, The, 2 Wall. (U. S.) =^ United States v. Paul Shearman, 474; Cornelius, The, 3 Wall. (U. S.) Pet. (C. C.) 98, 27 Fed. Cas. No. 214; Aurora, The, 8 Cranch (U. S.) 16012. 203; Jenny, The, 5 Wall. (U. S.) 183. 649 PRIMA FACIE EVIDENCE — BURDEN. [§§ 3325, 332G. § 3325. Prima facie evidence. — The term prize goods or property is applied to sucli goods as are taken on the high seas from an enemy in time of war. When any property is thus taken it is the duty of the captors to proceed against the goods as belligerent property in a prize court. No other court has jurisdiction; nor can the questions presented on a capture made in a time of war be properly or effectually examined except in a prize court. The general rule is that property found in possession of the enemy affords prima facie proof that it belongs to him. This rule is not affected by the fact that such prop- erty may have previously possessed a neutral or friendly character, but it is held that such neutral or friendly owner is deprived of his right to claim the property if it has been changed by a sentence of condemnation, or by such possession as nations recognize as firm and effectual.^^ § 3326. Burden of proof. — The rule that the sea is open to all na- tions does not necessarily apply during a state of war between two nations. In such times the ships of either nations are subject to capture as lawful prize by the ships of the other. But every capture must be made upon just grounds; hence, while neutral ships, or ves- sels of nations not enemies in time of war may be brought to and examined, they are not subject to capture unless shown to be aid- ing the enemy or otherwise violating the laws of neutrality. It is, therefore, evident that every capture is at the peril of the vessel making it. From these principles is deduced the rule that the burden of proof is upon the captor to show that the captured vessel was a lawful prize; the claimants are not required to establish their inno- cence or their neutrality, in the first instance. To entitle the cap- tors to a judgment of condemnation they must establisli affirmatively : (1) Just grounds for the capture; if this amounts to probable cause, it is sufficient; (2) the vessel must be shown to be the property of the enemy.-" So, a party that founds a claim on the rights of war has the burden of proving that peace was broken and that a state of war actually existed.^" 28 Adeline, The, 9 Cranch (U. S.) son 232, 27 Fed. Cas. No. 15968; 244, 285. Peterhoff, The, Blatchf. Pr. Cas. 463. ^Resolution, The, 2 Ball. (U. S.) 19 Fed. Cas. No. 11024. 19; Thomas Watson, The, Blatchf. ^"Resolution, The, 2 Ball. (U. Pr. Cas. 120, 23 Fed. Cas. No. 13933; S.) 19. United States v. Open Boat, 5 Ma- §§ 3327, 3328.] prize cases. 650 § 3327. Burden on claimant. — There may be cases where certain circumstances exist and certain presumptions arise which will cast the burden of proof upon the claimant. Thus, if the ship's papers show the captured vessel to be the property of the enemy, a sufficient prima facie case is thus made to cast upon the claimants the burden of proving ownership of the property.^^ The rule is that in prize cases the burden of proving neutral ownership of a vessel is on the claimant.^^ So, where a cargo is found in the ship of an enemy the burden of relieving such cargo from a judgment of condemnation, and of proving ownership rests upon the claimants.^^ And the burden of proof to repel the presumption of an enemy's license is on the claimant.^* § 3328. Burden on claimant — General rule. — The general rule that prevails in the matter of burden of proof in prize cases is that where the vessel or the property is captured or taken in delicto, the burden of proof is upon the vessel or the claimant to establish its innocence or neutrality and avoid an order of condemnation.^^ The general rule as to the burden of proof in prize cases is thus stated: "The burden of proof in prize proceedings is on the seized vessel. The authorities concur in this general statement, but the principle is not technical and is not to be pushed beyond its proper natural intent. Seized vessels always appear before the court under the taint of suspicion ; that taint it is incumbent upon them to remove, as it is in their power alone to do so. What the court looks for is the fact. If it appear that the vessel was innocently pursuing an honest and legal voyage, whether that appear by papers or otherwise, then the vessel should be released. No particular papers, no specified char- acter of evidence is marked out and defined as indispensable to attain this end. A case is easily supposable in which a merchant vessel has lost its papers by an accident, or by theft, or by robbery committed by a pirate or privateer, or through suppression by the captor, and it would not be admitted — the fact of their non-production being ex- plained, and the vessel's honest character being shown — that be- =^ Resolution, The, 2 Ball. (U. 177 U. S. 655, 20 Sup. Ct. 803; Sally S.) 19. Magee, The, 3 Wall. (U. S.) 451. == Benito Estenger, The, 176 U. S. "^ Langdon Cheves, The, 4 Wheat. 568, 20 Sup. Ct. 489. (U. S.) 103. " London Packet, The, 5 Wheat. =^ United States v. Paul Shearman, (U. S.) 132; Carlos F. Roses, The, Pet. (C. C.) 98, 27 Fed. Cas. No. 16012. 651 BUEDEX ON CLAIMANT. [§ 3329. cause some particular document was not on board she therefore should be condemned and confiscated. The onus proband! is on the captured vessel ; which means no more than that she must explain away suspicious circumstances."^^ § 3329. Burden on claimant — Illustrations. — Where by statute it was made illegal to import goods from a British port except in neu- tral vessels, it was held that when the prohibited importation was shown the burden of proof was then on the claimant to establish the neutral character of the vessel.^^ The burden is on the claimant to overcome the prima facie case; and where he fails to do this by the production of papers and other evidence which must be in his pos- session or under his control, the order of condemnation will follow.^* Where a capture is made on account of the violation of the embargo laws, the burden is upon the captured vessel to show the necessity sufficient to excuse such a violation, and tlie evidence for this purpose must be clear and positive.^** It seems to be the rule of prize courts that the burden of proof of a neutral interest rests on the claimant; but this' is subject to the rule that the evidence to acquit or condemn shall, in the first instance, come from the sliip's papers and the crew.'*'' Where a belligerent capture has been made and the captured vessel seeks the aid of a neutral court on account of the supposed violation of neutrality, the burden rests upon the claimant to prove the sup- posed violation of neutrality.'*^ ^Hooper v. United States, 22 Ct. The, Blatchf. Pr. Cas. 123, 21 Fed. CI. (U. S.) 408, 454; Johnson v. Cas. No. 12340; Ten Hogsheads of Thirteen Bales &c., 2 Paine (U. S.) Rum, 1 Gall. (U. S.) 187, 23 Fed. 639, 6 Hall L. J. 97, Van Ness 45, 13 Cas. No. 13830; Short Staple, The, Fed. Cas. No. 7415; Ten Hogsheads 12813; Boxes of Opium v. United of Rum, 1 Gall. (U. S.) 187, 23 Fed. States, 23 Fed. 367. Cas. No. 13830; Short Staple, The, 1 1 Gall. (U. S.) 104, 22 Fed. Cas. No. Gall. (U. S.) 104, 22 Fed. Cas. No. =" James Wells, The, 7 Cranch (U. 12813; Boxes of Opium v. United S.) 21. States, 23 Fed. 367. *" Amiable Isabella, The, 6 Wheat, "United States v. Hayward, 2 (U. S.) 1; Rover, The, 2 Gall. (U. Gall. (U. S.) 485, 26 Fed. Cas. No. S.) 240, 20 Fed. Cas. No. 12091; 15336. United States v. Hayward, 2 Gall. ^Luminary, The, 8 Wheat. (U. (U. S.) 485, 26 Fed. Cas. No. 15336. S.) 407; John Griffin, The, 15 Wall. "La Amistad de Rues, 5 Wheat. (U. S.) 29; Slavers, The, 2 Wall. (U. S.) 385. (U. S.) 375; Sarah and Caroline, §§ 3330, 3331.] PRIZE cases. 652 § 3330. Competency of witnesses. — It appears to be the practice that on the original hearing tlie ship's papers and the preparatory examinations of the captured crew are the only evidence admissible. But where an order has been made for further proof the question of the competency of the captors as witnesses has arisen. Where the circumstances of the capture become material the facts are as much within the knowledge of the captors as the captured and the objec- tion of interest would apply to one the same as to the other. Plencc, the rule was early established in admiralty that no person was ren- dered incompetent as a witness on the ground of interest. These courts established and recognized the admissibility of such testimony and received it subject to the usual tests as to its credibility.'*^ In general an alien enemy is not disqualified as a witness.'*^ In ordinary cases the prize crew, whether national, neutral or hostile, are com- petent witnesses.** Where further proof has been ordered the affi- davits of the captors are evidence of facts within their own knowl- edge j*^ and the attestations of the claimant and his clerks, together with the correspondence between him and his agents, are admissible.*^ But it seems to be the rule that where a joint capture is set up the testimony of witnesses of the ship claiming as joint captors is not sufficient of itself to establish the claim. *^ § 3331. Condemnation — False claim. — The utmost good faith is required in the condemnation of prize vessels or property. Prize courts will not aid persons who themselves have been guilty of frauds. This principle was stated by Justice Story thus: "There is another rule, too, founded in the most salutary and benign principles of jus- tice, that the assertion of a false claim, in whole or in part, by an agent of, or in connivance with, the real owners, is a substantive cause of forfeiture, leading to condemnation of property."*^ ^Anne, The, 3 Wheat. (U. S.) Gall. (U. S.) 401. 21 Fed. Cas. No. 434; Boston, The, 1 Sumn. (U. S.) 12258. 328, 3 Fed. Cas. No. 1673, 11 Am. ^"Adelaide, The, 3 C. Rob. 281. Jur. 21. ^'Boston, The, 1 Sumn. (U. S.) *^ Falcon, The, 6 C. Rob. 194. 328, 3 Fed. Cas. No. 1673, 11 Am. "Henrick and Maria, The, 4 C. Jur. 21; La Belle Coquette, 1 Dods. Rob. 43. 18; John, 1 Dods. 363; Arthur, 1 *^ Maria, The, 1 C. Rob. 340; Reso- Dods. 423; Galen. 2 Dods. 19. lution, 6 C. Rob. 13; Sally, The, 1 *« Amiable Isabella, The, 6 Wheat. (U. S.) 178. 653 PREPARATOIIY ITEARIXG FURTHER PROOF. [§ 3332. § 3332. Preparatory hearing — Further proof. — The rule is that "it is the duty of the captors, as soon as practicable, to bring the ship's papers into the registry of the district court, and to have the examinations of the principal officers and seamen of the captured ship taken before the district judge, or commissioners appointed by him, upon the standing interrogatories. It is exclusively upon these papers and the examinations, taken in praeparatorio, that the cause is to be heard before the district court. If, from tlie whole evidence, the property clearly appear to be hostile or neutral, condemnation or acquittal immediately follows. If, on the other hand, the prop- erty appears doubtful, or the ease be clouded with suspicions or in- consistencies, it then becomes a case of further proof, which the court will direct or deny, according to the rules wiiich govern its legal discretion on this subject. Further proof is not a matter of course; it is granted in cases of honest mistake or ignorance, or to clear away any doubts or defects consistent with good faith. But if the parties have been guilty of gross fraud or misconduct, or ille- gality, further proof is not allowed; and under such circumstances, the parties are visited with all the fatal consequences of an original hostile character." The reason for requiring prompt action on the part of the captors is said to be that "the evidence to acquit or con- demn must, in the first instance, come from the papers and crew of the captured ship."*^ The court is not concluded by this original evidence; it may order further proof when a doubt arises on any *^Dos Hermanos, The, 2 Wheat. Fed. Cas. No. 8406; London Packet, (U. S.) 76; Adeline, The, 9 Cranch The, 1 Mason (U. S.) 14, 15 Fed. (U. S.) 244, 285; Manila Prize Cas. No. 8474; Cheshire, The, Cases, 188 U. S. 254, 23 Sup. Ct. Blatchf. Pr. Cas. 151, 5 Fed. Cas. 415; Ann Green, The, 1 Gall. (U. No. 2655; Newfoundland, The, 89 S.) 274, 1 Fed. Cas. No. 414; Olinde- Fed. 99; Falcon, The, Blatchf. Pr. Rodrigues, The, 89 Fed. 105; Both- Cas. 52, 8 Fed. Cas. No. 4616; Live- nea. The, 2 Gall. (U. S.) 78, 3 Fed. ly, The, 1 Gall. (U. S.) 315, 15 Fed. Cas. No. 1686; Arabella, The, 2 Gall. Cas. No. 8403; Appendix, 2 Wheat. (U. S.) 368, 1 Fed. Cas. No. 501; (U. S.) 498; Alliance, The, Blatchf. Amiable Isabella, The, 6 Wheat. (U. Pr. Cas. 646, 1 Fed. Cas. No. 246; S.) 1, 77; Sally Magee, The, 3 Wall. Vigilantia, The, 1 C. Rob. 1; Hul- (U. S.) 451; Sir William Peel, The, dah, The, 3 C. Rob. 235; Madonna 5 Wall. (U. S.) 517; Adula, The, del Burso, The, 4 C. Rob. 169; St. 176 U. S. 361, 89 Fed. 351, 20 Sup. Juan Baptista, The, 5 C. Rob. 33; Ct. 432; Gray Jacket, The, 5 Wall. Wilhelmsberg, The, 5 C. Rob. 143; (U. S.) 342, 368; Pizarro, The, 2 Elsebe, The, 5 C. Rob. 173; Bene- Wheat (U. S.) 227; Liverpool diet Adm., § 512a; Story Prize Packet, The, 1 Gall. (U. S.) 513, 15 Courts 17. §§ 3333, 3334.] prize cases. 654 question. Where a suspicion arises the court will generally direct further proof .^*' § 3333. Examination of crew — Time and manner. — The examina- tion should take place as soon as possible after the arrival of the vessels, in order to guard as much as possible against fraud, and the witnesses are not allowed to have communication with or to be instructed by counsel. The captors should introduce all witnesses in succession and they will not be permitted, without special order, to examine witnesses at a subsequent time.^^ The examination is limited to the persons on board at the time of the capture, unless the court grants special permission for the examination of others.^^ Courts will hesitate to condemn a vessel and cargo where the captors have failed, without any excuse, to send in the master as a witness.^ ^ For like reasons equal strictness is required of the claimants, and if they keep back any of the captured crew, for two or three days after the vessel comes into port, the commissioners will be justified in not examining them.^* § 3334. Further proof — ^When allowed. — It is evident that in many cases the refusal to allow further proof would amount to a denial of justice. The application of the rules of equity in certain classes of prize cases admits the order for further proof. The general rule on this subject has been stated as follows : "The most ordinary cases of further proof are where the cause appears doubtful upon the original papers, and the answers to the standing interrogatories; and in such cases, if the parties have conducted themselves with good faith, and the error or deficiency may be referred to honest ignorance or mistake, the court will indulge them time to supply the defects, by the introduction of new evidence. But further proof is, in no case, a matter of right, and rests to the sound discretion of the court. Further proof is, in all cases, necessary, where the master does not swear to, or give any account of the property."^^ Further proof in ^° Romeo, The, 6 C. Rob. 351; ^^ Julia, The, 2 Sprague (U. S.) Sarah, The, 3 C. Rob. 330. 164. 14 Fed. Cas. No. 7576. "Speculation, The, 2 C. Rob. 293. ^* Anna. The, 1 C. Rob. 331; Wil- " Eliza and Katy, The, 6 C. Rob. liam and Mary, The, 4 C. Rob. 381. 185; Henrick and Maria, The, 4 C. =•=> Appendix, 1 Wheat. 504. Rob. 43. 655 FURTHER PROOF. [§ 3335. prize cases is usually admitted by written evidence and depositions only and not by way of oral proof.^^ § 3335. Further proof — When not allowed. — It must appear tliat the application for further proof is made in good faith. Such fur- ther proof will not be allowed when there are appearances of collu- sion between the captors and the captured vessel. And as further proof cannot extend beyond the explanation of the facts of the cap- ture it will not be allowed where the obvious purpose is to substitute evidence which might be procured after opportunity given to in- fluence witnesses and to enable the parties to manufacture a story that would meet the emergency, and offer this instead of the regular evidence required by law.^^ Where a neutral seeks to establish an interest with an enemy in a vessel or cargo, he will not be permitted to introduce further proof to establish his neutral interest after he has made a fraudulent attempt to cover and claim the enemy's inter- est in a prize court. ^^ The rule is that where fraudulent papers have been used further proof is never allowed.^'' Nor w^here there is a false destination, and false papers.'^" And further proofs will not be allowed where the case appears incapable of fair explanation.*^^ "Where there has been gross prevarication, or an attempt to impose spurious claims upon the court, or such a want of good faith as shows that the parties cannot safely be trusted with an order for further proof, it will be denied."*^^ Neither will further proof be allowed =*' George, The, 2 Gall. (U.S.) 249, 505; St. Lawrence, The, 8 Cranch 10 Fed. Gas. No. 5327. (U. S.) 434; Hazard's Cargo, The, "Bothnea, The, 2 Gall. (U. S.) 9 Cranch (U. S.) 205; Dos Her- 78, 3 Fed. Cas. No. 1686; George, manos. The, 2 Wheat. (U. S.) 76; The, 2 Gall. (U. S.) 249, 10 Fed. Pizarro, The, 2 Wheat. (U. S.) 227; Cas. No. 5327; Appendix, 1 Wheat. Sally Magee, The, 3 Wall. (U. S.) (U. S.) 499. 451; Gray Jacket, The, 5 Wall. (U. ^"^ Betsy, The, 2 Gall. (U. S.) 377. S.) 342; Adula, The, 176 U. S. 361, 3 Fed. Cas. No. 1364; Graaff Bern- 20 Sup. 432; San Jose Indiano, The, storf, The, 3 C. Rob. 109; Appendix, 1 Mason (U. S.) 38, 21 Fed. Cas. 1 Wheat. (U. S.) 505. No. 12324; Liverpool Packet, The, ■>" Welvaart, The, 1 C. Rob. 122; 1 Gall. (U. S.) 513; 15 Fed. Cas. Juffrouw Anna. The, 1 C. Rob. 125; No. 8406; Sally, The, 1 Gall. (U. S.) Juffrouw Elbrecht, The, 1 C. Rob. 401, 21 Fed. Cas. No. 12258; Both- 127. nea, The. 2 Gall. (U. S.) 78, 3 Fed. «° Nancy. The, 3 C. Rob. 122; Cas. No. 1686; George, The. 2 Gall. Mars, The, 6 C. Rob. 79. (U. S.) 249, 10 Fed. Cas. No. 5327; "Vrouw Hermina, The, 1 C. Rob. Springbok, The, Blatchf. Pr. Cas. 163. 434, 22 Fed. Cas. No. 13264. ^Appendix, 1 Wheat. (U. S.) §§ 3336, 333T.] prize cases. 656 where tliere has been a spoliation of papers.''^ The general rule is that further proof is not allowed where the parties have been guilty of gross fraud, misconduct or illegality.®* § 3336. Further proof allowed in joint or collusive captures. Wliere the capture is joint or collusive it becomes necessary to de- part somewhat from the usual simplicity of the ordinary prize pro- ceedings. Thus, in a case of joint capture neither the papers of the prize vessel nor the depositions of her crew would throw any light as to the proportions in which the owners and crew of the capturing vessel are entitled. Hence, the testimony which will decide this question must come from other sources; accordingly extrinsic testi- mony is admitted to establish this right. The rule is analogous where the captors are charged with fraud. The exculpatory evidence could scarcely be expected from the prize court, nor would the inter- rogatories be calculated to establish this fact. It could scarcely be expected that evidence taken for the purpose of determining whether the captured vessel ought to be condemned or restored, would estab- lish the fact that such capture had been either bona fide or collusive. Justice requires that an opportunity to explain doubtful or suspicious circumstances should be given; and that fraud should not be fixed until the party charged has been given an opportunity to clear him- self from its imputation. In such cases nothing less than a confes- sion of the fraud should move the court to refuse further proof .^^ §3337. Ship's papers — Prima facie proof requisite. — It has be- come the custom of the seas, as required by the laws of different na- tions, for the protection of commerce, that in time of war, at least, ships sailing the seas shall be provided with certain papers and docu- ments that will prima facie show ownership, nationality and dis- tinction. These are to be used in case of seizure for protection, and in the absence of suspicious circumstances may be regarded as suffi- cient evidence of the neutrality of the vessel. The general rule on this subject is more fully stated as follows : "On the question of prize or no prize, what evidence does the law of nations admit for the de- termination of it? The national interest of every commercial coun- try requires, that some mode or criterion be adopted to ascertain the "Rising Sun, The, 2 C. Rob. 104. '^■'George, The, 1 Wheat. (U. S.) «*Dos Hermanos, The, 2 Wheat. 408. (U. S.) 76. 657 ship's papers. [§ 3338. ship, cargo, destination, property and nation to which such ship be- longs; not onl}' as a security for a fair commerce according to law; but as a guard against fraud and imposition in the payment and col- lection of duties, imposts and commercial revenues. Also the peace and tranquillity of nations equally require, that the like criterion should be adopted, to distinguish the ships of different countries found on the high seas in time of war; to prevent an indiscriminate exercise of acts of hostility, which may lay the foundation of general and universal war. Hence, it is, that every commercial country has directed, by its laws, that its ships shall be furnished with a set of papers called ship papers; and that criterion the law of nations adopts, in time of war, to distinguish the property of different powers, when found at sea ; not indeed as conclusive, but presumptive evidence only. Bills of lading, letters of correspondence, and all other papers on board, which relate to the ship or cargo, are also considered as prima facie evidence of the facts they speak; because such papers naturally accompany such a mercantile transaction.'"^® A neutral who ships his goods in an enemy's vessel is bound to send with them such documents as shall establish their neutral character, and failing to do so he justly incurs the penalty of forfeiture.*''^ The ship's papers found on board are proper evidence only when properly verified, the papers alone prove nothing and to entitle them to any weight they must be supported by the oaths of persons in the situa- tion to give them validity.*'^ This rule was otherwise briefly stated as follows: "Some papers undoubtedly should be carried for pro- tection ; that is carried for the benefit of the ship to divert suspicion, to avoid detention and delay, and to afford at least prima facie proof that she is what she pretends to be, an innocent vessel engaged in legitimate business."^® § 3338. Ship's papers — Production. — A very strict rule of prize courts requires the captors immediately upon bringing the captured vessel into port to deliver all papers found on board the captured ship ; these papers should be delivered to the registry of the court and properly verified as the papers of the captured vessel. This principle "<= Resolution, The, 2 Dall. (U. S.) United States, 27 Ct. CI. (U. S.) 19; Amiable Isabella, The, 6 Wheat. 116. (U.S.) 1,69. '■•''Juno, The, 2 C. Rob. 120; "'Flying Fish, The, 2 Gall. (U. S.) Romeo, The, 6 C. Rob. 351. 373, 9 Fed. Cas. No. 4892; Cole v. «= Gushing v. United States, 22 Ct. CI. (U. S.) 1, 54. Vol. 4 Elliott Ev. — 42 § 3339.] PRIZE CASES. 658 and the reasons on which it is based were stated by Justice Story as follows: "It is the duty of tlie captors, by the general law of prize, immediately upon arrival in port, to deliver upon oath to the registry of the court, all papers found on board the captured ship. This duty is enforced by the general instructions of the executive in the most positive manner. A strict adherence to it is expected on all occasions ; and every deviation will be watched by the court with uncommon jealousy. It is not for the captors to select such papers, as they may deem important, and present them in the cause. Infinite mischiefs and inconveniencies might result from such a course. It would af- ford temptation to improper suppression of papers, and jeopard the rights, not only of citizens, but of neutrals."^ ° The rule is other- wise stated thus : "It is also the duty of the prize master to deliver up to the district judge all the papers and documents found on board and, at the same time, to make an affidavit that they are delivered up as taken, without fraud, addition, seduction or embezzlement."^^ The importance of a ship's papers is such that the master of the ship will not be heard in a prize court to aver either his ignorance or for- getfulness of the ship's documents. It is his duty to know what they are, and to admit his ignorance of their contents would be to over- throw all presumptions which govern in prize proceedings.'^ Where the ship's papers are withheld a full and satisfactory explanation must be made to the court or judgment of condemnaiton will be withheld.'^ But where the ship's papers were regular it was held chat the mere possession of an enemy's license was no evidence of an in- tention to proceed to the enemy's port, as a vessel is justifiable in carrying papers to deceive an enemy.''* § 3339. Ship's papers — Custody. — On the production of a ship's papers they are to be deposited with the prize court and to be kept by it imder seal. This includes the papers found on board the prize vessel and all private papers, sailing directions, etc. Ko person is to see or examine these papers until the claims have all been put in, the crew of the captured vessel examined and the cause ready for hearing. The papers then, on order of the court, are open to in- spection of counsel. The purpose of this practice is stated thus: '"Diana, The, 2 Gall. (U. S.) 93, "Arabella, The, 2 Gall. (U. S.) 7 Fed. Gas. No. 3876. 368, 1 Fed. Gas. No. 501. '1 Appendix, 1 Wheat. 495. "* United States v. Matilda, 5 '== Julia, The, 8 Granch (U. S.) Hughes (U. S.) 44, 26 Fed. Gas. 181. No. 15741. G59 ship's papers. [§ 33-10. ''One object of this practice is that the master and crew of the prize shall testify to what is in their own knowledge, and not be able to shape their testimony so as not to contradict the documents. An- other is, that persons coming forward to claim captured property shall state their claims according to the facts, without the oppor- tunity to shape them according to documents or papers on board. If the ship's papers are true, and the claims true, there will be no ma- terial variation, and no injustice is done to claimants, for mere formal or verbal mistakes in claims may always be freely corrected, if the examination shows them to be bona fide, and no claim is ever rejected for an error that is amendable. But, if the papers are false, simulated equivocal, or contradictory, the obligation to put in the claims without opportunity to inspect the papers, will almost always lead to detection of the fraud. Another reason given for the practice is that, if the papers were open to all, persons might come forward who had no actual interest, and represent the interests indicated by the papers."'^^ § 3340. Ship's papers — Destruction and spoliation, — The destruc- tion or spoliation of a ship's papers raises the strongest presumption against the good faith and neutrality of the captured vessel. It is regarded as a strong circumstance of suspicion. It was formerly the rule that proof of the spoliation of papers excludes further proof, and does of itself infer condemnation on the presumption that the papers were destroyed for the purpose of fraudulently suppressing evidence which, if preserved, would produce the same result. This rule has been modified to the extent of holding that if all other cir- cumstances are clear, the mere destruction or spoliation of papers will not of itself condemn, and especially where it was done by one who had some interest of his own to protect by the act.''^ It is now held to be a circumstance subject to explanation ; "yet if the explana- tion be not prompt or frank, or be weak and futile, if the case labors under heavy suspicions, or if there be a vehement presumption of bad faith, or gross prevarication, it is ground for the denial of further proof, and condemnation ensues from defects in evidence, which the party is not permitted to supply."" This principle was stated by "Cuba, The, 2 Sprague (U. S.) The, 8 Cranch (U. S.) 181; Ber- 168, 6 Fed. Cas. No. 3457; San muda, The, 3 Wall. (U. S.) 514; Jose Indiano, The, 2 Gall. (U. S.) Boston, The, 1 Sumn. (U. S.) 328, 268, 21 Fed. Cas. No. 12322. 3 Fed. Cas. No. 1673. '« Hunter, 1 Dods. 480; Julia, " Peterhoff, The. Blatchf. Pr. Cas. § 3341.] PRIZE CASES. 660 Sir William Scott, thus: "No rule can be better known than that neutral masters are not at liberty to destroy papers; or, if they do, that they will not be permitted to explain away such a suppression, by saying 'they were only private letters.' In all cases it must be considered as proof of mala fides; and, where that appears, it is an universal rule to presume the worst against those who are convicted of it. It will always be supposed that such letters relate to the ship or cargo, and it was of material consequence to some interests that they should be destroyed."''^ Where the destruction or spoliation is not to be imputed to the prize master copies instead of the originals may be used.'^^ § 3341. Ship's papers — ^Absence, fraudulent concealment, etc. The absence or the fraudulent concealment of a ship's papers stands upon the same ground as destruction or spoliation ; and where falsifi- cation or fraudulent concealment of papers is shown further proof will not be allowed to the party. Of this rule Justice Story said : "By the known practice of the court in cases of fraudulent conceal- ment or falsification of papers the party would not be entitled to the benefit of further proof, for that is an indulgence granted only to honest mistake and unintentional error."^" As the purpose of these papers is to furnish prima facie proof of innocence and honesty, therefore their absence is no more than the foundation of a reason- able suspicion which justifies an inquiry into the true character of the vessel and the voyage.'^ "The absence of a log-book, unaccounted for, is a matter of distrust in time of war as to the integrity of pur- pose in the outfit and operation of a trading vessel captured under equivocal and disparaging circumstances; as it is a document so usual and important, as evidence of the transactions of a ship navi- gating abroad, and one which so universally accompanies trading 463, 19 Fed. Cas. No. 11024; Hunter, ^Liverpool Packet, The, 1 Gall. 1 Dods. 480; Pizarro, The, 2 Wheat. (U. S.) 513, 15 Fed. Cas. No. 8406; (U. S.) 227; Bernard! v. Motteux, Juffrouw Anna, The, 1 C. Rob. 125; 2 Doug. 574; Rising Sun, The, 2 C. Welvaart, The, 1 C. Rob. 122; Een- Rob. 104; Ella Warley, The, rom. The, 2 C. Rob. 1; Springbok, Blatchf. Pr. Cas. 288, 8 Fed. Cas. The, Blatchf. Pr. Cas. 434, 22 Fed. No. 4373; 1 Kent Comm. 157, 158. Cas. No. 13264; Stephen Hart, The, '^Peterhoff, The, Blatchf. Pr. Cas. Blatchf. Pr. Cas. 387, 22 Fed. Cas. 463, 19 Fed. Cas. No. 11024; Two No. 13364. Brothers, The, 1 C. Rob. 131; Rosa- ^^ Cushing v. United States, 22 Ct. lie and Betty, The, 2 C. Rob. 343. CI. (U. S.) 1, 54. '"Julia, The, 8 Cranch (U. S.) 181. 661 ship's papers. [§§ 3342, 3343. vessels employed in foreign commerce. Its absence gives room for presumption that material matters have been fraudulently suppressed, and particularly wliere an object may exist for keeping it out of view.'"*- So, an attempt on the part of a neutral owner to mislead a blockading force by fraudulent representations of the ship's papers was held to amount to such fraudulent misconduct as would justify the confiscation of the vessel.^^ § 3342. Ship's papers — Enemy's license. — So, it is the rule that navigating under a license from an enemy, is prima facie sufficient cause for a condemnation. Ignorance of the fact of the nature of the license is held to be a sufficient excuse unless the claimants have such constructive notice as will preclude them from showing a want of actual notice. Thus, the knowledge of the super-cargo is attributa- ble to the shipper.^* In the absence of positive proof of an enemy's license the circumstances may be such as to raise a presumption that the vessel had such a license and the burden of proof is then upon the claimant to repel such presumption.^^ § 3343. Ship's papers — Passport, flags, etc. — Ships are generally required either by law or custom to carry passports, and in time of war such documents are regarded as indispensable. The nationality, neutrality or hostility of a vessel are determined by the documents such as passport, license, etc., together with the flag under which she sails. Owners of vessels are bound by these insignia of national character, and when they agree to take the flag and pass of a country they are not permitted in case of capture to change the position or nationality thus assumed. This insignia of nationality constitutes largely the proof as to the liability of a vessel to condemnation.^" '=' Joseph H. Toone, The, Blatchf. ™ William Bagaley, The, 5 Wall. Pr. Cas. 223, 13 Fed. Cas. No. 7541; (U. S.) 377, 409; Aurora, The, 8 Mersey, The, Blatchf. Pr. Cas. 187, Cranch (U. S.) 203; Hallie Jack- 17 Fed. Cas. No. 9489. son. The, Bratchf. Pr. Cas. 41, 11 *^ Louisa Agnes, The, Blatchf. Pr. Fed. Cas. No. 5961; Rogers v. Cas. 107, 15 Fed. Cas. No. 8531. Amado, The, Newb. 400, 20 Fed. ^ Hiram, The, 1 Wheat. (U. S.) Cas. No. 12005; Vrow Elizabeth, 440; Ariadne, The, 2 Wheat. (U. S.) The, 5 C. Rob. 2; Fortuna, 1 Dods. 143; Langdon Cheves, The, 4 81, 87; Success, 1 Dods. 131; Wheat. (U. S.) 103. Primus, The, 29 Eng. Law & Eq. ^Langdon Cheves, The, 4 Wheat. 589; Industrie, The, 33 Eng. Law (U. S.) 103. & Eq. 572. §§ 3344, 3345.] prize cases. 662 § 3344. Joint capture — Presumption. — In prize cases it frequently happens that more than one vessel or crew claim a right to share in the prize on the ground that they assisted in the capture. In such cases it is called a joint capture. This right to share in the capture depends on the proof, and as to whether or not the evidence suffi- ciently shows that the claimants did assist in the capture within the meaning of the law. According to the English law the term captors or takers includes both those who actually make a prize and all who are associated in the taking. This association may be thus classified : (1) Vessels that happen to join in a chase or be in sight at the time of the capture; (2) or imposed by superior command as where a fleet or several vessels are engaged in a blockade or other common enter- prise. In the first case, according to the English law, there was the presumption of fact that all the King's ships in sight during the chase or at the time of the capture, did by their presence encourage the captors and discourage the enemy ; and the presumption was that such was their intention. However, this presumption could be over- come by proof that a vessel claiming as a joint captor could not have been seen by one or the other of the belligerents, or that there was no intention to aid, but that the claimant vessel was engaged in some duty or business inconsistent with either an effort or intention to aid in the capture.^'' § 3345. Joint capture — Burden of proof. — The vessel and crew actually present at the capture are primarily entitled to the prize; hence, it logically follows that if any other vessel claims the right to share in the prize it must establish this right by competent evidence. It therefore follows naturally that the burden of proof is upon such joint claimant to bring itself clearly within the construction of the act of Parliament, or the rules of law, giving it the right to share in the prize. This rule as to burden of proof was stated by Sir William Scott as follows: "In all cases, the onus probandi lies on those set- ting up the construction, because they are not persons strictly within the words of the act, but let in only by the interpretation of those acting under a competent authority to interpret it; it lies with the claimants in joint capture, therefore, either to allege some cases in which their construction has been admitted in former instances, or »^Selma, The, 1 Low. (U. S.) 30, 125; Ella and Anna, The, 2 Sprague 21 Fed. Cas. No. 12647; Galen. 2 (U. S.) 267, 26 Law R. 669, 8 Fed. Dods. 19; La Melanie, 2 Dods. 122, Cas. No. 4368. 663 JOINT CAPTUKE. [§ 33-16. to show some principle in their favor, so clearly recognized and es- tablished as to have become almost a first principle in cases of this nature. The being in sight, generally, and with some few exceptions, has been so often held to be sufficient to entitle parties to be admitted joint captors, that where that fact is alleged, we do not call for par- ticular cases to authorize the claims ; but where that circumstance is wanting, it is incumbent on the party to make out his claim by an appeal to decided cases, or at least to principles, which are fairly to be extracted from those cases."^* § 3346. Joint capture — Sight and signal distance. — To entitle a claimant to share as a joint captor, the proof must show that he was within sight or signal distance. It is not sufficient to show that at some time during the chase the claimant was within sight of the captor, but it must appear that at the time of the capture the claim- ant was within sight of both vessels, or that she was within such posi- tion that the usual signals, if made from the actual captors in the usual way, could have been heard or read and understood from the deck or top gallant forecastle, and that she was prepared and able to render assistance, if needed, in making the capture. The general rule as gathered from the decisions as to the position and distance of a vessel, to entitle her to share in the prize was stated thus : "She must have been so situated as to be able of her own accord, to con- tribute direct assistance to the captors b}^ deterring tlie enemy from resistance, or by aiding physically in overcoming such resistance; and the vessel to be aided must have possessed the means of com- municating intelligent directions to the one whose aid was needed." This claiming a right to share in the prize on account of being near, but where no actual assistance was rendered, is known as the doctrine of constructive capture and it has been limited and guarded by the courts and legal profession, and in the absence of proof of actual as- sistance the presumption of law leans in favor of the actual captor. "The mere physical ability to discern the prize, or even the seeing her from the mast-head not imparting the ability to contribvite as- sistance in making the capture, does not seem to liave been recognized, in any authoritive case, as evidence of constructive assistance to an- other ship in effecting a capture."**® "'Vryheid, The, 2 C. Rob. 1622; 280; Ella and Anna. The, 2 Sprague Selma. The, 1 Low. (U. S.) 30, 21 (U. S.) 267, 26 Law R. 669, 8 Fed. Fed. Cas. No. 12647; L'Alerte. 6 C. Cas. No. 4368. Rob. 238; La Gloire, Edw. Adm. '" Anglia, The, Blatchf. Pr. Cas. 3347.] PRIZE CASES. 664 § 3347. Joint capture — Common enterprise. — Where vessels are engaged in a common enterprise and under one authority or com- mand the claiming vessel need only show that it was one of the as- sociates; that the capture was made by another of such associates, and that it was within the purpose of the association. When such facts are proved it is held that the actual position of the claiming vessel at the time of the capture is unimportant.^" ^A^iere the claim is made on account of a joint venture or association the test seems to be in the proof of the fact that there was no separation of service. If the service is common and identical and there is no separation in the common purpose or venture a capture made by one under such circumstances is entitled to be shared by all. So if all are engaged in one common undistinguishable service having but one object im- mediate or remote, the several vessels performing the duty assigned to each, the capture by one has been held to inure to all.^^ Lord Stowell expressed the principle underlying this class of cases to the effect 566, 1 Fed. Cas. 391; Atlanta, The, 2 Sprague (U. S.) 251, 3 Am. L. Reg. (N. S.) 675, 26 Law R. 204. 2 Fed. Cas. No. 619; Cherokee, The, 2 Sprague (U. S.) 235, 3 Am. L. Reg. (N. S.) 289, 5 Fed. Cas. No. 2640; Ella, The, 2 Int. Rev. Rec. 117, 8 Fed. Cas. No. 4367; Ella and Anna, The, 2 Sprague (U. S.) 267, 26 Law R. 669, 8 Fed. Cas. No. 4368; St. John, The, 2 Sprague (U. S.) 266, 21 Fed. Cas. No. 12225; Mangrove Prize Money, The, 188 U. S. 720, 23 Sup. Ct. 343; Selma, The, 1 Low. (U. S.) 30, 21 Fed. Cas. No. 12647; Robert, The, 3 C. Rob. 194, 201; Le Nlemen, 1 Dods. S; Finan- cier, 1 Dods. 61; Empress, 1 Dods. 368; Arthur, 1 Dods. 423; Dord- recht, The, 2 C. Rob. 55; Forsigheid, The, 3 C. Rob. 311; Lord Middle- ton, The, 4 C. Rob. 153; L'Alerte, 6 C. Rob. 238; Diomede, 1 Acton 239; Galen, 2 Dods. 19; L'Etoile, 2 Dods. 106; Naples Grant, 2 Dods. 273; Vryheid, The, 2 C. Rob. 16; Odin, The, 4 C. Rob. 318, 325; Trinidad, Island of, 5 C. Rob. 92; La Furieuse, Stew. N. Sc. 177. «° Selma, The, 1 Low. (U. S.) 30, 21 Fed. Cas. No. 12647; Atlanta, The, 2 Sprague (U. S.) 251; 3 Am. L. Reg. (N. S.) 675, 26 Law R. 204, 2 Fed. Cas. No. 619; La Henrietta, 2 Dods. 96; Naples Grant, 2 Dods. 273, 286; Forsigheid, The, 3 C. Rob. 311, 315; Empress, 1 Dods. 368; Nordstern, Acton 128, 140. But see, Trinidad, Island of, 5 C. Rob. 92; Arthur, 1 Dods. 423; Le Bon Aven- ture, 1 Acton 211, 239; Anglia, The, Blatchf. Pr. Cas. 566, 1 Fed. Cas. 391; St. John, The, 2 Sprague 266, 21 Fed. Cas. No. 12225; Aries, The, 2 Sprague (U. S.) 262, 26 Law R. 336, 1 Fed. Cas. No. 529; Cherokee, The, 2 Sprague (U. S.) 235, 3 Am. L. Reg. (N. S.) 289, 5 Fed. Cas. No. 2640; Diomede, 1 Acton 239; Nostra Signora de los Dolores, 1 Acton 262. «i Selma, The, 1 Low. (U. S.) 30, 21 Fed. Cas. No. 12647; Harmonic, 3 C. Rob. 318; Guilliaume Tell, The, Edw. Adm. 6. G65 JOINT CAPTURE. [§ 3347. that privity of purpose created community of interest.^- According to the holdings in some old cases, this rule of sharing in the prize on account of association or joint venture does not apply to what is known in maritime law as head money.^^ Sight alone is not suffi- cient to entitle a claimant to head money; this is restricted within narrower limits than that of prize. Actual contribution or assist- ance is necessary to entitle a joint captor to share in head money.®* The rule applying to joint capture does not obtain generally where the capture is made by the combined efforts of land and naval forces.®^ «=Selma, The, 1 Low. (U. S.) 30, 21 Fed. Cas. No. 12647; Dordrecht, The, 2 C. Rob. 55. «^ L'Alerte. 6 C. Rob. 238. ''^El Rayo, 1 Dods. 42; La Clor- inde, 1 Dods. 436; Ville de Varsovie, 2 Dods. 301; La Bellone, 2 Dods. 343; La Gloire, Edw. Adm. 280. "^ Siren, The, 13 Wall. (U. S.) 389; United States v. Farragut, 22 Wall. (U. S.) 406; Porter v. United States, 106 U. S. 607, 1 Sup. Ct. 539; Dordrecht, The, 2 C. Rob. 55; Genoa, 2 Dods. 444; Hoagskarpel, Lords of App. 1785; Booty in the Peninsula, 1 Hagg. Adm. 39, 47. CHAPTEE CLXVI. SALVAGE. Sec. Sec. 3348. Generally. 3359. Towage and salvage. 3349. Definition. 3360. Amount of salvage — Circum- 3350. Definitions— By courts. stances control. 3351. Success essential. 3361. Agreement for salvage serv- 3352. Success essential — Exceptions. ices — Effect. 3353. Burden of proof. 3362. Agreement— Effect as a meas- 3354. Essential elements — Claim- ure for amount of salvage. ant's proof. 3363. Agreement valid— A bar to 3355. Rescue— Impending peril. salvage claim. 3356. Impending peril— Degree of 3364. Agreement invalid— Evidence proof. of need of aid. 3357. Derelict property. 3365. Agreement— Burden of proof. 3358. Derelict property— Duty of 3366. Claim for salvage— Forfeit- finder, ure. § 3348. Generally. — It has always been the policy of maritime law to encourage the saving of property, such as ships and cargo when they are in peril and in danger of being lost at sea. Mariners as a class are brave and courageous and are usually ready and willing to make sacrifices, endure hardships and assume great risks in order to save the lives of passengers and their fellow seamen, or to recover vessels and property that are in imminent danger of being lost. When sucli risks have been assumed, the dangers of the sea braved, and valuable property rescued and preserved, the law does not leave the compensation of the rescuers to the mere whim or gratitude of the owner, but rewards with a compensation that is in some degree adequate to the dangers encountered and the value of the property thus preserved. This compensation the law calls salvage and the persons saving the property, salvors. Navigation and commerce depend largely for protection on the services of salvors and it is to the interest of these that such recompense be awarded the salvors as shall encourage them to exertion and honesty in rescuing vessels and cargoes. At the same time courts recognize the necessity of so ad- G66 667 DEFixiTiON". [§§ 3349, 3350. ministering the salvage laws as to prevent professional wreckers from exacting unreasonable and extortionate amounts in the hour of peril ; in such cases maritime courts will not be bound by the quantum meruit rule of measuring such services by their actual value, but pursue a more liberal policy and give a reward or bounty to those whose labor, intrepidity and perseverance save vessels from the dan- gers of the sea.^ § 3349. Definition. — Courts of admiralty and writers on maritime law have given various definitions for the term salvage. Many of these are misleading and some are incomplete. It is apparent from the adjudicated cases that the definitions are inaccurate which at- tempt to limit salvage to compensation for services. While it is al- ways compensation, yet it is often in the nature of a reward or bounty, depending on circumstances. Eecent text writers say that "salvage is the reward payable for services rendered in saving any wreck or in rescuing a ship or boat, or her cargo or apparel, or the lives of persons belonging to her, from loss or danger at sea."^ Mr. Benedict says of it: "Salvage is the compensation due to per- sons by whose voluntary assistance a ship or its lading has been saved to the owner from impending peril, or recovered after actual loss."^ One of the ingredients of a salvage service is enterprise in the salvors in going out in tempestuous weather to assist a vessel in dis- tress.'* § 3350. Definitions — By courts. — A more comprehensive defini- tion, as given by one federal court : "Salvage consists — First, of an 1 Sandringham, The, 10 Fed. 556, Ewbank, The, 1 Sumn. (U. S.) 400; 572; Coast &c. Co. v. Phoenix Ins. Cargo of the Edwards, 12 Fed. Co., 13 Fed. 127; Fannie Brown, 508; Hebe, The, L. R. 4 P. D. 217; The, 30 Fed. 215; Henry Steers, Jr., Craigs, The, L. R. 5 P. D. 186. See The, 110 Fed. 578; Cromwell v. also, Theta, The, 135 Fed. 129. Island City, The, 1 Cliff. (U. S.) "Williams & Bruce Adm. 127. 221, 228, 6 Fed. Cas. No. 3410; =• Benedict Adm., § 300; Parsons Blaireau, The, 2 Cranch (U. S.) Shipping 260; Hand v. Elvira, The, 266; Camanche, The, 8 Wall. (U. Gilp. (U. S.) 60, 11 Fed. Cas. No. S.) 448; Blackwall, The, 10 Wall. 6015; Rita, The, 10 C. C. A. 629; (U. S.) 1; Sabine, The, 101 U. S. 62 Fed. 761; Norris v. Island City, 384; Fisher V. Sibyl, The, 5 Hughes The, 1 Cliff. (U. S.) 219, 18 Fed. (U. S.) 61, 6 Hall L. J. 509, 4 Cas. No. 10306. Wheat. 98, 9 Fed. Cas. No. 4824; ^ Fanny Brown, The, 30 Fed. 215; Hand v. Elvira, The, Gilp. (U. S.) Clifton, The, 3 Hagg. Adm. 117. 60, 11 Fed. Cas. No. 6015; Henry § 3351.] SALVAGE. 668 adequate compensation for the actual outlay of labor and expense made in the enterprise; and second, of the reward as bounty allowed from motives of public policy as a means of encouraging extraordi- nary exertions in the saving of life and property in peril at sea."^ A federal court recently said of it: "Salvage is decreed by courts of admiralty as a reward for services successfully rendered in saving I property from maritime damage, not on the principle of a quantum meruit, or as compensatory remuneration, but as a reward for perilous services, and as an inducement to seamen and others to readily en- gage in such undertakings and assist in saving life and property. Danger, peril and a successful deliverance therefrom either by volun- tary effort, special request of, or by contract with the owner consti- tutes a case of salvage, whether rendered by one or more salvors."® As otherwise defined it is said to be "the relief of property from an impending peril of the sea by the voluntary exercise of those who are under no legal obligation to render assistance and the consequent ultimate safety of the property, constitutes a technical case of sal- vage."^ "Salvage is a reward decreed by a court of admiralty for services successfully rendered in saving property from maritime danger by persons under no obligation of duty to render the serv- ices, and who voluntarily enter upon them."^ "Salvage is an amount allowed in excess of mere remuneration for work and labor, or prin- ciples of public policy, not only as a reward to the particular sal- vors, but as an inducement to others to undergo risk and peril in the rescue of property from danger."^ § 3351. Success essential. — Salvage is payable only out of the property rescued and saved. The essential ingredients which must be established in order to warrant a judgment for salvage presupposes that the salvage enterprise has been successful and that the propert}^ or some part of it has been saved. The usual proceedings by salvors is by an action in rem and in all such cases there could be neithei^ action nor judgment except there is some property which could be = Egypt, The, 17 Fed. 359, 376; 1 Cliff. (U. S.) 210, 216, 1 Fed. Cas. Catalina, The, 44 C. C. A. 638, 105 No. 55; Davey v. Mary Frost. The, Fed. 633. 3 Cent. L. J. 419, 22 Int. Rev. Rec. "Flottbek, The, 55 C. C. A. 448, 82, 7 Fed. Cas. No. 3591; Queen of 118 Fed. 954. the Pacific, The, 21 Fed. 459. " Hennessey v. Versailles, The, 1 ^ Fanny Brown, The, 30 Fed. 215. Curt. (U. S.) 353, 11 Fed. Cas. No. 'Fanny Brown, The, 30 Fed. 215; 6365; Adams v. Island City, The, Industry, The, 3 Hagg. Adm. 203. G69 SUCCESS — WHEN ESSENTIAL. [§ 3353. executed. But in any event before salvage can be decreed the proof must show that the enterprise was successful, and that property of some value was rescued and saved out of which the salvage may be paid. "The very principle of salvage is, to give reward for exertions which have been successful."^" Salvage will not be decreed where the evidence shows that the salvors voluntarily abandoned the enter- prise and left the disabled vessel in the same plight as when the serv- ices were undertaken." § 3352. Success essential — Exceptions. — There are some apparent exceptions to the rule in the preceding section to the effect that the proof must show that the wrecking enterprise was successful. The exception, however, does not change the rule in that it must be shown that property of some value was saved. But it is not absolutely es- sential that it be shown by the evidence that the claimant vessel or crew ultimately produced this result; and it is to this part of the rule that the exception applies. The first proposition under this ex- ception is that where the peril is continuous all vessels whose exer- tions contributed directly to the final rescue may share in the award.^- Another exception is found in that class of cases where the salvors make the most meritorious exertions and where either from neces- sity the salvors must abandon the property in order to save life," or where, from accidental cause and the design of those in charge of the imperiled vessel, the immediate efforts of the claimant were un- successful, but the imperiled vessel is finally rescued by other means. ^* Still another exception is found where salvage is allowed where it is made to appear that the claimants as salvors succeeded in bringing the property into a position or condition where it was saved by the subsequent exertions of others. In this class proof of continuous ^oBIackwall, The, 10 Wall. (U. S.) Avoca, The. 39 Fed. 567; E. U., The, 1, 12; Norris v. Island City, The, 1 Spink 63; Aztecs, The, 21 L. T. 1 Cliff. (U. S.) 219, 18 Fed. Cas. N. S. 797. No. 10306; Anderson v. Edam, The, " Algitha, The, 17 Fed. 551; An- 13 Fed. 135; Santa Ana, The, 107 derson v. Edam, The, 13 Fed. 135; Fed. 527; Henry Steers, Jr., The, Aberdeen, The, 27 Fed. 479; Veen- 110 Fed. 578; Cargo of the Ed- dam. The, 46 Fed. 489. wards, 12 Fed. 508; Scott v. Clara "Anderson v. Edam, The, 13 Fed. E. Bergen, The, 21 Fed. Cas. No. 135. 12526a; Lamington, The, 30 C. C. '= E. U., The, 1 Spink 63. A. 271, 86 Fed. 675; Independence, "Veendam, The, 46 Fed. 489; The, 2 Curt. (U. S.) 350, 18 Law Henry Steers, Jr., The, 110 Fed. R. 151, 13 Fed. Cas. No. 7014; 578. §§ 3353, 3354.] salvage. 670 exertion is not necessary to establish a claim to salvage.^ ^ More than one set of salvors may contribute to the rescue, and all who engage in the enterprise and who materially contribute to the saving of the property are entitled to share in the award except in cases^"^ where the evidence shows that the services of original salvors are sufficient to save the property, and the claimant was a mere volunteer, whose services were not needed no salvage will be allowed." § 3353. Burden of proof. — The rule as to burden of proof in sal- vage cases is not essentially different from that of other cases. The burden is on the claimant to establish by evidence such facts and circumstances as will bring him within the rule of a salvor. A high degree of proof is not required. The claimant is not required to produce proof sufficient to make it certain that the property was saved by his assistance. The rule as to the salvor's burden was thus stated by Judge Betts : "I am not aware of any principle which in- vests him with the rights and privileges of a salvor, until it is ren- dered reasonably probable upon the evidence that his labor or skill have contributed toward protecting property exposed to instant peril at sea from ultimate loss or further damage."^ ^ § 3354. Essential elements — Claimant's proof. — In order to estab- lish a claim for salvage the proof must show sucli circumstances under which the services were rendered as will make tlie claim meritorious and bring it within the rules of a salvage enterprise. To establish such salvage enterprise the proof must generally show at least six essential "Tolomeo, The, 7 Fed. 497; 215; Stone v. Jewell, The, 41 Fed. Muntz V. Raft of Timber, 15 Fed. 103; Strathnevis, The, 76 Fed. 855; 555; El Dorado, The, 50 Fed. 951; Sabine, The. 101 U. S. 384; Bartley, Island City, The, 1 Black (U. S.) The, Swabey 198; Pride of Canada, 121; John Worts, The, 01c. (U. S.) The, Brown. & Lush. 209; Flottbek, 462,' 13 Fed. Cas. No. 7434; Henry The, 55 C. C. A. 448, 118 Fed. 954. Ewbank, The, 1 Sumn. (U. S.) 400, " Avoca, The, 39 Fed. 567. 417; Samuel, The, 15 Jur. 407; ''John Wurts, The, 01c. (U. S.) Jonge Bastiaan, 5 C. Rob. 322; In- 462, 16 Hunt. Mer. Mag. 383, 13 Fed. dia, The, 1 W. Rob. 406; Albion, Cas. No. 7434; Susan, The, 1 The, Lush. Adm. 282. Sprague (U. S.) 499, 23 Fed. Cas. '^Blackwall, The, 10 Wall. (U. S.) No. 13630; Elphicke v. White Line 1; Adams v. Island City, The, 1 Towing Co., 46 C. C. A. 56, 106 Fed. Cliff. (U. S.) 210, 1 Fed. Cas. No. 945; Arthur, The, 6 L. T. N. S. 556; 55; Norris v. Island City, The, 1 Resultatet, The, 17 Jur. 353; British Cliff. (U. S.) 219, 18 Fed. Cas. No. Empire, The, 6 Jur. 608. 1306; Fanny Brown, The, 30 Fed. 671 claimant's proof — rescue — IMPENDIXG PERIL. [§ 3355. ingredients: (1) Tlie degree of danger from which the property was rescued; (2) the value of the property saved, or that it was of great value; (3) that the salvors and their property incurred serious and continual risk in the rescue; (4) the value of the property used hf the salvors in saving the vessel or cargo and the danger or risk to which it was exposed; (5) the extraordinary or unusual skill shown in rendering the service; (G) the time and labor spent in the enter- prise. In speaking of these one court said : "These are t"he ingredi- ents which must enter, each to a greater or less degree, as a sine qua non into every true salvage service; and to these I will add, not as an ingredient so much as a consideration to be taken into view : • the degree of success achieved and the proportions of value lost and saved."^^ § 3355. Rescue — Impending peril. — From tlie definitions of sal- vage previously given it is apparent that to entitle a vessel or crew to salvage the proof must generally show that the vessel or property from or out of which the salvage is claimed was rescued from some peril of the sea under a threatened and impending danger that would, from all appearances, result in the ultimate destruction or loss of the ves- sel or other property. The service for which salvage is allowed is said to be "a service which is voluntarily rendered to a vessel need- ing assistance, and is designed to relieve her from some distress or danger either present or to be reasonably apprehended." It is suffi- cient if the "situation was one of strong apprehension of immediate danger." The rule has otherwise been stated as follows: "It is not necessary there should be absolute danger to constitute a salvage service. It is sufficient if there is a state of difficulty and reasonable apprehension. Neither is it necessary to show that those on board either requested or expressly accepted the assistance if salvage serv- ices are rendered to a ship. It is sufficient if the circumstances are « Sandringham, The, 5 Hughes (U. S.) 1; Flottbek, The, 55 C. C. (U. S.) 316, 10 Fed. 556; Egypt, The. A. 448, 118 Fed. 954; Mary E. Dana, 17 Fed. 359; Queen of the Pacific, The, 17 Fed. 353; Lamington, The. The, 21 Fed. 459; Rita, The, 10 C. C. 30 C. C. A. 271, 86 Fed. 675; Baker. A. 629, 62 Fed. 761; Catalina, The, 44 The, 25 Fed. 771, 774; A Lot of C. C. A. 638, 105 Fed. 633; Ca- Whalebone, 51 Fed. 916; Akaba. manche, The, 8 Wall. (U. S.) 448; The, 4 C. C. A. 281. 54 Fed. 197; Hennessey v. Versailles, The. 1 Cope v. Dry Dock Co., 119 U. S. Curt. (U. S.) 353, 361. 11 Fed. Cas. 628, 7 Sup. Ct. 336. No. 6365; Blackwall, The, 10 Wall. 3356.] SALVAGE. 672 such that any prudent man would have accepted an offer of service if it had been made.''^" § 3356. Impending peril — Degree of proof. — The courts do not require a strong degree of certainty in the proof establishing the peril ; it is not necessary that the proof rise to a degree of probability. Salvage services cannot be made to rest on a certain basis, and nice distinctions as to the ultimate probability of the vessel being saved are not to be tolerated. It is sufficient if there is a probability, or, it seems, even a possibility that the peril would result in destruction if the service had not been rendered. The rule on this subject is thus stated by one federal court : "Now, it is not necessary to constitute a salvage service that the danger be immediate or absolute ; it is sufficient that at the time the assistance is rendered the sliip has encountered any danger or misfortune which might possibly expose her to destruction if the service were not rendered. A situation of actual apprehension, though not of actual danger, is sufficient."^^ ^'Mira A. Pratt, The, 31 Fed. 572; Emulous, The, 1 Sumn. (U. S.) 207, 8 Fed. Cas. No. 4480; McConnochie V. Kerr, 9 Fed. 50; Long v. Tam- pico. The, 16 Fed. 491; Baker &c. Co. v. Excelsior, The, 19 Fed. 436; Fannie Brown, The, 30 Fed. 215; Wasp, The, 34 Fed. 222; Erin, The, 36 Fed. 712; Cachemire, The, 38 Fed. 518; S. A. Rudolph, The, 39 Fed. 331; Albany, The, 42 Fed. 64; New England &c. Co. v. M. Vander- cook. The, 45 Fed. 262; Excelsior, The, 48 Fed. 749; Sirius, The, 53 Fed. 611; Barnegat, The, 55 Fed. 92; Dupuy de Lome, The, 55 Fed. 93; Compagnie Commerciale De Transport &c. v. Charente &c. Co., 9 C. C. A. 292, 60 Fed. 921; Rescue, The, v. George B. Roberts, The, 64 Fed. 139; Beaconsfield, The, 67 Fed. 144; Great Northern, The, 72 Fed. 678; George W. Clyde, The, 80 Fed. 157; Carrie, The, 88 Fed. 983; Thornley, The, 39 C. C. A. 248, 98 Fed. 735; Flottbek, The, 55 C. C. A. 448, 118 Fed. 954; Independence, The, 2 Curt. (U. S.) 350, 18 Law R. 151, 13 Fed. Cas. No. 7014; John Gilpin, The, 01c. (U. S.) 77, 13 Fed. Cas. No. 7345; Baker v. Hemenway, 2 Low. (U. S.) 501, 2 Fed. Cas. No. 770; Cheeseman v. Two Ferry Boats, 2 Bond (U. S.) 363, 5 Fed. Cas. No. 2633; Hyderabad, The, 11 Fed. 749, 755; Ann L. Lockwood, The, 37 Fed. 233, 237; Ida L. How- ard, The, 1 Low. (U. S.) 2, 12 Fed. Cas. No. 6999; Charlotte, The, 3 W. Rob. 68. ='Saragossa, The, 1 Ben. (U. S.) 551, 21 Fed. Cas. No. 12334; Holmes V. Joseph C. Griggs, The, 1 Ben. (U. S.) 81, 12 Fed. Cas. No. 6640; Ella Constance, The, 33 L. J. N. S. 191; Plymouth Rock, The, 9 Fed. 413; McConnochie v. Kerr, 9 Fed. 50; Charlotte, The, 3 W. Rob. 68; Westminster. The, 1 W. Rob. 229, 232; Raikes, The, 1 Hagg. Adm. 246; Phantom, The, 1 A. & E. 58. See also Cottage City, The. 136 Fed. 496. 673 DERELICT PROPERTY. [§§ 3357, 3358. § 3357. Derelict property. — A vessel is said to be derelict when it is found on the seas forsaken and without any person in it. To an- swer to this definition the vessel must have been abandoned by its officers and crew without an intention of returning. When found in such condition it is the proper subject of salvage relief. The abandonment must ordinarily have been on some good, or apparently good, grounds and the proof must show in all such cases that the vessel was in great danger or imminent peril, and that the abandonment by the persons in charge was for the purpose of saving their lives. In such cases it is not required to prove that the master had no intention of re- turning to the vessel at any time ; it is sufficient to show that the master and the crew abandoned the vessel on account of the imminent peril and danger to life and did not intend to return under the existing con- ditions, and that they did not contemplate returning to use their own exertions in further attempts at the time to save the vessel. The master's intention to return in case he cannot obtain assistance to save the vessel does not take away from it the legal character of derelict.^- On this definition one court said : "There is some vagueness about the definition of 'derelict' when applied to vessels abandoned at sea, but the general rule is that a vessel which is aban- doned by her crew, without any purpose on their part of returning to the ship, or any hope of recovering it by their own exertions, comes strictly within the definition."^^ § 3358. Derelict property — Duty of finder. — "Where property is discovered which is derelict it is the right and the duty of the finder to take possession and make every reasonable effort to preserve it for the owner's benefit, with the object of salvage compensation. This right of the finder is thus stated : "The fact that property is found at sea or on the coast in peril, without the presence of any one to pro- tect it, gives the finder a right to take it in his possession ; and the law connects with such right the obligation to use the means he- has at control, and with all reasonable promptitude, to save it for the owner."-* It has been stated that "property is not, in the sense of =2Rowe V. Brig, The, 1 Mason (U. Fed. 920; Bee, The, 1 Ware (U. S.) S.) 372; Laura, The, 14 Wall. (U. 332, 3 Fed. Cas. No. 1219; Craigs. S.) 336; John Wurts, The, 01c. (U. The, L. R. 5 P. D. 186. S.) 462, 13 Fed. Cas. No. 7434; Fair- -'2 Parson Shipp. & Adm. 288; field. The, 30 Fed. 700; Cairnsmore, Ann L. Lockwood, The, 37 Fed. 233. The, 20 Fed. 519; Burlington, The, =Mohn Wurts, The, 01c. (U. S.) 73 Fed. 258; B. C. Terry, The. 9 462, 13 Fed. Cas. No. 7434. Vol. 4 Elliott Ev.-43 § 3359.] ': SALVAGE. 674 law, derelict, and -the possession left vacant for the finder, until the spes recuperandi is gone and the animus revertendi is finally given, up."" § 3359. Towage as salvage. — The courts have made a distinction between towage as such and towage as salvage. The difference seems to depend on the proof of the situation of the vessel towed at the time such service is undertaken. Towage service as such is that which is rendered for the mere purpose of expediting the voyage of the vessel, without reference to any circumstances of danger. It is confined to vessels that have received no injury. The compensation for towage is payable where the vessel receiving the service is in the same con- dition she would ordinarily be in without having encountered any dangers or accidents. "It is the employment of one vessel to ex- pedite the voyage of another."^® But towage as salvage, assuming that this is a correct nautical term, is different from mere towage as such. In this sense it is simply salvage service, \\liether the persons per- forming such service are to be paid by a salvage compensation de- pends upon the proof of the circumstances under which such ser- vices were performed. The correct rule is stated as follows : "^^^len towage, therefore, is rendered to a disabled vessel, not with a view merely to expedite her passage from one place of safety to another, but with the obvious purpose of relief from some circumstances of danger, either present or reasonably to be apprehended, compensa- tion upon salvage principles is to be allowed." And as in salvage cases generally, the application of the principle is not dependent upon the degree of danger, although this is important in fixing the amount of compensation.^'^ And it has been held that an agreement to tow ^Aquila, The, 1 C. Rob. 37, 41; 3 Fed. 248; Ehrman v. Swiftsure, Ann L. Lockwood, The, 37 Fed. 233. The, 4 Fed. 463; Leipsic, The, 5 ==« Princess Alice, The, 3 W. Rob. Fed. 108; Atlas &c. Co. v. Colon^ 138; Reward, The, 1 W. Rob. 174, The, 4 Fed. 469; Saragossa, The, 177; McConnochie v. Kerr, 9 Fed. 1 Ben. (U. S.) 551; Emily B. 50; Plymouth Rock, The, 9 Fed. Souder, The, 15 Blatchf. (U. S.) 413; Sirius, The, 53 Fed. 611; Great 185, 8 Fed. Cas. No. 4458; Hennes- Northern, The, 72 Fed. 678. sey v. Versailles, The, 1 Curt. (U. =" Plymouth Rock, The, 9 Fed. S.) 353, 11 Fed. Cas. No. 6365; 413; Corwin v. Jonathan Chase, Sirius, The, 53 Fed. 611; Reward, The, 2 Fed. 268; Brooks v. Adiron- The, 1 W. Rob. 174; Charlotte, The, dack. The, 2 Fed. 387; Mayo v. 3 W. Rob. 71; Monticello, The, 81 Clark, 1 Fed. 735; Athenian. The, Fed. 211. 675 AMOUNT OF SALVAGE. [§ 3360. an imperiled vessel into port did not change the character of the service rendered from salvage to that of towage.-® § 3360. Amount of salvage — Circumstances control. — There are no fixed rules for estimating the amount of salvage or compensation in any given case. This depends on all the circumstances involved in the service, and is largely in the discretion of the court. The proof should show all facts and circumstances that may in any degree bear upon the question. Admiralty courts have frequently indi- cated the various circumstances which are proper to be considered in estimating the amount of salvage, and these constitute the only rules capable of statement as guides. Of these the important or leading circumstances are the value of the property saved, the degree and imminence of the danger, the proximity of other means of succor, the hazard, labor and skill of the salvors, the duration and difUcU'lty of the service, the value of the vessel or vessels and property and the number of persons employed, and the danger to vessel and men in rendering the service, and in some cases the fact that the vessel was required to deviate from her voyage, together with the inci- dental risks and responsibilities thereby incurred.-® In harbor cases where a large number of tugs are near, large salvage awards are contrary to the principles of law;''" but the importance of main- taining wrecking companies Avith powerful and costly appliances, ready at any time, day or night, to aid vessels in peril, is an ele- ment to be considered. ^^ It is held that the salvors are entitled tO' a large per cent, where the value of the salved vessel is small. ^- Where- =» Dupuy de Lome, 55 Fed. 93. See v. Versailles, The, 1 Curt. (U. S.) also, Sirius, The, 6 C. C. A. 614, 57 353, 11 Fed. Cas. No. 6365; Pope v. Fed. 851. Sapphire, The. 19 Fed. Cas. No. =» Plymouth Rock, The, 9 Fed. 11276; Hand v. Elvira. The, Gilp. 413; Sandringham, The, 10 Fed. (U. S.) 60, 11 Fed. Cas. No. 6015; 556; Murphy v. Siiliote, The, 5 Fed. Grace Dollar, The, 103 Fed. 665; 99; Annie Henderson, 15 Fed. 550; Clifton, The, 3 Hagg. Adm. 117. Neto and Cargo, The, 15 Fed. 819; '"Murphy v. Suliote, The, 5 Fed. Egypt, The, 17 Fed. 359, 367; 99; O. C. Hanchett, The, 76 Fed. Queen of the Pacific, The, 21 Fed. 459, 1003. 25 Fed. 610; Baker, The, 25 Fed. 771; "' Susan, The, 1 Sprague (U. S.) Boyne, The, 98 Fed. 444; Bay of 499, 23 Fed. Cas. No. 13630; Coast Naples, The, 44 Fed. 90, 48 Fed. Wrecking Co. v. Phoenix Ins. Co., 737; Bowers v. European, The, 44 13 Fed. 127; Egypt. The, 17 Fed. Fed. 484; A Lot of Whalebone, 51 359; City of Worcester, The, 42 Fed. 916; Blackwall, The, 10 Wall. Fed. 913. 916; St. Paul, The, 30 C. (U. S.) 1; Connemara, The, 108 U. C. A. 70, 82 Fed. 104. 86 Fed. 340. S. 352, 2 Sup. Ct. 754; Hennessey «= Wellington, The. 52 Fed. 605; § 3361.] SALVAGE. 676 a large amount of property is saved its exact value is a minor element in fixing salvage ; and as the value increases the per cent, given rapidly decreased.^^ "The absence of other assistants is an important ele- ment, and should be taken into account in ascertaining the amount of a salvage award.'"^^ Where the amount of salvage might be in- creased by the dangers encountered by the salvors, as against this it is proper to consider the fact that a life saving crew was at hand ready to effect a rescue in case of accident. ^^ Injuries received in the course of salvage service is proper to be considered in determin- ing the amount of the award. ^'^ "The promptness of salvors in reach- ing the steamer and thus preventing her going further up the beach, and in getting everything in readiness to haul her off at the first possible opportunity, and thus avoiding the great damage incident to long continued grounding, is a most important element in this case."^'' Where a vessel is helplessly drifting towards others, which there is an apparent probability she will injure, and is rescued by salvors, the saving to the vessel or owners from the probable conse- quences is a proper element to be considered in fixing the amount of salvage.^^ § 3361. Agreement for salvage services — Effect. — The courts are not unanimous on the effect of agreements for salvage services. In some instances the courts utterly ignore them; in others they accept the sum agreed upon as a measure of compensation for the salvor's services; while in others it operates as a bar to a claim for salvage. The claim for salvage does not rest upon an agreement either express or implied. In the absence of proof of an express contract, or proof of circumstances from which a contract could be implied the pre- sumption of law is that the salvage enterprise was undertaken with the expectation that salvage would be paid in the regular and usual way out of the property saved.^" As previously seen, compensation Gambetta, The, 20 C. C. A. 417, 74 « Haxby, The, 28 C. C. A. 33, 83 Fed. 259. Fed. 715. «Rita, The, 10 C. C. A. 629, 62 ^ Haxby, The, 28 C. C. A. 33, 83 Fed. 761; Gambetta, The, 20 C. C. Fed. 715. A. 417, 74 Fed. 259. '"' St. Paul, The, 82 Fed. 104, 86 ^'Boyne, The, 98 Fed. 444; Ro- Fed. 340; City of Worcester, The, man Prince, The, 88 Fed. 336; 42 Fed. 913. Monticello, The, 81 Fed. 211, 214; =« Stebbins v. Five Mud Scows, 50 O. C. Hanchett, The, 22 C. C. A. Fed. 227. 678, 76 Fed. 1003; Indiana, The, =^ Queen of the Pacific, The, 21 22 Fed. 925. Fed. 459. 677 AGREEMENT. [§§ 33G2, 3303, or salvage depends on the success of the salvage enterprise ; but under a valid contract salvage may be decreed where the proof shows that the venture was not successful. The rule established by an English court is that "when the services are rendered in pursuance of a re- quest from the vessel in danger or distress, the party rendering them is entitled to recover salvage, according to the circumstances of the case, although such services prove to be of no benefit, while one who volunteers his- services to a vessel under the same circum- stances, if unsuccessful, is entitled to nothing. But in either case the law implies that the service is to be paid on the usual condition of the ultimate safety of the property in question."*" It has been stated that "nothing short of a distinct agreement to pay the stipu- lated sum, whether the service be successful or not, will change the character of a salvage service into a mere ordinary contract of employ- ment, or deprive it of its maritime lien."" § 3362. Agreement — Effect as a measure for amount of salvage. On the validity and effect of salvage contracts one district judge said : "It is true, as insisted by the respondent's counsel, that a con- tract of this character is not binding upon the court, and that in all cases of salvage it is competent for the court to adjudge and assess the amount of the recovery in accordance with the equities of the case; and, if it should appear that a contract of this character was an inequitable one, the court would, of course, disregard it. But whenever a contract has been entered into after due deliberation by the parties, and has not been shown to be in any respect an inequit- able one, it is exceedingly valuable as evidence to enable the court to arrive at a just determination. The court regards this contract as evidence in that light, and not as a conclusive contract, but it is a most significant and valuable indication of what should be the true amount of the recovery."*^ § 3363. Agreement valid — A bar to salvage claim. — The general principle is that if the proof shows a definite, distinct agreement, *« Undaunted, The, Lush. Adm. 90; 295; Camanche. The, 8 Wall. (U. Hennessey v. Versailles, The, 1 S.) 448, 477. Curt. (U- S.) 353, 360; Queen of "Agnes I. Grace, 2 C. C. A. 581, the Pacific, The, 21 Fed. 459. 49 Fed. 662, 51 Fed. 958; Thonley, "Chapman v. Engines of Green- The. 39 C. C. A. 248, 98 Fed. 735: point, 38 Fed. 671 ; Adams v. Bark Blfrida. The, 172 U. S. 186, 19 Sup. Island City, 1 Cliff. (U. S.) 210: Ct. 186. Louisa Jane, The, 2 Low. (U. S.) § ;33G4.] SALVAGE. 678 with ample time for the parties to consider their acts, and where it is not totally contrary to justice or equity, the courts will recog- nize such an agreement/^ In sueli eases where the proof shows that a binding contract was made between the parties to pay for the ser- vices at all events, whether tlie property was lost or not, it has been held sufficient to bar a claim for salvage." § 3364. Agreement invalid — Evidence of need of aid. — The reason for courts declining to be bound by an agreement for salvage is that such agreements are usually made when one of the parties is in ex- tremis, and that however fair the agreement may appear the mari- time law recognizes that the necessity of immediate action may com- pel submission to a demand which would not otherwise be given. The objection is not answered by the suggestion that no advantage was taken on account of the position in which one contracting party *^Post V. Jones, 19 How. (U. S.) 150; J. G. Paint, The, 1 Ben. (U. S.) 545, 13 Fed. Cas. No. 7318; Wellington, The, 48 Fed. 475, 478; Agnes I. Grace, The, 2 C. C. A. 581, 51 Fed. 958; Sirius, The, 53 Fed. 611 (reversed in 57 Fed. 851); Thornley, The, 39 C. C. A. 248, 98 Fed. 735; Costa Rica, The, 3 Sawy. (U, S.) 610; Emulous, The, I Sumn. (U. S.) 207, 8 Fed. Cas. No. 4480; Bearse v. Three Hundred and Forty Pigs Copper, 1 Story (U. S.) 314, 2 Fed. Cas. No. 1193; G. W. Jones, The, 48 Fed. 925; A. D. Patchin, The, 1 Blatchf. (U. S.) 414, 1 Fed. Cas. No. 87; Inde- pendence, The, 2 Curt. (U. S.) 350, 13 Fed. Cas. No. 7014; Alert, The, 56 Fed. 721; British Empire, The, 6 Jur. 608; Helen and George, The, Swabey 368; True Blue, The, 2 W. Rob. 176; Henry, The, 2 Eng. Law & Eq. 564. « Adams v. Island City, The, 1 Cliff. (U. S.) 210, 1 Fed. Cas. No. 55; Centurion, The, 1 Ware (U. S.) 477, 5 Fed. Cas. No. 2554; H. B. Foster, The, Abb. Adm. (U. S.) 222, II Fed. Cas. No. 6290; Versailles, The, 28 Fed. Cas. No. 16924; Coffin V. John Shaw. The, 1 Cliff. (U. S.) 230, 5 Fed. Cas. No. 2949; Collins V. Fort Wayne, The, 1 Bond (U. S.) 476, 6 Fed. Cas. No. 3012; Bowley V. Goddard, 1 Low. (U. S.) 154, 3 Fed. Cas. No. 1736; Louisa Jane, The, 2 Low. (U. S.) 295, 15 Fed. Cas. No. 8532; Harley v. Four Hun- dred and Sixty-seven Bars, etc., 1 Sawy. (U. S.) 1, 11 Fed. Cas. No. 6069; Marquette, The, 1 Bro. Adm. (U. S.) 364, 16 Fed. Cas. No. 9101; Silver Spray, The. 1 Bro. Adm. (U. S.) 349. 22 Fed. Cas. No. 12857; Williams, The, 1 Bro. Adm. (U. S.) 208, 29 Fed. Cas. No. 17710; Inde- pendence, The, 2 Curt. (U. S.) 350, 18 Law R. 151, 13 Fed. Cas. No. 7014; William Lushington, The, 7 Notes of Cases 361; Emulous. The, 1 Sumn. (U. S.) 207. 8 Fed. Cas. No. 4480; Post v. Jones. 19 How. (U. S.) 150; Camanche, The, 8 Wall. (U. S.) 448; Elfrida, The, 172 U. S. 186, 19 Sup. Ct. 146; Delambre, The, 9 Fed. 775; Roanoke. The, 50 Fed. 574; Elphicke v. White Line &c. Co., 46 C. C. A. 56, 106 Fed. 945; Helen & George, The, Swabey 368. 679 AGREEMENT — UUltUKX OF PROOF. [^§ SoG-"), 3:5GG. is placed, as that position is the very foundation of the contract. It is evident that such contracts are not voluntary on the part of the owner or master of a ship. In such cases the rule has been estab- lished that "the amount agreed to by the master cannot be accepted as the measure of value of the services rendered, although tlie mak- ing of tlie contract may be considered as evidence of the great need of it, and the master's opinion of the immediate necessity of it."*^ But the courts refuse to recognize them as binding agreements in other respects.** § 3365. Agreement — Burden of proof. — Where a claim is made for aiding a vessel in distress or for rescuing imperiled property at sea, naturally and ordinarily compensation is made in the way of salvage, the amount being determined by the court. Courts assume that all salvage services were undertaken on this presumption. If either party claims a different arrangement it is incumbent upon him to plead it specifically and the burden is upon him to prove it hy a preponderance of the evidence.*^ It is never necessary to prove that the master obtained special authority in order to secure the ser- vices of salvors, as usually the circumstances do not admit of any delay, and his agency clothes him with such authority.*^ §' 3366. Claim for salvage — Forfeiture. — Salvage services may be Tendered under such circumstances that will prevent the salvors from recovering. And a valid claim for salvage may be forfeited by the conduct of the salvors. Thus, under the first principle where the proof shows that the injury was caused or the peril brought about by the fault of the claimant, no salvage will be allowed.*" And « Tennasserim, The, 47 Fed. 119. 495; Helen and George. The, Swa- *» Jacob E. Ridgway, 8 Ben. (U. bey 368; J. G. Paint, The, 1 Ben. S.) 179, 13 Fed. Gas. No. 7155; (U. S.) 545, 13 Fed. Gas. No. 7318; Brooks V. Adirondack, The, 2 Fed. Don Garlos, The, 47 Fed. 746; 387; Ghapman v. Engines of Green- Thornley, The, 39 G. G. A. 248, 98 point, 38 Fed. 671; A. D. Patchin, Fed. 735. The, 1 Blatchf. (U. S.) 414, 1 *' Elphicke v. White Line &c. Go., Fed. Gas. No. 87; Jenny Lind, 46 G. G. A. 56, 106 Fed. 945; Ga- The, Newb. Adm. 443; Emulous, manche. The. 8 Wall. (U. S.) 448. The' 1 Sumn. (U. S.) 207, 8 '' A. D. Patchin, The, 1 Blatchf. Fed. Gas. No. 4480; G. W. Jones, (U. S.) 414, 1 Fed. Gas. No. 87; G. The, 48 Fed. 925; Wexford, The, 6 W. Jones, The, 48 Fed. 925; Mira Ben'. (U. S.) 119, 29 Fed. Gas. No. A. Pratt, The, 31 Fed. 572. 17472; Homely, The. 8 Ben. (U. S.) 33G6.] SALVAGE. G80 under this principle it was held that where a hreach of a contract contributed to place the salved vessel in danger and peril, no com- pensation could be allowed.'^'' So it has been held that the lack of skillful operation with or without injurious result may diminish the reward, and "specific negligence approximately resulting in dis- tinguishable injury to the vessel may be used in an action for sal- vage either to diminish or defeat compensation and in an action by the owners of the property, when culpable negligence is established ag-ainst the salvors, resulting in injury, damages therefor may be re- covered against him."^^ And it has been held that injury to the salved vessel during the attempt to save it may diminish the award in the absence of any proof of negligence.^^ " Samuel H. Crawford, The, 6 Duke of Manchester, The, 2 W. Rob. Fed. 906; Chas. E. Soper, The, 19 470; Neptune. The, 1 W. Rob. 297. Fed. 844; Minnie C. Taylor, The, 52 " Haxby, The, 28 C. C. A. 33, 83 pg(j 323. Fed. 715; Bremen, The, 111 Fed. ■^"Krona, The, 28 Fed. 318. 228; Pine Forest, The, 119 Fed. 999; " Henry' Steers, Jr., The, 110 Fed. Merritt &c. Co. v. North German 578; Mulhouse, The, 22 Law R. 276, Lloyd, 120 Fed. 17. For a review of 17 Fed. Cas. No. 9910; Serviss v. cases as to salvage wards and their Ferguson, 28 C. C. A. 327, 84 Fed. amount, in the federal courts, see 202; Alg'itha, The, 17 Fed. 551; Theta, The, 135 Fed. 129; note to Dygden, The, 1 Notes of Cases 115; Lamington, The, 30 C. C. A. 280. Cape Packet, The, 3 W. Rob. 122; CHAPTEE CLXVII. COLLISIONS. Sec. 3367. Burden of proof. 3368. Inscrutable fault — Rule. 3369. Inevitable accident. 3370. Presumption of fault. 3371. Complaining vessel at fault — Degree and burden of proof. 3372. Both vessels at fault — Divi- sion of damages. 3373. Comparative fault — Division of damages. 3374. Both vessels at fault — Dam- age to third. 3375. Violating statutory duty — Burden of proof. 3376. Violating maritime laws — Justification. 3377. Steamer must keep out of way — Burden of proof. 3378. Steamer and sailing vessel — Prima facie liability. 3379. Collision with vessel at an- chor — Burden and prima facie case. 3380. Absence of lookout — Prima facie case. Sec. 3381. Absence of lookout — Burden of proof. 3382. Burden on vessel having wind free. 3383. Vessel adrift — Burden and presumption. 3384. Towing vessel — Liability for collision with towed vessel. 3385. Collision in fog. 3386. Rate of speed during fog. 3387. Collision in fog — Burden of proof and prima facie case. 3388. Rule as to moderate rate of speed. 3389. Moderate speed — Criterion and burden. 3390. Proof of speed not conclusive evidence of negligence. 3391. Mutual negligence. 3392. Contributory negligence does not prevent recovery. 3393. Contributory negligence does not prevent recovery — Ex- ceptions. 3394. What damages recoverable. 3395. Proof of usage. § 3367. Burden of proof. — The general rule on the question of the burden of proof applies in admiralty in cases of collision. In this class of cases no presumptions arise from the fact of the accident in the absence of evidence showing a violation of statute or of the rules of maritime law. The rule, therefore, is that when a libelant alleges that there was a collision and that his vessel suffered damages by rea- son thereof, the burden of proof is upon him to show by a fair pre- ponderance of the evidence that the collision happened substantially 681 § 3368.] COLLi.sioxs. 082 as alleged and that it was the cause of the injury.^ The rule in admi- ralty is the same as that at common law, that tlie plaintiff must make out his case by a preponderance of the evidence ; and if he leaves the question of fault or negligence in doubt, he is not entitled to recover.^ This rule as to the burden of proof is carried to the extent of holding that if the evidence leaves a reasonable doubt as to which vessel was in fault, the loss must be sustained by the party on whom it has fallen.^ § 3368. Inscrutable fault — Rule. — Under the decisions of the courts and the rules of admiralty tliere are cases of collision that come under the rule designated as that of inscrutable fault. This term was thus defined : "Cases of inscrutable fault are those wherein the court can see that a fault has been committed, but is unable, from the conflict of testimony or otherwise, to locate it." The earlier cases and some of the law writers made no distinction between cases of mutual fault, inscrutable fault, and inscrutable accident; and under the rule thus established the damages were divided in all cases where the proof showed that the collision was not the fault of one party only. And this rule has been adopted by some courts in this country.^ 1 Bergen v. Joseph Stickney, The, of New York, The, 147 U. S. 72, 13 1 Fed. 624; Middlesex &c. Co. v. Sup. Ct. 211; Catherine of Dover, Albert Mason, The, 2 Fed. 821; 2 Hagg. Adm. 145, 154; Rockaway, Amanda Powell, The, 14 Fed. 486; 2 Stu. Vice-Adm. 129; City of Lon- David Dows, The, 16 Fed. 154; Ed- don, The, Swabey 300; Maid of win H. Webster, The, 18 Fed. 724; Auckland, 6 Notes of Cas. 240. Joseph W. Gould, The. 19 Fed. 785; ^ Grace Girdler, The, 7 Wall. (U. Morten v. Five Canal-Boats, 24 Fed. S.) 196; Kallisto, The, 2 Hughes 500; Butterfield v. Boyd. 4 Blatchf. (U. S.) 128, 14 Fed. Cas. No. 7600; (U. S.) 356, 4 Fed. Cas. No. 2250; Cherokee, The, 15 Fed. 119; Worth- Summit, The, 2 Curt. (U. S.) 150, 23 ington and Davis, The, 19 Fed. 836; Fed. Cas. No. 13606; Kallisto, The, City of London, The, Swabey 300; 2 Hughes (U. S.) 128, 14 Fed. Cas. Catherine of Dover, 2 Hagg. Adm. No. 7600; Corks v. Belle, The, 6 145, 154; Rockaway, 2 Stu. Vice- Fed. Cas. No. 3231a; Bessie Morris, Adm. 129; Maid of Auckland, 6 The, 13 Fed. 397; Saunders v. Han- Notes of Cas. 240. over, The, 2 Quart. L. J. 1, 21 Fed. ■'John Henry, 3 Ware (U. S.) Cas. No. 12374; Morgan v. Sim, 11 264, 13 Fed. Cas. No. 7350; David Moore P. C. 307. Dows, The, 16 Fed. 154; Scioto, The, == Worthington and Davis, The, 19 2 Ware (U. S.) 360, 21 Fed. Cas. No. Fed. 836, 839; Ludwig Holberg, The, 12508; Fanny Fern, The, Newb. (U. 157 U. S. 60, 15 Sup. Ct. 477; City S.) 158. 683 INEVITABLE ACCIDENT — PRESUMPTION. [§§ 33G9, 33T0. But the weight of the authorities is in favor of the proposition that in case of inscrutable fault there can be no recovery.^ § 3369. Inevitable accident. — As elsewhere shown no recovery ■can be had by either party where the disaster is attributable to in- evitable accident. It therefore becomes important to know the legal meaning of this term. The United States Supreme Court said of it : "Inevitable accident is where a vessel is pursuing a lawful avocation in a lawful manner, using the proper precautions against danger, and an accident occurs. The highest degree of caution that can be used is not required. It is enough that it is reasonable under the circum- stances — such as is usual in similar cases, and has been found by long experience to be sufficient to answer the end in view — the safety of life and property."® The Supreme Court of the United States also say of it : "Inevitable accident, as applied to such a case, must be under- stood to mean a collision which occurs when both parties have en- deavored by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent the occurrence of the accident."^ In cases of disaster by the perils of navigation or in- evitable accident, it is held that there is no division of loss, but where neither is to blame it must fall wholly upon him who suffers.* § 3370. Presumption of fault. — The proof of certain facts or cir- cumstances may raise a presumption of fault or negligence. A com- mon and familiar illustration of this proposition is found in the cases where the evidence shows that at the time of a collision a vessel was violating some statutory regulation or a law of navigation, intended to prevent collisions; in any such case there arises a reasonable pre- sumption that such fault or negligence, if not the sole cause, was at "Breeze, The, 6 Ben. (U. S.) Cas. No. 17154; Indus, The, 6 Asp. 14, 4 Fed. Cas. No. 1829; Sum- (N. S.) 105. mit. The, 2 Curt. (U. S.) 150, 23 'Morning Light, The, 2 Wall. (U. Fed. Cas. No. 13606; Worthington S.) 550; Leland, The, 19 Fed. 771; and Davis, The, 19 Fed. 836; Grace Marpesia, The, L. R. 4 P. C. 212, 1 Girdler, The, 7 Wall. (U. S.) 196. Asp. (N. S.) 261; Virgil, The, 2 W. "Grace Girdler, The, 7 Wall. (U. Rob. 201, 205. S.) 196,203; Cherokee, The, 15 Fed. « Stainback v. Rae, 14 How. (U. 119; Atlanta, The, 41 Fed. 639; Le- S.) 532; John Fraser, The. 21 How. land, The, 19 Fed. 771; Baltic, The, (U. S.) 184; Grace Girdler. The. 7 2 Ben. (U. S.) 452, 2 Fed. Cas. No. Wall. (U. S.) 196; Morning Light. 823; Ward v. Fashion, The, Newb. The, 2 Wall. (U. S.) 550; Chicka- 8, 6 McLean (U. S.) 152, 29 Fed. saw. The. 38 Fed. 358. §§ 3371, 3372.] collisions. G84 least a contributory cause of the collision." But it has been held that "where everything about the case indicates a reasonable degree of diligence, the probability that the ship complied with her duty is prima facie established."^" § 3371. Complaining vessel at fault — Degree and burden of proof. Where the uncontradicted testimony shows that the complaining vessel was at fault, and such fault was of itself sufficient to account for the disaster, it is then incumbent upon her, to entitle her to re- cover, to do more than raise a doubt in regard to the negligent manage- ment of the other vessel. In such case a presumption arises against the complaining vessel, and any reasonable doubt thus raised in re- gard to the management of the adversary vessel will be resolved in its favor." So it is held that negligence on the part of the complain- ing vessel will not prevent a recovery where the evidence shows that the disaster would have happened by reason of the negligence of the other vessel notwithstanding the negligence of the complainant.^^ § 3372. Both vessels at fault — Division of damages. — The rule seems to be almost universally adopted that where the evidence shows that both vessels were at fault in a collision, the damages will be divided. On this subject the Supreme Court of the United States say: "If there has been, on the part of plaintiff, such careless- ness or want of skill as the common law would esteem to be con- tributory negligence, they can recover nothing. By the rule of the admiralty courts, where there has been such contributory negligence, or, in other words, when both have been in fault, the entire damages resulting from the collision must be equally divided between the parties. This rule of the admiralty commends itself quite as favor- ably in its influence in securing practical justice as the other, and the plaintiff, who has the selection of the forum in wliieh he will litigate 'Pennsylvania, The, 19 Wall. (U. Ct. 477; Mexico, The, 28 C. C. A. S.) 125; see, Bothnia, The, Lush. 472, 84 Fed. 504; Columbian, The, Adm. 52; Eagle Wing, The, 135 Fed. 41 C. C. A. 150, 100 Fed. 991; Car- 826. bonero. The, 45 C. C. A. 314, 106 '"Charles L. Jeffrey, The, 5 C. C. Fed. 329; Oregon, The. 158 U. S. A. 246, 55 Fed. 685; H. F. Dimock, 186, 15 Sup. Ct. 304; Saunders v. The, 23 C. C. A. 123, 77 Fed. 226. Hanover, The, 2 Quart. L. J. 1, 21 But see. Admiral Schley, The, 131 Fed. Cas. No. 12374. See also. Fed. 433. Georgetown, The. 135 Fed. 854. " City of New York, The, 147 U. " Columbian. The, 41 C. C. A. 150, S. 72, 13 Sup. Ct. 211; Ludwig 100 Fed. 991. Holberg, The. 157 U. S. 60, 15 Sup. 685 COMPAILVTIVE FAULT. [§ 3373. cannot complain of the rule of tliat forum. It is not intended to say that the principles which determine the existence of mutual fault on which the damages are divided in admiralty, are precisely the same as those which establish contributory negligence at law that would defeat the action/'^ ^ And it has been held that the division of damages will be equal to eacli vessel, regardless of the difference in value. It has been said that : "Nothing, then, is more just than a con- tribution by moieties.^'^'* But there are cases holding that although both vessels are in fault, yet where there is shown to be great disparity of fault and there are cross-suits, the loss will be apportioned in the ratio of such disparity. ^^ § 3373. Comparative fault — Division of damages. — "Even gross fault committed by one of two vessels approaching each other from opposite directions does not excuse the other from observing every proper precaution to prevent a collision; and when, if such precau- tion had been observed the collision would have been avoided, the loss should be divided. "^*^ In a more recent case one federal court admitted that it might still be regarded an open question "whether apportionment is the rule where tjie fault is inscrutable, as well as when both vessels are in fault, or whether only when both vessels are in fault."" But in England since the act of 1873 this rule of the division of damages has been adopted and applied in cases only where both ships are in fault.^* "Atlee V. Packet Co., 21 Wall. P. C. 314; Monarch, The, 1 W. Rob. (U. S.) 389; Catherine v. Dickin- 21; Seringapatam, The, 5 Notes of son, 17 How. (U. S.) 170; America, Cas. 61; Dowell v. General Steam The, 92 U. S. 432; Mason v. William Nav. Co., 5 El. & Bl. 195, 85 E. C. Murtaugh, 3 Fed. 404; Williams v. L. 194; Oratava, The, 5 Mo. Law Wm. Cox, 3 Fed. 645; William Cox, Mag. 45; De Cock, The, 5 Mo. Law The, 9 Fed. 672; Ant, The, 10 Fed. Mag. 303; Abbott Shipping 231, 232; 294; Alabama, The, 10 Fed. 394; see, §§ 3391, 3392. Memphis &c. Co. v. H. C. Yeager "Scioto, The, 2 Ware (U. S.) 360, &c. Co., 10 Fed. 395; Connolly v. 21 Fed. Cas. No. 12508; Fanny Pern, Ross, 11 Fed. 342; Roman, The, 12 The, Newb. (U. S.) 158; Abbott Fed. 219; Monticello, The, 15 Fed. Ship. 301. 474; B and C, The, 18 Fed. 543; '=" Mary Ida, The, 20 Fed. 741. See Explorer, The, 20 Fed. 135; Clarion, also, Philip Minch, The, 128 Fed. The, 27 Fed. 128; Max Morris, The, 578. 28 Fed. 881; Fred. W. Chase, The, "Pegasus, The. 19 Fed. 46; Maria 31 Fed. 91; Celt, The, 3 Hagg. Adm. Martin, The, 12 Wall. (U. S.) 31. 328, n.; Washington, The, 5 Jur. ^" Max Morris, The, 28 Fed. 881. 1067; De Vaux v. Salvador, 4 Ad. " Woodrop-Sims, The, 2 Dods. 83; & E. 420, 431; Friends, The, 4 Moo. Max Morris, The, 28 Fed. 881. §§ 3374, 3375.] collisions. 686- § 3374. Both vessels at fault — Damage to third. — The rule that where both vessels are at fault tlie damages are divided does not apply in a case of injury to an innocent third person by reason of the concurrent fault of two vessels. A party without fault injured by the combined negligence of two or more wrongdoers may proceed against either or both of the offenders for his entire loss.^° § 3375. Violating statutory duty — Burden of proof. — In a cer- tain class of collision cases the rule as to the burden of proof is ex- tended. This class includes mainly cases where it is made to appear by the evidence that at the time of the collision the vessel was violat- ing a positive statute or a familiar maritime law, intended for the prevention of collisions. In such cases the burden is upon the vessel thus violating such rules to show not only that this fault might not have been one of the causes, or that it probably was not, but it is re- quired to go further and to establish by a fair preponderance that the particular violation of a statute or of the law of navigation could not have contributed to or resulted in the disaster."" This rule has been otherwise stated thus : "Every doubt to the preformance of duty, and the effect of non-performance should be resolved against the vessel sought to be inculpated until she vindicates herself by tes- timony conclusive to the contrary."^ ^ The United States Supreme Court, speaking of this rule, said: "And in any case of collision,, whenever it appears that one of the vessels has neglected the usual and proper measures of precaution, the burden is on her to show that the collision was not owing to her neglect."-^ The cases seem tO' make some distinction between vessels violating statutory provision and those which fail or neglect to comply with the usual measures of precaution. ^^ i^Franconia, The, 16 Fed. 149; U. S. 130, 14 Sup. Ct. 795; B. B. Alabama and Gamecock, The, 92 U. Saunders, The, 19 Fed. 118. S. 695; Atlas, The, 93 U. S. 302. "Ariadne, The, 13 Wall. (U. S.) =" Pennsylvania, The, 19 Wall. (U. 475. S.) 125; Farragut, The, 10 Wall. ='=' Great Republic, The, 23 Wall. (U. S.) 334; Dentz, The, 26 Fed. 40, (U. S.) 20; Newport, The, 5 Ben. 29 Fed. 525; Waring v. Clarke, 5 (U. S.) 231, 14 Int. Rev. Rec. 37, How. (U. S.) 441; Grace Girdler, 18 Fed. Cas. 10185; Lion, The, 1 The, 7 Wall. (U. S.) 196; Belden v. Sprague (U. S.) 40, 5 Fed. Cas. No. Chase, 150 U. S. 674, 14 Sup. Ct. 2786. 264; Martello, The, 153 U. S. 64, 14 =^ Great Republic, The, 23 Wall. Sup. Ct. 723; Britannia, The, 153 (U. S.) 20; Nacoochee, The, 137 U. i 687 VIOLATION OF MARITIME LAW JUSTIFICATION. [§§ 3376, 3377. § 3376. Violating maritime laws — Justification. — A violation of the laws of navigation is justifiable only "where there is some special cause rendering a departure necessary to avoid immediate danger, such as the nearness of shallow water, or a concealed wreck, the ap- proach of a third vessel, or something of that kind."^* As stated in another case, this exception is: "there may be extreme cases where departure from their requirements is necessary to avoid impending peril, but only to the extent that such danger demands."^^ Accord- ing to the English rule, where a steamer is libelled for having omitted to do something which it is claimed she ought to have done, the burden is on the libelant to prove three things: (1) That the thing omitted to be done was clearly within her power to do; (3) that if done it would probably have avoided the collision; (3) that it was an act which would have occurred to any competent and experienced oJBBcer- in command.^® § 3377. Steamers must keep out of way — ^Burden of proof. — The law, for obvious reasons, places the duty upon steamers, that is, all vessels propelled by steam, to keep out of the way of other vessels. And this duty to keep out of the way is held to mean the duty of keeping away by prudent and safe margin having reference to all the dangers and contingencies of navigation.-" And it is held to be the rule that under such circumstances the steamer must, at her own peril, leave a safe margin against the contingencies of navigation and also the effect of tide currents.^^ The burden is on the vessel which was bound to keep out of the way to show by a fair preponderance of the evidence that the collision was due to the fault of the other vessel."-' S. 330, 11 Sup. Ct. 122; Lion, The, 1 -'Wells v. Armstrong, 29 Fed. Sprague (U. S.) 40, 5 Fed. Cas. No. 216; Aurania and Republic, The, 29 2786; Newport, The, 5 Ben. (U. S.) Fed. 98, 125; Ogemaw, The, 32 Fed. 231, 14 Int. Rev. Rec. 37, 18 Fed. 919; New Jersey, The, 01c. (U. S.) Cas. No. 10185; H. F. Dimock, The, 415, 18 Fed. Cas. No. 10161; Whit- 23 C. C. A. 123, 77 Fed. 226; Colum- ney v. Empire State, The, 1 Ben. bian, The, 41 C. C. A. 150, 100 Fed. (U. S.) 57, 29 Fed. Cas. No. 17586. 991 ; Carbonero, The, 45 C. C. A. -' City of Springfield, The, 29 Fed. 314, 106 Fed. 329. 923; Ogemaw, The, 32 Fed. 919; "' Maggie J. Smith, The, 123 U. S. James M. Thompson, The, 12 Fed. 349, 8 Sup. Ct. 159. 189; Carroll, The, 8 Wall. (U. S.) =^Belden v. Chase, 150 U. S. 674, 302. 14 Sup. Ct. 464; Oregon. The, 158 U. -"Gypsum Prince, The, 14 C. C. A. S. 186, 15 Sup. Ct. 804. 573, 67 Fed. 612. See also, George- '"City of Antwerp, The, L. R. 2 town. The, 135 Fed. 854; Donald v.. P. C. 25. Guy. 135 Fed. 429. §§ 3378, 3379.] collisions. G88 § 3378. Steamer and sailing vessel — Prima facie liability. — Un- der the rule of maritime law it is the duty of a steamer, when ap- proaching a sailing vessel in such a position as to involve risk of col- lision, to keep out of the way ; and it is the duty of the sailing vessel to maintain her course. A failure on the part of the steamer to dis- charge this duty renders her prima facie liable in case of a collision, in the absence of the proof of any fault on the part of the sailing ves- sel. If the steamer fails to exercise all necessary precautions to avoid the risk of collision, she is presumptively chargeable. But if it is shown that she adopted efficient measures, such that would have been effective if the schooner had not changed her course, she is thereby exonerated.^" But if the master of the sailing vessel con- tributes to the loss by his negligence, his recovery against the steamer will be confined to one-half of the damages of the sailing vessel.^^ § 3379. Collision with vessel at anchor — ^Burden and prima facie case. — When a steamer or sailing vessel collides with one at anchor, or without sail, the burden of proof is on such steamer or sailing vessel to show that she was without fault, and that every practical effort was made to avoid the collision.^- But in such a case it has been held that the burden was also on the libelant to show that his vessel was anchored in a proper place, and that he made a prima facie case when he proved this fact togetlier with the fact of the collision, and that the burden was then shifted to the libelled vessel to show that it was ^"New York &c. Co. v. Philadel- The, 41 C. C. A. 150, 100 Fed. 991; phla &c. Co., 22 How. (U. S.) 461; New Jersey, The, 01c. (U. S.) 415, New York &c. Co. v. Rumball, 21 18 Fed. Cas. No. 10161; Fashion, How. (U. S.) 372; New York &c. The, Newb. 8, 6 McLean (U. S.) Co. V. Calderwood, 19 How. (U. S.) 152, 29 Fed. Cas. No. 17154. 241; Potomac, The, 8 Wall. (U, S.) " Farnley, The, 8 Fed. 629. 590; Sea Gull, The, 23 Wall. (U. S.) ^= Scioto, The, 2 Ware (U. S.) 165; Colorado, The, 91 U. S. 692; 360, 21 Fed. Cas. No. 12508; Amos- S. C. Tryon, The, 105 U. S. 267; keag &c. Co. v. John Adams, The, 1 Pilot Boy, The, 53 C. C. A. 329, 115 Cliff. (U. S.) 404, 1 Fed. Cas. No. Fed. 873; Columbia, The, 27 Fed. 338; New York &c. Co. v. Calder- 238; New York &c. Co. v. Rumball, wood, 19 How. (U. S.) 241; Granite 21 How. (U. S.) 372; Carroll, The, State, The, 3 Wall. (U. S.) 310; 8 Wall. (U. S.) 302; Scotia, The, 14 Louisiana, The, 3 Wall. (U. S.) Wall. (U. S.) 170; City of Antwerp, 164; Buffalo, The, 50 Fed. 630; Bal- The, L. R. 2 P. C. 25; Haney v. tic. The, 2 Ben. (U. S.) 452, 2 Fed. Louisiana, The, 6 Am. L. Reg. 422, Cas. No. 823; D. H. Miller, The, 22 11 Fed. Cas. Nos. 6020, 6021; Jay C. C. A. 597, 76 Fed. 877; John H. Gould, The, 19 Fed. 765; Columbia, Starin, The, 113 Fed. 419. €89 ABSENCE OF LOOKOUT — PRIMA FACIE CASE, [§ 3380. without fault or that the disaster was the result of fault on the part of the libelant.^^ So, where a steamboat set adrift a flat from which she had been coaling, the burden of proof is on the vessel to show that the act was proper and that there was no fault on her part.^* Where the evidence shows that a vessel under sail collided with one without sail or at anchor, it is held to be sufficient prima facie proof of fault, on the part of the vessel under sail. The reason is that she has the power of changing her course and thus avoiding the accident.^" § 3380. Absence of lookout — Prima facie case. — It is a rule of maritime law that ever}^ steamboat navigating waters where there are a large number of sailing vessels should have a trustworthy and constant lookout besides the helmsman. And under such circum- stances when the evidence shows a collision between a steamboat and sailing vessel and the evidence further shows that there was no look- out on the steamboat besides the helmsman, or that the lookout was not properly stationed, or that he was careless or negligent in the discharge of his duty, it has been held that such facts constitute suf- ficient prima facie evidence of the fact that the collision was due to the fault of the steamer.^*' On the question of the efEect of the absence of a sufficient lookout a district court said : "The want of a proper lookout, it is true, is immaterial, if it in no way contributed to the accident; but the question here is whetlier the lights visible from the one vessel to the other were in fact correctly seen and noted; and whether the witnesses, in the accounts they give, did see what they now profess to have seen. The presence or absence of a proper look- "Amoskeag &c. Co. v. John Ad- Paine, 10 How. (U. S.) 557; Cathe- ams, The, 1 Cliff. (U. S.) 404, 1 Fed. rine v. Dickinson, 17 How. (U. S.) Cas. No. 338; Telegraph, The, 1 170, 177; New York, The, v. Rea, Spink 427. 18 How. (U. S.) 223; Chamberlain ^* Chickasaw, The, 38 Fed. 358. v. Ward, 21 How. (U. S.) 548; Ha- ^= Scioto, The, 2 Ware (U. S.) ney v. Baltimore &c. Co., 23 How. 360, 21 Fed. Cas. No. 12508; Strout (U. S.) 293; Ottawa, The, 3 Wall, v. Foster, 1 How. (U. S.) 89; Car- (U. S.) 268; Colorado, The, 91 U. roll, The, 8 Wall. (U. S.) 302; S. 692, 699; Ant, The, 10 Fed. 294; Amoskeag &c. Co. v. John Adams, New York, The, v. Rea, 18 How. The, 1 Cliff. (U. S.) 404, 1 Fed. Cas. (U. S.) 223; George W. Roby, The, No. 338; Ogemaw, The, 32 Fed. 919; 49 C. C. A. 481, 111 Fed. 601; Pilot Bothnia, The, Lush. Adm. 52; In- Boy, The, 53 C. C. A. 329. 115 Fed. dus. The, 6 Asp. (N. S.) 105; City 873; Comet, The, 9 Blatchf. (U. S.) of Peking, The. 6 Asp. (N. S.) 396. 323, 6 Fed. Cas. No. 3051; Monti- '<> Genesee Chief v. Fitzhugh, 12 cello, The, 15 Fed. 474; Leland, The, How. (U. S.) 443; St. John v. 19 Fed. 771. Vol. 4 Elliott Ev. — 44 §§ 3381, 3382.] collisions. 690 out, and the position of the witnesses, and the probabilities of correct observation, are of the greatest importance, where the accounts given are irreconcilable."^^ § 3381. Absence of lookout — Burden of proof. — The absence of a lookout, as shown by the preceding section, is sufficient prima facie proof of negligence. But the burden to overcome this prima facie case rests upon the vessel sailing without such lookout; and this burden increases in weight as the dangers of navigation increase. In an action where great vigilance was required a federal court said: *'But the absence of the lookout from duty, under the circumstances of this case, was flagrant negligence, and the burden of showing that the collision could not have been guarded against by a lookout rests heavily upon the Roby (the libelant). "^^ § 3382. Burden on vessel having* wind free. — It seems to be the settled rule of maritime law that where a vessel having the wind free collides with another that is close-hauled, the burden is on the former to show a sufficient excuse for not avoiding the collision. ^^ The principle was more fully stated by Judge Betts as follows : "The rule of law is explicit that a vessel running with the wind free must take the risk of avoiding another sailing on a wind, when the two meet in opposite course, if the free vessel has the opportunity and means, if properly used, of so doing. Indeed, the usage for the vessel on the wind to hold her course, and for the one sailing free to give way "Excelsior, The, 12 Fed. 195, 201; Boy, The. 53 C. C. A. 329, 115 Fed. Farragut, The, 10 Wall. (U. S.) 334; 873. Fannie, The, 11 Wall. (U. S.) 238, ^^ Clement, The, 2 Curt. (U. S.) 243; Golden Grove, The, 13 Fed. 363, 5 Fed. Cas. No. 2879; Clement. 674; Catherine v. Dickinson, 17 The, 1 Sprague (U. S.) 257, 5 Fed. How. (U. S.) 70. Cas. No. 2880; Rebecca, The, =^ George W. Roby, The, 49 C. C. Blatchf. & H. (U. S.) 347, 20 Fed. A. 481, 111 Fed. 601; Lyndhurst, Cas. No. 11618; St. John v. Paine. The, 92 Fed. 681; Farragut, The, 10 10 How. (U. S.) 557; Osseo, The, 8 Wall. (U. S.) 334; Ariadne, The, 13 Ben. (U. S.) 518. 18 Fed. Cas. No. Wall. (U. S.) 475, 479; Oregon, The, 10607; Freddie L. Porter, The, 8 158 U. S. 186, 15 Sup. Ct. 804; Rob- Fed. 170; Douglass, The, 1 Bro. inson v. Navigation Co., 20 C. C. A. Adm. (U. S.) 105, 7 Fed. Cas. No. 86, 73 Fed. 883; Meyers &c. Co. v. 4031; Thames, The, 5 C. Rob. 345, Emma Kate Ross, The, 41 Fed. 826; 348; Baron Holberg, The, 3 Hagg. Wilders S. S. Co. v. Low, 50 C. C. Adm. 244; Woodrop-Sims, The, 2 A. 473, 112 Fed. 161; Arthur M. Dods. 83. Palmer, The, 115 Fed. 417; Pilot 691 VESSEL ADRIFT — BURDEN AND PRESL-MPTION. [§§ 3383, 3384. in such case, has become a rule of law which imposes the damages and losses occasioned by its non-observance upon the vessel which disobeys the rule, unless it be clearly proved that her misconduct in no way con- tributed to the injury."*" An omission of duty on the part of one vessel may be a fault bearing so little proportion to the greater faults of the other vessel that the first will not be held to bear any part of the consequences of the collision,'*^ § 3383. Vessel adrift — Burden and presumption. — In such cases the rule as to the burden of proof is that where it appears that the collision was caused by a vessel drifting from her moorings a liability is sufficiently established unless the drifting vessel can affirmatively show that such drifting was "the result of inevitable accident, or a vis major, which human skill and precaution, and a proper display of nautical skill could not have prevented."" Proof that the dis- aster was occasioned by a vessel adrift is prima facie proof sufficient to establish negligence on the part of the vessel adrift, or on the part of the persons who set her adrift.-*^ The rule as to the burden and prima facie proof was thus stated by one district court : "The burden of proof is on the vessel adrift to excuse herself, and prima facie she is negligent, unless her owners can show due diligence, when she collides with one harmlessly and faultlessly at anchor."*'* § 3384. Towing vessel — Liability for collision with towed vessel. A steamer or tug which undertakes to tow a vessel is liable for injuries occasioned by a collision with the vessel towed. The duty of the tow boat not to cause injury to the vessel in tow is one that is imposed by law, and does not arise out of contract. In such cases the tow boat is liable for damages caused by lier own negligence, « Emily, The, 01c. (U. S.) 132, 8 '= Louisiana, The. 3 Wall. (U. S.) Fed. Cas. No. 4453; Rebecca, The, 1 164; Granite State, The, 3 Wall. (U. Blatchf. & H. (U. S.) 347, 20 Fed. S.) 310; Fremont, The, 3 Sawy. (U. Cas. No. 11618; Blossom, The, 01c. S.) 571. 9 Fed. Cas. No. 5094; Jere- (U. S.) 188, 3 Fed. Cas. No. 1564; miah Godfrey. The, 17 Fed. 738; Argus, The, 01c. (U. S.) 304. 1 Fed. Chickasaw. The. 41 Fed. 627. Cas. No. 521; Maria and Elizabeth. "Chickasaw. The. 38 Fed. 358. The, 7 Fed. 253; Saunders v. Han- "Chickasaw, The, 38 Fed. 358; A, over. The. 2 Quarterly L. .T. 1, 21 R. Wetmore, The, 5 Ben. (U. S.) Fed. Cas. No. 12374; Carll v. Eras- 147, 2 Fed. Cas. No. 569; Jeremiah tus Wiman, The, 20 Fed. 245. Godfrey. The, 17 Fed. 738; Brady, "Great Republic, The, 23 Wall. The, 24 Fed. 300. (U. S.) 20. §§ 3385, 3386.] collisions. 692 and proof of an agreement that the boat was to be towed at her own risk is held not sufficient to exempt the tow boat from liability,*^ But this rule is subject to the exception that if the vessel towed is old and not stanch and strong, the owner is bound to give notice of such fact to the towing vessel, and in the absence of such notice he can only claim the benefit of ordinary care in the handling of the vessel.*^ §■3385. Collision in fog. — It appears from the decided cases and is the result of nautical experience that a large number, perhaps a vast majority of maritime collisions, occur during fogs. By reason of this fact statutes have been enacted and usages of the sea adopted as rules of navigation for the purpose of insuring greater safety in these times of extreme danger. The proof of violation of any of these enactments or rules is ordinarily sufficient to establish a prima facie case of negligence. § 3386. Rate of speed during fog. — The first and most important rule for the prevention of collisions in fogs is that which controls the rate of speed at such times. No absolute rule is given as to the particular rate of speed, but proof of excessive speed under all the circumstances is held sufficient to establish negligence.*^ A vessel commits a great wrong, a risk which it has no right to incur, to run in a fog at a high rate of speed when surrounded by or in close proximity to sailing vessels. It is held no excuse for seamen to say that they must make their time and run in the fog. The rule is rigorously enforced and vessels are punished in case of collision in a fog, where the proof shows that the rate of speed was unreasonable under the circumstances.*® «M. J. Cummings, The, 18 Fed. S.) 89; Bolivia, The, 1 C. C. A. 221, 178; Syracuse, The, 18 Fed. 828, 6 49 Fed. 169; Hammonia, The, 11 Blatchf. (U. S.) 2, 22 Fed. Cas. No. Blatchf. (U. S.) 413, 11 Fed. Cas. 13717; Brooklyn, The, 2 Ben. (U. No. 6007; City of New York, The, S.) 547, 4 Fed. Cas. No. 1938; Deer, 15 Fed. 624; McCabe v. Old Domin- The, 4 Ben. (U. S.) 352, 7 Fed. Cas. ion S. S. Co., 31 Fed. 234; Otter, No. 3737; Quickstep, The, 9 Wall. The. 4 Ad. & El. 203; Pennsyl- (U. S.) 665, 670; Lady Pike, The, vania, The, 23 L. T. N. S. 55; valu- 21 Wall. (U. S.) 1, 96 U. S. 461. able notes collecting many cases on *• Syracuse, The, 18 Fed. 828. this subject are found in, 28 C. C. « Pennsylvania, The, 12 Fed. 914; A. 532, and, 23 C. C. A. 368. Nacoochee, The, 28 Fed. 462; Mc- *« Manistee, The, 7 Biss. (U. S.) Cready v. Goldsmith, 18 How. (U. 35, 16 Fed. Cas. No. 9028; Leland, 693 COLLISION IN FOG BUIUDEN OF PROOF. [§§ 3387, 3388, § 3387. Collision in fog — Burden of proof and prima facie case. The rule as to burden of proof, or prima facio liability in case of collision by reason of excessive speed, is that proof of a violation of the laws of navigation in this regard is sufficient to cast upon the vessel thus violating the burden of proving that damage did not re- sult from such violation.^ ^ Where the proof shows that a vessel was proceeding at full speed in a fog the burden is then upon such vessel to show a legal excuse for such rate of speed. The only legal excuse is "the existence of an immediate danger, and a necessity to go at full speed in order to avoid it." But the mere belief that full speed will avoid a danger which may arise in the future is not such legal excuse.'''' § 3388. Rule as to moderate rate of speed. — Tlie statutory as well as the maritime rule is that in case of a fog vessels must proceed at moderate speed. The apparent indefiniteness of this rule does not render it unreasonable. It is intended to be and is a practical one for the guidance of practical men. This term "moderate speed" has re- ceived a construction by the courts that makes it both plain and rea- sonable, and shows that its application depends on all the circum- stances under which vessels are placed. One district court said of it : "In the very numerous cases which have arisen in this country and in England with regard to the meaning of this term it has been uniformly held that it admits of no precise definition. What under some circumstances would be a moderate speed would under others; be considered excessive. Mr. Justice Lowell observes that the de- cisions only prove that there is scarcely any rate of speed that has not been held to be too great upon some state of facts. The general rule seems to be that steamers, in a fog, must go at such a rate of speed as Avill enable them to avoid a collision by slowing, stopping, or reversing, within the distance at which, under the particular cir- cumstances of each case, an approaching vessel can be discovered."" The, 19 Fed. 771; Clare v. Provi- Blackstone, The, 1 Low. (U. S.) dence &c. Co., 20 Fed. 535; Rhode 485, 3 Fed. Cas. No. 1473; Monti- Island, The, 17 Fed. 554. cello, The. 1 Holmes (U. S.) 7, 7 ^'Leland, The, 19 Fed. 771. Fed. Cas. No. 3971; Oregon, The, 27 ™ Iberia, The, 40 Fed. 893; City Fed. 751; H. F. Dimock, The, 23 C. of New York, The, 35 Fed. 604; Kir- C. A. 123, 77 Fed. 226; see cases by Hall, The, L. R. 8 Prob. D. 71. collected in, notes, 28 C. C. A. 532, "City of Panama, The, 5 Sawy. 29 C. C. A. 368, 5 Fed, Cas. No. (U. S.) 63, 5 Fed. Cas. No. 2764; 787. 5§ 3389, 3390.] collisions. 694 Another court said of this moderate speed : " 'A moderate speed' is a term used in the statute not capable of any definition which would apply it to a speed of any given number of miles an hour alike under all circumstances. What would be moderate speed in the open sea would not be allowable in a crowded thoroughfare or a narrow chan- nel. And under the same circumstances, in other respects, the speed should be the more moderate according as the fog is more dense. The only rule to be extracted from the statute and a comparison of the decided cases is, that the duty of going at a moderate speed in a fog requires a speed sufficiently moderate to enable the steamer under ordinary circumstances, seasonably, usefully, and effectually to do the other things required of her in the same clause of the statute; yiz., to slacken her speed, or, if necessary, to stop and reverse."^^ § 3389. Moderate speed — Criterion and burden. — As to the criter- ion of this moderate speed. Judge Blodgett said : "The rule, as in- timated in the authorities I have cited, would indicate that the standard or criterion of speed at which a steamer can safely proceed in a dense fog, upon a highway of commerce like this, and when the peril of collision is ever present, is only such speed as will enable her to stop, so as to avoid a collision after she sights or hears the sig- nals of a sail vessel crossing her path."'^ It has been held that by moderate speed is meant less than usual speed.^* A vessel colliding with another in a fog in order to escape liability must show to the satisfaction of the court that she was within these rules governing the rate of speed." § 3390. Proof of speed not conclusive evidence of negligence. Where the proof shows that a steamer was running at full speed in =^2 Monticello, The, 1 Holmes (U. The, 23 Fed. 807; Pennsylvania, S.) 7, 7 Fed. Cas. No. 3971. The, 12 Fed. 914; Nacoochee. The, s^Leland, The, 19 Fed. 771. 28 Fed. 462; A. Rosslter. The, 1 "Clare v. Providence &c. Co., 20 Newb. Adm. (U. S.) 225, 6 McLean Fed. 535; State of Alabama, The, 17 63, 29 Fed. Cas. No, 17147; Elea- Ped. 847. nora. The, 17 Blatchf. (U. S.) 88, 8 "Western Metropolis, The, 7 Fed. Cas. No. 4335; City of New Blatchf. (U. S.) 214, 29 Fed. Cas. York, The, 15 Fed. 624; H. F. Di- No. 17441; D. S. Gregory, The, 2 mock. The, 23 C. C. A. 123, 77 Fed. Ben. (U. S.) 166, 7 Fed. Cas. No. 226; Batavier, The, 9 Moo. P. C. 4099; Louisiana, The, 2 Ben. (U. 286, 40 Eng. Law & Eq. 19, 25; Mag- S.) 371, 15 Fed. Cas. No. 8537; Col- na Charta, The, 25 L. T. N. S. 512. orado, The, 91 U. S. 692; Alberta, 695 MUTUAL NEGLIGENCE. [§§ 3391, 3392. a fog a few minutes before a collision, it is not sufficient to establish negligence on the part of the steamer where the proof further shows that at the time of the collision she was running dead slow/'*' So it has been held that the fact of the collision may be conclusive evi- dence of speed on the part of one vessel or the other, but it is not conclusive evidence of speed on the part of the steamship where the collision is between such steamship and a schooner." § 3391. Mutual negligence. — The admiralty courts apply their equitable procedure and principles in cases of collisions occurring from the negligence of both parties. These courts have adopted and constantly apply the principle of comparative negligence in their effort to do equal and exact justice to both parties. \¥heve the proof shows that both parties are negligent in an equal degree the admiralty court grants no relief but leaves the parties in the position it finds them. But where it is made to appear that both vessels have been guilty of negligence, but in an unequal degree, it is the rule in these courts that the loss will not be cast wholly upon the one. The ad- miralty law wisely provides for a division of damages in three classes of cases: (1) Where on the evidence the fault is inscrutable; (2) where the evidence shows that neither party was in fault; (3) where the evidence shows that both parties were guilty of negligence, but in an unequal degree.^^ § 3392. Contributory negligence does not prevent recovery. — The common law rules of contributory negligence find no place in ad- miralty courts. The libelant is in no way required to prove his freedom from fault. The rule in maritime law is that contributory negligence on the part of the libelant will not prevent a recovery. As the law of negligence is administered in tliese courts a libelant is entitled to recover when he proves that the negligence of his ad- versary exceeded in degree that of his own.^^ The rule has been es- tablished in some district courts that running boats in a fog is not negligence per se, but that in the absence of proof of negligence on the part of either vessel in case of a collision a court of admiralty ">»Ludvig Holberg, The, 157 U. S. Scioto, The, 2 Ware (U. S.) 360, 21 60, 15 Sup. Ct. 477. Fed. Cas. No. 12508; Catharine v. "Ludvig Holberg, The, 157 U. S. Dickinson. 17 How. (U. S.) 170. 60, 15 Sup. Ct. 477. '^^ David Dows, The, 16 Fed. 154; ■^ David Dows, The, 16 Fed. 154; Mabel Comeaux, The, 24 Fed. 490. §§ 3393, 3394.] collisions. 69(> will not apportion the damages.®" Proof of violation of the statute or of any maritime law becomes material when such violation pre- vents a vessel from being seen in time, or when it causes unreasonable obstruction or embarrassment in the performance of the respective duties of the vessel, where in any other way it actively contributes to the collision.®^ § 3393. Contributory negligence does not prevent recovery — ^Ex- ceptions. — The rule in maritime law that proof of contributory negli- gence will not defeat a recovery is not without its exception. The exception to this rule is thus stated: "If the plaintiff so far con- tributed to the injury complained of by his own negligence or want of ordinary care and caution as that, but for that negligence and want of care and caution on his part, the injury would not have happened, then he is not entitled to recover."*'^ §'3394. What damages recoverable. — The rule, as previously shown, is that where both vessels are in fault the damages are to be divided. Under this rule the damages subject to such division are not necessarily limited to the actual costs of repairs. The rule as to the damages intended to be included is stated thus by one court: "It is sometimes said that the damage done to both ships is to be added together and the sum thereof equally divided. But this lan- guage is never used in such connection as to lead to the inference that nothing but the actual cost of repairs is to be taken into ac- count. By the word 'loss' or 'damages' I understand the Supreme Court to mean the injury directly and necessarily resulting from the collision. If a vessel be bound upon a voyage, and is, by reason of a collision, detained, the loss from detention is a part of the damages resulting from the collision; and if she is disabled by such collision, so that repairs are necessary, the actual cost of such repairs is like- wise part of the damages. And in either case such loss or damage is «» Joseph W. Gould, The, 19 Fed. "= Sunney v. Holt, 15 Fed. 880; 785; Sylph, The, 4 Blatchf. (U. S.) Carl, The, 18 Fed. 655; Explorer, 24, 23 Fed. Cas. No. 13711. The, 20 Fed. 135; Wanderer, The, ^^Favorita, The, 1 Ben. (U. S.) 20 Fed. 140; E. B. Ward, Jr., The, 30, 8 Fed. Cas. No. 4693; Yourri, 20 Fed. 702. The, L. R. 10 App. Cas. 276; Mary- '^'Memphis &c. Co. v. H. C. Yea- land, The, 19 Fed. 551; Sam Rotan, ger &c. Co., 10 Fed. 395; Mary Pat- The, 20 Fed. 333; Doris Eckhoff, ten, The, 2 Low. (U. S.) 196, 16 The, 32 Fed. 555. Fed. Cas. No. 9223. 697 PROOF OF USAGE. [§ 3395„ to be paid by the party solely in fault, if the fault be all on one side,. or to be divided if the fault be mutual.""^ § 3395. Proof of usage. — The rules of navigation are not entirely statutory. The statutory requirements are largely confirmatory of the rules of usages sometimes called law of the sea, which existed long before their was any legislation upon the subject and whicli were adopted by both law and admiralty courts, and were used in determin- ing alleged questions of fault and negligence in navigation. In the absence of positive statutes these usages are still adhered to by the- courts and on disputed questions of navigation not determined by statute or by the rules of court regulating the practice in admiralty,, it has been held that expert evidence is admissible to show a general usage regulating the particular matter.*'* This principle was stated by the United States Supreme Court as follows: "Sailing rules and other regulations have since been enacted; and it is everywhere ad- mitted that such rules and regulations, in cases where they apply,, furnish the paramount rule of decision; but it is well known that questions often arise in such litigations, outside of the scope and operation of the legislative enactments. Safe guides, in such cases,. are often found in the decisions of the courts, or in the views of standard text-writers; but it is competent for the court, in such a case, to admit evidence of usage ; and, if it be proved that the matter is regulated by a general usage, such evidence may furnish a safe guide as the proper rule of decision.'"'^ So, where a vessel fails to follow this usage and a collision or accident results the burden of proof is upon the failing vessel to show a different state of circum- stances requiring the other vessel to depart from such usage and go to the left.'"' In a very recent case, evidence of the practice and custom at the place of collision seems not only to have been admitted but was- also held to justify or excuse the passage of tugs and tows on the star- board side instead of the port side as tlie statutory navigation laws re- quire in ordinary cases. The court held that as the practice of going to the left instead of to the right in passing under the bridge where the collision occurred had existed ever since the bridge was built and was •*City of Washington, The, 92 (U. S.) 276, 29 Fed. Cas. No. 17220; U. S. 31. St. John v. Paine, 10 How. (U. S.) «^City of Washington, The, 92 U. 557, 582; America, The, 92 U. S. S. 31. 432; A. Demerest, The, 25 Fed. 921.. °« Washington, The, 3 Blatchf. § 3395.] COLLISIONS. 698 apparently justified by the necessities of the bridge navigation, there could be no recovery where the tug and tow in question, although go- ing on the left instead of the right, blown against another by a sudden and unexpected storm, to the great injury of the latter tow.®^ *' Cornell, The, 134 Fed. 694. This there can be no recovery where the decision also supports the rule that loss is occasioned by vis major. EVIDENCE IN COURTS-MARTIAL. 699 CHAPTEE CLXVIII. ORIGIN AND HISTORY. Sec. Sec. 3396. Ancients— Generally. 3398. History of courts-martial in 3397. History of courts-martial in the United States. England. 3399. Military law. 3400. Martial law. § 3396. Ancients — Generally. — A tribunal in some form has ex- isted from the earliest history of armies whose functions it was to enforce discipline and punish offenders. In the Roman army the magistry militum and the legionary tribunes, either as sole judges or with the assistance of councils sat as military tribunals. The early Germans in time of war tried their military offender by the Duke or military chief, but he usually delegated his jurisdiction to the priests accompanying the army. Courts of regiments held either by the colonel or by an officer invested by him with the staff or mace called the regiment arose in later times. The king reserved the power to convene the courts composed of bishops and nobles for the trial of high commanders. But courts administering military codes were not instituted until in comparatively modern times. ^ Military juris- diction in France was originally invested in the Mayor of the Palace, the Grand Seneschal, the constable, and the Provost-Marshal. Courts- martial appear to have been first established in the year 1655.^ Among the Saxons or the Anglo-Normans the hearing was before a jury of the Peers of the accused or his military associates upon specific charges ; he was permitted to defend and the proof was made by wit- nesses produced and examined. The courts-martial of the later periods adopted and followed the main features of these courts of the Anglo-Saxons.^ 'Adams Roman Ant. 330; Bruce's '^ Le Faure 141; Foucher Code de Institutes 295, et seq.; Von Moli- la Justice Militaire 3. tor Kriegsgerichte und militar- ='Von Molitor, § 1. par. 8; 1 Win- strafen 11; Koopmann Militarstraf- throp Mil. Law & Prec. 4, 47. gesetzbuck; Ayala de Judiciis Mili- taribus. 701 §§ 3397, 3398.] origin and history. 702 § 3397. History of courts-martial in England. — Col. Winthrop says in substance that the modern court-martial in England had its origin in the "King's Court of Chivalry," or "Court of the High Constable and Marshal of England." This court was also called "Court of Arms," or "Court of Honor;" the judges of this court were the Lord High Constable and Earl Marshal. Originally this court had both civil and criminal jurisdiction; it took cognizance of "all matters touching honor and arms," "pleas of life and member arising in matters of arms and deeds of war," "the rights of prisoners taken in war" and also of "the offenses and miscarriages of soldiers contrary to the laws and rules of the army ;" it exercised jurisdiction in cases of civil crimes and on questions of contract. But this court of Chivalry was subsequently much limited in its power and finally upon the attainder of the High Constable in the thirteenth year of Henry the Eighth fell into disuse and while never abolished by specific statute, it had practically ceased to exist as a military tribu- nal before the time of the English Eevolution. In later years the administration of justice in the military forces was by courts or councils held under what was known as the ordinance or articles. There were usually orders or proclamations directly from the King issued for the government of the army when about to proceed upon an expedition or from time to time during war; "these were succeeded by more extended precepts which continued to be put forth by the Crown, or by its authority, to the period of the rebellion. These articles and the Code promulgated by Gustavus Adolphus were super- ceded by what has been known as the 'Mutiny Act.' This Act and subsequent renewals were continued in force until 1879 when it was succeeded by a new law entitled the 'Army Discipline and Eegulation Act.' By this the sovereign was authorized to make articles of war and rules of procedure for courts-martial, and from this we have the present English courts-martial."* § 3398. History of courts-martial in the United States. — On the origin and history generally of courts-martial in the United States Col. Winthrop says: "The English military tribunal, transplanted *1 Winthrop Militatry Law & Davis Mil. L. 13; 1 Hallam Const. Prec. 6, 49; 2 Grose Hist. Eng. Hist. 325, 531; 8 Opinions Attorney- Army 58, 70; Clode Martial Law General 365; Chambers v. Jennings, 9-11, 83, 158; Hale History of Com- 7 Mod. 125, 2 Salk. 553; Grant v. mon Law 42; Hawk P. C, Book 2, Gould, 2 H. Bl. 69, 84; People v. Ch. 4; 3 Bl. 68; 2 McArthur 20; Van Allen, 55 N. Y. 31. 703 IN UNITED STATES. [§ 3398. to this country prior to our Eevolution, was recognized and adopted by the Continental Congress, in the first American Articles of War of 1775, where the different courts-martial — General, Regimental and detachment or Garrison courts — were distinguished, and their com- position and jurisdiction defined. These provisions were modified and enlarged in the succeeding Articles of 1776 and 1786, and in the latter the authority to order general courts was more precisely in- dicated. Coming to the period of the Constitution — that instru- ment, while expressly empowering Congress to provide for the govern- ment of the army, and thus to institute courts-martial, also recog- nized — in the Fifth Amendment— the distinction between civil of- fenses and those cognizable by a military forum. But, in legislating in view of these provisions. Congress did not originally create the courts-martial, but, by the operation of the Act of September 29, 1789, continued it in existence as previously established. Thus, as already indicated, this court is perceived to be in fact older than the Constitution, and therefore older than any court of the United States instituted or authorized by that instrument. The revised code of articles of war soon after enacted, viz., by the Act of April 10, 1806, repeated the provisions of 1786 in regard to courts-martial, with some slight modifications, consisting mainly in extending the author- ity to convene general courts and in substituting the President for Congress in the cases in which the latter had previously been vested with final revisory authority. These earlier codes, as also the later articles, have been considered in Chapter II, and are set forth in the Appendix. Between 1806 and 1874, a fourth courts-martial — The Field-Officer's Court, authorized, however, only in time of war — was added to those previously established ; the authority to order general courts was still further extended, and their jurisdiction and powers were enlarged. The legislation by which these changes were intro- duced has been heretofore indicated as embraced in the code of ar- ticles contained in the Revised Statutes of June 22, 1874. The subse- quent amendments to these articles and other enactments affecting the same— including that of October 1, 1890, adding the Summary Court to the list of military tribunals— have already been specified. The Articles of 1874, with these later provisions, comprise the exist- ing statute law in regard to the constitution, composition, jurisdic- tion, powers and procedure of American courts-martial. The regula- tions and usages relating to their forms and practice have been re- ferred to in previous chapters."^ ^Winthrop Military Law & Prec. 50; Reed, Ex parte. 100 U. S. 13; §§ 3399, 3400.] origin and history. 704 § 3399. Military law. — Military law is mainly the creature of statutes and is enacted for the purpose of furnishing rules for the government and discipline of the army and navy/ regardless of an actual state of war. Its jurisdiction and application extend usually only to those who are a part of the army, and is limited almost ex- clusively to breaches of military duty. The statute explicitly defines the breaches of military duty, especially those which are highly penal, over which the military law exercises its jurisdiction. It does, how- ever, extend to all cases that can strictly or properly be called neglect of duty or discipline.'^ It takes cognizance only of matters that are criminal or quasi-criminal. This subject has been more particularly defined thus: "Military law is that portion of the law of the land designed for the government of a particular class of persons, and ad- ministered by special tribunals. It is superinduced to the ordinary law for the purpose of regulating the citizen in his character of sol- dier; and although military offenses are not cognizable under the common-law jurisdiction of the United States, yet the articles of war clearly recognize the superiority of the civil over the military author- ities."« § 3400. Martial law. — There is a clear distinction between martial law and what is sometimes particularly denominated military law. The distinction rests chiefly in the difference in jurisdiction, yet it enters also into the rules of practice and the admission of evidence. While to a certain extent martial law may include what has been termed military law, it extends also to a great variety of subjects with which military law can have nothing to do. Martial law usually exists in case of actual war and is proclaimed by the military chief and is founded on what is sometimes termed paramount necessity. When imposed upon a country or city all the inhabitants, civil and military are included within its terms. The Duke of Wellington Mason, Ex parte. 105 U. S. 696; Mil- 'Grant v. Gould, 2 H. Bl. 69, 73, ligan. Ex parte, 4 Wall. (U. S.) 2, 100; Wolton v. Gavin, 15 Jur. 329, 123; Bogart, In re, 2 Sawy. (U. S.) 16 Q. B. 48; Smith v. Shaw, 12 396; People v. Daniell. 6 Lans. (N. Johns. (N. Y.) 257; Mills v. Martin, Y.) 44; Rawson v. Brown. 18 Me. 19 Johns. (N. Y.) 7, 20; Johnson v. 216; United States v. Mackenzie, 1 Jones, 44 111. 142, 92 Am. Dec. 159. N. Y. Leg. Obs. 371, 30 Fed. Cas. « Benet Military Law & Court- 18313; 2 American Archives 1855; Martial 7; De Harte Militatry Law 15 Opinion Attorney-General 152. 16; Winthrop Military Law & Free. •United States v. Dunn, 120 U. S. 1, 4; Greenleaf Ev., §§ 468, 469. 252, 7 Sup. Ct. 507. 705 MARTIAL LAW. [§ 3400. said "that martial law was neither more nor less than the will of the general who commands the army; in fact, martial law is no law at all." And Earl Grey said on the same occasion, "that what is called proclaiming martial law is no law at all but merely for tlie sake of public safety, in circumstances of great emergency, setting aside all law, and acting under the military power."^ One writer thus de- fines it: "The scope of martial law is rather danger than actual outbreak ; it is prevention rather than resistence ; it is anticipation of apprehended insurrection; it is the mode of dealing witli a state of rebellion rather than its mere actual outbreak, although that state may be declared by some outward acts and outrages." ^^ ° Duke of Wellington's Speech in House of Lords, April 1, 1851; Fin- lason Martial Law, Preface VII; 1 Winthrop Military Law & Prec. 1274, et seq.; De Harte Military- Law 17; Maltby Courts-Martial 3, et seq.; Milligan, Ex parte, 4 Wall. (U. S.) 2, 127; Egan, In re, 5 Blatchf. (U. S.) 319, 8 Fed. Cas. No. 4303. '"Finlason Martial Law 27; 3 Greenleaf, §§ 468, 469; Benet Mili- tary Law & Court-Martial 10-14; Grant v. Gould, 2 H. Bl. 69, 98; Luther v. Borden, 7 How. (U. S.) 1, 59; Griffin v. Wilcox, 21 Ind. 370, 377; Kemp, In re, 16 Wis. 359, 368. See generally note 92 Am. Dec. 180. Vol. 4 Elliott Ev. — 45 CHAPTEE CLXIX. NATURE AND ORGANIZATION. Sec. Sec. 3401. Court-martial is a court. 3409. Judge advocate — Appoint- 3402. General courts-martial — Or- ment. ganization, etc. 3410. Judge advocate — Who may be 3403. Regimental or corps court- appointed. martial. 3411. Judge advocate — Powers. 3404. Number composing court. 3412. Judge advocate — Duties to the 3405. Garrison court-martial. court. 3406. Summary courts-martial. 3413. Judge advocate— Duties to the 3407. Presiding officer. accused. 3408. Presiding officer — Functions. 3414. Members— Qualifying. § 3401. Court-martial is a court. — A court-martial is recognized by almost all authorities and law writers as a court or judicial tribu- nal with the essential functions of such. It decides upon its juris- diction, entertains charges, hears evidence, passes sentence, and in some form directly or indirectly executes its judgments. On the nature of this tribunal the Court of Appeals of New York saysr "Courts-martial were instituted for the trial of naval and military offenses, and existed as early as the reign of James II, and probably had their origin in the ancient Court of Chivalry. They are re- garded as a necessity in every civilized government, in order to prop- erly discipline the military forces, by punishing offenses therein. The tribunal is recognized as a court in the elementary works. Bouvier defines it as 'a military or naval tribunal, which has jurisdiction of of- fenses against the law of the service, military or naval, in which the offenders is engaged.' Greenleaf says: 'A court-martial is a court of limited and special jurisdiction.' It has all the elements of a court. It has judges to hear the evidence, and determine the facts, and apply the law. It has parties, prosecutor and defendant. It has pleadings and a formal trial, renders judgment and issues process to enforce it. In short, it does everything within the sphere of its jurisdiction which any judicial tribunal can do to administer justice."^ But it has been held that a court-martial is not a court of record. - 'People V. Van Allen, 55 N. Y. 31; S.) 193; Wilson v. John, 2 Binn. 3 Greenleaf Ev., § 470. (Pa.) 209. ^Watkins, Ex parte, 3 Pet. (U. 706 707 GENERAL COURTS-MAKTIAL. [§§ 3402-3404. § 3402. General conrts-martial — Organization, etc. — General courts-martial when necessary may be appointed by any general officer commanding an army, a territorial division or a department, or colonel commanding a separate department. When any such com- mander or officer is the prosecuting witness against any officer under his immediate command the court shall be appointed by the President. The commander of a division, or of a separate brigade of troops, shall have power to appoint a general court-martial in time of war. But if such commander is the prosecuting witness in case of a charge against any person under his command such court shall be appointed by the next higher in command. The President of the United States as Commander-in-Chief of the Army has the right by virtue of his office to appoint a general court-martial.^ § 3403. Regimental or corps court-martial. — The army regula- tions also provide that an officer commanding a regiment or a corps shall have authority to appoint courts-martial for his own regiment or corps. Such court shall consist of three officers, and it shall have jurisdiction to try all offenses committed by persons connected with such regiment or corps except capital cases.* Under the provisions of this section it has been held that the Chief of Engineers was au- thorized to order a court-martial for the trial of soldiers of the Engineer Battalion, and that such battalion, in connection with the engineer officers of the army, are deemed to constitute a corps within the sense of this article. So, it was held that the Chief of Ordnance under this article was authorized to order a court for the trial of men enlisted by him, this being such a separate and distinct branch of the military as to come within the meaning and designation of corps. And for similar reasons it was held that the chief signal officer was authorized to convene courts-martial.^ § 3404. Number composing court. — By the statutory provision general courts-martial may consist of any number of officers from five to thirteen, inclusive ; but it must consist of not less than thirteen when this number can be used as a court without injury to the serv- ice.'' When the number required to form a general court-martial is not present at any military post or detachment the commanding of- 'Runkle v. United States, 19 Ct. ' McClure Dig. of Opinions 70, CI. (U. S.) 396; Swaim v. United § 212. States, 28 Ct. CI. (U. S.) 173. "Article 75. McClure Dig. Opin- * Article 81. ions 67. § 3405.] NATURE AXD ORGANIZATION. 708 ficer shall report to the commanding officer of the department and he shall thereupon convene a court-martial at the nearest post or de- partment where there may be the required number of officers, and shall order the accused and witnesses to be taken to the place where the court is assembled." The provision that not more than one-half of the court, exclusive of the President, shall be junior in rank to the accused officer, when it can be avoided without injury to the service, is within the discretion of the officer convening the court; and in the absence of a showing to the contrary it will be presumed that the discretion was properly exercised, and the fact that on a previous oc- casion superior officers were sent to make up the court-martial cannot affect the legality of the court.* §'3405. Garrison court-martial. — "Every officer commanding a garrison, fort, or other place, where the troops consist of different corps, shall be competent to appoint, for such garrison or other place, courts-martial, consisting of three officers, to try offenses not capi- tal."^ The term "other place" used in this article has been held to be intended to include any place, situation or locality such as post, sta- tion, camp or halting place at which there may be a separate com- mand or detachment in which different corps of the army are repre- sented. And if there are sufficient officers, other than the command- ing officer, in the command so situated, then such commander is authorized under this article to convene a court-martial. The officer commanding in such case is not required to be of the rank of field officer; a captain or even a lieutenant who is the officer commanding is duly authorized under this article to convene the court, but he can- not detail himself with two others.^" The jurisdiction of these regi- mental and garrison courts-martial has been limited. The section of the statute limiting this jurisdiction reads as follows : "Regimental and garrison courts-martial and summary courts detailed under ex- isting laws to try enlisted men shall not have power to try capital cases or commissioned officers, but shall have power to award punish- ment not to exceed confinement at hard labor for three months or forfeiture of three months' pay, or both, and in addition thereto, in the case of non-commissioned officers reduction to the ranks and in the case of first-class privates reduction to second-class pri- ^ Article 76. Sup. Ct. 448; McClure Dig. Opin- *Mullan v. United States, 140 U. ions, § 206. S. 240, 11 Sup. Ct. 788; Swaim v. « Article 82. United States, 165 U. S. 553, 17 " McClure Dig. Opinions 71. 709 SUMMARY COURT-MARTIAL. [§§ 3406, 3407. vates: Provided, That a summary court shall not adjudge confine- ment and forfeiture in excess of a period of one month, unless the ac- cused shall before trial consent in writing to trial by said court, but in any case of refusal to so consent, the trial may be had either by general, regimental or garrison court-martial, or by said summary court, but in case of trial by said summary court without consent as aforesaid, the court shall not adjudge confinement or forfeiture of pay for more than one month."^^ § 3406. Summary court-martial. — The power of an officer com- manding a garrison, fort or other place has undergone some changes by which such officer is now authorized to appoint what is called a summary court for the place or command, or in his discretion for each battalion thereof. This summary court is to consist of one officer to be designated by such commander who shall have jurisdiction to try offenses committed by the enlisted men of such command, where such offense is not capital, and except when the accused is to be tried by general court-martial. No sentence adjudged by such summary court shall be executed until it shall have been approved by the officer appointing the court, or by the officer commanding for the time be- ing, except, however, that when there is but one commissioned officer present with a command he shall hear and finally determine such case. This summary court has no jurisdiction over a soldier holding a certificate of eligibility to promotion ; nor as to non-commissioned officers over their objection without the authority of the officer com- petent to order their trial by general court-martial. Such cases shall be tried before the garrison, regimental or general courts-martial.^^ § 3407. Presiding officer. — In the organization of British courts- martial a president is appointed who is a distinct official from the other members. In the earlier practice in this country one officer was generally especially detailed as president or presiding officer. But under the practice in recent years the president is not appointed as such but is simply the senior in rank and presides by virtue of this seniority. No special rank or qualifications are required for the position of presiding officer of a court-martial. When the court con- venes, if the senior officer appointed is absent, or in the case of his "Act March 2, 1901. piled Stat. 961; McClure Dig. Opin- "Act June 18, 1898; 1 U. S. Com- ions, § 675. §§ 3408, 3409.] NATURE AND ORGANIZATION. 710 subsequent absence for any cause, in either event the officer next in rank succeeds to the position of president of the court.^^ § 3408. Presiding officer — Functions. — The presiding officer has practically no statutory duties aside from his duties as a member. It is his duty to keep order and conduct the business of the court. It is his place to speak for the court where any rule of action has been prescribed either by law, regulations, orders or by the resolution of the court itself. It is his statutory duty to administer the proper oath to the judge-advocate.^* It is also his duty to convene and ad- journ the court on a vote of the majority or at the hour required by the articles of war. Generally speaking he performs the functions and duties of the chairman of an ordinary public meeting, or of the chairman of a committee appointed by a duly organized body whose functions are not otherwise specifically defined. He is not author- ized to make any ruling on the admissibility of the evidence, and can only announce such ruling as the decision of the court. He has no power to act independently nor can he make any decision or take any steps contrary to the will of a majority of the court. He has no power to excuse a member from attendance and can only express his views and vote as any other members of the court.^^ § 3409. Judge-advocate — ^Appointment. — The judge-advocate is appointed by the officer who appoints the court-martial.^^ This ap- plies to the officers empowered to order regimental, garrison or sum- mary courts-martial as well as to officers authorized to convene gen- eral courts-martial.^'^ Each general court-martial convened by a com- petent commander should have appointed a separate judge-advo- cate. While the same officer may be selected to perform the duties of judge-advocate for different courts-martial, he should be detailed anew for each separate one. An appointment in a general order for a particular officer to act as judge-advocate for all courts that are to be held in a particular command would be irregular.^* The com- mander convening the court may relieve a judge-advocate and ap- point another; but it is not regarded as good policy to relieve a '^McClure Dig. Opinions, § 2043; 2046; 1 Winthrop Military Law & 1 Winthrop Military Law & Prec. Prec. 249, 250. 248. ^8 Article 74. "Article 85. " McClure Dig. of Opinions, "McClure Dig. Opinions. §§ 2044, § 1520. "McClure Dig. Opinions, § 1520. 711 JUDGE-ADVOCATE. [§§ 3410, 3411. judge-advocate during a prosecution.'^ Nor would it be proper to make such change in the office of judge-advocate after tlie conclusion of a trial simply for the purpose of authenticating a record. The gudge-advocate who officiated at the close of the trial should authenti- cate the record.-*' But when, by reason of death or disability, there is no judge-advocate to authenticate the record, it is sufficient to show that the sentence has been formally approved by the court and then authenticated by the signature of the president.^' § 3410. Judge-advocate — ^Who may be appointed. — Xo special military qualifications are required to render a person eligible for the appointment of judge-advocate. Any commissioned officer may be legally appointed. Thus, a chaplain, surgeon or assistant-surgeon is eligible." Indeed, a judge-advocate is not required to be connected with the army in any manner. But it cannot be said that a civilian may be detailed or appointed, for the reason that a military officer has no power or authority over a civilian for such purpose ; but a civilian may be engaged or employed as judge-advocate. The practice of em- ploying or engaging civilians as judge-advocates has been more com- mon in the navy than in the army.-* A person should not be ap- pointed as judge-advocate who is either hostile or offensive to the accused. This officer is not subject to challenge and it is an act of fairness and justice to the accused that the person occupying this important position have no prejudice against him, and that he should not be a material witness in the case, and for obvious reasons he should not be in a position to reap any large reward or promotion at the expense of the accused.^* He should not be personally inter- ested either as accuser or prosecutor; he should not act in the double capacity of prosecutor and adviser to the court.^^ A member of the court is not authorized to act in the capacity of judge-advocate nor has the court-martial itself any power to authorize its junior member to act as its judge-advocate.^® § 3411. Judge-advocate — Powers. — The powers and duties of a judge-advocate are not strictly defined by statute; they are a growth rather than a creation and may be considered the best results of ex- '"McClure Dig. Opinions, § 1523. =° McClure Dig. Opinions. § 1528. =»McClure Dig. Opinions, §§ 1524, =' McClure Dig. Opinions. § 1529. 1525. ^ McClure Dig. Opinions, S 1530. "Army Regulations 954. =* McCIure Dig. Opinions, § 1526. == McClure Dig. Opinions, § 1521. §§ 3-112, 3413.] NATURE AND ORGANIZATION. 712 perience. The judge-advocate has power to prepare a case for trial after the charges are transmitted to him by the proper officer for that purpose. He cannot entertain or act upon charges; he may be directed to prepare or to reform the charges already drawn; but he has no authority to modify in any material particulars, in the absence of directions from the convening officer, the formal charges pre- pared and transmitted. He may correct obvious mistakes or slight errors in names or dates but he is not empowered to make substan- tial amendments in the allegations nor to reject or withdraw a charge or specification or substitute a new and distinct charge or dismiss or non pros, the proceedings.-^ § 3412. Judge-advocate — Duties to the court. — The prime duty of the judge-advocate is to prosecute in the name of the United States.-® It is usually his duty to serve the charge upon the accused if this has not been done before his appointment, and it is his duty to sum- mon the necessary witnesses for the trial and especially those whose names are appended to the charge; and in order to prevent delay and expedite the trial he is authorized to summon the witnesses both for the prosecution and for the accused, and where depositions are required to be taken, it is his duty in concert with the accused to prepare and forward necessary interrogatories.-^ The judge-advo- cate prepares the complete record required by the army regulations to be kept. The record of each days proceedings should be prepared and submitted to the court at the next day or next session for its approval or correction.^" He should execute the orders of the court and notify the members of the time and place designated by the pre- siding officer for re-assembling.^^ He is entitled to make the closing argument to the court, and the fact that the accused makes no argu- ment does not deprive the judge-advocate of his right to address the court as its ad\dser, and the court itself cannot deny him this right. But he is not authorized to read or present, as a part of his address, any evidence or written statements not introduced upon the trial. ^^ § 3413. Judge-advocate — Duties to accused. — The judge-advocate acts in a sort of dual capacity. WHiile his prime duties are to the "" McClure Dig. Opinions, §§ 1531- '» McClure Dig. Opinions, § 1537. 1532. ^1 McClure Dig. Opinions, § 1538. "^Article 90. ^^^ McClure Dig. Opinions, § 1542. "" 1 Winthrop Military Law & Prec. 277. 713 MEMBERS — QUALIFYIXG. [§ 3414. court yet he has, by virtue of his position, certain duties to perform toward the accused. Thus, Avhen the prisoner has pleaded to the charge the judge-advocate is so far counsel for the prisoner as to ob- ject to any leading question to any of the vritnesses, and to any ques- tion to the prisoner the answer to which might tend to criminate him.^^ When the accused is ignorant and inexperienced rnd with- out counsel, it is the duty of the judge-advocate to see that he docs not suffer from any ignorance or misconception of his legal rights, and he shall award to him the opportunity for making such a plea and such a defense as will best show the merits of his case as well as present any extenuating circumstances. He should advise the prisoner of his right to testify in his own behalf and of his right, where it ex- ists, to plead the statute of limitations.^* Where the accused has intelligently and voluntarily pleaded guilty the judge-advocate should advise him of his right to offer evidence in explanation or extenua- tion of the offense and should assist him in securing any such evi- dence.^^ § 3414. Members — Qualifying. — "UTien the members of tlie court are finally determined upon, they must, before any steps in the trial are taken, be duly qualified. The judge-advocate administers to each member the following oath : "You, A B, do swear that you will well and truly try and determine, according to the evidence, the matter now before you, between the United States of America and the pris- oner to be tried, and that you will duly administer justice, without partiality, favor or affection, according to the provisions of the rules and articles for the government of the armies of the United States, and if any doubt should arise, not explained by said articles, then, according to your conscience, the best of your understanding, and the custom of war in like cases. And you do further swear that you will not divulge the sentence of the court until it shall be published by the proper authority, except to the judge-advocate, neither will you disclose or discover the vote or opinion of any particular member of the court-martial, unless required to give evidence thereof as a wit- ness, by a court of justice, in a due course of law. So help you God."^*^ The oath may be administered to all at the same time, but each member should be named and his rank stated. The members may profitably study the oath with reference to their duties. ^Article 90; 3 Greenl. Ev., § 474. =^ McClure Dig. Opinions, § 1534. "McClure Dig. Opinions, § 1533. =» Article 84. CHAPTER CLXX. JUKISDICTION. Sec. Sec. 3415. Generally. 3423. Jurisdiction over civilians — 3416. Jurisdiction — Non-territorial. Limitations. 3417. Jurisdiction — Criminal. 3424. Presumptions. 3418. Jurisdiction of regimental, 3425. Burden of proof. garrison or summary courts. 3426. Judgments of courts-martial 3419. Jurisdiction — Acts binding. not subject to review by 3420. Jurisdiction to determine civil courts. whether or not accused is 3427. Judgments of courts-martial a soldier. subject to review by civil 3421. Jurisdiction over civilians. courts. 3422. Jurisdiction over civilians — Aiding. §■ 3415, Generally. — The nature of the jurisdiction of courts- martial is stated by Mr. Greenleaf thus: "A court-martial is a court of limited and special jurisdiction. It is called into existence by force of express statute law, for a special purpose, and to perform a particular duty; and when the object of its creation is accomplished, it ceases to exist. The law presumes nothing in its favor. He who seeks to enforce its sentence, or to justify his conduct under them, must set forth affirmatively and clearly all the facts which are neces- sary to show that it was legally constituted and that the subject was within its jurisdiction. And if, in its proceedings or sentence, it transcends the limit of its jurisdiction, the member of the court, and its officer who executes its sentence, are trespassers, and as such are answerable to the party injured, in damages in the courts of common law."^ § 3416. Jurisdiction — Non-territorial, — The jurisdiction of courts- martial is not confined to any particular place. As a matter of neces- ^3 Greenleaf Ev., § 470; Wise S.) 193; Smith v. Shaw, 12 Johns. V. Withers, 3 Cranch (U. S.) 331; (N. Y.) 257; Mills v. Martin, 19 Watkins, Ex parte, 3 Pet. (U. Johns. (N. Y.) 7; Brooks v. Adams, 714 715 CRIMINAL JURISDICTION. [§ 3417. sity it is as migratory as either the army or navy. The same neces- sity that calls these courts into existence gives to their jurisdiction this migratory nature. They are necessarily concomitants of the army and navy. "Military jurisdiction does not recognize territorial- ity as an essential element of military offenses but extends to the .same wherever committed.^' Under this principle it was held that a court-martial properly convened in Texas by the department com- mander had jurisdiction over an offense committed while the army was in Mexico.^ Under this rule a general court-martial could law- fully be convened at any point or place. But as an act of natural justice it should be convened at a suitable and convenient place where the accused and the witnesses are located or near the place where the offense was committed.^ § 3417. Jurisdiction — Criminal. — Courts-martial being bodies of exceptional and restricted power can only take cognizance of such of- fenses as are recognized by the military code as existed under the com- mon-law practice and by virtue of the statute. Their jurisdiction is confined exclusively to criminal cases, and the functions of these courts are to assess penalties for violations of military and naval laws, rules and regulations with the object of maintaining discipline in the army and navy. They have no jurisdiction to entertain actions or to as- sess damages in cases of contracts or torts or otlier civil rights. On the nature of the jurisdiction of this court in this respect Col. Win- throp says: "It has in fact no civil jurisdiction whatever; cannot enforce a contract, collect a debt or award damages in favor of an individual. All fines and forfeitures which it decrees accrue to the United States. Even where it tries and convicts an accused for an offense involved in an obligation incurred or injury done to another person, whether a military person or a civilian — as in the case of an officer guilty of dishonorable conduct in the non-payment of private debts, in that a soldier who has stolen from a comrade or trespassed upon a citizen — it cannot adjudge that the debt be paid, that the property be returned, or that its pecuniary value or the amount of 11 Pick. (Mass.) 441; Duffield v. General 55; Hamilton v. MoClaugh- Smith, 3 S. & R. (Pa.) 590; Hamil- ry, 136 Fed. 445; Military Law U. S. ton V. McClaughry. 136 Fed. 445. 1901. Par. 1797, n. 3, for a full col- ='McClure Dig. Opinions, p. 296, lection of cases. § 1041; Winthrop's Dig. Opinions. =2 Winthrop Dig. of Opinions, p. p. 322; Manual for Court-Martial 322. 1901, p. 14; 4 Opinions of Attorney- §§' 3418, 3419.] JURISDICTION. 716 the damage, be made good to the party aggrieved. Its judgment is a criminal sentence, not a civil verdict ; its proper function is to award punishment upon the ascertainment of guilt."* § 3418. Jurisdiction of regimental, garrison and summary courts. The jurisdiction of these courts is specifically set forth by statute as follows: "Regimental and garrison courts-martial and summary courts detailed under existing laws to try enlisted men shall not have power to try capital cases or commissioned officers, but shall have power to award punishment not to exceed confinement at hard labor for three months or forfeiture of three months' pay, or both, and in addition thereto, in the case of non-commissioned officers reduction to the ranks and in the case of first-class privates reduction to sec- ond-class privates : Provided, That a summary court shall not ad- judge confinement and forfeiture in excess of a period of one month, unless the accused shall before trial consent in writing to trial by said court, but in any case of refusal to so consent, the trial may be had either by general, regimental or garrison court-martial, or by said summary court, but in case of trial by said summary court, without consent as aforesaid, the court shall not adjudge confinement or for- feiture of pay for more than one month. "^ § 3419. Jurisdiction — ^Acts binding. — Military jurisdiction is af- firmed to be of two kinds : ( 1 ) That which is conferred and defined by statute; (2) that which is derived from the common law of war. The offenses which are conferred and defined by statute must be tried according to the statutory direction. But those which are not defined by statute are tried and punished under the common law of war. The first jurisdiction is exercised by courts-martial in the armies of the United States and perhaps of Great Britain ; cases fall- ing within the second kind of jurisdiction are usually tried by mili- tary commissions. These jurisdictions are applicable in war with for- eign nations as well as in case of rebellion. \YheTi a court, exercising either of these jurisdictions, is duly appointed and regularly con- vened and its forms of procedure are within the statutory regulations, and the subject matter, as well as the person, is within the jurisdic- tion conferred, then the judgment or sentence pronounced by such court is binding and relief can only be had through the forms pre- * 1 Winthrop Mil. Law & Prec. 63. '^ 1 U. S. Comp. Stat. 1901, Art 83, p. 963. 717 TO DETERMINE WHETHER ACCUSED IS A SOLDIER. [§ 3420. scribed for appeal or writ of error or by means of pardon.® The principle of the validity of the judgment of these courts acting within their jurisdiction was applied in a case where the accused was charged with having deserted and a judgment against him for attempting to desert was held valid. And the same principle has been held in many cases.^ Judge Sawyer stated the power and authority of courts-mar- tial thus : "The same constitution and the same legislative power which conferred civil jurisdiction on the national judiciary, also con- ferred jurisdiction over military and naval offenses upon courts- martial, appointed and supervised by the war and navy departments. Each is supreme while acting within the sphere of its own exclusive jurisdiction."* Where a crime is committed at a place over which Congress has power to legislate, the jurisdiction of the federal courts over such crime is exclusive.* § 3420. Jurisdiction to determine whether or not accused is a soldier. — As previously shown a court-martial has power to determine its jurisdiction. But, as shown elsewhere, its decision on this ques- tion is subject to review. For like reasons such a court has power to determine whether or not the accused is a soldier or other persons over whom it may exercise jurisdiction. This power is inherent for ob- vious reasons. To support this jurisdiction in case of any doubt "Vallandigham, Ex parte, 1 Wall. 55 N. Y. 31; Perault v. Rand, 10 (U. S.) 243; Dynes v. Hoover, 20 Hun (N. Y.) 222; Dunbar, Ex parte. How. (U. S.) 65. 14 Mass. 393; Tyler v. Pomeroy, 8 ^Thompson v. Tolmie, 2 Pet. (U. Allen (Mass.) 480; Bright, Ex S.) 157; Houston v. Moore, 5 parte, 1 Utath 145; White, In re, 9 Wheat. (U. S.) 1; Dynes v. Hoover, Sawy. (U. S.) 49, 17 Fed. 723; Bo- 20 How. (U. S.) 65; Cornett v. Wil- gart. In re, 2 Sawy. (U. S.) 396, liams, 20 Wall. (U. S.) 226; Reed, 3 Fed. Cas. No. 1596; United States Ex parte, 100 U. S. 13; Mason, Ex v. Mackenzie, 1 N. Y. Leg. Obs. 371, parte, 105 U. S. 696; Keyes v. 30 Fed. Cas. No. 18313. United States, 109 U. S. 336, 3 Sup. ^ Bogart, In re, 2 Sawy. (U. S.) Ct. 202; Wales v. Whitney, 114 U. 396, 409, 3 Fed. Cas. No. 1596. S. 564, 5 Sup. Ct. 1050; Smith v. "State v. Kelly, 76 Me. 331; Com- Whitney, 116 U. S. 167, 6 Sup. Ct. monwealth v. Clary, 8 Mass. 72; 570; Kurtz v. Moffitt, 115 U. S. 487, Painter v. Ives, 4 Neb. 122; State 6 Sup. Ct. 150; Grimley, In re, 137 v. Dimick, 12 N. H. 194; Sinks v. U. S. 147, 11 Sup. Ct. 54; Carter v. Reese, 19 Ohio St. 306; O'Connor, Roberts, 177 U. S. 496, 20 Sup. Ct. In re. 37 Wis. 379; Guiteau's Case, 713; Brown v. Wadsworth, 15 Vt. 10 Fed. 161; United States v. 170; Moore v. Houston, 3 S. & R. Guiteau, 1 Mack. (U. S.) 498. (Pa.) 169, 197; People v. Van Allen, § 3421.] JURISDICTION. '^18" whatever the proof should show explicitly and unequivocally that the- accused is either a soldier or other person over whom the court has jursidiction. The necessity for the strict adherence to this principle- and the danger of any departure from it was thus stated by an early English case : "It is not disputed that a court-martial has power to- try the question, whether soldier or not? That power must be in- separable from their jurisdiction. But they exercise it at their peril ; and it behooves them to have the most explicit and unequivocal proof that a man is a soldier, before they venture to put him on his trial for any offense whatever. If it shall be in the power of any military commander to take up a man under pretense of some supposed mili- tary offense, and it shall be in the power of a court-martial to give- themselves jurisdiction over him, by deciding him to be a soldier, upon evidence such as has been received in the present instance, the-^ liberty of the subject is at an end, and the army may, as soon as its- commander shall think fit, become the sovereign power of this coun- §3421. Jurisdiction over civilians. — Generally speaking, the jur- isdiction of courts-martial is confined to enlisted men and officers- of the army and navy, and in special statutory cases to militia. But there are instances in which this jurisdiction has been exercised over- civilians or persons not enlisted either in the army or navy. But the- jurisdiction assumed over persons other than soldiers and sailors is under the principle of the necessity of maintaining discipline in the army. "All retainers to the camp, and all persons serving with the- armies of the United States in the field, though not enlisted soldiers, are to be subject to orders according to the rules and discipline of war."" This article during war has been held to apply to teamsters, watchmen, laborers, engineers, ambulance drivers, operators and many ^'' Grant v. Gould, 2 H. BI. 69, 86; Reed, Ex parte, 100 U. S. 13; John- Tyler v. Pomeroy, 8 Allen (Mass.) son v. Sayre, 158 U. S. 109, 15 Sup. 480; Military Laws U. S. 1901, Par. Ct. 773; Thomas, In re, 10 Int. Rev. 1797^ n_ Rec. 53. 23 Fed. Cas. No. 13888; "Article 63. Houston v. Moore, 5 Henderson, Ex parte, 11 Fed. Cas. Wheat. (U. S.) 1; Martin v. Mott, No. 6349; Van Vranken, Ex parte, 12 Wheat. (U. S.) 19; Reed, In re, 47 Fed. 888; Davison, In re, 21 Fed. 26 Int. Rev. Rec. 35, 20 Fed. Cas. 618; Craig, In re, 70 Fed. 969; No. 11636; Bogart, In re, 2 Sawy. Smith v. United States. 26 Ct. CI. (U. S.) 396, 3 Fed. Cas. No. 1596; (U. S.) 143; Military Laws U. S. United States v. Bogart, 3 Ben. (U. 1901, Par. 1796, n. S.) 257, 24 Fed. Cas. No. 14616 719 OVER CIVILIANS. ^ [§§ 3422, 3423> others when serving with the armies in the field. And so it has been held that the employment must be in connection with the army in the field and on the theater of hostilities. It has not been rigorously applied to the class of persons known as retainers to the camp or the- servants of officers. These persons are usually punished for breaches of discipline by dismissal from employment and expulsion from the- camp. It is not applied to civilians who are employed in connection with the army in time of peace. ^^ § 3422. Jurisdiction over civilians — Aiding an enemy. — This jur- isdiction over ci^^ilians is not limited to the classes in the preceding section. Another one of the articles of war provides: "Wliosoever relieves the enemy with money, victuals or ammunition, or knowingly harbors or protects an enemy, shall suffer death, or such other punish- ment as a court-martial may direct.''^^* The next article also provides that "whosoever holds correspondence with, or gives intelligence to, the enemy, either directly or indirectly, shall suffer death or such other punishment as a court-martial may direct." Under these sec- tions it has been held that the term "whosoever" applied to civilians the same as to military persons, and that all the inhabitants of the states in rebellion were prima facie enemies within the meaning of these articles except such as entered military service. The act of "relieving the enemy" is to be distinguished from that of trading with the enemy in violation of the laws of war ; the first is restricted to certain particular forms of relief; the second includes all commer- cial intercourse not authorized by the government.^* So, it was held that holding correspondence with the enemy was completed by writ- ing and sending a letter to an inhabitant of an insurrectionary state during war ; it was not necessary to show that the letter reached its. destination.^^ But to constitute the offense of giving intelligence to the enemy it is necessary to establish the fact that material informa- tion was actually communicated to the enemy either verbally, in writ- ing or by signals.^'' § 3423. Jurisdiction over civilians — Limitations. — This doctrine of the jurisdiction of courts-martial over civilians has its limitations. "McClure Dig. Opinions, §§ 56, ^"^ McClure Dig. of Opinions, § 62; 57. Rex V. Hensey, 1 Burr. 642; Rex v. "Article 45. Stone, 6 Term R. 527. " McClure Dig. Opinions, §§ 25, " McClure Dig. of Opinions, § 63., 26. §• 3424.] JURISDICTION. 720 The courts will not permit the military authorities to usurp the func- tions of civil government in localities not in a state of war, and where there is no necessity for martial Liw or military rule. Such jurisdiction is usually confined to the territory of the actual theater of war, to the place where the civil tribunals are closed and where the civil power is superceded by force. In such place the President of the United States has the right to govern by martial law through his military officers; but in all other places and at all other times such martial law is excluded by the civil. This military jurisdiction cannot be exercised to the extent of the denial of the right of trial by jury in a locality or state where the federal authority is unopposed and where the federal courts are open for the trial of offenses and the redress of grievances. ^'^ § 3424. Presumptions. — Courts-martial are regarded as of such limited and special jurisdiction and invested powers that the law will raise no presumptions in favor of their legality. ^^ But where a de- cision of a court-martial is attacked or called in question in any other court, there is no presumption r)f law that such court-martial exceeded its jurisdiction, but such fact must be manifestly shown.^^ Courts- martial belong to that class of courts of inferior and limited juris- diction that has no presumptions in favor of its jurisdiction ; and the party who seeks any advantage of the proceedings must show affirm- atively its jurisdiction. 2'' On the peculiar jurisdiction of courts- martial an early New York case said : "That a court-martial is a court of special and limited jurisdiction must be evident upon the slightest reflection. It is called into existence for special and tempo- rary purposes, and when those purposes are answered, it is dissolved and disappears. That it is limited to particular offenders and offenses, and to those only, is equally certain. All its powers are, therefore, special and limited.^'^^ "Milligan, Ex parte, 4 Wall. (U. fin v. "Wilcox, 21 Ind. 370; McRob- S.) 2; Kemp, In re, 16 Wis. 359, erts. Ex parte, 16 Iowa 600. 382; Duffield v. Smith, 3 S. & R. "Brooks v. Daniels, 22 Pick. (Pa.) 590; Shoemaker v. Nesbit, 2 (Mass.) 498; Hamilton v. Mc- Rawle (Pa.) 201; Antrim's Case, 5 Claughry, 136 Fed. 445. Phila. (Pa.) 278; Jones v. Seward, "Washburn v. Phillips, 2 Mete. 40 Barb. (N. Y.) 563; Martin, In re, (Mass.) 296. 45 Barb. (N. Y.) 142; Smith v. =» Barrett v. Crane, 16 Vt. 246. Shaw, 12 Johns. (N. Y.) 257; Mills =' Mills v. Martin, 19 Johns. (N. V. Martin, 19 Johns. (N. Y.) 7; Y.) 7; Brooks v. Adams, 11 Pick. Johnson v. Jones, 44 111. 142; Grif- (Mass.) 441; Wright, In re, 34 How. 721 BDRDEX OF PROOF. [§§ 3425, 3426. § 3425. Burden of proof. — As shown by the preceding section no presumptions are indulged in favor of the jurisdiction of courts- martial. From this it follows that judgments of such courts may be attacked and called in question in any collateral proceeding.'-- And where a judgment of such court is so attacked the burden is upon the officer or person claiming any right or privilege by virtue thereof to show affirmatively that the court rendering the judgment was legally constituted and that it had jurisdiction of both the person and the offense, and that the judgment rendered by it was conformable to the law.-^ Of this principle a federal court, in a very recent case, said: "Again, so jealous are all English-speaking nations of the liberty of their subjects, where a respondent in habeas corpus admits the re- straint charged against him, he must justify by basing his right of restraint upon the exercise of some provision of positive law binding upon him, or the writ must issue and the person restrained have his liberty. It follows, therefore, notwithstanding the judgment of con- viction by the military court set forth in the return of respondent and admitted by petitioner, if, as claimed by counsel for petitioner, the facts essential to a valid exercise of the military power conferred by the 58th article of war, to wit, the then existence of a state of war, insurrection, or rebellion in China, the place where the offense was committed and the trial had, is not shown, the writ must go and the petitioner be granted his liberty."^* § 3426. Judgments of courts-martial not subject to review by civil courts. — The judgment of a court-martial stands on the same footing as judgments of courts of inferior and limited jurisdiction. The gen- eral rule as to the conclusiveness of the judgments of such courts is that where they act within their jurisdiction any judgment or decree then rendered is binding and conclusive. The Supreme Court of the United States said of a judgment rendered by court-martial: "With the sentences of courts-martial which have convened regnlarly, and have proceeded legally, and by which punishments are directed, not ff^rbidden by law, or which are according to the laws and customs of the sea, civil courts have nothing to do, nor are they in any wa}^ Pr. (N. Y.) 207; Grant v. Gould, 2 -'Dynes v. Hoover, 20 How. (U. H. Bl. 69. S.) 65; Runkle v. United States, 122 "Watkins, Ex parte, 3 Pet. (U. U. S. 543, 7 Sup. Ct. 1141; Hamilton S.) 193; Wise v. Withers. 3 Cranch v. McClaughry. 136 Fed. 445. (U. S.) 331; Hamilton v. McClaugh- =* Hamilton v. McClaughry, 136 ry, 136 Fed. 445. Fed. 445. Vol. 4 Elliott Ev.— 46 >; 3427.] JURISDICTION. 722 alterable by them. If it were otherwise, the civil courts would vir- tually administer the rules and articles of war, irrespective of those to whom that duty and obligation has been confided by the laws of the United States, from whose decisions no appeal or jurisdiction of any kind has been given to the civil magistrate or civil courts."^^ In a comparatively recent case the same court said on this subject: "The court-martial having jurisdiction of the person accused and of the offense charged, and having acted within the scope of its lawful powers, its decisions and sentence cannot be reviewed or set aside by the civil courts, by writ or habeas corpus or otherwise."-*' The Massachusetts Supreme Court said: "No acts of military officers or tribunals within the scope of their jurisdiction, can be revised, set aside, or punished, civilly or criminally, by a court of common law. And in the same case this court say : "With acts affecting military rank or status only, the offenses against articles of war or military discipline, the civil courts have uniformly declined to interfere.^'' § 3427. Judgments of courts-martial subject to review by civil courts. — There are certain judgments or sentences pronounced by courts-martial over which the civil courts may have control. The class of judgments of such courts which are subject to the control of civil courts is limited to such judgments or sentences that are pro- nounced where the court was without jurisdiction over the subject matter, or when the punishment inflicted was forbidden by law. In all such cases the party aggrieved may apply to a civil court for re- dress and relief will be granted where it is made to appear that the ™ Dynes v. Hoover, 20 How. (U. stone v. Sutton, 1 Term R. 510, 546; S.) 65, 82; Milligan, Ex parte, 4 Leonards v. Shields, 1 McArt. Wall. (U. S.) 2; Johnson v. Sayre, Court Martial 159, n.; Bailey v. 158 U. S. 109, 15 Sup. Ct. 773; Reed, Warden, 4 M. & S. 400; Vallandig- Bx parte, 100 U. S. 13; Mason, Ex ham, Ex parte, 1 Wall. (U. S.) 243; parte, 105 U. S. 696; Smith v. Whit- Reg. v. McCarthy, 14 W. R. 918; ney, 116 U. S. 167, 6 Sup. Ct. 570; Poe, In re, 5 B. & Ad. 681; Grant Corbett, In re, 9 Ben. (U. S.) 274, v. Gould, 2 H. Bl. 69; Mansergh, In 277, 6 Fed. Cas. No. 3219; Barrett re, 1 Best & S. 400; De Hart Mili- V. Hopkins, 2 McCrary (U. S.) 129; tary Law 226; 1 Winthrop Military People V. Hoffman, 166 N. Y. 462, Law & Prec. 55, et seq.; McClure 473, 60 N. E. 187; United States v. Dig. of Opinions 283, and notes; Dig. Mackenzie, 1 N. Y. Leg. Obs. 371, Opin. J. A. G., Par. 1024. 30 Fed. Cas. No. 18313; Perault v. -"Johnson v. Sayre, 158 U. S. 109. Rand, 10 Hun (N. Y.) 222; Barwis 15 Sup. Ct. 773. T. Keppel, 2 Wils. 314; Mansergh, "^ Tyler v. Pomeroy, 8 Allen In re, 1 Best & S. 400, 406; John- (Mass.) 480. 723 REVIEW BY CIVIL COURTS. [^ 34?7. acting court-martial had no jurisdiction. The rule on this subject was stated by the United States Supreme Court thus: "But we re- peat, if a court-martial has no jurisdiction over the subject matter of the charge it has been convened to try, or shall inflict a punish- ment forbidden by law, though its sentence be approved by the officers having a revisory power of it, civil courts may, in an action by a party aggrieved by it, inquire into the want of the court's jurisdiction, and give him redress."-* This power of the civil courts to review the proceedings of courts-martial was extended to a case in New York where an accused before a court-martial was denied the right to have counsel.*® "Dynes v. Hoover, 20 How. (U. Daniell, 50 N. Y. 274; Hamilton v. S.) 65, 82; Grimley, In re, 137 U. S. McCIaughry, 136 Fed. 445; Grant v. 147, 150, 11 Sup. Ct. 54; People v. Gould. 2 H. Bl. 69; Harman v. Tap- Hoffman, 166 N. Y. 462, 475, 60 N. penden, 1 East 555; Frye v. Ogle, E. 187; Durham v. United States, 4 London Mag. 1746, pp. 124, 576; Hayw. (Tenn.) 54; Dunbar, Ex Swinton v. Malloy, cited in 1 Term parte, 14 Mass. 393; Tyler v. Pom- R. 537; Wales v. Whitney, 114 U. S. eroy, 8 Allen (Mass.) 480; State v. 564, 5 Sup. Ct. 1050. Davis, 4 N. J. L. 311; People t. » People v. Van Allen, 55 N. Y. 31. CHAPTER CLXXI. MATTERS OF PRACTICE, Sec. Sec. 3428. Arrest. 3432. Privilege of counsel. 3429. Close and open arrest. 3433. Status and privilege of coun- 3430. Report of arrest and notice of sel. charge. 3434. Right of challenge. 3431. Right of accused to have 3435. Commander as prosecutor. counsel. 3436. Commander not prosecutor. § 3428. Arrest. — The court-martial has nothing whatever to do with the arrest; it formulates no charge, returns no indictment, is- sues no warrant. The arrest is made by or at the instance of officers before the court is organized, and by those who may have nothing whatever to do with the organization of the court or the subsequent trial. A military arrest is usually made either by a verbal or written order. The written order is more preferable and is usually the method adopted, except where the offense is committed in the presence of n commanding officer and he orders the immediate arrest of the of- fender. The articles provide that officers charged with crime shall be arrested and confined in their barracks, quarters or tents, and that soldiers charged with crimes shall be confined until tried by court- martial, or released by proper authority.^ The confinement con- templated in this article does not imply either a distinction by force or confinement by imprisonment except, perhaps, in extreme cases. When the arrested officer properly conducts himself the restraint should not be so severe as to prevent the proper preparation of hi? defense. An arrested officer is to be confined to his barracks, quarters or tent, that is, his own military habitation or lodgings, and he cannot ordinarily be removed from these and confined in quarters or tents distant from his own.^ § 3429. Close and open arrest. — Military authorities do not con- strue the provision for confinement in Article 65 as mandatory. No 'Articles 65, 66, 70. ^Winthrop Military Law & Prec. 153. 734 735 ARREST — NOTICE OF CHARGE. [§§ 3430, 3431. penalty is provided for any failure to so confine the arrested oflBcer. But where the crime is heinous or the offense outrageous the officer may be confined strictly to his tent, quarters or barracks. But in the discretion of the commanding officer, and where the offense is slight, and the imprisonment may be of some considerable duration before trial, the exceptions may be made to the rule and the limits extended and the officer have the privilege of what is termed an open arrest. In such case he has the privilege of going at liberty under the duty of returning to his quarters at the specified times imposed by the commanding officer.^ § 3430. Report of arrest and notice of charge. — It is made the duty of every officer to whose charge a prisoner is committed to re- port to the commanding officer the name of such person, the crime charged against him and the name of the officer committing him." And, except at remote military posts or stations, the officer by whose order another officer is arrested shall see that a copy of the charges on which he is to be tried is served up.m him within eight days after his arrest, and that he be brought to trial within ten days thereafter unless prevented by the necessities of the service, and in such case he should be brought to trial within thirty days after the expiration of the ten days. In case of failure to do either of these the arrest shall terminate, but the offender may be tried at any time within twelve months after his release from arrest.' The charge to be served on the arrested officer is sufficient, although not in exact legal form, and is intended to be amended or redrawn.^ § 3431. Right of accused to have counsel. — The trend of all mod- ern jurisprudence is to permit an accused or a person against whom any charge is made that involves his person, his property, his politi- cal right or liberty to be represented by counsel before the tribunal commission or committee constituted or appointed to hear and de- termine the accusation or charge against him. But this liberal rule was denied in the earlier practice in courts-martial. This right was expressly denied by the former military regulations in the state of New York; but the regulations provided that a lawyer might be 'Winthrop Military Law & Free. "Article 71; McClure Dig. of 155. and notes; Benet Military Law Opinions 60; Winthrop Military & Court-martial 46; De Hart Mili- Law & Free. 226. tary Law 71, et seq. "McClure Dig. of Opinions 180. * Article 68. §§ 3432, 3433.] matters of ptuctice. 726 tolerated as a friend of the accused, but it was left optional with such a court to so tolerate the counsel. But it was held by the court of appeals that this provision in military regulations was in conflict with the state constitution which provided that the accused shall be allowed to appear and defend in person and with counsel "in any trial in any court whatever.''^ This rule is now practically uni- versally followed in all court-martial proceedings.^ Some writers still maintain that the admission of counsel on behalf of the accused is a privilege and not a right. But they admit that the privilege is almost invariably accorded and granted as a matter of course." § 3432. Privilege of counsel. — Under the earlier and stricter rules the prisoner's counsel was little more than an amicus curiae. He was seated near the prisoner and wrote the questions intended to be asked upon slips of paper and handed these to the prisoner, which were in turn passed to the judge-advocate. He was never allowed to address the court, and any remarks or arguments must be presented in writ- ing.i" § 3433. Status and privileges of counsel. — But a better and more liberal rule has gradually been introduced into the practice, and it is o-enerally recognized now that counsel have about the same standing and recognition in courts-martial as in other courts. The modern rule as to the status of counsel is stated as follows: "But the more recent radical reconstruction of the British military law has done away with the previous usage in this regard; and in the rules of procedure it is declared that the counsel both of the prisoner and of the prosecutor at a military trial shall have the same right as the party for whom he appears to call and orally examine and cross-ex- amine witnesses, as well as to make objections and statements, put in pleas, and address the court. As to the practice before courts- ' People V. Van Allen, 55 N. Y. 31 ; Twitchell v. Commonwealth, 7 Wall People V. Hoffman, 166 N. Y. 475. (U. S.) 321, 326; Edwards v. Elli 60 N. E. 187; 14 Green Bag 99; ott, 21 Wall. (U. S.) 532, 557 ''Winthrop Military Law & Prec. Walker v. Sauvinet 92 U. S. 90 1274, et seq.; Benet Military Law Pearson v. Yewdall, 95 U. S. 294 & Court Martial 65; De Hart Mill- 1 Winthrop Military Law & Prec. tary Law 132-134; Dig. Opin. J. A. 241. G., Pars. 984, 985, 987. '°De Hart Military Law, p. 132; » Barron v. Mayor of Baltimore, 7 1 Winthrop Military Law & Prec Pet. (U. S.) 243; Watklns, Ex 242; Benet Military Law & Court parte. 7 Pet. (U. S.) 568. 573; Martial 65. •727 CHALLENGING MEMBERS OF COURT. [§ 3434. martial of the United States, while the doctrine in question is quite strictly laid down in the treatises and in sundr}' orders, the actual procedure has become much more indulgent and reasonable; not merely military but professional counsel being in general permitted to examine the witnesses and address the court without objection on the part of the members. Occasionally, indeed, the old rule is in- sisted upon at the outset, though relaxed later; but more frequently much the same license is allowed at all stages as at an ordinary crim- inal trial, subject, however, to a restriction of the privilege when counsel by their prolixity, captiousness, disrespectful manner, or other objectionable trait, fatigue or displease the court. Thus, in practice, the old rule is mainly held in reserve, to be enforced by the court at its discretion in exceptional cases. Objection to the reading of the final address, or to a closing oral or written argument, by the coun- sel, is now of the rarest occurrence." ^^ § 3434. Right of challenge. — The accused may challenge members of a court-martial for cause stated to the court, and the court shall then determine the relevancy and validity of the challenge, but shall not receive a challenge to more than one member at a time.^^ This provision cannot apply to what are known as field officers' courts and summary courts for the reason that these are composed of one officer or person only and there is no competent authority to pass upon the sufficiency or validity of the challenge. It has been regarded as a sufficient ground of challenge that the officer challenged is the author of the charges. But the mere fact that the officer challenged is to be a witness is not in general regarded as sufficient ground of chal- lenge. So, the fact that a member of the court signed the charges is not sufficient ground for a challenge unless it is shown that he pre- ferred the charges as the accuser or prosecutor. Generally it is a ground for challenge where there is sufficient cause to give rise to a presumption of prejudice. And a member who shall forthwith be entitled to promotion in case the accused is convicted and dismissed, is subject to challenge.^^ " Winthrop Military Law & Prec. in the Admiral Schley Inquiry, 14 243. Green Bag 136. "Art. 88; McClure Dig. of Opin- "Art. 79; McClure Dig. of Opin- ions 76. An interesting feature ions 47, § 237; Keyes v. United of the right of challenge is found States. 15 Ct. CI. (U. S.) 532; Dig. Opin. J. A. G., Par. 210. §§ 3435, 3436.] matters or practice. 728 § 3435. Commander as prosecutor. — The rule for determining when such commander is the accuser or prosecutor is thus stated: "On the other hand, where he himself initiates the charge, out of a hostile animus toward the accused or a personal interest adverse to him, or from a similar motive adopts and makes his own a charge initiated by another, he is to be deemed an 'accuser or prosecutor' within the article. Nor is he the less so where, though he has no per- sonal feeling or interest in the case, he has become possessed with the conviction that the accused is guilty and deserves punishment, and in this conviction initiates or assumes as his own the charge or the prose- cution. For in this case equally as in the former he is unfit to be a judge upon the merits of the case; in the one instance he is too much prejudiced to be qualified to do justice; in the other he has con- demned the accused beforehand."^* § 3436. Commander not prosecutor. — The fact that a department commander orders a court-martial does not make him an accuser or prosecutor in the sense of the 72d or 7'3d Articles of War, nor is he such accuser or prosecutor when, upon information of miscon- duct, he orders the acting judge-advocate of the department, or the colonel commanding the regiment to institute the proceedings against the offender. But it is not necessary that the commander sign the charges in order to constitute him the accuser or prosecutor. Nor is he regarded as the accuser or prosecutor where he causes the charges to be preferred and convenes the court-martial by direction of the secretary of war or other other competent military superiors.^'"' "Military Laws of the U. S. "Dig. Opin. J. A. G., Pars. 187, 1901, Par. 1790, n. 188, 189. » CHAPTER OLXXII. PLEADINGS. Sec. Sec. 3437. Generally. 3440. Statement of charge. 3438. Certainty. 3441. Time and place. 3439. Charge and specification. 3442. Answer. § 3437. Generally. — It is not within the scope of this work to give directions and forms in practice or the details of procedure in courts- martial. But it may not be out of place to consider so much of the pro- cedure and of the pleadings as may aid in applying the rules of evi- dence. The law recognizes that the persons composing courts-martial and those acting as judge-advocates are neither learned in the law nor skilled in the technicalities of pleadings, and it does not require the strictness of statement or the niceties in practice that are im- posed and expected in courts where those practicing are learned in the law and skilled in the technicalities of procedure. In courts- martial, therefore, the law is satisfied with a plain statement of the charge and an informal introduction of evidence in such manner as to bring all the essential facts before the court. As in all other courts the law is equally zealous that no injustice shall be done to the ac- cused. § 3438. Pleading — Certainty. — The rule of pleading with refer- ence to certainty in charges before courts-martial is not essentially dif- ferent from that in other courts, except that the same degree of cer- tainty is not required. Still the statement must be certain to a common intent, that is, a reasonable amount of certainty is all that is required. If the substance of the charge is fully and accurately stated the tech- nical verbiage, so profuse in criminal indictments, may be dispensed with. On this subject Col. Winthrop says : "The rule as to certainty is, as a general principle, applicable to the military charge in the same manner as to the criminal indictment or declaration of the civil practice, and will properly be observed in framing specifications 729 § 3439.] PLEADINGS. 7ao Because, however, of the exceptional authority possessed by courts- martial in their findings, of correcting errors and imperfections of detail in specifications, by substituting the true item or term as indi- cated by the testimony, for the uncertain or incorrect one originally inserted, a military pleading will more readily admit of an uncer- tain statement (in an allegation for example, as to amount, number, quantity or other particular of description), than will an indict- ment."^ § 3439. Pleading — Charge and specification. — Technically the charge consists of two parts : The first designates the offense by name under the particular article of war; the second the facts by way of specifications sub«;tantially sufficient to constitute the alleged offense. It is the office of the specifications to state the particular act done, or omitted, or the precise offense committed by the accused, stating as exactly as possible the time and place. There may be more than one specification, and each specification should set forth but one instance of the offense.^ Where the specific offense is charged, and the specification is not sufficient to constitute such offense, the pleading is insufficient. But when the charge and the specification are not inconsistent, they may be taken together, and if, * 1 Winthrop Military Law & Prec. 191. *McClure Dig. Opinions, §§ 694, 695; 1 Winthrop Military Law & Prec. 209, et seq.; United States v. Runkle, 122 U. S. 543, 7 Sup. Ct. 1141; Hamilton v. McClaughry, 136 Fed. 445. See Military Laws U. S. 1901, note 2, pages 674, 675, 676, 677, 678. For a form of the charge and specification and the find- ing of the court the following, taken from a recent case in a fed- eral court, is given as a model: Charge — Murder, in violation of the 58th Article of War. Specification — In that Private Fred Hamilton, Troop K, 6th Cavalry, U. S. Army, did wilfully, feloniously, and with malice aforethought inflict a wound on Corporal Charley Cooper, Troop K, 6th Cavalry, deceased, by firing a ball cartridge from a Colt's re- volver, calibre 38, at said Cooper. From the effect of said wound, the said Cooper died almost immediate- ly, about 8 : 25 p. ii.. on the 23d day of December, 1900. This at Camp Reilly, Pekin, China, about 8:25 p. M. on the 23d day of December, 1900." Findings.— Of the specifica- tions: Guilty. Of the charge: Guilty. Sentence. — And the court doth therefore sentence him. Pri- vate Fred Hamilton, Troop K, 6th Cavalry, to be dishonorably dis- charged the service of the United States, forfeiting all pay and al- lowances due him, and to be con- fined at hard labor in such peni- tentiary as the reviewing authority may direct for the period of his natural life. Signed, . Hamilton v. McClaughry, 136 Fed. 445; Runkle v. United States, 122 U. S. 543, 7 Sup. Ct. 1141. 731 STATEMENT OF CHARGE. [§ '-'AiO. when so taken, they are sufficient to state an offense, the pleading will be sufficient as a basis for conviction and sentence.^ Each specifica- tion should be entire and complete in itself and should contain all substantial and formal matters which are necessary and proper both to complete itself and to support the charge as laid.* § 3440. Pleading — Statement of charge. — The rule as to the nature and office of the charge or accusation and its essential re- quirements is very fully and aptly stated by Mr. Greenleaf as fol- lows: "The accusation, in courts-martial, which stands in place of the indictment in courts of common law, is composed of charges and specifications. The office of the charge is to indicate the nature of the offense, and the article of war under which it falls; and, there- fore, it generally is either couched in the language of the article itself, or is stated in general terms, as a violation of such an article, mentioning its number. The former mode is regarded as most proper, and, therefore, is usually pursued ; especially where the article in- cludes various offenses, or is capable of violations by various and dif- ferent actions. The latter is allowable only where the article do- scribes a single offense, in which no mistake can be made. The speci- fication states the name and rank of the prisoner, the company, regi- ment, etc., to which he belongs, the acts which he committed, and which are alleged to constitute the offense, with the time and place of the transaction; and where the essence of the offense consists in hurting or injuring the person or property of another, the name and description of the person injured should be stated, if known; and if not, then it should be alleged to be unknown. If the prosecutor is imable precisely to state the time and place of the offense, he may charge that the fact was committed at or near such a place, and on or about such a time. But this is not to be permitted, if it can pos- sibly be avoided without the sacrifice of justice, as it tends to de- prive the prisoner of some advantage in making his defense. In fine, though courts-martial, as has just been observed, are not bound to all the technical formalities of accusation that prevail in courts of law, yet they are bound to observe the essential principles on which all charges and bills of complaint ought to be framed, in all tribunals, whether civil, criminal or military; namely, that they be sufficiently specific in the allegations of time, place, and facts, to ' McClure Dig. Opinions, § 699. ' 1 Winthrop Military Law & Prec. 216. §§ 3441, 3442.] pleadings. ' 733 enable the party distinctly to know what he is to answer, and to be prepared to meet it in proof at the trial, and to enable the court to know what it is to inquire into and try, and what sentence it ought to render, and to protect the prisoner from a second trial for the same offense."^ § 3441. Pleading — Time and place. — The general rule is, as in all pleadings, that the specification should properly charge the time and place. This should be done for two reasons: (1) That it may properly appear that the offense was committed within the period required by the articles of war; (2) in order that the accused may understand the particular act or omission he is called upon to de- fend. This particularity as to time and place is also important in ease of any subsequent trial for the same offense, or for another offense included in the original offense and thus to aid a plea of former acquittal or conviction. But where the exact time or place is not known it is sufficient to state that it occurred on or about a certain date an.d at or near a certain place. These expressions are ordinarily used in military pleadings for the purpose of indicating a time or place as nearly as can be ascertained, at or during which the offenses charged were supposed to have been committed." § 3442. Answer.— The answer of the accused is similar to that in criminal pleading and practice. If there are special matters tbey should be pleaded. Mr. Greenleaf states the rule on this subject thus: "The prisoner's answer to the accusation may be by special plea to the jurisdiction of the court ; as, for example, that it has been improperly or illegally detailed; or, that it is not composed of the requisite number of officers ; or, that the offense is purely of civil and not of military cognizance; or, that he is not of a class of persons amenable to its jurisdiction. Or, he may answer by a pl^a in bar; fiuch, for example, as that the period of time, within which a prose- cution for the offense might be commenced, has already elapsed ; or, that he has once been legally tried for the same offense ; or, that the proper authority had officially engaged that, on his becoming a wit- ness for the government against an accomplice for the same offense he should not be prosecuted. And if these pleas are overruled, he » 3 Greenleaf Ev., § 472. 711 ; 1 Winthrop Military Law & •McClure Dig. Opinions, §§ 710, Prec. 196, et seq. 733 ANSWER. [§ 3443. still may put the allegations in issue by the general plea of not guilty; in the same manner as in criminal courts, on the trial of an indictment."^ When a prisoner, arraigned before a general court-mar- tial, from obstinaricy and deliberate design, stands mute, or .-mswers foreign to the purpose, the court may proceed to trial and judgment the same as if he had pleaded not guilty.^ '3 Greenleaf Ev., § 473; Maltby & Prec. 374, 379; McClure Dig. Courts-Martial 53-60; 2 McArthur Opinions, § 1995. 26, 27; 1 Winthrop Military Law "Article 89. CHAPTER CLXXIII. TBIAL AND FINDINGS. Sec. Sec. 3443. Sessions. 3452. Decision and penalty. 3444. Continuance. 3453. Findings — Follow evidence. 3445. Evidence heard in open court. 3454. Finding— On charge and spec- 3446. Opening statement. ifications. 3447. Swearing witnesses. 3455. Finding— Exceptions and sub- 3448. Separation of witnesses. stitutions. 3449. Order of introduction of tes- 3456. Finding— Approval. timony. 3457. Finding — Approval by the 3450. Hearing — Record of evidence president. and objections. 3458. Findings— Disapproval. 3451. Questions by members of court. § 3443. Sessions. — Following the English custom the statute formerly provided that all sessions of the courts-martial should be held between the hours of eight o'clock in the morning and three o'clock in the afternoon, except in particular cases. But this sec- tion has been repealed by the Act of 1901, and the court is not governed by any statutory regulation as to the hours of its session. But it is obvious that the sessions should be so arranged that the judge-advocate may have an opportunity to prepare the daily record. It is evident that the law-makers intended that the sessions of the court-martial should now be determined entirely by the court itself: § 3444, Continuance. — "A court-martial shall, for reasonable cause, grant a continuance to either party, for such time, and as often, as may appear to be just: Provided, that if the prisoner be in close confinement the trial shall not be delayed for a period longer than sixty days."^ The rules in regard to the continuance are very similar to those in general practice in other courts. The court should re- quire a showing that the absent evidence is material and not cumula- ^ Article 93. 734 735 CONTINUANCE — EVIDENCE IN OPEN COUHT. | §§ 3445, 3446. tive. It should be satisfied also that the absence of tlie witness was not owing to the neglect or the procurement of the party. The accused ought not to be charged with negligence in this respect where the witness is prevented from being present by superior military author- ity.^ So where there is a material difference between the copy of the charge served upon the accused and the charge and specification upon which he is to be tried, or where a material and substantial amendment is made in the specification, either of these may be sufficient grounds for a continuance.^ So it is proper to continue the hearing in order to give the accused time to procure counsel. But a refusal to grant a continuance will not necessarily invalidate the proceedings; how- ever, if the accused has been prejudiced in any manner it may con- stitute good grounds for disapproving the sentence or for mitigating or partially remitting the punishment.* § 3445. Evidence heard in open court. — On the question of the production and introduction of the evidence in open court Col. Win- throp states the rule as follows: "All testimony, whether oral or written, and whether upon the main or an interlocutory issue, is to be introduced in open court, and no testimony can be received by the court during a period of deliberation after it has been cleared. So, where a member of the court has knowledge of material facts in the case, he cannot properly communicate the same privately to the court when cleared for deliberation, or to the other members but should cause himself to be sworn as a witness on the part of the prosecution or defense. To the rule that the testimony shall be taken in open court, an exception has been recognized in a case where a material witness, commorant at the station at whieli the court is as- sembled, is unable, through sickness or other disability, to attend, and the exigencies or interests of the service do not justify waiting for his recovery. In such a case the court may temporarily adjourn to the quarters or hospital where the witness may be, and receive the testimony, taken in the usual manner."® §'3446. Opening statement. — The order of the trial is very similar to that in criminal procedure. From the nature of the proceedings of a court-martial it is not regarded as of mucli importance to have = McClure Dig. of Opinions, § 275, * McClnre Dig. Opinions, § 276. note 5, § 277. ^ Winthrop Military Law & Prec. 'McClure Dig. Opinions, g§ 278, 430. 289. §§ 3447, 3448.] trial and findings. 73(5 an open statement either for the government or for the accused. It has been said that in complicated cases or where there are numerous charges and specifications that there may be some advantage both to the parties and the court for the judge-advocate to make a brief statement of the testimony intended to be offered to establish the charges and specifications and to state to the court the principles of law applicable to the case. These sometimes simplify and facilitate the trial and aid in the exclusion of collateral and irrelevant matters. The same applies to the statement of the defense where the witnesses are numerous or the points of law complicated. But in both in- stances argument should be avoided. § 3447. Swearing witnesses. — Before proceeding to hear any evi- dence the witnesses will all be called into the presence of the court and there have administered to them the oath or affirmation. While taking this oath the witnesses should stand with their right hands uplifted. The form of this oath or affirmation is : "You swear (or affirm) that the evidence you shall give, in the cause now in hearing, shall be the truth, the whole truth, and nothing but the truth. So help you God."® The judge-advocate is authorized to administer the oath.'^ And the judge-advocate may, where he is a witness, be sworn by the president of the court.^ § 3448. Separation of witnesses. — As in civil or criminal cases the witnesses may be separated and all excluded from the room or the immediate presence of the court except the one called to testify. Before the taking of evidence is commenced the judge-advocate may direct all the witnesses to remain out of the room or out of hearing of the court. The purpose of this is to avoid any collusion or any infl.uence that the testimony of one witness might have upon another who should hear the first and to arrive at the exact truth. This rule of exclusion should apply to witnesses for both sides. How- ever, the rule is seldom applied to expert witnesses as it is not sup- posed that their testimony would be influenced by that of any other witness.* '■ Article 92. ' Winthrop Military Law and ' Act July 27, 1892, § 4. Prec. 125. * McClure of Digest of Opinions, S 274. 737 ORDER OF PROOF. [§§ 3449, 3450. § 3449. Order of introduction of testimony. — After the court is convened and the witnesses presented and sworn, the judge-advocate calls the first witness for the government and proceeds to examine him. This examination is made by propounding a series of questions to the witness and requiring him to answer each consecutivelv until he has thus given all that lie knows as to the matter in controversy or touching the question of the accused. After the examination-in- chief of each witness, the accused, by his counsel, is permitted to cross-examine with a view of testing the knowledge and truthfulness of the witness as well as to show any bias or prejudice that he may have, and with a further view of extracting any evidence favorable to him. When the judge-advocate has examined all the witnesses on the part of the government he again announces that the prosecution rests. The accused then introduces his witnesses and examines each, subject to cross-examination by the judge-advocate. On the con- clusion of his evidence the government may then call any witnesses in rebuttal and the accused may again call witnesses to rebut any new matter developed on the rebuttal by the prosecution.^" The court will not limit the parties absolutely to this order l)ut may hear witnesses entirely out of order and new matter may be introduced at any time before the conclusion of the evidence, or the argument. The admission of any new evidence is subject to the right of the other party to cross-examine and rebut. ^^ § 3450. Hearing — ^Record of evidence and objections. — The gen- eral rules as to the method of taking evidence, reducing the same to writing, stating and considering objections as well as tlie rule per- mitting witnesses to correct their evidence, is thus stated by Mr. Greenleaf: "All evidence orally given in courts-martial, is taken down in writing by the judge-advocate, and recorded in the proceed- ings, in the words of the witness, as nearly as may be, and in the order in which it is received by the court. A question, being reduced to writing by the person propounding it, whether it be the prosecutor, the prisoner, or a member of the court, is handed to the president, and, if approved by him, it is read aloud and entered by the judge- advocate on the record of the proceedings; after which, if no objec- tion to it is sustained, it is addressed to the witness. If it is ob- jected to by a single member only, of the court, the party propound- '•1 Winthrop Military Law & "1 Winthrop Military Law & Prec. 427, 510. Prec. 429 and notes. Vol. 4 Elliott Ev. — 47 g§ 3451, 3452.] trial and findings. 738 ing it is entitled to the collective opinion of the whole court as to its admissibility. And if the question is rejected by the court, the question and its rejection are still entered of record with the pro- ceedings. If a witness wishes at any time before the close of all the testimony to correct or retrace any part of his evidence in which he has been mistaken, he will be allowed to do so; but this must be done by an addition to what he has before stated; and not by way of erasure or obliteration ; it being important, in all cases, that the supe- rior authority, which reviews the evidence, should have an accurate, and, as it were, a dramatic view of all that transpired at the trial."^- § 3451. Questions by members of court. — ^The members of a court-martial sit as the judges and they have the same right to ask questions as judges in civil and criminal cases. While it is not tlieir duty to conduct the examination yet it is their right and privi- lege to ask questions for the purpose of satisfying their own minds on any matter which is not clear to them. Or any member desiring further information may suggest a question to the judge-advocate or to the counsel for the accused. And the court as such, for the pur- pose of a more thorough investigation, may call upon the judge-ad- vocate to procure, if practicable, certain material evidence that has not been introduced and may give ample time by adjournment for the production of such evidence. ^^ § 3452. Decision and penalty. — On the conclusion of the evi- dence and the argument the court shall proceed to determine by vote as to the guilt or innocence of the accused. This determination shall be by a vote of the members of the court and in giving their votes it is expressly declared that court shall begin with tlie youngest in com- mission.^* It is also provided that no person shall be sentenced to suifer death, except by the concurrence of two-thirds of the mem- bers of the eourt.^^ When the vote is a tie on any charge or specifi- cation it is equivalent to a finding of not guilty, a majority being necessary to conviction. But in such cases the record should not state that in consequence of such tie vote the accused was therefore acquitted. The only showing that can be made by the records in such ease is that the vote on the charge or specifications was a tie." '2 3 Greenleaf on Evidence, § 492. "Article 96. "1 Winthrop Military Law & " McClure Dig. of Opinions, Free. 429, 430. § 1364. "Article 95. 739 FINDINGS SHOULD FOLLOW EVIDENCE. [§§ 3453, 3454. Neither can the court assess the punishment of confinement in the penitentiary unless the offense of which the accused may be con- victed would by some statute of the United States, or by some statute of the state, territory or district in which the alleged offense was committed, subject the accused to similar punishment. ^^ It is evi- dent from these articles that punishment by confinement in a peniten- tiary cannot be assessed where the offense is a breach of military discipline or of a purely or exclusively military character." § 3453. Finding^s — Follow evidence. — The finding of the court- martial should be in accordance with the evidence. Otherwise it is subject to disapproval. A court-martial has neither the right nor power to disregard the evidence introduced at the hearing; its find- ing and sentence must stand on this. However, it is within the prov- ince of the court to pass upon the weight of the evidence and the credibility of the witnesses. Where the evidence is conflicting the members of the court must determine the measure of credibility which they will attach to each of the several witnesses. In determin- ing this it is proper for the court to take into consideration, in con- nection with the testimony, the appearance and conduct of the wit- nesses while testifying, also their manner, and apparent candor or prejudice, as well as the reasonableness and consistency of their story.^^ The findings on the charge and the specification or specifi- cations should be consistent. But where there is more than one specification, if the finding on any one of them that is consistent with finding on the charge, it is sufficient.-'' § 3454. Finding — On charge and specifications. — As shown in a previous section the accusation consists of the cliarge and the specifi- cation or specifications which are entirely separate. So the finding of the court should be expressly and separately upon such charge and upon the specification; the finding should state, (1) that the accused is found guilty or not guilty upon the charge, (2) that the accused is found guilty or not guilty upon the specification. Or in case of more than one specification it may state tliat the accused is found guilty on each, or that he is found guilty of one specification, giving the number, and not guilty upon another or others, giving the number or " Article 97. '' McClure Dig. of Opinions, "McClure Dig. of Opinions, § 288, §§ 1352, 1365. et seq. "" McClure Dig. of Opinions, §§ 1353, 1367. §§ 3455, 3456.] trial and fixdixgs. 740 numbers.-^ Where no evidence is introduced the rule is that the find- ing should conform to the plea. In case an accused should plead guilty to the specification but not guilty to the charge, it then be- comes a question of law for the court to determine whether or not the facts alleged in the specification sustain the charge as a matter of law, and if the court determines that they do then it may find accused guilty on such plea of both charge and specification.-- § 3455. Finding — Exceptions and substitutions. — Wliere the court finds the accused guilty of the charge, it also has the power, when the evidence warrants, to find him guilty of a part of the specifica- tion only and excepting the remainder. So it has been held that in finding him guilty of the whole, or a part, the court may substitute correct words or allegations in place of such as are shown by the evi- dence to have been inserted through error. When such exceptions or substitutions make the specification appropriate to the charge and legally sufficient, the accused may then be found guilty of the charge in the usual manner.^^ Instances of the power of the court to ex- cept and substitute occur where the name or rank of the accused or other person is erroneously stated, or the averment of time, place, date, amount, quantity or quality is erroneous.^* Another instance of this power of the court to change or substitute is that where the offense stated in the charge includes a lesser kindred ofEense. Thus under a charge of desertion the court may find the accused guilty of absence without leave and so change the specification. Under such a charge where the evidence fails to establish a desertion but does show an unauthorized absence, the accused should be convicted of this as his actual offense and the court may except such words of the specification as describe the desertion and substitute words describing the lesser offense of absence without leave. '^ But this rule will not justify the conviction of an accused of an offense entirely separate and distinct in its nature from the one charged.-'' 3456. Finding — Approval. — "No sentence of a court-martial shall be carried into execution until the same shall have been approved by -'McClure Dig. of Opinions, =* McClure Dig. of Opinions, § 1354. § 1357. -McCIure Dig. of Opinions, =^ McClure Dig. of Opinions, §§ 1352, 1353. § 1359. =^ McClure Dig. of Opinions, =" McCIure Dig. of Opinions, § 1355. § 1360, et seq. 1 il riXDiXG. [§ 3456. the officer ordering the court, or by the officer commanding for the time being."-^ "The officer commanding for the time being is held to be an officer who has succeeded to the command of the officer who convened the court; or where the command of the convening officer has been discontinued and merged in a larger or other command at some period of time after the convening of the court and before the findings are to be approved."-^ But it is held that a department commander cannot deputize a staff or other officer to act for him in this respect while temporarily absent from his headquarters.^® And it is the statutory provision that in time of war "no sentence of a court-martial appointed by the commander of a division or of a sep- arate brigade of troops, directing the dismissal of an officer, shall be carried into execution until it shall have been confirmed by the general commanding the army in the field to which the division or brigade belongs."^" But under more recent statutes it seems unnec- essary for the reviewing officer to approve more than the sentence; and under this statute it would doubtless be sufficient to state in general terms that the sentence is approved. ^^ The commanding offi- cer authorized to approve the sentences of summary court and supe- rior authority now has power to remit or mitigate such sentences.^^ And the statute also provides that "all sentences of a court-martial may be confirmed and carried into execution by the officer ordering the court, or by the officer commanding for the time being, where confirmation by the President, or by the commanding general in the field, or commander of the department, is not required by these arti- cles."^^ The approval of the finding or sentence as required by these articles should be of a formal character. But it has been held that the writing of a single word "approved" when signed by the com- mander, though strictly sufficient in law, is irregular and objectiona- ble. So a mere recommendation that the proceedings be approved is insufficient. These articles of war require that the sentence of the court-martial be approved, and it has been held that it is not suffi- =" Article 104; Dig. Opin. J. A. G., the disniissal of an oflScer must be Par. 2227. confirmed by the President before ^ McClure Dig. of Opinions, becoming effective. A. W. 106. §§326,327,333. ^'McClure Dig. of Opinions. '^McClure Dig. of Opinions, § 2228; Act July 27, 1892. See U. §§ 325, 2234. S. Comp. Stat. 968, art. 104. •>» Article 107. In time of peace a -'=1 U. S. Comp. Stat., p. 962, § 3. sentence of court-martial directing ''" Article 109. § 3457.] TRIAL AXD FINDINGS. 742 cient to approve the findings only.-'''' It seems that the following properly signed by the officer is sufficient : "The proceedings, findings, and sentence are approved."^^ 3457. Finding — Approval by the President. — The article of war provides that : "jSTo sentence of a court-martial, inflicting the pun- ishment of death, shall be carried into execution until it shall have been confirmed by the President; except in the cases of persons con- victed, in time of war, as spies, mutineers, deserters, or murderers, and in the cases of guerilla marauders, convicted, in time of war, of robbery, burglary, arson, rape, assault with intent to commit rape, or of violation of the laws and customs of war; and in such excepted cases the sentence of death may be carried into execution upon the confirmation by the commanding general in the field, or the com- mander of the department, as the case may be."^® There are certain other classes of cases where the sentence must be approved by the President, thus : "In time of peace no sentence of a court-martial directing the dismissal of an officer shall be carried into execution until it shall have been confirmed by the President."^^ It is also pro- vided that "no sentence of a court-martial, either in time of peace, or in time of war, respecting a general officer, shall be carried into exe- cution until it shall have been confirmed by the President."^^ The statute provides no form by which the President shall declare his confirmation of the sentence. Nor does it require that such a con- firmation shall be signed by the President. It has accordingly been held that under the well established principle that the personal sig- nature of the President is not made essential by law to give effect to executive proceeding; but that the signature of the head of the de- partment to which the subject belongs is sufficient, his act being deemed in law the act of the President.^" But it has been held that the approval of the President must bo so authenticated that it will show, otherwise than argumentatively, that such confirmation is the result of the judgment of the President, and that it is not a mere departmental order to which his attention may or may not have been ^McClure Dig. of Opinions, § 324. -"Article 108. '^Hamilton v. McClaughry, 136 =' McClure Dig, of Opinions. § 337; Fed. 455. 15 Opinions Attorney-General 290; ^'McClure Dig. of Opinions, § 98; United States v. Page, 137 U. S. Article 105. 673, 11 Sup. Ct. 219. ==' Article 106. 743 DISAPPROVAL. [§ 3458. called ; in other words, the fact that the confirmation is the act of the President must not be left to inference only.*^ § 3458. Findings — Disapproval. — Disapproval of the findings and sentence wholly nullifies them. This disapproval of the sentence is not a mere expression of disapprobation, but it has been held to be a final determinate act; it puts an end to the proceedings, and renders the sentence nugatory and inoperative. If the intervening reviewing officer disapproves the sentence it is not required to be then for- warded to the final or ultimate reviewing officer or person.^^ But the disapproval must be express ; the mere absence of approval is held not to amount to a disapproval. The disapproval is held to be tantamount to an acquittal by the court.*^ A reviewing officer cannot disapprove the sentence or the proceedings and then in any manner change or mitigate the punishment.*^ Wliere the proceedings are erroneous or ill advised, or the sentence inadequate, he may reas- semble the court and give his reasons for so doing ; but he has no power to add to the penalty or increase the sentence in any manner.** «Runkle v. United States, 122 U. " McClure Dig. Opinions, § 2229. S. 543, 7 Sup. Ct. 1141; United *= 13 Opinions Att'y-Gen. 460; Mc- States v. Page, 137 U. S. 673, 11 Clure Dig. of Opinions, § 2229. Sup. Ct. 219; United States v. « McClure Dig. of Opinions, Fletcher, 148 U. S. 84, 13 Sup. Ct. § 2229. 84; Schley's Case, 14 Green Bag 99, " McClure Dig. of Opinions, 147. But see Bishop v. United § 2231. States. 197 U. S. 334, 25 Sup. Ct. 440. CHAPTER CLXXIV. EVIDENCE GENERAL BULGES. Sec. Sec. 3459. Generally. 3468. Proof of enlistment. 3460. Rules of evidence. 3469. Documents — Telegrams. 3461. Rules of evidence — Green- 3470. Degree of proof— Reasonable leaf's rule. doubt. 3462. Agency and identity of ac- 3471. Rank of officer— Effect on evi- cused. dence. 3463. Proof of corpus delicti. 3472. Opinion evidence. 3464. Intent— Proof. 3473. Burden of proof. 3465. Relevancy of evidence. 3474. Burden of proof never shifts. 3466. Documentary evidence. 3475. Character — Proof as to. 3467. Documents — Record of previ- 3476. Impeachment of witness. ous trial. 3477. Depositions. § 3459. Generally. — It is not within the scope of this work, un- der this particular heading, to give in detail all the rules of evi- dence applicable to trials by court-martial. In the nature of the ease this would involve a repetition of a vast amount of material found in the preceding volumes of this work. This would necessarily involve the discussion anew of all such subjects as the relevancy of the evi- dence, its materiality and competency, the competency of witnesses and parties, presumptions and burden of proof, judicial notice, hear- say, res gestae admissions, documentary evidence and all other prin- ciples which form the basis of the admissibility of evidence in the trial of civil and criminal cases. It is the purpose herein to consider the rules that are particularly applicable and incident to court- martial proceedings, leaving to the student and the practitioner alike the general rules and principles stated and illustrated throughout the body of this work. If any of these principles are repeated here it is for the purpose of showing their special application in the practice in these tribunals. § 3460. Rules of evidence. — The rules of evidence in court- martial proceedings are not essentially diiferent from those which 744 745 RULES OF EVIDENCE. [§§ 3461, 3462, obtain in tho criminal courts generally throughout tlic United States and in England. Wherever there are any statutory regulations or provisions on the subject of courts-martial, or the evidence admissible on the trials in such courts, these must control. But in the absence of such statutory regulations the common law rules of evidence apply although not, perhaps, in all their strictness. The rule governing in such cases is that when a legislature creates a new court or a new judi- cature and fails to prescribe the rules of practice as to the admissibility of evidence, such courts will not be permitted to lapse by reason of such failure, but the common law will supply the rules sufficient and neces- sary for the practice in courts thus created. Hence, where there is any failure to prescribe the rules of evidence for trials in courts-martial, the rules of evidence then that prevail in the criminal courts of the country will be used as guides for the practice in these courts.^ § 3461. Rules of evidence — Greenleaf s rule. — The principle of the preceding section is recognized by both courts and law writers. So far as any rules of evidence have ever been applied in courts- martial as a matter of practice the rules of the common law have been followed in so far as they have been applicable, and criminal procedure in its simplest form has always been regarded as the stand- ard in these courts. Mr. Greenleaf states the rule both as to martial and military law thus: "The tribunals of both are alike bound by the common law of the land in regard to the rules of evidence, as well as other rules of law, so far as they are applicable to the manner of proceeding; but courts-martial, when administering the military law, having cognizance only of criminal offenses, are bound by the rules of evidence administered in criminal cases in the courts of common law; and therefore ought not to convict the prisoner until all rea- sonable doubt of his guilt is removed; allowing the presumption of innocence, in all cases, to operate in his favor ; whereas, when taking cognizance, under martial law, of matters of merely civil conduct, such as the non-payment of debts, or the like, they are at liberty to decide according to the preponderance of testimony on either side."^ § 3462. Agency and identity of accused.— In making the chain of evidence which must bind and convict tlie accused it must be ^Simmon Courts-Martial 330; 88; Ayde Courts-Martial 174; Mac- Benet Military Law and Courts-Mar- Arthur Courts-Martial 107, 112. tial 224; Grant v. Gould, 2 H. Bl. 69, -3 Greenleaf Ev., § 469. §§ 3463, 3464.] evidence in general. 746 shown that he was the agent, in the commission of the ofPense; he must be identified as the person who committed the act. This is not regarded as diflBcult to establish where the accused is well known and the offense was committed in daylight. But where the accused is a stranger, or the offense was committed in tlie night-time, much difificulty in establishing the agency and the identity of the accused is sometimes experienced; but the law makes no allowance for these, or like difficulties, and satisfactory proof must be made of these dis- tinct facts in order to justify a conviction. § 3463. Proof of corpus delicti. — The proof before a court-martial, as in other courts, mu?;t establish three propositions: (1) That the act stated in the charge and those, or some of them, as stated in the specifications which constitute the alleged offense, were actually com- mitted; (2) that the accused is the identical person who alone, or with others, committed the ofl'ense; (3) that the accused committed the offense with the intent and purpose which bring it within the terms of the charge and the specification. It is a fundamental prin- ciple in all criminal proceedings that the body of the crime, the fact that the alleged offense was actually committed, must be established by the proof. There can be no such thing as a conviction for a crime until the proof fully and fairly establishes the fact that such a crime has actually been committed. Whatever the charge and the specifi- cations may be they constitute separate and distinct facts necessary to be established by the proof independently, in a sense, of the other fact that the accused was in any way connected with the alleged crime or offense. This rule is of such binding force that such proof is not dis- pensed with even in cases of confession by the accused, as the confes- sion alone does not prove what is usually termed the corpus delicti.^ § 3464. Intent — Proof. — Ordinarily, a criminal intont is neces- sary in order to constitute crime. And, as a general rule, this intent must be proved. It has been said that crimes are divided into two classes with reference to the element of intent : ( 1 ) "Those in which a distinct and specific intent, independent of the mere act, is essen- tial to constitute the offense." To this class belong murder, larceny, burglary, desertion and mutiny. (2) "Those in which the act is the principal feature, the existence of the wrongful intent being simply ^ United States V. Searcey, 26 Fed. 435; 1 Winthrop Military Law & Pr. 474 n. 747 RELEVANCY. [§§ 3465, 34GG. inferable therefrom." In this class may be ranged arson, rape, per- jury, disobedience of orders, drunkenness on duty, and neglect of duty; usually all breaches of military discipline belong to this class. In the first class of cases the intent must be proved as a separate and distinct fact. In the second class it is essential to prove the un- lawful act only and the law then supplies the intent. In many cases in both classes the intent may be inferred from the proof of the act, under the principle that every person is presumed in law to have in- tended what he actually does. "When the proof shows that an un- lawful act was done, the law presumes the intent, and proof of the act being a violation of law is proof of the intent."* § 3465. Relevancy of evidence. — Notwithstanding the simplicity of the practice and the liberality extended in the introduction of the evidence, a court-martial is bound by the rule that the evidence must be relevant. It caimot indulge in what is sometimes termed a drag- net process for the purpose of bringing in evidence of some kind to establish the fact that the accused at some time was guilty of some offense. The evidence should relate solely and distinctly to the charge. This rule does not, however, prohibit the introduction of collateral facts and circumstances which tend to establish the particular accu- sation. This principle is stated by Mr. Greenleaf as follows : "Thus the rule respecting the relevancy of evidence prohibits the court- martial from receiving any evidence of matters not put in is?ue by the charge, or which would implicate the prisoner in a new or dis- tinct offense, or in a degree or extent of guilt not appearing on the charge on which he is arraigned. This rule, however, does not for- bid inquiry into circumstances which, though collateral, and not men- tioned in the specifications, yet have a direct bearing on the matter charged."^ § 3466. Documentary evidence. — The production and introduction in evidence of documents in trials and proceedings before courts- martial are governed by the same general rules as obtain in civil and criminal proceedings. They may be produced on a subpoena duces tecum issued by the judge-advocate ; or by certified copies of records, papers and documents.^ And certified copies of muster rolls from ♦United States v. Baldridge, 11 *3 Greenleaf Ev.. § 476; 1 Win- Fed. 552; 1 Winthrop Military Law throp Military Law & Pr. 482. & Pr. 475. 'McClure Dig. Opinions. § 1296; §§ 3467-3469.] evidence in general. 74& the files of the war department are admissible in evidence.' "Gen- eral orders issued from the War Department or Headquarters of the Army may ordinarily be proved by printed official copies in the usual form. The court will in general properly take judicial notice of the printed order as genuine and correct. A court-martial, however, should not, in general, accept in evidence, if objected to, a printed or written special order, which has not been made public to the army, without some proof of its genuineness and oflficial character."^ §3467. Documents — ^Record of previous trial. — It sometimes be-, comes important to make proof of the testimony introduced at a former trial. But it has been held that the record of such former trial is not admissible for this purpose. So the record of a board of investigation ordered in the same case cannot be admitted over the objection of the accused. Except in certain cases provided for by the articles of war, the testimony at a former hearing if desired must be introduced in the same manner as in the original case.® § 3468. Proof of enlistment. — As shown by a previous section the court must have jurisdiction of the person of the accused. Hence, the proof must show that the accused belongs to a class over which the court-martial has jurisdiction. It must show that he is an en- listed soldier or that he is such a civilian whose conduct for the time being is subject to military control. Proof that tlie accused is an en- listed soldier may be made by certified copies of the muster rolls from the records in the war department. This is regarded and held as sufiicient evidence that the soldier was duly enlisted or mustered into the service and is, therefore, held as a soldier. But such certified copy of the record is subject to rebuttal by proof of fraud or illegality in the enlistment or muster, and the accused may show that he is en- titled to a discharge.^" § 3469. Documents — Telegrams. — Courts-martial have experienced some difficulty and embarrassment in making proof of the sending or receiving of telegraphic messages. The rule has been established in these courts that the written or printed copy delivered by the com- pany to the person to whom it was addressed is generally admissible 1 Winthrop Mil. Law & Pr. 499, et « McClure Dig. Opinions, § 1294. seq. 'McClure Dig. Opinions, § 1291. ^ McClure Dig. Opinions, § 1293. ^^ McClure Dig. Opinions, § 1293. 749 DEGREE OF PROOF REASONABLE DOUBT. [§ 3470. in evidence in the absence of evidence or circumstances casting a reasonable doubt upon either its genuineness or correctness. Tliis rule, however, cannot apply where it is necessary to pi-ove that the telegram was duly sent but that it was not received or its receipt is denied. In such cases the fact must be proved by a competent wit- ness.^ ^ A telegraph operator may be required by subpoena duces tecum issued by the judge-advocate to appear before a court-martial and bring with him either the original or a copy of a certain tele- graphic dispatch. But where the operator is a civilian the court- martial has no power to compel him to surrender the telegram or a copy to be used in evidence.^- § 3470. Degree of proof — Reasonable doubt. — The rule as to the degree of proof and as to reasonable doubt is stated by Col. Win- throp as follows : "In a civil action the plaintiff needs in general but to make out a prima facie case, or to offer evidence materially pre- ponderating over that of the defendant, to give him the verdict of judg- ment. But the quantity of the proof required (on the part of the prosecution) is considerably greater upon criminal trials, where there exists always in favor of the accused the presumption of innocence — a presumption from wliich results the familiar rule of criminal evi- dence that, to authorize a conviction, the guilt of the accused must be established beyond a reasonable doubt. By 'reasonable doubt' is intended not fanciful or ingenious doubt or conjecture, but sub- stantial, honest, conscientious doubt, suggested by the material evi- dence in the case. 'It is,' as expressed by the court in a recent case, Sm honest, substantial misgiving, generated by insufficiency of proof. It is not a captious doubt, not a doubt suggested by the ingenuity of counsel and unwarranted by the testimony; nor is it a doubt born of a merciful inclination to permit the defendant to escape conviction, nor prompted by sympathy for him or those connected with him.' The meaning of the rule is that the proof must be such as to exclude, not every hypothesis or possibility of innocence, but any fair and rational hypothesis except that of guilt; what is required being not an absolute or mathematical but a 'moral certainty.' A court-martial which acquits because, upon the evidence, the accused may possibly be innocent falls as far short of appreciating the proper quantum of ])roof required in a criminal trial, as does a court which convicts because the accused is probably guilty. However convincing the testi- "McClure Dig. Opinions, § 1295. '=McClure Dig. Opinions, § 1296. §§ 3471-3473.] evidence ix general. 750 mony, it is nearly always possible that the accused may be innocent; on the other hand, though the probabilities may favor his guilt, a material and sensible doubt of the same may exist, of which he is entitled to the benefit. It is to be observed that the general rule in- dicated applies alike to each of the three main facts required to be made out upon a trial, in order to establish guilt, viz. — the corpus delicti, the identity of the accused with the real offender, and the requisite criminal animus. Each must be proved beyond a reasonable doubt."i3 § 3471. Eank of officer — Effect on evidence. — An officer is not ex- cused from testifying as a witness on account of rank. The rules of evidence in these military courts should be applied without re- gard to rank. And a ranking officer who testifies as a witness for the prosecution may be asked on cross-examination if he has not ex- pressed animosity toward the accused. So he may be asked if he has not made statements out of court, contradictory to, or materially different from the testimony given at the trial. And the officer, as such witness, cannot refuse to answer on the grounds that questions which tend to discredit him are disrespectful.^* § 3472. Opinion evidence. — The general rules as to expert evi- dence apply to proceedings and witnesses before courts-martial. The opinions of expert witnesses are competent and admissible when de- pending on knowledge of special branches of military science. But such opinions are not admissible on general questions of military science where the members of the court-martial are as competent to form the correct conclusions as the witness.^^ § 3473. Burden of proof. — The rule as to the burden of proof is stated by Col. Winthrop as follows : "It is a general rule of evidence that 'the obligation of proving any fact lies upon the party who sub- stantially asserts the affirmative of the issue.' And upon a criminal trial, where there stands at the threshold the presumption of the in- nocence of the accused, and the affirmative of the issue is thus neces- sarily asserted by the government, the burden is imposed upon the prosecution of proving the existence of every material fact required "1 Winthrop Mil. Law & Pr. 476. pel's Case, 2 McArthur Ct. Mar. 135; "McClure Dig. Opinions, § 1286, 3 Greenleaf Ev., § 478. As to em- and note. ployment of experts, see Smith, "Gen. Whitelocke's Case. 2 Mac- Matter of, 24 Ct. CI. 209. Arthur Ct. Mar. 147; Admiral Kep- 751 BURDEN OF PROOF — CHARACTER EVIDENCE. [§§ 3474, 3475. to establish the offense charged. The onus proband! is not always confined to the proof of a proposition affirmative in form. The gist of the offense may be criminal neglect, and here the prosecution is called upon to prove a negative. This more frequently occurs in mili- tary than in civil cases, several of the Articles of War making pun- ishable in terms the not doing of some duty incidental to the military status, or the doing of some act without the autliority of the proper superior. One or the other of these negative elements may be per- ceived in offenses designated in Articles 7, 15, 16, 17, 23, 31, 32, 33, 34, 35, 40, 60, 67, 69. But it is the general charge laid under Article 62 of neglect of duty, to the prejudice of good order and military discipline, that most conspicuously illustrates the frequency of the obligation to prove a negative which is imposed on the government in military cases. Yet the negative here is often but an affirmative in another form ; the issue requiring the proving affirmatively of the com- mission of a specific act the doing of which is alleged to constitute the offense."^*' § 3474. Burden of proof never shifts. — The prosecution is always required to make out the offense charged. This burden never shifts to the accused. The accused may set up and present a defense which entitled him to an acquittal; this defense may be for him to estab- lish; but the burden is not on him to make out this defense either by a preponderance or beyond a reasonable doubt. If by proof of his defense he raises a reasonable doubt as to the case made by the prose- cution it is sufficient. This rule is stated by Col. Winthrop thus: "The burden of proof of guilt never shifts from the side of the prose- cution. The accused may, indeed, admit the commission by him of the act charged, claiming that it did not constitute an offense on his part because of the existence of a certain fact which he sets up as a defense. Asserting this defense the burden is upon him to maintain it. But the onus of proving guilt remains with the state, and if the accused so far makes out his defense as to involve the main issue in a reasonable doubt, the prosecution must dispel this doubt by further evidence, in order to obtain a conviction."^'' § 3475. Character — Proof as to. — Proof of character in military courts is in the main, governed by the same riiles as in civil and crim- inal courts. Evidence of previous good character may be introduced ^n Winthrop Mil. Law & Pr. 485. ^" 1 Winthrop Mil. Law & Pr. 485. §§ 3476, 3477.] evidence in general. 753 hy the accused as part of his defense. But this evidence, as in other cases, must be confined to the element of character involved in the charge. As sometimes stated it must be in some degree "apposite to the species of criminality charged." The effect of proof of character is usually to raise a reasonable doubt, on the improbability of a person of such good character committing the offense charged. It is most valuable in doubtful cases. In military cases proof of character is seldom offered as a defense ; it is usually intended for the court or the reviewing officer to consider in mitigation of the punishment. For this purpose it is often presented in case of a plea of guilty. When thus offered it is not subject to tlie ordinary limitations as to time or the element of character involved in the charge. It "may exhibit the reputation or record of the accused in the service; for efficiency, fidelity, subordination, temperance, courage or any of the traits or habits that go to make the good officer or soldier. It need not be lim- ited to general character, but may include particular acts of good conduct, bravery," etc.^* § 3476. Impeachment of witness. — The general rules as to the im- peachment of witness apply in courts-martial. A witness may be impeached, (1) by discrediting him on his cross-examination; (2) by proof of contradictory statements made out of court; (3) by proof showing that his general reputation for truth and veracity is bad.^^ Before proof of contradictory statements can be offered, the witness must first be asked on cross-examination if he did not at a particu- lar time and place make such a statement. In case of denial, the impeaching witness can, at the proper time, be introduced and state what the first witness said. But this evidence of the impeaching witness does not prove any fact ; its only purpose is to impeach and discredit the first witness. ^° § 3477. Depositions. — Depositions may be taken and read in evi- dence before courts-martial. The statute excludes depositions, how- ever, in all capital eases; that is in all cases where the death penalty may be assessed. Depositions of only such witnesses as reside beyond the limits of the state, territory or district can be taken. ^^ Deposi- ^'1 Winthrop Mil. Law & Pr. 533. Gilp. (U. S.) 60, 11 Fed. Gas. No. ^» 1 Winthrop Mil. Law & Pr. 526. 6015. Vol. n, Chap. 45. ^^ Article 91; McClure Dig. Opin- "^'1 Winthrop Mil. Law & Pr. 527, ions, § 256; Military Laws of U. S. and notes; Hand v. Elvira. The, (Davis) 744, 745. 753 DEPOSITIONS, [§ 3477. tions should now be taken before one of the military officers specified in the statute, or if he is not accessible then by a civil officer com- petent to administer oaths generally. -^ The authority of the officer must sufficiently appear.^^ It is given, as a recommendation at least, that the depositions of officers and public officials should be taken in proper eases where they are stationed at points distant from the place of trial. Nor should a high officer or civilian, such as the Secre- tary of War, be required to attend as a witness when the same facts can be proved by other, or where proof can be made by certified copies of records.^* The party taking the deposition must put it all in evi- dence; he cannot use the parts favorable to himself only; and if he declines to use it the adverse party may put it in evidence. ^^ =^Acts July 27, 1892. § 4; McClure =* McClure Dig. Opinions, § 257. Dig. Opinions, §§ 264, 269. ° McClure Dig. Opinions, §§ 258, ^ 2 Opinion Attorney-General 344; 259; Military Laws of U. S. (Davis) 19 Opinion Attorney-General 501; 744, n. 1. 27 U. S. Stat, at Large 278. Vol. 4 Elliott Ev.— 48 CHAPTER CLXXV. EVIDENCE IN PARTICULAR CASES. Sec. 3478. 3479. 3480. 3481. 3482. 3483. 3484. 3485. 3486. 8487, Absence without leave. Burglary. Conduct to the prejudice of good order and discipline. Conduct to the prejudice of good order — Member of court-martial. Conduct to the prejudice of good order — On part of offi- cers. Conduct to the prejudice of good order — On part of sol- diers. Conduct unbecoming an offi- cer, etc. Desertion — Proof. Desertion — Absence without leave. Desertion — Penalty. Sec. 3488. Desertion— E nlistment in enemy's ari!ay. 3489. Desertion — Escape. 3490. Desertion — Pay and forfei- tures. 3491. Desertion — Defense. 3492. Desertion — Reward for arrest. 3493. Drunkenness while on duty. 3494. Drunkenness — Proof. 3495. Embezzlement. 3496. Embezzlement — Proof and presumption. 3497. Enlistment — Proof. 3498. Fraudulent claims. 3499. Mutiny— Proof. 3500. Mutiny— Intent. 3501. Mutiny — Suppression. 3502. Relieving the enemy. 3503. Sleeping on post. § 3478. Absence without leave.— The Articles of War provide for. the punishment of any soldier absent without leave.' There is a clear distinction between absence without leave and desertion, and the charge for the latter must be under a separate article.^' So, a violation of any one of these articles should be charged under its ap- propriate number. Thus, a violation of Article 33 should not be charged under Article 32.=* Proof of absence without leave is suffi- cient to forfeit the offender's pay for the time absent.* But tliere is no provision for requiring a soldier who has been absent without leave to make good the time lost, as in case of desertion.' On a con- ^ Articles 31, 32, 33, 34. = Article 48. See, §§ 3485, 3486. But see, Dynes v. Hoover, 20 How. (U. S.) 65. ^McClure Dig. Opinions, § 376. * McClure Dig. Opinions, §§ 375, 378. ^ McClure Dig. Opinions, § 375. See, § 3487. 754 755 BURGLARY. [§§ 347 D, 3480. viction of the charge of absence without leave the accused will be charged with the expenses of transportation to his proper station.^ Summarily dropping a volunteer officer for absence without leave is equivalent to a discharge without honor.' The offense cannot be presumed from the mere fact of absence. That the absence was un- authorized can be proved by the officer whose duty it was to grant leave. The entry of the fact on the morning report book or muster roll would be insufficient. § 3479. Burglary. — A soldier may be tried before a court-martial on a charge of burglary. But the charge should be under Article 62 with the specification of burglariously entering the tent, barracks or quarters of another where the offense was committed. Wliere the specifications set forth that a soldier forcibly entered the quarters of an officer in the night time, with the intent to steal, it was held that the charge was not defeated because the proof showed that he entered through an open window, and hence that the essential common law ele- ment of breaking was absent, but it was sufficient proof of disorder and a breach of military discipline under Article 62. So, the charge of burglariously breaking and entering a post trader's store in the daytime, may be punished as a breach of army discipline.* § 3480. Conduct to the prejudice of good order and discipline. The most comprehensive of all the Articles of War in relation to the punishment of offenses not specifically named and defined reads as follows: "All crimes not capital, and all disorders and neglects, which officers and soldiers may be guilty of, to the prejudice of good order and military discipline, though not mentioned in the foregoing Articles of War, are to be taken cognizance of by a general or a regi- mental, garrison or field-officer's court-martial, according to tlie na- ture and degree of the offense, and punished at the discretion of such court."^ The evident purpose of this article is to cover every conceivable or imaginary offense not specifically stated in other ar- ticles, with the view of preventing the impossibility of any offending officer or soldier in the army escaping justice, and consequently to preserve the best order and the strictest discipline in the military and naval service. "Wherever the offense committed is one not cer- tainly, or fully, designated or described in some other particular ar- "McClure Dig. Opinions. § 1070. *^ McClure Dig. Opinions, § 642. ^McClure Dig. Opinions, § 1135. » Article 62. §§ 3481, 34S2.J evidkxcl; in pahticulak cases. 756 tide, or where, though so designated no punishment is assigned for its commission, or where it is doubtful under which of two or more articles the oifender should be prosecuted, recourse is had to this comprehensive and serviceable provision as the authority and founda- tion for tli,e charges and proceedings."" The word "crimes," as here used, has been held to mean military offenses of a more serious char- acter than disorders and neglects, and to include such as might be civil crimes, but where no punishment is otherwise provided in the Articles of War. Both terms, "crimes" and "disorders and neglect," are qualified by the phrase "to the prejudice of good order and mili- tary discipline." Thus, any crime, not capital, and not mentioned in any other article, would properly be chargeable under this, if it is to the prejudice of good order and military discipliae.^^ ^ 3481. Conduct to the prejudice of good order — ^Member of court-martial. — Under Article 62 charges may be made against mem- bers of a court-martial. Col. Winthrop gives the following list as illustrating the number and character of such charges : "Improperly disclosing the proceedings had in secret session; refusing to vote a punishment after conviction; appearing drunk before the court, or behaving disrespectfully to the court; as a witness failing to com- ply with a summon; testifying falsely under oath; using disrespect- ful language, or behaving disrespectfully or contumaciously to the court; as an accused (or counsel for an accused), transcending the privilege of the defense or statement by indulging in unwarrantable strictures upon a superior officer, or gross personalities; attempting to suborn or intimidate a witness ; contempt of court, where not pun- ished summarily under Article 86.^^ § 3482. Conduct to prejudice of good order, etc. — On part of of- ficers. — The best rules of evidence and tlie proof required under Article 62 is to be found in the charges which have been made and sustained under this article. The nature of the charge indicates the character of the proof required to sustain it. Col. Winthrop gives the following as examples of the charges made and sustained against officers under this article, with reference to the general order where they may be found : "N'eglect to observe, or carelessness in observing, 1" 2 Winthrop Mil. Law & Pr. 1118. '- 2 Winthrop Mil. Law & Pr. 1131; "McClure Dig. Opinions, §§ 148, McClure's Dig. Opinions, §§ 148- 149. See also. Mason, Ex parte, 105 160. U. S. 696. 757 CONDUCT PREJUDICIAL TO GOOD OUriKi;. [§ 3482. standing post orders; neglect of official dutj' in devolving important work upon an inadequate subordinate; insubordinate conduct not properly chargeable under Articles 20 or 21 ; neglect to attend drills, or other exercises or duties not chargeable under Article 33 ; failure by a commanding officer to be present and properly exercise command ; failure to maintain discipline in his conimaud by the suppression of disorders; failure to maintain and restore the public peace on an oc- casion of a riot which he was called upon to suppress; failure to properly supervise and inspect public work in his charge; failure to bring offending inferiors to punishment ; allowing illegal or irregular practices within his command ; abuse of authority in assaulting or punishing inferiors; arbitrary treatment of camp followers; allow- ing a soldier to go on duty when known to be materially under the influence of liquor; employment of soldiers for non-military or other illegal uses; neglect of public animals in his charge: exceeding ex- tended limits of arrest; assuming a rank superior to his own — as a lieutenant the rank of captain; inefficiency in service against Indians; rendering himself unfit for duty by excessive use of spirituous liquors ; gambling, by an officer not a disbursing officer, with other officers or enlisted men; altercation with another officer in the presence of inferiors ; fighting a duel ; inciting another officer to challenge him to a duel ; preferring or making groundless charges ; publicly demeaning himself by receiving chastisement from an inferior, without prop- erly resenting it or taking measures to bring the other to punishment ; making or causing publications in newspapers, pamphlets, etc., of strictures upon the act or conduct, official or personal, of other offi- cers, or upon the administration of the army; taking part in meet- ings convened for the purpose of expressing disapprobation of the orders or acts of superiors; entering into alleged combinations with other officers or soldiers ; joining with others in requesting the resigna- tion of a commanding officer; tendering his resignation in language disloyal to the government; expressing sentiments disloyal to the government, and in sympathy with the enemy ; causing troops to be transported on a steamer known to be unsafe; culpable neglect of the sick, or malpractice, by a surgeon; inexcusable neglect by a chap- lain to perform funeral services; drunken conduct in public in the presence of military inferiors; disrespectful and insulting language to a superior officer, in the presence of officers and soldiers, while all were held confined as prisoners of war by the enemy ; failure to make proper investigation as member of a board of survey ; ordering a garri- § 3483.] EVIDENCE IX PARTICULAR CASES. 758 son court to try a capital offense, and putting the members in arrest because the court held that it had no Jurisdiction."" § 3483. Conduct to the prejudice of good order, etc. — On part of soldiers. — Col. Winthrop gives the following instance of conduct to the prejudice of good order on the part of enlisted men: "Special neglects or violations of duty on guard, as omission to challenge, in time of war; allowing or suffering prisoners to escape; bringing whiskey into guard-house; improperly relieving sentinels by non- commissioned officer of the guard ; mutilating the guard book ; escape while in confinement or under arrest, or under sentence; attempt to desert ; making preparations to desert ; failing to appear on duty with a proper uniform; or appearing with dirty or torn clothing; being offensively unclean in person; failing to appear or appearing drunk before a court-martial, as an accused or as a witness; giving false testimony before a court-martial, or suborning or conniving at false testimony by another attempting to suborn a witness; attempting to intimidate one who was to be a material witness by a threatening letter; refusing to testify at all as a witness; gambling by non-com- missioned officers with enlisted men in the guard-house, or in bar- racks or allowing them to gamble; gambling by one soldier with an- other; the conducting, by an enlisted man, of a gambling house or table at or near a military post for soldiers to play at ; straggling on the march; malingering, or self-maiming; maiming of another sol- dier; cruel or injurious treatment of his horse by a mounted soldier, or of any public animal by any soldier; malicious destruction of property of civilians ; neglect by non-commissioned officer to cause to be punished or tried soldiers under his command who have destroyed or appropriated property of civilians; by lawless conduct causing himself to be arrested, tried and convicted by the civil authorities, thus depriving the United States for a considerable period of the serv- ices due under his enlistment; disorderly conduct in a town, induc- ing arrest by civil authorities; assaulting persons and damaging property on a railway train near a military post ; misconduct at target practice ; not giving proper attention to his lessons at the post school ; neglect of duty by private of hospital corps in caring for patients; failing by a hospital steward to put up prescriptions correctly ; refusing to submit to treatment in hospital necessary to render him fit for duty : refusing to submit to a necessary and proper operation directed '■•2 Winthrop Mil. Law & Pr. 1128 et seq. and notes. 759 CONDUCT UXRECOMIN'G AX OFFICER. [§ 3484. by a surgeon in charge of hospital; careless or wanton discharge of fire-arms so a? to endanger man or animal; assuming by a soldier to be a corporal in the recruiting service, and acting as such in the en- listment of recruits; falsely personating and acting as an officer; writing, and publisliing in a newspaper, statements grossly defam- ing and misrepresenting the militaiT service; writing an improper complaining letter to tlie colonel of the regiment without first pre- senting his grievance to his company commander; combining and holding meetings in a spirit of insurbordination against superior au- thority; inciting, by a sergeant, the men of the company to insub- ordination, by incendiary circulars; abusing or maltreating his wife, in the presence of other soldiers at a military post ; similarly assault- ing any woman; in uniform and in the presence of other soldiers, disturbing the services at church of the Salvation Army, and assault- ing those who ejected him; failing to properly deliver the mail, or opening the mail by a soldier detailed as mail carrier ; engaging, by a non-commissioned officer, in a public sparring exhibition at a liquor saloon; illegally introducing liquor into the Indian country; through carelessness setting fire to the forest in a National Park ; joining and parading with an association of Fenians, reported to be in armed hostility to a nation at peace with the United States.' "14 § 3484. Conduct unbecoming an officer, etc. — Any officer who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service. ^^ The unbecoming conduct here con- templated is not criminal or infamous. But proof of conduct that is morally unbefitting and unworthy a man of honor. In other words, the conduct "must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially, or as a man, the of- fender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents.^" But it has been held that the conduct need not be scandalous or infamous ; nor need it compro- mise the honor of the officer." Under this article falls the charges such as making false reports to a superior; false certificate to a voucher, roll or return ; preferring false accusations against an officer ; attempting to induce an officer to join in a fraud ; an attempt at sub- "2 Winthrop Mil. Law & Pr. 1133 '« Winthrop Mil. Law & Pr. 1104 et seq.; G. O. 12 of 1904. et seq. "Article 61. See Carter. In re. 97 " McClure Dig. Opinions, § 123. Fed. 496; United States v. Fletcher, 148 U. S. 84, Sup. Ct. § 3485.] EVIDENCE IN PARTICULAR CASES. 760 ornation of perjury; corruptly attempting to induce an officer who was a member of a post council to vote for a particular candidate; the appropriation of food furnished by the government by a surgeon to himself and to his private mess; the violation of a pledge of promise and honor made by one officer to his superior ; drunkenness by an officer in uniform at a public place ; fighting with other officer in a public place; visiting disreputable gambling houses and gam- bling. ^^ The neglect or refusal to pay honest debts, under certain circumstances, has been held chargeable under this article. Proof of giving a check on the bank when the drawer knew he had no money on deposit; so proof of loaning of money to soldiers of his command at the rate of one hundred per cent., are sufficient to convict under this article.^^ Proof of bigamy, desertion of wife and pretending to marry another woman; or of assaulting, abusing and beating his wife; of the institution of fraudulent divorce proceedings and the manufacture of false testimony; or of abandonment and failure to provide for his wife, are all held to be sufficient evidence under this article. =^** So, proof of attempting to alienate the affections of the wife of another officer.^^ § 3485. Desertion — Proof. — The Articles of War make a differ- ence between desertion and absence without leave. Desertion is more than absence; it is voluntary absence without the intention of re- turning. To establish desertion proof of two things is required: (1) The voluntary unauthorized absence and, (2) the intent per- manently to abandon the service. The intent may sometimes be in- ferred, not from the fact of the absence, but from circumstances at- tending the leaving, and the duration of the absence. Unexplained protracted absence may furnish proof of the intent. To determine whether it is desertion or absence without leave, all the circum- stances in connection with the leaving, absence, or return if volun- tary or compulsory, should be considered, and each case must be gov- erned by its own peculiar facts. No general rule of proof can be "iven." A charge of desertion on a roll book is no evidence of the '^McClure Dig. Opinions, §§ 124- =^ G. 0. 63 of 1904. For a very 131; G. O. 66 of 1904; G. O. 64 of complete list of offenses under this ]^9Q4 article see 2 Winthrop Mil. Law & i» McClure Dig. Opinions, §§ 133- Pr. 1107 and notes, et seq. 137; G. O. 66 of 1904. ^McClure Dig. Opinions, § 1053. *" McClure Dig. Opinions, §§ 139- 141. 761 DESERTiox. [§§ 3-480, .3487. offense, ^Neither such record nor the hearsay statement of any oi'- ficer or person can be taken as proof of the fact of desertion.-^ §' 3486. Desertion — Absence without leave. — Tlie offense ff ab- sence without leave is included in every charge of desertion. For this reason every trial on a charge of desertion is in fact a trial for absence without leave ; and if the proof fails to sliow a desertion the accused may be convicted of the lesser offense. But a conviction of such lesser offense under such a charge is an acquittal of the greater. So, an acquittal under such a charge without reservation is an ac- quittal of both grades of offense.^* § 3487. Desertion — Penalty. — There are two kinds of punishment inflicted on proof of desertion: (1) The accused shall be liable to serve for such period as shall, with the time he may have served previ- ous to the desertion, amount to the full term of his enlistment. (2) He shall be tried by a court-martial and punished, even if the term of his enlistment expired before his arrest and trial.- = It is observed that the time lost by desertion is independent of the punishment and need not be included as a part of the sentence. If the sentence is disapproved, it is equivalent to an acquittal and he is not required to serve the extra time. But he is not entitled to pay during the time of absence.^" The time passed by a deserter in confinement under sentence cannot be computed as a part of the period to be made good under this article, as it is not time of military service. Nor can the time be credited where the sentence is remitted. So, time passed while awaiting trial cannot be computed.-' The usual prac- tice under the weight of authorities is to the effect that the punish- ment for desertion and the obligation to complete the contract — serve the time of enlistment— are separate and distinct, and that the restora- tion of a deserter to duty without a trial does not relieve him from his obligation to complete the contract.-^ So, where the accused is acquitted of the charge of desertion, or the sentence is disapproved he cannot be charged with the amount of a reward for his arrest.-® =° McClure Dig. Opinions, § 1056. =« McClure Dig. Opinions, §§ 71. ^McClure Dig. Opinions, § 1093. 72. ^Article 48. =* McClure Dig. Opinions, §§ 1074, ^ McClure Dig. Opinions, §§ 64, 65. 1075. =" McClure Dig. Opinions, § 66. §§ 3488-3490.] evidexce ik particular cases. 762 § 3488. Desertion — Enlistment in enemy's army.— As a general rule proof of the enlistment in the army of the enemy by a prisoner of war is sufficient to sustain a charge of desertion. Such an act is only Justifiable when done as a resort to save life, or to escape ex- treme suffering, or to obtain freedom. When such enlistment is proved, to overcome its force, or to raise a sufficient doubt, the ac- cused must show that the enlistment was for one or more of the pur- poses stated. The fact that the accused did rejoin his original com- mand has been held to be sufficient evidence of his design in the en- listment in the enemy's army.^^ § 3489. Desertion — Escape. — Proof that a soldier while awaiting trial or sentence escaped, is not proof of desertion. But proof of an escape with other circumstances may be strong proof of desertion. Thus, proof of escape followed by long absence, and where appre- hension and forcible return follow, is held to raise strong presumptive evidence of a sufficient intent to constitute the crime of desertion. And where the absence is brief and the return compulsory, the cir- cumstances attending the escape may be such as to justify the pre- sumption of intentional desertion. An escape with the intention of avoiding the confinement and quitting the service is desertion. An escape is an offense for which punishment may be inflicted as for "conduct to the prejudice of good order and military discipline."" § 3490. Desertion — Pay and forfeitures. — The forfeiture of pay as prescribed by the army regulations,-''- can only be imposed upon satis- factory proof of desertion, and conviction by a court-martial and on approval of the sentence; if the sentence be disapproved there can be no forfeiture. If the offender is restored to duty without trial by competent authority, as a deserter, this has been held sufficient to warrant a forfeiture. But a removal of the charge entered by mistake, in orders of the War Department, operates to relieve the accused of all forfeitures charged against him.^^ But it has been held by the highest authority that for the purpose of determining the right of the soldier to receive pay for past services, the desertion need not be es- tablished hy the sentence of a court-martial. If the fact appears on the muster rolls it is sufficient to justify a withholding of the ^McClure Dig. Opinions, § 1095. =^ McClure Dig. Opinions, § 1062. ^ McClure Dig. Opinions, § 1057. See also. § 1376 et seq. "Article 129. 763 DESERTION-. [§§ 491. n492. money due.^* So, the fact that a soldier has been discliarged without honor on account of desertion is sufficient grounds for holding the pay due at the time he was charged with desertion.^"' xV deserter is not liable to any penalty or forfeiture except as provided by statute; he is never subject to forfeiture of his own private property; nor does he forfeit local bounty paid him upon enlistment ; nor can the money found on the person of a deserter be taken.-'"' § 3491. Desertion — Defense. — It is no defense to a charge of de- sertion that the accused, at the time of the enlistment he was charged with having abandoned, was then an unapprehended dcsertor.^^ Nor does it bar such a charge to prove that the accused abandoned the service on account of ill-treatment, want of proper food, etc. ; or on account of homesickness; or that the accused, a foreigner, was or- dered to report at his home for military duty.^^ But any reasonable excuse may be given in evidence for the purpose of extenuating the offense or mitigating the punishment. It is a complete defense to such a charge to show that the accused had previously been restored to duty without trial, by competent authority.^^ § 3492. Desertion — Reward for arrest. — To entitle a person to the reward for making arrest for desertion the proof must show that the person arrested was a soldier. But the official making the arrest on account of desertion before the end of the term of enlistment is entitled to the reward, though the period of the term of enlistment may have expired before the arrest was actually made. The same rule applies where the accused may be under sentence of dishonor- able discharge, but not in fact discharged ; so "where tlie soldier, ar- rested when at large as a deserter, has been sentenced to confinement (without discharge) and has escaped tlierefrom.'*" If tliere is a legal de- fense to the charge of desertion the accused is not liable for the re- ward. ^^ The evidence must show that tlie accused was in fact a deserter before the reward can be paid. Proof that merely shows absence without leave is not sufficient.*^ The arrest must be legal,*' and the "United States v. Landers, 92 U. ■^McCliire Dig. Opinions, § 1076. S. 77. ^' McClure Dig. Opinions, § 1077. ^McClure Dig. Opinions, § 1063. "McClure Dig. Opinions, § 1078. ^ McClure Dig. Opinions, § 1064. But it has been held to apply to a " McClure Dig. Opinions, § 1058. soldier charged with desertion. Mc- ** McClure Dig. Opinions, § 1059. Clure Dig. Opinions. § 1090. ^McClure Dig. Opinions, § 1060. *^ McClure Dig. Opinions, § 1080. § 3493.] EVIDENCE iisr tarticulak cases. 764 surrender manual to entitle the claimant to the reward; mere in- formation is not sufficient.** § 3493. Drunkenness while on duty. — Officers and soldiers are punished for being intoxicated on duty.*^ So, drunkenness may be an offense under other articles.**' Wliile it is an offense to place a soldier on duty when under the influence of intoxicating liquors, yet this does not relieve him from the penalty, as the article provides for the punishment if the soldier is found drunk on duty.*^ There can be no conviction under this article where a soldier is intoxicated at the time of drill, or duty, but is too drunk either for the drill or duty. The charge should be under another article.*^ But an officer reporting in person upon his arrival at a post, in a state of intoxi- cation, is held to be drunk on duty under Article 38. If while in- toxicated an officer, as officer of the day, reports to the post com- mander for orders, after he has been detailed, he is properly charge- able under this article.*'' A post commander, while present and ex- ercising command as such is on duty at all times within the meaning of this article.^" The same rule applies to a medical officer where there are constantly sick persons under his charge.^ ^ The proof need not show that the accused was utterly incapacitated by reason of the intoxication; it is sufficient if the intoxication is such as to sensibly impair the full and free use of his mental or physical abilities. It is no defense to such a charge that the accused was able to dis- charge the duty.^^ The rule is that any intoxication which is suffi- cient to sensibly impair the rational and full exercise of the mental and physical faculties is an offense under this article. ^^ And it is not, ordinarily, material how the drunkenness was induced.^* It is held to be proper to prove drunkenness as going to the question of the grade of the offense, and especially on the question of intent.^^ It has been held that intoxication induced by morphine or other drugs pre- scribed by a medical officer may constitute a sufficient excuse for such breach of discipline.^^ "McClure Dig. Opinions, §§ 1082, " McClure Dig. Opinions, § 45. 1083. '"'McClure Dig. Opinions, § 47. ^■' Article 38. " McClure Dig. Opinions, § 48. ^« Article 62. ^^ McClure Dig. Opinions, § 49. *' McClure Dig. Opinions, § 43; ^^ McClure Dig. Opinions, § 50. 2 Winthrop Mil. Law & Prec. 944. "McChire Dig. Opinions, § 51. « McClure Dig. Opinions, §44; "^ McClure Dig. Opinions, § 1233. Article 62. "' McClure Dig. Opinions, § 1234. 7G5 DRUNKENNESS — EMBEZZLEMENT. [§§ 3494, 3495. § 3494. Drunkenness — Proof. — The rule for proving drunkenness is thus stated by Col. Winthrop : "The simplest and most satis- factory evidence of drunkenness will be the statements of witnesses as to the appearance, condition, manner, language or acts of the ac- cused, or other attendant circumstances from which a state of intoxi- cation may be presumed. But as drunkenness is to a great extent a matter of common observation, it is held not to be an infringement of the rule of evidence — that a witness (not an expert) shall not be asked or allowed to give his opinion — for witnesses, when interro- gated as to the condition of the accused, to state, as a fact, that he was drunk. But witnesses so stating, should, for the information of the court and the reviewing officer, properly be required to state also in detail the observed facts upon which their conclusion is based. Further, military witnesses, when of the proper rank and experience to enable them to testify as quasi experts, may be asked their opinion as to whether the accused was or was not capable, under the circum- stances of the case, of properly executing the duty indicated in the specification."^'' § 3495. Embezzlement. — The ninth subdivision of Article 60 pro- vides: "Who steals, embezzles, knowingly and wilfully misappro- priates, applies to his own use or benefit, or wrongfully or knowingly sells or disposes of any ordnance, arms, equipments, ammunition, clothing, subsistence, stores, money, or other property of tlie T'nited States, furnished or intended for the military service thereof, shall on conviction be punished," etc.^'* The purpose of this provision is to prevent not only the misappropriation of money, but also of all government property of every kind intended for military use. It differs from larceny in that the articles embezzled are in the posses- sion or under the control of the accused. It has been stated as a rule, that there are four distinct propositions to be established in proving this offense: (1) That the accused was the agent of the government or was intrusted with the possession or custody of the property. (2) That he received money or property of tlie government. (3) That he received it in the course of his employment, or in tlie line of his duty. (4) That he converted the money or property to his own ■use with the intent to steal or embezzle the samc.^" An officer or " 2 Winthrop Mil. Law & Pr. 950. Carter v. McClaughry, 105 Fed. " Article 60, sub. 9. 614. "Medley ex parte, 31 Cal. 108; § 3496.] EVIDENCE IN PARTICULAR CASES. 7G6 soldier in the army is held to be always in what is termed a fiduciary relation to the government, and unless his position or rank is specially controverted it will not be necessary to prove his commission, appoint- ment or enlistment. His office, rank or position may be proved by general notoriety, by his admissions, or by the orders investing him with a particular character or duty. The fact that he had the pos- session or custody of the property may be proved by his receipts, or accounts, or by the testimony of the officer or person who paid the money or delivered the property. "The fact of the fraudulent con- version in embezzlement may be evidence by the absconding of the accused with public funds, or his desertion with articles of public property in his possession; by a deliberate falsification, as where the party denies that he has ever received the money or property which has been in fact committed to him; by the rendering of a false re- turn, or account in which the receipt of the money alleged to have been embezzled, is omitted to be acknowledged, or in which a fictitious balance is made to appear, or which is otherwise falsified or purposely mis-stated; by a failure altogether to render an account required by statute, regulation or order by the unauthorized selling, giving, or otherwise disposing of public property to civilians or military per- sons; by the paying out of public funds to persons not entitled to receive the same; by a neglect to pay sums justly due to employes, contractors, or other public creditors, out of money furnished for the purpose, or to make any other required disbursements; by a neglect to honor proper requisitions for military stores, or a dealing of them out in short or insufficient quantities, notwithstanding that ample supplies have been provided by the government ; by a failure to turn over to a successor, on being relieved, the full amount of public prop- erty for which the officer is legally accountable ; or by any other form of non-performance or mal-performance of the trust devolved upon the party."^° It has been held that repeated false statements of the accused in regard to public moneys intrusted to him and for which he was accountable, may be evidence of guilt." To sustain a charge of misappropriation of money or property it is not required to prove that the accused appropriated it for his benefit or profit. ^- § 3496. Embezzlement — Proof and presumption. — The fact of em- bezzlement may be proved by showing circumstances from which the «» 2 Winthrop Mil. Law & Pr. " McClure Dig. Opinions, § 120. 1093, 1094; G. O. 3 of 1904. See, G. ^= McClure Dig. Opinions, § 116. C. M. O. 34. 767 EMBEZZLEMENT — PROOF OF ENLISTMENT. ' [§ 3497. guilt may be presumed. Thus, it has been held that guilt may be presumed from an inability on the part of an ollicer to respond to the demands of an inspector general, or other proper officer or authority to produce or account for the money, stores or property for which he is accountable or with which he is chargeable. Tliis presumption of guilt may arise where it is made to appear that the money demanded was exhibited or produced by borrowing the same from others for the time being to take the place of the public moneys which have been illegally used or otherwise misappropriated. But such presumptive proof may be overcome by showing that tlie money or property has been stolen or captured by an enemy, or taken or lost by some power over which the accused had no control."^ So, it is a statutory rule of evidence that a refusal of any person charged with the custody and disposition of public moneys to pay any draft, order or warrant drawn upon him by any proper officer for such public money in his custody, or the refusal to transfer or disburse any sucli money promptly, when required by the proper officer, "shall be deemed upon the trial of an indictment against such person for embezzlement, as presumptive evidence," of the guilt of the accused. This rule applies to military officers.''* § 3497. Enlistment — Proof. — The Articles of War do not define enlistment, nor state of what it shall consist. There is no method provided by the articles for making proof of the fact by documentary evidence. The only written evidence is the oath taken and subscribed by the person enlisting. Yet the article which provides for adminis- tering the oath, seems to contemplate that he is already an "enlisted . man."*'^ The rule seems to be that proof of "any act or acts which indicate an undertaking, on the part of a person legally competent to do so, to render military service to the United States for the term required by the existing law, and an acceptance of such service on the part of the government, may ordinarily be regarded as legal evi- dence of a contract of enlistment between the parties, and as equiva- lent to a formal written agreement where no such agreement has been had.'"'® And proof of the identification of a person as member of a company; or proof of facts that show an acquiescence in the status of a soldier is sufficient. Tims, a receipt for pay as a soldier may estop a »'2 Winthrop MiL Law & Pr. •^'Article 2. 1093-1095. "■'■McClure Dig. Opinions, § 1251, <" United States R. S.. § 5495; 2 n. 1 ; 2 Winthrop Mil. Law & Pr. Winthrop Mil. Law & Pr. 109S. 825, 829. § 3498.] EVIDENCE IN PARTICULAR CASES. 768 party from denying the fact on the charge of desertion; so where a person has voluntarily rendered services as an enlisted man and as such has been armed, clothed, fed and kept by the government, this is sufficient to estop him from denying the fact." And such facts are held sufficient without other proof of enlistment or oath.''® So, a return to his regiment and entering upon his duties as a soldier is sufficient evidence of enlistment."^ So, acquiescence in an improper assignment and a continuation in the service is a constructive enlist- ment.'^'' It is no defense to a charge of desertion to plead a void en- listment.'^^ § 3498. Fraudulent claims. — Article 60 deals mainly with fraud- iilent claims. The prosecutions under this article are based upon the general charge for violation of the article, and upon the particular specifications which must be sufficient to bring the offense within some subdivision of the article. The specifications from one to eight, inclusive, deal with fraudulent claims against the government, and the fraudulent management and accounting of property; they in- clude all acts of a single person in making or presenting false claims, as well as assisting others in making and presenting such claims. In charging the offense it is not necessary to allege an intent to defraud. Proof of the act of misappropriation has been held to be sufficient; the offense is complete irrespective of the motive.'^ But it has been held that to make tlie accounts of a United States Marshal fraudu- lent, guilty knowledge was necessary.'^-^ Such guilty knowledge should not be inferred from the proof of negligence ; the proof should show that the accused has knowledge of such circumstances as would in- duce an ordinarily intelligent and prudent person to believe the claim false.''* A person ought not to be held under this article for an hon- est mistake, but when he seeks to support his claim by certificates and affidavits of persons, who, to the knowledge of the accused, know nothing of the fact to which they certify or depose, it has been held sufficient to establish guilt under this article." It is a reasonable ^^McClure Dig. Opinions, §§ 1252, '^ McClure Dig. Opinions, §§ 1257, 1253. 1258, 1259. "^McClure Dig. Opinions, § 1253; "-Article 60; McClure Dig. Opin- Lebanon v. Heath, 47 N. H. 353, 359; ions, § 111. Anderson, ex parte, 16 Iowa 595, " United States v. Russell, 19 Fed. 599; 3 Greenleaf Ev., § 483. 591. «> McClure Dig. Opinions, § 1254. "United States v. Shapleigh, 54 ™ McClure Dig. Opinions, §§ 1255, Fed. 126. 1256. '" United States v. Route. 33 Fed. 769 MUTINY. [§ 3499, rule under the authorities that proof of circumstances that would properly charge the accused with knowledge that the claim was false or fictitious, is sufficient. The subdivisions include a wide range of false claims, such as: disbursements to government employes; disbursements in the secret service; for horses lost in battle; for recruiting expenses; for transportation of public stores; for pay of soldiers on falsified muster rolls ; for fuel for a detachment ; for false vouchers indicating the delivery of supplies not in fact furnished ; forging the name of a commanding officer in order to procure pay- ment of an amount not in fact due ; the use of teams and tools of the government in work for private citizens ; loaning the property of the government to others.'^^ § 3499. Mutiny — Proof. — Mutiny or sedition is punished by death or otherwise as a court-martial may direct." The ofPense consists of an "unlawful opposing or resisting of lawful authority, with intent to subvert the same, or, to nullify or neutralize it for the time." Mutiny is clearly distinguished from offenses punishal^le under oth.er articles. It is not even the same as "mutinous conduct," or disre- spect toward a superior officer, or the offer to do violence to a superior officer.^® The offense is generally a concerted proceeding, but it is not necessarily a joint offense; it may be committed by a single per- son." Mere disorders on the part of one or more, which stop short of overt acts of resistance; or acts which show no deliberate intent to overthrow superior authority, do not amount to mutiny. Dis- orderly conduct, while intoxicated, accompanied by resistance of superior authority is not mutiny. Even violence to an officer, in the absence of proof of an intention to overthrow his authority, will not establish the offense. And it is held that proof of insolent language or disorderly behavior is not sufficient to sustain a charge of mutiny.**" 246; United States v. Jones, 32 Fed. 2 Winthrop Mil. Law & Pr. 894, 898, 482. 899. '^McClure Dig. Opinions, §§ 109, ^"United States v. Smith, 3 Wash. 110, 112; 2 Winthrop Mil. Law & Pr. (U. S.) 78, 27 Fed. Cas. No. 16344; 1084-1092 and notes; G. O. 98 of United States v. Kelly, 4 Wash. (U. 1905. S.) 528. 26 Fed. Cas. No. 15516; "Article 22; McClure Dig. of United States v. Hemmer, 4 Mason Opinions, § 31; 2 Winthrop Mil. (U. S.) 105, 26 Fed. Cas. No. 15345; Law & Pr. 892. United States v. Haines, 5 Mason '^McClure Dig. of Opinions, § 31; (U. S.) 272, 277, 26 Fed. Cas. No. 2 Winthrop Mil. Law & Pr. 892. 15275; United States v. Thompson. '"McClure Dig. Opinions, § 31; 1 Sumn. (U. S.) 168, 171, 28 Fed. Vol. 4 Elliott Ev. — 49 §§ 3509, 3501.] EVIDENCE IN PARTICULAR CASES. 770 The refusal to obey an unlawful order, though done by a combination, will not sustain a charge of mutiny. But the unlawfulness of the act must be manifest and unquestionable to justify the resistance. ^^ So, it has been held that resistance to an attempted enforcement of orders by illegal means was not mutiny.*^ § 3500. Mutiny — Intent. — It is generally recognized that the in- tent is the gist of the crime of mutiny. To establish the offense the intent must be proved. Proof of the intent may be made in different ways. It may be shown by proof of declarations, or it may be in- ferred from conduct. Col. Winthrop says : "The intent may be openly declared in words, or it may be implied from act or acts done ; as, for txample, from the actual subversion or suppression of the superior authority, from an assumption of the command whicli be- longs to the superior, a rescue or an attempt to rescue a prisoner, a stacking of arms and a refusal to march or do duty, taking up arms and assuming a menacing attitude ; or it may be gathered from a variety of circumstances. Xo one of which perhaps would of itself alone have justified the inference. But the fact of combination, that the opposition or resistance is the proceeding of a number of indi- viduals acting together apparently with a common purpose is, though not conclusive, the most significant, and the most usual evidence of the existence of the intent in question."®^ But proof of intent alone is not sufficient to establish the offense. The crime is not made out unless the proof shows some act or acts of opposition or resistance. Proof of words alone cannot convict on a charge of mutiny.^* § 3501. Mutiny — Suppression. — An officer or soldier who is pres- ent at any mutiny or sedition and does not attempt to suppress it, or who, having knowledge of such mutiny, fails to give immediate in- Cas. No. 16492; United States v. United States v. Sharp, 1 Pet. (U. Forbes, Crabbe (U. S.) 558, 25 Fed. S.) 118, 127, 27 Fed. Cas. No. 16264; Cas. No. 15129; Tliompson v. Stacey United States v. Peterson, 1 Wood Clarke, The, 54 Fed. 533; 14 Opin- & M, (U. S.) 305, 311, 27 Fed. Cas. ion Attorney-General 589. No. 16037; United States v. Smith, s'McClure Dig. Opinions, § 32; 3 Wash. (U. S.) 525, 27 Fed. Cas. 2 Winthrop Mil. Law & Pr. 897; No. 16345. United States v. Smith, 3 Wash. (U. ^2 Winthrop Mil. Law & Pr. 895, S.) 525, 27 Fed. Cas. No. 16345; and notes. United States v. Borden, 1 Sprague ^ 2 Winthrop Mil. Law & Pr. 896, (U. S.) 374, 24 Fed. Cas. No. 14625. 900, and notes. "2 Winthrop Mil. Law & Pr. 897; 771 RELIEVING THE ENEMY — SLEEPING ON POST. [§§ 3502, 3503. formation may be punished.*^ The rule of proof on a charge under this article is thus stated by Col. Winthrop : "To sustain a cliarge of a violation of the article under consideration, the following par- ticulars should be averred and proved: the existence of an actual mutiny; the presence of the accused at the mutiny, or the fact of his having come to the knowledge that one was intended ; the neglect or failure to use the proper efforts to suppress or the neglect or failure to give the information (or to give it without unreasonable delay) to the commander."'^*' § 3502. Relieving the enemy. — The act of relieving the enemy in any manner is punished by death, or as a court-martial may di- rect.*^ This offense can only be committed in time of war, and the degree of punishment would depend naturally on the heineousness of the offense. The act is not recognized as treason, yet it is treason- able in its nature, and this is the only manner for punisliing treasonable acts by court-martial. The offense consists in furnisliing or supply- ing the enemy with the forbidden articles ; an attempt to do so is not an offense under this article. Proof of giving or selling the for- bidden articles is sufficient; the question of need on the part of the enemy does not enter into the consideration. Xor is it required to show that the articles were furnished to the enemy's government or army. The offense is established if the proof shows a furnishing of such articles, directly or indirectly to a citizen, or to citizens, or to a memlier or members of the military establishment. Ecliof afforded to individuals is relief to enemies within the meaning of the article. Furnishing relief to prisoners of war is not within the article.'*'* Civilians are subject to trial before court-martial for violations of tliis article.**" g 3503. Sleeping on post. — A sentinel sleeping upon his post, or leaving it before ho is regularly relieved, shall suff'er death, or such other punishment as a court-martial may direct."^ The purpose of this article, it seems, is to afford the security in camp or barracks that is required in time of peace as well as in time of war. And it is of the "•■Article 23. S.) 635, 666; Gooch v. United States. »«2 Winthrop Mil. Law & Pr. 906. 15 Ct. CI. (U. S.) 281, 287; 2 Win- " Article 45. throp Mil. Law & Pr. 975, and notes. '^^ Venice, The. 2 Wall. (U. S.) *»McClure Dig. Opinions, § 58. 258; Alexander's Cotton, 2 Wall. (U. '"Article 39. S.) 404; Prize Cases, 2 Black (U. § 3503.] EVIDENCE IN PARTICULAR CASES. 772 highest importance in time of war ; it is absolutely essential to prevent surprise and capture. In making proof under this charge is first to prove that the accused was duly detailed to post or sentinel duty ; this may be done by the proper officer. This is then followed by proof that he was found asleep by some officer, or other person by whom he was so found. It may be difficult to prove the actual fact that the accused was sleeping, especially in the night time. But the law does not require un- reasonable things, hence, proof that the accused, while so on guard duty, failed to challenge the person approaching the post; that he was found lying down, sitting or reclining — in some position in which he could sleep ; or that he was breathing bard, or snoring, was not aroused until touched, and was then stupid ; or that he was not holding his gun, any and all such facts and circumstances may be given in evidence as tending to establisli the charge, and from which the fact of sleep may be presumed.''^ It is no defense to such a charge that the accused was irregularly posted as a sentinel; or that he had previously been overtaxed by extra guard duty; or that similar offenses had been overlooked. But in such cases it is proper to show any extenuating circumstances, or any facts that might miti- gate the punishment.''^ '^McClure Dig. Opinions, § 55; "2 Winthrop Mil. Law & Pr. 2 Winthrop Mil. Law & Pr. 952. 953. INDEX. [References are to Sections.^ A ABANDONMENT, salvage for recovery of derelict property, 3357. ABDUCTION, age of consent, previous bad character not a defense, when, 2756. age of female, proof of, 2752. belief of defendant as to victim's age, 2752. child without parents or legal guardian, proof concerning, 2749. consent of parent or guardian, absence of, 2748. corroboration of principal witness, 2757. defense, bad character of victim, 2756. definition and meaning of, 2740. under different statutes, 2734, 2735, 2740. forcible abduction, what constitutes, 2741. illicit purpose an essential element of, 2745. fictitious taking, 2742. intent, sufficiency of proof, 2744. kidnapping, law concerning, 2735-2739. parent not required actively to oppose, 2750. persuading daughter to leave parents, 2750. persuasion or inducement, effect of, 2742. previous chaste character, proof of, 2753. burden of proof, 2754. presumption concerning, 2755. proof of detention against the will, 2747. prostitution, proof of purpose essential, 2746. residence, proof to establish taking from, 2749. subsequent bad character of victim not competent, 2753. taking against the will of person abducted, 2751. taking away or detention, proof sufficient, when, 2742, 2743. taking from home, time of detention immaterial, when. 2748. parents without consent, 2750. unchastity within age of consent as a defense, 2756. ABILITY, assault, elements of, 2822. striking distance, 2826. what constitutes present ability, 2823. 773 774 INDEX. [References are to Sectio^is.l ABORTION, administering drug, meaning of, 2763. advice given constitutes offense, when, 2763. assault not a necessary element of, 2764. attempt to produce, 2760, 2761. on woman who is not pregnant, 2761. common law offense distinguished from statutory offense, 2759. consent of woman, effect of, 2764. corroboration of prosecuting witness, 2769. definition and meaning, 2758. dying declarations as evidence, 2770. indictment for statutory offense, sufficiency of, 2759. instruments for producing, possession proved, 2767. intent, proof of, 2760. means used to produce, proof of, 2765. motive, proof of, 2762. necessity for producing, burden of negative proof, 2771. opportunities for committing, proof of, 2767. physician's advice as to necessity, 2771. pregnancy, proof of, 2766. seduction, inference of guilt, when, 3151. similar acts, proof of guilty knowledge, 2768. ABSENCE WITHOUT LEAVE, book entry insufficient evidence of, 3478. court martial, proof of, 3478. ACCESSORY, accomplice distinguished from, 2785. acquittal of principal, effect of, 2779. admissions of principal as evidence, 2770. after the fact, what constitutes, 2775. elements of offense, 2784. knowledge of crime, 2784. proof of offense, 2784. before the fact, what constitutes, 2774. classification of, 2774. confession of principal as evidence, 2780. conviction of principal, proof by record, 2778. corroboration as to accomplice, 2786. of testimony, 2787. crime not intended committed by principal, 2783. definition of, 2772. during the fact, definition of, 2776. gambling, evidence of, 3006. participation, what constitutes, 2782-2784. prevention of crime, duty of citizen, 2776. principal in second degree distinguished from, 2773. INDEX. 775 [References are to Sections.] ACCESSORY— Continued. proof of advising or participating, 2782. guilt, what necessary, 2781. principal's guilt, 2777. receiving stolen goods, effect of, 3110. statutory rules as to liability, 2774. treason, accessories are principals, 3159. witness, corroboration of, 2787. ACCIDENT, assault and battery can not result from, 2838. collision at sea, inevitable accident, 3369. rule applied, 3368. homicide excused by proof of, 3042. law and fact, questions of, 3024. ACCOMPLICE, accessory distinguished from, 2785. bribery proved by testimony of, 2906. confession admissible in prosecution for perjury, 3088. counterfeiting, proof by, 2958. corroboration of evidence to prove guilt, 2786. definition of, 2785. gambling, evidence of, 3006. incest, corroboration required, when, 3168. receiving stolen goods, corroboration of thief, 3120. robbery, wounded accomplice captured, 3139. sodomy, testimony of, 3172a. ACCOUNTS, equity cases, examination of parties, 3190. production before master, 3190. reference to master, 3218-3236. report of master in chancery, 3227. ACCOUNTING, reference to master, 3219. ACQUITTAL, criminal prosecution, direction by court, 2732. defense to subsequent prosecution, 2730. forgery, proof in subsequent prosecution for another offense, 2990. perjury, defense to prosecution for, 3090. receiving stolen goods, acquittal a defense, when, 3119. ACTIONS, admiralty, nature of proceedings. 3249. form of in admiralty courts, 3252. 776 INDEX. ^References are to Sections.'] ADMINISTRATORS AND EXECUTORS, equity cases, competency of witnesses, 3178. ADMIRALTY, admissibility of evidence, rules concerning, 3252. admission by failure to deny allegations, 3271. in pleadings, effect of, 3271. amendments, when allowed, 3263. of pleadings not allowed, when, 3265, 3266. on appeal, when permitted, 3267. time of making and effect of, 3264. answers to interrogatories as evidence for party making them, 3281. appeal, evidence heard, when, 3268. circumstances, adaptation of proceetlings to, 3254. collisions, law of, 3367-3395. communications privileged, when, 3290. contracts, cancellation of, 3248. of seamen, construction of, burden of proof, 3293. contributory negligence as a defense, 3392, 3393. constitution of the United States, influence of, 3245. damages divided, when, 3372, 3373. how determined, 3271. discovery and inspection of documents, 3282-3291. illustrations of principles, 3287. documentary evidence, affidavit as to possession of, 3286. documents, demand for, 3283. discovery of, 3282. equity jurisdiction, resemblance to, 3250. foreign laws, proof required, when, 3258. further proof in prize cases, 3334-3336. great lakes, jurisdiction upon, 3247. hearsay testimony admitted, when, 3253. high seas, meaning of, 3246. interrogatories and answers as evidence, 3280. before pleading allowed, when, 3274. by defendant, 3276. by libelant, 3275. limitation of privilege to propound, 3278. materiality of, 3279. office of, 3277. practice in propounding, 3273. privilege of refusing to answer, 3276. time of delivery, 3274. to obtain evidence, 3273-3281. issues, proof must come within, 3259. judicial notice applicable, when, 3257. concerning rivers, 3257. of geographical facts, 3257. INDEX. 777 [References are to Sections.'\ ADMlRAhTY— Continued. judicial notice, of maritime regulations, 3258. of natural phenomena, 3257. of the tides, 3257. jurisdiction generally, theory of, 3237. civil law determines, 3241. extent of. 3237-3247. in prize cases, 3319, 3320. maritime law controls, 3242. must appear on face of proceedings, 3243. nature of, 3239. of federal district court, 3247. United States rule, 3240. law, general nature of, 3248. log book as evidence, 3312-3317. motion to examine witnesses distinguished from amendment, 3269. nature of actions in, 3249. negligence, equitable principles applied in case of. 3251. origin and history of jurisdiction, 3238. pleading, amendment of, 3262-3267. and proof in courts of, 3259-3272. as evidence, 3270. control admissibility of evidence, 3259. omissions and variations in, 3262. parties bound by allegations, 3260. practice, law of, 3248-3258. privilege, waiver of, 3291. privileged documents, character established, how, 3289. discovery denied, when, 3288, 3289. what constitutes, 3290. prize cases, law of, 3318-3347. production of documents on order of court, 3286. rules of evidence, liberality of, 3253. sailing rules, effect of, 3256. salvage, law concerning, 3348-3366. special damages, pleading concerning, 3272. statutes apply, when, 3255. statutes of United States, effect of, 3245. United States courts, jurisdiction of, 3244. usage, evidence of, 3256. variance, effect of, 3261. wages of seamen, 3292-3311. burden of proof, 3295. witnesses competent, when, 3253. 778 INDEX. [References are to Sections.'i ADMISSIBILITY OF EVIDENCE, admiralty, liberal rules of, 3253. rules applied in, 3252. pleadings control, 3259, 3260. confession of murder inadmissible, when, 3034. declarations of co-conspirator admissible, when, 2939. defenses in criminal prosecution, 2726. dying declarations, when admissible, 3032, 3033. equity cases, issue determines, 3214. homicide, evidence admissible to prove guilt, 3044, 3045. log book as evidence, 3313. master in chancery, objections before, 3224. perjury to secure admission, 3080. pleadings in admiralty courts as evidence, 3270. ADMISSION, accessory, proof of principal's guilt, 2780. arson, competency of evidence, 2815. previous attempts to destroy property, 2812. bigamy, proof of first marriage, 2863. bribery, evidence of, 2907. conduct indicating conscious guilt, 2723-2725. consent to larceny of property disproved, how, 3054. counterfeiting, proof of, 2957. embezzlement, entries in defendant's books, 2968. equity cases, agreement of parties, 3194. answer overcome by, 3198. co-defendant's answer as evidence, 3206. effect as evidence, 3193. plea as evidence, 3208. weight and sufficiency of evidence, 3216. false pretense shown by, 2980, 2983. forgery, statements concerning other forged instrument, 2994. infant not bound by statement in pleadings, 3207. interrogatories and answers as evidence, 3280, 3281. log book as evidence against persons keeping it, 3315. marriage proved in criminal prosecution, 2802. perjury established by proof of, 3088. pleadings, failure to deny allegation, 3197. in admiralty, amendment of, 3264. effect as admissions, 3271. rape, impeachment of prosecutrix by, 3103. proof by, 3103. seduction, chastity of prosecutrix disproved by, 3145. corroboration by proof of, 3152. evidence of, 3150. IXDEX. 779 [References are to Sections.'] ADULTERATION OF FOOD, analysis disputed by defendant, 3165. knowledge of defendant, proof not required, when, 3165. purpose of sale, proof not required, when, 3165. ADULTERATION OF LIQUOR, knowledge, proof not required, when, 3165. ADULTERY, acts of familiarity or adultery at other times admissible, 2796. admissions as proof of marriage, 2802. circumstances affording inference of, 2791-2794. cohabitation or living in, 2795. continuous act, proof of, 2797. criminal offense, law concerning, 2788-2805. divorce invalid, no defense, 2805. facts held sufficient to raise inference, 2794. invalidity of marriage as a defense, 2804. knowledge of invalidity, 2804. marriage, proof essential, 2798. proof made, how, 2799-2803. proof by witnesses at celebration of, 2801. record proof of, 2800. nature of proof required, 2790. place, proof not limited as to, 2796. prima facie proof of marriage, 2803. reasonable doubt, rule in prosecutions for, 2789. single act, rule as to, 2797. statutory provisions are local and special, 2788. time, proof not limited as to, 2796. ADVERTISEMENT, false pretense by means of, 2978. AFFIDAVIT, documentary evidence, discovery in admiralty, 3286. equity cases, weight and sufficiency of evidence, 3216. master in chancery, evidence before, 3188. perjury, best evidence of making, 3083. by taking oath, 3070. privileged documents, character established, how, 3289. signature by mark, perjury, when, 3071. AFFIRMATION, perjury constitutes, when, 3070. AGE, abduction, previous bad character not a defense, when, 2756. proof concerning age of victim. 2752. burden of proof in criminal prosecution, 2706. 780 INDEX. [References are to Sections.l AGE — Continued. defendant's belief, effect in prosecution for kidnapping, 2739. kidnapping, proof in establishing crime, 2739. minor gambling, burden of defense as to good faith, 3010. rape, age of prosecutrix, 3095. seduction, burden of proof, 3142. AGE OF CONSENT, abduction, unchastity of female as a defense, 2756. burden of proof in prosecution for rape, 3093. corroboration of prosecutrix, 3105. ignorance of defendant no defense, 3108. AGENCY, embezzlement, elements of offense, 2972. AGENT, interi-ogatories concerning acts of, duty to answer, 3278. AGREEMENT, equity cases, admissions in, 3194. AIDING THE ENEMY, court-martial for offense of, 3502. ALIBI, burden of proof, 2727. burglary, defense to prosecution for, 2919. homicide, defense to prosecution for, 3042. Instructions cautioning jury against defense of, 2733. larceny, defense to prosecution for, 3059. reasonable doubt raised by proof of, 2727. robbery, identity established, how, 3133. proof of, 3140. ALIEN, prize cases, competency of witnesses, 3330. ALLEGIANCE, treason, evidence of, 3163. ALMANAC, burglary, time of breaking proved, how, 2914. ALTERATION OF INSTRUMENT, possession of chemicals as evidence, 2995. AMBIGUITY, contracts of seamen, construction of, 3293. INDEX. 781 [References are to Sections.'] AMENDMENT, appeal in admiralty courts, amendment permitted, when, 3267. pleadings in admiralty courts, 32G2-3267. AMICUS CURI^, courts martial, counsel for prisoner, 3432. ANCHORED VESSEL, collision with, burden of proof, 3379. • ANIMALS, cruelty to fowls punishable, when, 3167. cruelty, what necessary to conviction for, 3167. larceny, rule at common law, 3052. malicious injury to trespassing animals. 3172. ANSWER, equity cases, answer not responsive, when, 3202. co-defendant's answer not evidence, 3206. falsity established in part, 3204. limitations on use as evidence, 3199. reply not filed, 3200. responsive answers, 3201. test of responsiveness, 3203. unsworn answer, defendant can not use as evidence, 3199. APPEAL, amendments permitted, when, 3267. evidence on appeal of admiralty case, 3268. verdict set aside by court of equity, effect of, 3177. APPROVAL, court martial must obtain from commander, 3456. ARGUMENT, court martial, opening statement before trial, 3446. ARMY, arrest before calling court martial, 3428. of officers, 3429. courts martial, 3396-3502. general court martial, who appoints, 3402. ARREST, close arrest of officer, 3429. confinement of soldier, what constitutes, 3428. counsel, right of accused, 3431. notice of charge when officer is arrested, 3430. court martial, arrest before calling, 3428. homicide in attempting questions of law and fact, 3024. kidnapping, what constitutes, 2735-2739. 782 INDEX. n ■ [References are to Sections.'] ARREST — Continued. report to commanding army officer, 3429. reward for deserter, when due, 3492. robbery of prisoner by police, 3140. • ARSON, admissions of defendant as evidence, 2815. burden of proof concerning, 2808. court martial, sentence in time of war, 3457. definition of, 2806. defrauding insurance company, occupancy shown, 2814. house defined within meaning of law, 2806. insurance, proof concerning motive, 2810. intent implied from act, 3464. shown how, 2807. malice as an element of, 2806. map of premises as evidence, 2814. motive for committing, proof of other crime, 2813. evidence of, 2810. occupancy, proof concerning, 2814. other fires and crimes, proof of, 2813. ownership, proof concerning, 2808, 2814. testimony irrelevant, when, 2814. preparations to commit, evidence of, 2816. presumptions concerning, 2807. previous attempts, proof of, 2812. questions of law and fact, 2809. rules of criminal law govern, 2816. subsequent crimes proved, when, 2813. threats admissible, when, 2811. venue, proof of, 2808. ARTICLES OF WAR, courts martial in United States created by, 3398. ASSAULT, abortion does not involve, 2764. assault and battery distinguished from, 2835. attempt or offer to strike, effect of, 2824. civil liability for drawing unloaded gun, 2833. definition of, 2817. drawing fire-arms, when constitutes, 2829. unloaded gun, burden of proof, 2834. fear induced by threats, effect of, 2820. intent inferred from act, 2819. need not be shown, when, 2821. not an essential element, when, 2820. proof of, 2818-2821. menace distinguished from, 2827. INDEX. 783 [References are to Secti07is.] ASSAULT — Continued. pointing fire-arms, what essential, 2830. present ability an essential element, 2822. present ability, meaning of, 2823. gun not loaded, 2830-2833. striking distance, 2826. proof under indictment for riot, 3128. self-defense, proof showing preparations for, 2828. striking at another, proof of, 2825. threat upon condition distinguished from, 2827. unloaded gun, civil and criminal liability distinguished, 2833. violence intended, proof of, 2828. ASSAULT AND BATTERY, bodily harm, what constitutes, 2837. defense of property, right of, 2852. definition of, 2835. distinguished from simple assault, 2835. Greenleafs definition, 283G. indirect assault and battery, what constitutes, 2837. injury to feelings as an element, 2842. intent as an element of criminal offense, 2838. intent, inference from circumstances, 2841. intent not an essential element, when, 2839. intent, presumption of, 2840. intent to injure another person, 2838. parent and child, burden of proof, 2845. punishment excessive, when, 2846. parent's authority over child, 2843. parent striking child, presumption concerning. 2845. prosecution for riot barred by conviction for, 3128. retaking property by force not justified, 2856, 2857. riotous commission of, 3127. self-defense, law of, 2847-2855. burden of proof, 2855. degree of force permitted, 2853, 2854. striking person directly not essential, 2837. teacher inflicting punishment on pupil, 2844. ASSAULT WITH INTENT, presumption of intent, proof of act raises, when, 3014. rape, circumstantial evidence, 3104. ATTEMPT, abortion, attempt to produce, 2760, 2761. assault, what constitutes, 2817. by attempting to strike, 2824. conspiracy to commit crime does not amount to, 2923. 784 IXDEX. [References are to Sections.'] ATTORNEY AND CLIENT, communications privileged in admiralty proceedings, 3290. AUTOPSY, murder by poisoning proved without, 3046. B BAILMENT, larceny disproved by showing, 3050. of bailed article by owner, 3053. BANK NOTE, forgery of, parol evidence of bank's existence, 2997. BARRATRY, reputation as evidence of, 3063. BATTALION. court martial appointed, when, 3403. BAY, high seas, distinguished from, 3246. BEST EVIDENCE, parol and secondary evidence in equity, 3215. perjury, affidavit proved how, 3083. record of court required, when, 3C83. BETTING, gambling, law concerning, 2999-3011. BIGAMY, absence of husband or wife, burden of proof, 2868. effect of, 2868. admissions as proof of first marriage, 2863. cohabitation as evidence of marriage, 2862, 2863. criminal prosecution, law of, 2858-2874. definition of crime of, 2859. divorce of first husband or wife as a defense, 2873. burden of proof, 2873. first marriage, method of proof, 2862. good faith of marriage no defense, 2871, 2872. jurisdiction, proof of, 2860. living husband or wife, distinction in statutes, 2869. proof of, 2866. polygamy. United States law concerning, 2870. presumption as to life of husband or wife, 2867. as to second marriage, 2865. reasonable doubt of first marriage must be excluded, 2863. INDEX. 785 [References are to Sections.'i BIGAMY — Continued. second marriage, proof of, 2867. validity of first marriage, 2861. void marriage, effect of, 2861. second marriage, effect of, 2864. witnesses, first and second wives as, 2874. BILLS OF LADING, prize cases, effect as evidence, 3337. BLACKMAIL, criminal offense of, 2875-2888. prosecution, intent in beginning, 2884. debt, collection by threats, 2886. definitions of, 2876, 2877. extortion and bribery distinguished, 2879. constitutes, when, 2878. knowledge of threatened person's guilt no defense, 2881. nature of crime, 2875. threatening letter to aid or explain, 2881. threat must be proved, 2880. of prosecution by third person, 2883. of prosecution to extort money, 2882. truth of criminal charge immaterial, 2887. BLASPHEMY, character of language used, effect of, 2893. common law definition of, 2890. definition under statutes, 2892. law concerning, 2888-2896. others offended by language, proof of, 2894. profane use of words essential to offense, 2893. profanity as a nuisance, 2895. statutes against, foundation of, 2889. words used, what sufficient, 2896. BLOCKADE, intent to pass, proof of, 3324. presumption concerning in prize cases, 3324. BLOODHOUND, criminal tracked by, circumstantial evidence, 2715. BLOOD STAINS, homicide, evidence concerning, 3029, 3044. testimony concerning, when admissible, 3027. BOOKS, embezzlement proved by defendant's books, 2972. nuisance by sale of obscene books, 3068. Vol. 4 Elliott Ev. — 60 786 INDEX. [References are to Sections.] BOOK ENTRIES. embezzlement proved by, 2968. BOYCOTT, labor combination as unlawful conspiracy, 2949-2951. BRIBERY, accomplice as a witness, 2906. admissions and confessions as evidence, 2907. burden of proof, 2898. conspiracy, acts and declarations of others admissible, when, 2906. decoy, testimony of, 2906. defenses to prosecution for, 2908. definition of, 2897. distinguished from extortion, 2879. documentary evidence, introduction of, 2903. financial dealings of parties, proof of, 2904. identity of offender, 2900. intent of person in accepting bribe, 2901. law concerning, 2897-2908. law and fact, questions of, 2899. other similar offenses, proof of, 2902. proof of offense, extent of, 2905. BRIGADE. general court martial organized in, 3402. BUGGERY, law of sodomy, 3172a. BULLET, admissibility in evidence, 3028. BURDEN OF PROOF, abandonment of vessel, seaman's wages, 3294. abduction, previous chaste character of victim, 2754. abortion, negative averment as to necessity for, 2771. alibi, burden of proving, 2727. arson, 2808. assault and battery by parent on child. 2845. bigamy, absence of husband or wife, 2868. divorce of first husband or wife, 2873. bribery, prosecution for, 2898. burglary, prosecution for, 2910. change of voyage, desertion by seaman, 3298. chastity of abducted female, 2754, 2755. claimant in prize cases has burden, when, 3327, 3328. collisions at sea, 3367. burden as to violation of statute, 3375. vessel having wind free, 3382. in fog, liability for, 3387. INDEX. 787 [References are to Sections.^ BURDEN OF PROOF— Continued. collisions at sea, vessel required to keep out of the way, 3377. with anchored vessel, 3379. counterfeiting, offense established how, 2953. contributory fault of plaintiff. 3371, 3372. court martial, rule in, 3473. shifting of burden not known, 3474. criminal prosecution, affirmative defense, 2706. extent of burden, 2706. drawing unloaded gun, proof concerning, 2834. embezzlement, prosecution for, 2965. equity cases, answer disproved, how, 3198. what must be proved, 3211. false pretense, how shown, 2980. forgery, how established, 2987. former jeopardy, how established, 2731. insanity as a defense to criminal prosecution, 2728. jurisdiction of courts martial, 3425. lookout absent, collision resulting, 3381. homicide, degree of offense, 3019. malice shown, how, 3021. self-defense and insanity, 3022. murder, death by criminal agency, 3023. necessity, negative proof concerning, 2771. negative proof in court martial, 3473. neutral waters, prize cases, 3322. perjury, how established, 3071. surprise, inadvertence or mistake as matters of defense, 3071. presumption of innocence of murder, 3013. prize cases, illustrations of, 3329. joint capture of vessel, 3345. what evidence required, 3326. provisions insufficient, seaman's wages, 3311. rape, proof of, 3093. receiving stolen goods, 3112. elements of crime, 3113. riot, offense established, how, 3123. sale of intoxicating liquor to minor, parent's consent, 3171. salvage, agreement to pay, 3365. claim established, how, 3353. seduction, crime of, 3142. reformation of prosecutrix, 3147. self-defense in prosecution for assault and battery, 2855. statutory crimes, evidence in, 2703. treason, how established, 3155. vessel adrift, proof concerning, 3383. wages of seamen, action for, 3295. contracts of hiring, 3293. 788 INDEX. [References are to Sections.] BURGLARY, breaking and entering, evidence of, 2912. building, character of, 2913. burden of proof and presumptions, 2910. court martial, proof of, 3479. sentence in time of war, 3457. defenses to prosecution for, 2919. definition and elements of, 2909. identity of prisoner, proof of, 2916. intent, evidence to establish, 2915. proof required, 3464. law concerning, 2909-2919. law and fact, questions of, 2911. other crimes, proof of, 2917. ownership of building, proof of, 2913. physical examination to prove identity, 2916. possession of stolen property as evidence, 2918. explanation of, 2919. possession of tools as evidence, 2916. time of breaking, evidence of, 2914. C CAMP. court martial, jurisdiction over persons in, 3421. CAPTURE, admiralty jurisdiction, extent of, 3240. joint capture, common enterprise, 3347. presumption concerning, 3344. sight and signal distance, 3346. prize cases, admiralty jurisdiction, 3318-3347. CARD PLAYING, gambling, law concerning, 2999-3011. CARGO. burden of proof on claimant when, 3327, 3328. prize cases, presumptions concerning, 3323. salvage, law concerning, 3348-3366. CARRIER BY WATER, collisions, law of, 3367-3395. CHALLENGE, courts martial, right of, 3434. CHANCERY, equity proceedings generally. 3174-3217. INDEX. 789 [References are to Sections.'i CHAPLAIN, judge advocate may be, 3410. CHARACTER, abduction, burden of proof concerning, 2754. defense of bad character admissible, 2756. proof concerning, 2753. associates of accused, proof of character of, 2722. bribery, defense by proof of good character, 2908. circumstantial evidence of crime adduced from, 2712. counterfeiting, defense to prosecution for, 2961. court martial, evidence concerning, 3475. criminal prosecution, evidence of character of others, 2722. proof of character, 2721. homicide, evidence of self-defense, 3041. larceny, evidence admissible when, 3059. murder, character of deceased as evidence, 3038. trial, character of accused as evidence, 3039. rape, evidence to disprove charge, 3108. proof of character of prosecutrix, 3101. receiving stolen goods, 3116. seduction, admissions as evidence, 3150. defense to criminal prosecution, 3153. time referred to, 3145. CHARIVARI, riot constitutes when, 3122. CHASTITY, abduction, proof made, how, 2753, 2754. presumption in prosecution for seduction, 3143. rape, consent shown how, 3096. evidence to disprove charge, 3108. on unchaste woman, 3108. reputation of prosecutrix as evidence. 3101. seduction, admissions of prosecutrix as evidence, 3145. burden of proof. 3142. proof of, 3145. specific acts of immorality proved where, 3145. CHEATING, false pretenses distinguished from, 2973. CHECK, forgery, proof concerning, 2990. CHILD, abduction, definition of, 2740. rape, exhibition of child to jury, 3106. testimony sufficient when, 3102. 790 INDEX. [References are to 8ections.'\ CHILD STEALING, intent as an element of offense, 2738. CHRISTIANITY, blasphemy, law forbidding, 2889-2896. CHOSE IN ACTION, larceny, rule at common law, 3052. CIRCUMSTANTIAL EVIDENCE, abortion, necessity disproved by, 2771. adultery proved by circumstances, 2791-2794. arson, threats made by stranger, 2811. assault and battery, inference of intent, 2841. assault, intent to injure, 2818. blockade running established by, 3324. burglary, breaking and entering shown by, 2912. time of breaking and entering, 2914. carrying concealed weapon, proof by circumstances, 3166. conduct and relations of accused, 2712. indicating conscious guilt, 2723. consent to larceny of property disproved how, 3054. conspiracy, proof by, 2936. corpus delicti established by, 2708. corroboration in abduction supplied by, 2757. in seduction, 3152. cruelty to animals, malice proved by, 3167. disorderly house proved by, 3065. elements and classification of, 2710, 2711. embezzlement, proof by, 2969, 2972. equity cases, answer overcome by, 3198. weight and sufficiency of, 3216. exclusion of every reasonable hypothesis of innocence necessary, 2709. false pretense, deceit shown how, 2980. falsity of oath, proof of, 3077. flight or refusal to flee inadmissible when, 2724. forgery, fraudulent intent proved by, 2990. sufficiency of proof, 2995. gambling, proof by means of, 3004. homicide, prosecution for, 3043. proved by, 3046. identity of accused, proof of, 3133. of burglar established by, 2916. intent established how, 2718. implied when, 2716. to kill, presumption raised by, 3014. intoxicating liquor, sale of, 3170. INDEX. 791 [References are to Sections.^ CIRCUMSTANTIAL EYIBKNCE— Continued. larceny, felonious intent shown how, 3055. possession of stolen goods as evidence, 3059. motive for crime not necessarily established by, 2719. murder, questions of law and fact, 3024. res gestae, 3029. perjury, commission of established how, 3087. proof connecting third person equally with circumstances, 2726. public indecency proved by, 3068. rape, proof of, 3098, 3104. penetration proved by, 3092. reasonable doubt of any link in chain of circumstances, 2713. what essential to overcome, 2707. receiving stolen goods, character evidence admissible when, 3116. knowledge of theft, 3114. riot, unlawful intent proved by, 3123. robbery, proof of, 3138. corroboration of, 3139. intent shown how, 3132. possession of stolen property, 3136. seduction, proof of, 3151. law and fact, 3144. promise of marriage, 3148. tracking criminal with bloodhounds, 2715. venue proved by, 2714. CIVIL LAW, admiralty jurisdiction, influence of, 3241. CLOTHING, admissibility in evidence, 3028. rape, clothing as evidence, 3106. COHABITATION, adultery, criminal offense of, 2795. bigamy, second marriage not followed by, 2864. polygamy. United States law forbidding, 2870. COLLATERAL ATTACK, courts martial, decisions not subject to review by civil courts, 3426. COLLATERAL EVIDENCE. court martial, admissibility of, 3465. perjury in giving, 3079, 3080. COLLISION AT SEA. anchored vessel, burden of proof. 3379. burden of proof, 3367. burden on vessel having wind free, 3382. comparative fault, division of damages, 3373. 792 INDEX. [References are to Sections.} COLLISION AT SBA— Continued. concurrent fault of two vessels injuring third, 3374. contributory negligence bars recovery when, 3393. disregarded when, 3382. does not prevent recovery, 3392. of complainant, burden of proof, 3371, 3372. recovery in case of, 3378. damages divided, what constitutes, 3394. division of damages, both vessels at fault, 3372. fog, burden of proof as to collision in, 3387. moderate speed defined, 3388, 3389. precautions to be used in, 3385-3390. prima facie case of negligent collision, 3387. speed of vessel in, 3386-3390. speed is evidence of negligence, 3390. speed of vessel moderate, rule concerning, 3388. inevitable accident, effect of, 3369. inscrutable fault, rule of, 3368. lookout absent, burden of proof, 3381. not provided, effect of, 3380. mutual negligence, effect of, 3391. negligence in navigation, admiralty rule concerning, 3251. presumption of fault, 3370. against complaining vessel, 3371. prima facie case when lookout is absent, 3380. speed not conclusive evidence of negligence, 3390. statutory duty violated, burden of proof, 3375. steamers, burden of proof imposed upon, 3377, 3378. towing vessel, liability for collision, 3384. usage, proof of, 3395. vessel adrift, burden of proof, 3383. violating marine laws, justification for, 3376. COMMANDER, court martial, approval of finding required. 3456. prosecution in court martial, 3435, 3436. COMMISSION, evidence in equity, United States rules, 3181. COMMON LAW, admiralty courts not affected when, 3255. blasphemy an offense under, 2890, 2891. conspiracy as a public offense, definition of, 2927, 2928. kidnapping, modification of rule of, 2737. COMPARATIVE NEGLIGENCE, damages, division in admiralty courts, 3373. mutual negligence, admiralty rule, 3391. INDEX. 793 [References are to Sections.'] COMPETENCY OF EVIDENCE, log book, when competent, 3314. COMPETENCY OF WITNESSES, bigamy, first and second wives as witnesses, 2874. equity cases, defendant not proved incompetent when, 3205. rules governing, 3178. forgery, who may testify, 2989. prize cases, who are competent, 3330. COMPLAINT, interrogatories in admiralty court, 3275. rape, corroboration of prosecutrix, 3102. evidence admissible when, 3098, 3099. CONCEALMENT, consciousness of guilt indicated by, 2724. CONCLUSIVE EVIDENCE, equity cases, answer of defendant conclusive when, 3198. fog, speed of vessel as proof of negligence, 3390. log book is when, 3315. receiving stolen goods, proof of, 3111. CONCUBINAGE, abduction for purpose of, 2740-2757. proof sufficient when, 2745. CONDUCT, circumstantial evidence of crime adduced from, 2712. consciousness of guilt indicated by, 2723. CONFESSION, accessory, proof of principal's guilt, 2780. accomplice in perjury, confession admissible when, 3088. arson, admissibility of evidence, 2815. blasphemy not sufficiently proved by, 2894. bribery, evidence of, 2907. conspiracy not proved by subsequent confession, 2943. court martial, corpus delicti must be proved, 3463. embezzlement, proof by, 2972. forgery, admissions as to other forged instruments, 2995. admissibility of confession, 2995. incest proved by, 3168. murder, corpus delicti proved how, 3034. evidence in prosecution for, 3034. instructions on admitting confession, 3034. perjury established by proof of, 3088. receiving stolen goods, corroboration of, 3120. thief's confession not competent, 3113. 794 ixDEX. [References are to Sections.1 CONFESSION— Continued. rape, age of prosecutrix not proved by, 3103. proof by, 3103. silence under charge of crime, 3034. sodomy, proof by, 3172a. treason proved by, 3157. CONSENT, abduction, age of vicitm, 2752. proof of taking victim without, 2751. abortion, effect of woman's consent, 2764. criminal offense not excused by, 2726. detention of woman against her will, proof of, 2747. rape, absence of consent proved how, 3092. character and reputation of prosecutrix admissible, 3101. circumstantial evidence, 3104. defense to prosecution, 3096. expert evidence of physician, 3107. presumption concerning, 3094. reference to master without, 3218. CONSPIRACY, abortion, attempt to produce, 2764. accessory, proof of guilt, 2781. attempt to commit crimes distinguished from, 2923. bribery, acts and declarations of conspirators, 2906. confession of co-conspirator not admissible when, 2943. counterfeiting, declarations of co-conspirators as evidence, 2957. declarations after conspiracy terminated, admissibility of, 2944. of co-conspirator, admissibility, 2939. of co-conspirator, limitations of rule, 2943. of co-conspirator, preliminary proof, 2940. of others as evidence, 2939-2941. definition of, 2921. under various statutes, 2927, 2928. direct evidence no*- essential, 2938. distinction between civil and criminal actions for, 2920. false pretense, declarations of co-conspirator, 2983. formal agreement need not be proved, 2938. indictment not naming conspirators, declarations admissible when, 2945. labor combinations, law concerning, 2949-2951. law concerning prosecutions for, 2920-2951. murder trial, character of co-defendants not admissible, 3039. overt acts merged when, 2948. proof not required when, 2946, 2947. pleading in prosecutions for, 2924-2926. prima facie case, declarations of co-conspirator, 2941, 2942. IXDEX. [References are to Sections.'] CONSPIRACY— Continued. private injury, combination to inflict, 2933. proof, wtiat sufficient, 2936. order of making, 2934. public injury, combination to inflict, 2931. New Hampshire rule, 2932. receiving stolen goods, proof of, 3120. robbery, evidence of other crimes admissible when, 3137. statutory offense of, 2922. sufficiency of proof, 2937. treason, levying war defined, 3158. what constitutes, 3154. two or more conspirators essential, 2935. unlawful act, meaning of, 2929, 2930. CONSTITUTIONAL LAW, admiralty jurisdiction in United States, 3245. courts martial antedate constitution, 3398. criminal evidence, safeguards and privileges, 2705. prosecution, province of jury, 2732. cruelty to animals, statutes prohibiting, 3167. intoxicating liquor, prima facie sale of, 3170. jury not called in equity cases, 3175. lottery, laws forbidding, 3011. reference to master forbidden by, 3218. statutory crimes, evidence of, 2703. treason, evidence necessary, 3154. CONSTRUCTION OF CONTRACT, wages of seamen, rules applied to, 3293. CONTEMPT OF COURT, court martial, offense against, 3481. CONTINUANCE, court martial, when granted in, 3444. perjury in affidavit to obtain, 3080. CONTRACT, admiralty courts, control over, 3248. dissolution of seaman's contract, 3294. salvage, burden of proof concerning. 3365. claim, effect upon. 3361. determined by, 3361, 3362. seaman, employment of, 3292. CONTRADICTION. corroboration of accomplice by failure to contradict, 2786. 795 796 INDEX, [References are to Sections.'] CONTRIBUTORY NEGLIGENCE, admiralty courts, apportionment of damages, 3251, admiralty rule bars recovery when, 3393. recovery not prevented, 3392. collisions at sea, defense to action, 3367. disregard of negligence, 3382. recovery in case of, 3378. damages divided in admiralty, what constitutes, 3394. salvage denied to rescuers when, 3366. violation of statute, effect of, 3392. CONVERSION, larceny committed by, 3050. COPY, forgery, secondary evidence of forged instrument, 2993. COPYRIGHT, infringement, reference to master, 3219. CORONER, testimony of witness before, admissibility upon trial, 3037. CORPORATION, legal existence of insurance company immaterial in arson, 2816, CORPSE, admissibility of portions in evidence, 3028. CORPUS DELICTI, arson, what constitutes, 2806. circumstantial evidence as proof of, 3046. to prove, 2708. confession does not excuse proof of, 3463. court martial, proof required, 3463. external objects and appearances as proof, 2711. murder, burden of proof, 3023. proof of offense, 3034. perjury, documentary evidence to prove, 3089. rape, confession not sufficient proof of, 3103. CORROBORATION, abduction, proof required in, 2757. abortion, extent of corroboration required, 2769. accessory as a witness, necessity for, 2787. accomplice, proof of guilt, 2786. admiralty courts, rule concerning, 3250. circumstantial evidence of robbery, 3139. counterfeiting, testimony of accomplice, 2958. equity cases, answer overcome when, 3198. INDEX. 797 [References are to Sections.'] CORROBORATION— Continued. perjury, circumstances sufficient when, 3087, 3089. proof necessary, 3089. reputation of corroborating witness, 3089. rape, testimony of prosecutrix, 3102. reasonable doubt, rule as to accomplice, 2786. receiving stolen goods, confession as evidence, 3120. thief as an accomplice, 3120. seduction, what required, 3152. sodomy, accomplice as a witness, 3172a. treason, confession of defendant, 3157. CORRUPTION, bribery, law concerning, 2897-2908. COSTS, equity cases, taking testimony, 3181. reference to master, failure to prosecute, 3222. COUNSEL, courts martial refusing aid of, 3427. right of accused, 3431. status and privileges of counsel, 3433. COUNTERFEITING. accomplices, admissions and testimony of, 2958. admissions and declarations as evidence, 2957. bank notes, existence of bank, 2956. coin or bank bills, proof concerning, 2953. conspiracy, declarations of co-conspirators as evidence, 2957. defenses to prosecution for, 2961. definition of crime, 2952. essential elements of offense, proof necessary, 2953. expert evidence, admissibility of, 2959. explanation of possession, 2961. false pretense distinguished from, 2974. instruments, possession proved when, 2954, 2955. intent to defraud inferred when, 2953, 2954. knowledge, proof of, 3954. law concerning crime of, 2952-2961. possession explained by accused when, 2955. with criminal intent as an offense, 2955. production of counterfeit at trial, 2960. similar offenses, proof of, 2954. COURTS, admiralty courts as courts of equity, 3250. nature of, 3248. 798 INDEX. [References are to Sections.} COURT AND JURY, province of in criminal prosecution, 2732. COURT MARTIAL, absence without leave, proof of, 3478. acts of court binding, 3419. admissibility of evidence, how determined, 3408. agency in commission of offense "must be established, 3462. ancient organization of, 3396. answer of accused, 3442. approval of finding, who makes, 3456. argument by judge advocate, 3412. arrest before court is convened, 3428. close and open confinement, 3429. burden of proof in proceedings before, 3473. never shifts, 3474. burglary, proof of, 3479. capital cases not tried when, 3405. ■ challenge to members of court, 3434. character evidence, 3475. charge, authority of judge advocate, 3411. what constitutes, 3439. commander as prosecutor, 3435, 3436. conduct unbecoming an officer, 3484. to prejudice of good order, 3481-3483. to prejudice of good order, offenses enumerated, 3482, 3483. continuance denied, effect of, 3444. granted when, 3444. corps, court appointed in, 3403. corpus delicti, proof required, 3463. counsel, privilege of having, 3431, 3432. status and privileges of, 3433. criminating questions, judge advocate's objection, 3413. cross-examination of officer, 3471. permitted when, 3449. death sentence pronounced how, 3452. degree of proof required, 3470. depositions, taking and use of, 3477. desertion, acquittal of, 3486. defense to charge of, 3491. enlistment with enemy, 3488. forfeiture of pay, 3490. penalty for, 3487. proof of, 3485. reward for arrest, 3492. decision reached how, 3452. disapproval nullifies sentence, 3458. discipline violated, proof of, 3480. INDEX. [References are to Sections.'i COURT MARTIAL — Continued. dismissal of officer, president must approve, 3457. documentary evidence in, 3465. drunkenness on duty, 3493. proof made liow, 3494. embezzlement, presumption concerning, 3496. proof of, 3495. engineer corps, appointment in, 3403. enlistment, proof of, 3468. proof of, 3497. escape from guard house not desertion when, 3488. evidence, relevancy of, 3465. rules of, 3459-3477. of officers, 3471. in particular cases, 3478-3503. heard in open court, 3445. heard in hospital when, 3445. finding, approval of, 3456. approval by the president, 3457. exceptions and substitutions, 3455. must follow evidence, 3453. of court and judgment, 3452-3458. on charge and specification, 3454. pleadings amended to conform to, 3455. forfeiture imposed by, 3405. fraudulent claims, presentation of, 3497. garrison court martial, 3405. general courts martial, organization of, 3402. officer, sentence must be approved when, 3457. orders, proof of, 3466. Greenleaf's rules of evidence, 3461. history in the United States, 3398. of English courts, 3397. identity of accused, proof of, 3462. impeachment of witnesses, 3476. innocence presumed in prosecutions before, 3461. intent, proof essential, 3464. judge advocate, appointment of, 3409. duty to accused person, 3413. duties to court, 3412. powers of, 3411. who may be appointed, 3410. judges preside in, 3401. judgments not subject to review by civil courts, 3426. reviewed by civil courts when. 3427. judicial notice of general orders, 3466. 799 800 INDEX. [References are to Sections.'} COURT MARTlALr-Continued. jurisdiction of court, 3415-3427. general discussion of, 3415. jurisdiction in criminal cases, 3417. burden of proof, 3425. exceeded, authority of civil courts, 3427. is not territorial, 3416. over civilians, 3421. limitations of, 3423. aiding enemies, 3422. over persons aiding the enemy, 3422. with the army, 3421. to determine whether accused is a soldier, 3420. law administered by, 3396-3502. limited jurisdiction of, 3401. leading questions, objections to, 3413. martial law distinguished, 3400. military law, discussion of, 3399. occupation, jurisdiction of, 3423. misconduct in connection with, 3481. muster rolls, proof of, 3466. mutiny, intent an element of offense, 3500. proof made, how, 3499. suppression of, 3500. nature and organization, 3401-3418. notice to officer of charge against him, 3430. number of officers composing coui't, 3404. oath administered by presiding officer, 3408. officer intoxicated, punishment for, 3493. misconduct in general, 3482. opening statement before trial, 3446. opinion evidence admissible, when, 3472. order of introducing testimony, 3449. organization and constitution of, 3401, 3402. origin and history, 3396-3400. penalty, how determined, 3452. pleading, certainty of, 3438. charge and specification distinguished, 3439. in prosecutions before, 3437-3442. statement of charge, 3440. time and place of offense, 3440. plea of guilty, judge advocate's duty after, 3414. practice, matters of, 3428-3436. president's approval of sentence, how shown, 3457. presiding officer of, 3407. functions of, 3408. presumptions of legality not indulged, 3424. INDEX, 801 [References are to Sections.'] COURT MARTIAL— Continued. prosecutor, judge advocate is, 3410. qualification of members, 3414. questions by members of court, 3451. rank of officers composing court, 3404. reasonable doubt must be removed, 3461. effect of, 3470. record as to penalty, 3452. of evidence and objections taken there, 3450. authenticated, how, 3409. of previous trial, admissibility of, 3467. regimental courts martial, 3403. and garrison courts, jurisdiction of, 3418. relieving the enemy in time of war, 3502. report of arrest when made, 3430. senior officer presides, when, 3407. sessions of court, 3443. signal corps, appointment for, 3403. sleeping on post of duty, 3503. specification in pleadings, 3439. statutes binding upon, 3419. summary court martial allowed, when, 3406. approval of decisions, 3406. jurisdiction of, 3418. swearing witnesses, how conducted, 3447. telegrams, proof of, 3469. tie vote, effect of, 3452. trial of case, 3443-3451. venue not defined by territorial limits, 3416. witnesses, separation of, 3448. COURT OF EQUITY, equity proceedings generally, 3174-3217. CREDIBILITY OF WITNESSES, court martial determines, 3453. equity cases, United States rule, 3178. forgery, jury may convict, when, 2997. instructions cautioning jury concerning, 2733. perjury, answers on cross-examination, 3079. by false testimony concerning credibility, 3080. rape, complaint by prosecutrix, 3099, 3100. corroboration of pi-osecutrix, 3102. prosecutrix under age of consent, 3095. witness under age of discretion, 3094. Vol. 4 Elliott Ev. -51 802 INDEX. [References are to Sections.'] CRIME, abduction, law of, 2734-2757. abortion, law of, 2758-2771. accessory, what constitutes, 2772-2787. adulteration of food or drink, 3165. alibi, proof of, 2727. arson, law concerning, 2806-2816. assault and battery, law concerning, 2835-2857. assault, law concerning, 2817-2834. assisting or concealing criminal, 2775. bigamy, law concerning, 2858-2874. blackmail, law concerning, 2875-2888. blasphemy, law concerning, 2889-2896, bribery, law concerning, 2897-2908. burden of proof to establish, 2706. of affirmative defense, 2706. burglary, law concerning, 2909-2919, character of accused, proof of, 2721. of others, proof of, 2722. circumstantial evidence, conduct of accused, 2712, elements and classification, 2710. external objects and appearances, 2711. relation of accused to facts of crime, 2712. requisites of, 2709. conduct indicating conscious guilt, 2723. conspiracy, law concerning, 2920-2951. constitutional safeguards and privileges, 2705. counterfeiting, law concerning, 2952-2961. court martial, prosecution before, 3480. criminal capacity, evidence of, 2704. cruelty to animals, 3167. defendant as a witness, privilege of, 2705. defenses to prosecution for, 2726-2731. definition and general principles, 2702. depositions in prosecutions for, 2705. embezzlement, law concerning, 2962-2972. evidence of other crimes admissible, when, 2720. false pretenses, 2973-2984. forgery, law concerning, 2985-2998. former jeopardy as a defense, 2730. gambling, law concerning, 2999-3011. general principles and rules, 2702-2733. homicide, law of, 3012-3046. identity of accused, proof of, 2706. ignorance of law is no defense to criminal prosecution, 2726. incest, law of, 3168. insanity as a defense, 2728. instructions cautioning the jury against defenses, 2733. INDEX, 803 [References are to Sections.'] CRIME — Continued. intoxication as a defense, 2729. larceny, law concerning. 3047-3059. libel, law concerning, 3169. liquor law violations, 3170. malicious mischief, proof of, 3172. malicious trespass, proof of, 3172. motive need not be proved, when, 2719. names, proof of, 2714. nuisance, law concerning, 3060-3069. obstructing highway, 3066. other offenses proved to establish intent, 2720. perjury, law of, 3070-3091. pollution of waters, 3067. province of court and jury, 2732. public indecency, 3068. rape, law of, 3092-3109. receiving stolen goods, 3110-3121. riots and unlawful assembles, law concerning. 3122-3128. robbery, law concerning, 3129, 3140. seduction, law of, 3141-3153. sodomy, law of, 3172a. statutory crimes, caution as to proof of, 3173. evidence of, 2703. substance of charge, proof sufficient, 2714. weapons, carrying concealed, 3166. CRIMINAL CAPACITY, proof essential, when, 2704. CRIMINAL INTENT, circumstantial and presumptive evidence of, 2718. evidence to establish, 2717, 2718. inference from nature of act done, 2716. proof essential to conviction, 2716. CRIMINAL LAW, courts martial, jurisdiction of, 3417. CRIMINAL PRACTICE, answer in court martial, 3442. CROSS-COMPLAINT, equity cases, cross-bill and answer as evidence, 3209. CROSS-EXAMINATION, court martial, when permitted, 3449. officer subject to at court martial, 3471. perjury, materiality of answers, 3079. rape, complaint by prosecutrix, 3099, 3100. seduction, subjects for, 3145. 804 INDEX. [References are to Sections.} CRUELTY TO ANIMALS, evidence necessary to conviction, 3167. malicious mischief distinguistied from, 3167. ownership must be proved, when, 3167. parol evidence competent, when. 3167. CUSTOM, usage as law of the sea, 3395. D DAMAGES, admiralty courts, pleading special damages, 3272. admiralty rule for division of, what constitutes, 3394. amendment of pleadings in admiralty, 3264. assessment on default in courts of admiralty, 3271. both vessels at fault, division of damages, 3372. concurrent fault of two vessels injuring third, 3374. comparative fault, division of, 3373. contributory negligence, admiralty rule, 3392. perjury in testimony concerning, 3080. DANGER, salvage for rescuing vessel from, 3355, 3356. DEATH, court martial inflicts, when, 3452. sentence, approval by president, 3457. murder, burden of proof concerning, 3023. presumption as to cause of, 3020. DECEPTION, seduction accomplished by, 3141. DECLARATIONS, abduction, consent of parents disproved, how, 2750. counterfeiting, admissibility in prosecution for, 2954. conspiracy, declarations of others, 2939-2941. order of proof, 2934. proof when co-conspirators are not named, 2945. terminated, declarations made after, 2944. false pretense, proof of crime, 2983. forgery, competency of evidence, 2994. murder, admissibility as res gestae, 3030. trial, res gestae admissible when, 3041. narrative not admissible to prove conspiracy when, 2943. perjury, res gestae admissible when, 3086. robbery, proof concerning, 3134. treason, evidence of, 3160. INDEX. 80o IReferences are to Sections.'] DEED, equitable proceeding, parol evidence concerning, 3215. DEFAULT, assessment of damages in admiralty courts, 3271. DEFENSE, accessory, acquittal of principal, 2779. bigamy, good faith of second marriage, 2871, 2872. bribery, defense to prosecution for, 2908. circumstantial evidence, third person's connection with facts shown, 2726. counterfeiting, what admissible, 2961. criminal prosecution, defenses to, 2726-2731. ignorance of law is not, 2726. instructions cautioning jury against, 2733. larceny, defense to prosecution for, 3059. motive disproved by accused, when, 2726. receiving stolen goods, restoration to owner, 3119. DEFINITION, abduction defined, 2740. abortion defined, 2758. accessory defined, 2772. accomplice defined, 2785. arson defined, 2806. assault defined, 2817. assault and battery defined, 2835, 2836. bigamy defined, 2859. blackmail defined, 2876, 2877. bribery defined, 2897. burglary defined, 2909. conspiracy to commit crime, 2921. conspiracy defined in various states, 2927, 2928. counterfeiting defined, 2952. crime defined, 2702. embezzlement defined, 2962. false pretense defined, 2973. forgery defined, 2985. gambling defined, 2999. homicide defined, 3012. kidnapping defined, 2735. larceny defined and distinguished, 3047, 3048. libel under criminal law defined, 3169. manslaughter defined, 3012. murder defined, 3012. mutiny defined, 3499. perjury defined, 3070. public nuisance defined, 3060. 806 INDEX. [References are to Sections.'] DEFINITION — Continued. rape defined, 3092. reasonable doubt defined, 2707. receiving stolen goods defined, 3110. riot defined, 3122. robbery defined, 3129. salvage defined, 3348-3350. seduction defined, 3141. treason defined, 3154. DEGREE OF CRIME, law and fact, questions of, 3024. DELIBERATION, perjury, elements of offense, 3078. DEMAND, .ND, embezzlement, necessity for proving demand, 2970. documentary evidence, discovery of, 3283. DEPARTURE, pleadings in admiralty, rule concerning, 3261. DEPOSITIONS, court martial, taking and use of, 3477. criminal prosecution, privilege of reading, 2705. equity cases in United States Courts, how depositions taken, 3178. publication by consent, 3183. perjury in making, use of deposition immaterial, 3090. rape, denial by prosecuting witness, 3103. suppression in equity court, when, 3183. United States court of equity, how taken, 3181. act of congress, 3182. DERELICT, abandonment by master, effect of, 3357. duty of finder, salvage allowed, when, 3358. salvage upon recovery of, 3357. DESERTION, court martial, finding under charge of, 3455. for offense of, 3485. sentence for deserter, 3457. defense to charge of, 3491. dishonorable discharge, effect of, 3490. distinguished from absence without leave, 3485. enlistment proved, how, 3497. with enemy, excuse for, 3488. escape from guard house constitutes, when, 3489. extenuation or mitigation of charge, 3491. INDEX. 807 [References are to Sections.'] DESERTION — Continued. forfeiture of pay by reason of, 3490. intent, proof required, 3464. log book as evidence, 3317. muster rolls as proof of, 3490. penalty inflicted by court martial, 3487. reward for arrest of deserter, 3492. seaman's return, effect of, 3307-3309. treasonable levying of war, what constitutes, 3158. wages of seaman forfeited, when, 3307. DESTRUCTION OF EVIDENCE, forgery, destruction of forged instrument, 2993. DETECTIVE, accomplice is not, when, 2958. bribery proved by evidence of, 2906. DIAGRAM, homicide, evidence In prosecution for, 3044. DIPLOMACY, admiralty jurisdiction, nature of, 3239. DIRECT EVIDENCE, conspiracy need not be proved by, 2938. DIRECTING VERDICT, criminal prosecution, authority of court, 2732. DISCIPLINE, court martial, jurisdiction to enforce, 3421. proof before, 3480. intent implied from breach of, 3464. military law, relation to, 3399. DISCOVERY, demand for documentary evidence, 3283. documentary evidence, admiralty practice, 3282. application made, how, 3284. discretion of judge, 3285. DISCRETION, admiralty, exercise by courts, 3261. discovery and inspection of documents, 3285. reference to master, power of court, 3218. salvage, amount of allowance, 3360. verdict set aside by court of equity, abuse of. 3177. DISHONESTY, forfeiture of seaman's employment, 3300. 808 INDEX. [References are to Sections.} DISLOYALTY, • court martial of officer for, 3482. DISORDERLY HOUSE, nuisance, prosecution for keeping, 3065. petition of citizens not competent evidence, 3066. public nuisance, examples of, 3061. reputation not proof of, 3063. reputation of defendant not competent, 3066. DISTRIBUTION, reference to master, 3219. DISCOVERY, equity cases, remedy allowed, when, 3195. illustrations in admiralty practice, 3287. privileged documents, 3288. public documents privileged, when, 3288. DIVORCE, adultery after invalid divorce, 2805. bigamy, burden of proof, 2873. effect of invalid decree, 2873. DOCUMENTS, discovery, application made, how, 3284. discretion of judge, 3285. illustrations in admiralty practice. 3287. inspection of, demand for, 3283. privilege against discovery, when, 3288. as against disclosure, 3290. documents, discovery not required, 3289. production on order of court, 3286. waiver of privilege against disclosure, 3291. DOCUMENTARY EVIDENCE, admiralty, proof of execution waived, 3253. bribery, introduction of, 2903. court martial, production and introduction of, 3466. discovery and inspection of documents, admiralty practice, 3282-3291. equity cases, answer overcome by, 3198. documents received, when, 3214. forgery, production of instrument, 2992. secondary evidence of forged instrument, 2993. former jeopardy, what essential to prove, 2731. master in chancery, what competent before, 3188. notice of intention to introduce, 3196. proof of instruments in courts of equity, 3196. perjury, proof of offense by, 3089. ship's papers in prize courts, 3338-3343. INDEX. 809 [References are to Sections.'i DOG, larceny, rule of law concerning, 3052. parol evidence of return for taxation, 3167. DRUGS, abortion, attempt to produce, 2761. abortion produced by, proof concerning, 2765. administering to produce abortion, what constitutes, 2763. DRUNKENNESS, See Intoxication. bribery, defense to charge of, 2908. court martial of military officer for, 3482. punishment by, 3493. proof made, how, 3494. criminal capacity, effect on, 2704. defense to criminal prosecution, when, 2729. forgery, criminal intent disputed by, 2996. homicide, intoxication of deceased, 3045. intent implied from act, 3464. morphine causing, soldier excused, when, 3493. mutiny not established by disorderly conduct, 3499. officers and soldiers punished, when, 3493. receiving stolen goods, knowledge not disproved by, 3114. robbery, intent disproved by evidence of, 3140. sale of intoxicating liquor to drunkard, how proved, 3171. seaman's forfeiture of wages by, 3301. DYING DECLARATIONS, abortion, admissibility in prosecution for, 2770. admissibility as evidence, 3032, 3033. eye witnesses to occurrence do not exclude, 3032. homicide, dying declarations not competent, when, 3045. use as evidence, 3031. prosecution for murder of another person, declarations not admissi- ble, 3032. DYNAMITE, robbery proved by possession of, 3138. E EAVESDROPPER, public nuisance, examples of, 3061. EMBEZZLEMENT, absconding, waiver of demand by, 2970. agency, proof necessary, 2972. commissions not paid, effect of, 2971. books kept by defendant as evidence, 2972. 810 INDEX. [References are to Sections.l EMBEZZLEMENT — Continued. burden of proof in prosecution for, 2965. circumstantial evidence of offense, 2969. conversion of property excuses demand, 2970. corporation ownership, proof of, 2969. court martial, proof of offense, 3495. defenses to criminal prosecution, 2971. definition of, 2962. demand necessary, when, 2970. distinguished from larceny, 2962, 2963, 3495. elements of crime, burden of proof, 2965. evidence in general, 2969. falsification of accounts as proof, 3495. forfeiture of seaman's employment, 3300. illegal transaction, money arising from, 2971. intent, effect on guilt, 2971. evidence of, 2967. to defraud, effect of, 2963. to restore no defense, when, 2967. larceny distinguished from, 3048. law and fact, questions of, 2966. law concerning prosecutions for, 2962-2972. lien or interest in property, effect of, 2971. oflSee or rank, how proved at court martial, 3495. possession by defendant, proof of, 2972. presumption against army officer, 3496. in prosecution for, 2964. receiving stolen goods, what constitutes, 3110. selling public property as proof, 3495. sufficiency of evidence in criminal prosecution, 2972. trust relation must be established, 2972. weight of evidence in criminal prosecution, 2972. written evidence to prove, 2968. ENEMY, aiding enemy, what constitutes, 3422. court martial for relieving, 3502. ENLISTMENT, court martial, proof of enlistment, 3468-3497. parol evidence of, 3497. EQUITY, accounts, production before master, 3190. admiralty jurisdiction, resemblance to, 3250. practice, resemblance to, 3248. admissions by agreement, effect of, 3194. by failure to deny allegation, 3197. effect of, 3193. INDEX. 811 [References are to Sections.'] EQUITY— Continued. answer under oath as evidence, 3174. for defendant, 3198. limitations and exceptions, 3199. reply not filed, 3200. United States court rules, 3180. containing improper matter, 3204. not responsive, when, 3202. of co-defendant, use of, 3206. on information and belief not evidence, when, 3199. proved false in part, effect of, 3204. responsive, illustrations of, 3201. under oath waived by plaintiff, effect of, 3199. avoidance of plea, evidence required, 3201. bill as evidence for complainant, 3197. burden of proof, 3211. commission to take testimony. United States rules, 3181. competency of witnesses in court of, 3178. of defendant not disputed, when, 3205. confirmation of master's report, 3235. costs of taking evidence, 3181. cross-bill and answer as evidence, 3209. depositions, publication by consent, 3182. under act of congress, 3182. discovery of evidence in, 3195. documents, proof of, 3195, 3196. evidence confined to issue, 3214. how taken in courts of equity, 3178. examination of creditor or claimant, 3189. exceptions to evidence at hearing before jury, 3175. hearing on bill and answer, 3200. impeachment of defendant not permitted, when, 3205. infant parties, answer not evidence against, 3207. injunction and quieting title, verdict in, 3175. interrogatories as controlling sworn answer, 3199. to obtain evidence, 3181. issue, substance must be proved, 3212. jury called in discretion of court, 3175. effect of verdict of, 3175. submitting issues to, 3176. trial not allowed as of right, 3175. last interrogatory under United States rules, 3184. master, attendance of witnesses before, 3187. master's report, exceptions to, 3191. motion for new trial required, when, 3175. objections and exceptions to evidence, 3217. oral evidence, introduction of, 3178. examination of witnesses, 3181. 812 INDEX. [References are to Sections.'] EQUITY — Continued. parol and secondary evidence, 3215. parties as witnesses, 3210. plea as evidence, 3208. pleadings as evidence, 3193. proceedings before master. United States court rules, 3186. generally, 3174-3217. proof required, extent of, 3211. reference to master, 3218-3236. afBdavits and documents before, 3188. under United States court rules, 3185. report of master, duty concerning, 3227. objections and exceptions, 3228, 3229. responsiveness of answer, test of, 3203. rules of evidence same as at law, when, 3174. sources of evidence in, 3192. stenographer to take down evidence in, 3181. testimony not taken, when, 3220. time allowed for taking testimony in United States court, 3183. United States court rules, 3179. variance, what constitutes, 3213. verdict, effect of, 3177. weight and sufficiency of evidence, 3216. witnesses, testimony of, 3210. ESCAPE, attempt as evidence of guilt, 2724. ESTOPPEL, enlistment, proof made, how, 3497. ESTRAY, larceny, felonious intent in taking up essential, 3056. EVASION, equity cases, answer without effect, when, 3202. EVIDENCE, abduction, subsequent acts proved, when, 2744. additional testimony before master, 3225. admiralty courts, evidence in, 3237-3395. relation to pleadings, 3259-3272. admissibility in admiralty courts, 3252, 3253. conspiracy, order of proof, 2934. continuance of court martial to procure, 3444. court martial bound by, 3453. evidence heard, where, 3445. production of documents, 3466. record made in, 3450. INDEX. 813 [References are to Sections.] EVIDENCE— Continued. court martial, record taken down, 3450. rules in, 3459-3477. testimony at former trial inadmissible, 3467. criminal law, general principles and rules, 2702-2733. discovery and inspection of documents, admiralty practice, 3282- 3291. equity cases, answer as evidence, 3180. issue determines admissibility, 3214. sources of evidence, 3192. substance of issue must be proved, 3212. weight and sufficiency of, 3216. rules same as at law, when, 3174. exceptions to master's report, 3232. false pretense, what competent, 2980. forgery, proof of former offense, 2990. homicide, admissibility of, 3044, 3045. general rules of prosecution for, 3043. interogatories concerning adverse party's evidence not competent, 3278. to obtain in admiralty proceeding, 3273, 3277. master in chancery, objections before, 3224. power to hear, 3223. report, when required, 3226. nuisance, proof of offense, 3062. objections and exceptions in equity, 3217. obstruction of highway, how proved, 3066. officer, examination at court martial, 3471. other crimes, proof in prosecution for arson, 2813. perjury, how proved, 3070-3091. pleadings in admiralty courts constitute, when, 3270. receiving stolen goods, sufficiency of evidence, 3121. reference to master, 3218-3236. discretionary power, 3218. relevancy in court martial trial, 3465. riot, general rules as to proof of, 3128. salvage, elements of claim, 3354. ship's papers in prize cases, 3337. weight and sufficiency in homicide case. 3046. EXAMINATION OF WITNESSES, court martial, counsel may conduct, 3433. examination in open court, 3445. order of introducing, 3449. questions by members of court, 3451. equity cases, parties examined, when, 3190. objections and exceptions, 3217. proceedings before master, 3186. 814 INDEX. [References are to Sections.'] EXAMINATION OF WITNESSES— OoniinuefZ. equity rules in United States court, 3181. reference to master, hearing before, 3185. EXCEPTIONS, master's report after reference, 3231, 3232. action on exceptions to report, 3233. form of exceptions, 3232. objections to report, 3229. EXECUTION, proof of documents in court of equity, 3196. EXPERIMENTS, arson, proof in, 2816. forgery, writing name in presence of jury, 2995. weapons used in presence of jury, 3028. EXPERT EVIDENCE, counterfeiting, admissibility of, 2959. court martial, opinions admissible, when, 3472. forgery, evidence insufficient to convict, when, 2997. gambling, proof by means of, 3002. murder, examination of remains, 3025. poisoning proved without aid of, 3046. rape, corroboration by expert evidence not required, 3102. physical examination, 3107. EXPERT WITNESS, intoxication proved without calling, 2729. EXPLOSION, criminal liability for, law and fact, 3024. EXPLOSIVES, nuisance, storing and keeping dangerous explosives, 3061. storing constitutes nuisance, when, 3069. EXTORTION, blackmail embraces offense of, 2878. distinguished from bribery, 2879. robbery does not constitute, 3129. F FABRICATION OF EVIDENCE, circumstantial evidence of crime, 2712. FALSEHOOD, abduction, consent of woman obtained by, 2751. INDEX. 815 [References are to 860110718.2 FALSE IMPRISONMENT, kidnapping as species of, 2735-2739. FALSE PRETENSE, benefit accruing to another no defense, 2982. character of defendant, proof of, 2982. conspiracy, declarations of co-conspirator, 2983. effect of proof of, 2984. deceit, pretense sufficient, when, 2979. declarations and admissions as evidence, 2983. defenses to prosecution for, 2982. definition of, 2973. distinguished from other crimes, 2973, 2974. evidence to prove the pretense, 2980. existing or past event must relate to, 2978. inference of fraudulent intent, 2975. intent as an element of crime, 2975. of victim, proof of, 2975. to repay not a defense, 2982. larceny distinguished from, 3048. law concerning, 2973-2984. opinion or promise, expression does not constitute, 2978. other crimes and transactions, intent shown by, 2976. preparation for committing crime, proof of, 2976. presumption of defendant's guilty knowledge, 2980. pretense, proof essential, 2978. prudence of victim, necessity for, 2979. reliance on pretense by victim, 2981. robbery does not constitute, 3129. symbol or token, use of, 2977. variance in proof, what constitutes, 2984. venue, how determined, 2984. writing, proof of, 2980. FAMILY, self-defense includes right to defend members of, 2850. FEAR, forcible abduction by exciting, 2741. rape by means of, 3092, 3093. consent obtained by, 3096, 3097. robbery, elements of, 3129. presumption concerning, 3131. FEDERAL COURTS, admiralty jurisdiction, extent of, 3237-3247. in United States, 3240. reference to master in chancery, 3218-3236. 816 INDEX. [References are to Sections.'] FELONY, accessory, what constitutes, 2772. homicide, law of, 3012-3046. larceny, definition of, 3047. robbery, law concerning, 3129-3140. FICTIONS OF LAW, abduction for illicit purpose, forcible taking or detention, 2742. FIRE, arson, prosecutions for, 2806-2816. FISH, nuisance by pollution of waters so as to kill, 3067. FLIGHT, circumstantial evidence of crime, when, 2712. conscious guilt indicated by, 2724. homicide, evidence of, 3046. FLAG, prize cases, effect of carrying, 3343. FOG, collision of vessels in, 3385-3390. moderate speed in passing through, 3388. 3389. operation of boats in, contributory negligence. 3392. speed of vessel in, collision resulting, 3386-3390. FOOTPRINTS, arson, proof of identity, 2816. burglary, identity of prisoner, 2916. identity established by, 2715. FORCE, abduction, proof of force sufficient when, 2741. FOREIGN LAW, admiralty, proof required when, 3257. reference to master, 3219. FORFEITURE, admiralty jurisdiction over subject of, 3240. desertion and return of seaman, 3309. at end of voyage, 3308. salvage forfeited, when, 3366. wages of seaman, desertion from vessel, 3307. discharge for misconduct, 3300. forfeited, how, 3296. INDEX. 817 [References are to Sections.'] FORGERY, ability to imitate signature, proof of, 2991. alterations, concealment not essential to crime, 2996. chemicals in defendant's possession, 2995. authority to sign name, burden of proof, 2987. bank notes, parol evidence of bank's existence, 2997. burden of proof, 2987. checks in defendant's possession when arrested, 2994. circumstantial evidence, sufficiency of. 2995. counterfeiting as species of, 2952, n. 1. definition of, 2985. destruction or suppression of forged instrument, 2993. essential elements of crime, 2985. evidence in defense, what competent, 2996. expert evidence of handwriting insufficient, when, 2997. false pretense distinguished from, 2974. fictitious name, forgery of, 2997. guilty intent, proof of other crimes committed, 2990. handwriting, proof of, 2991. imitation of signature, claim of authority to sign, 2991. indebtedness of person whose name is forged no defense, 2996, intent to defraud must be proved, 2997. proof sufficient, when, 2990. and knowledge, proof of, 2990. presumption of fraudulent intent arises, when, 2986. law and fact, questions of, 2988. notice to produce forged instrument, 2993. other forged instruments, testimony concerning, 2994. other papers not shown to be forged inadmissible, 2994. parol evidence to explain instrument, 2995. passing forged paper, knowledge of false character, 2990. possession of forged paper, presumption from, 2986. presumption from possession of forged instrument, 2997. in prosecution for, 2986. production of forged instrument, 2992. ratification does not bar prosecution, 2995. repayment or intent to repay no defense, 2996. secondary evidence of forged instrument, 2993. signatures, comparison of, 2991. subjects of, court determines character, 2988. subscribing witness not named in indictment, 2991. variance, what constitutes, 2998. venue established by circumstantial evidence, 2995. venue, possession of forged instrument in county, 2997. weight and sufficiency of evidence, 2997. witnesses, who competent to testify, 2989. person whose name is forged not indispensible, 2989. Vol. 4 Elliott Ev. — 52 818 INDEX. [References are to Sections.'] FORGERY — Continued. writing done by another, defendant's guilt, 2997. in presence of jury as evidence, 2995. FORMER JEOPARDY, See Jeopardy, FORNICATION, single act, proof sufficient, 2797. FORT, court martial for garrison, 3405. FOWLS, cruelty to animals, what constitutes, 3167. FRAUD, abduction, consent of woman obtained by, 2751. answer responsive, when, 3201. arson, questions of law and fact, 2809. insurance excessive, 2810. conspiracy to defraud, 2933. embezzlement, evidence of intent, 2967. equitable proceeding, parol evidence of, 3215. evidence in equity proceedings distinguished, 3174. forcible abduction by means of, 2741. former jeopardy, plea defeated by proof of fraud, 2731. kidnapping, consent obtained by, 2738. larceny by means of, 3050. larceny, possession obtained by, 3056. prize cases, effect of, 3331. rape, access obtained by fraud, 3096. by means of, 3092. variance between pleadings and proof, 3109. FRAUDULENT CLAIMS, court martial for presenting, 3498. guilty knowledge proved, how, 3498, FREIGHT. wages of seaman, effect of loss of ship, 3306. FUGITIVE SLAVE LAW, treason by opposition to, 3154. G GAMBLING, accomplices and accessories, 3006. circumstantial evidence, proof by, 3004. common gambler, proof of, 3008. INDEX. 819 [References are to Sections."] GAMBLING — Continued. confiscation of gambling devices, 3005. definition of crime, 2999. distinguished from other offenses, 2999. expert evidence concerning, 3002. frequenting gambling house, proof of, 3008. instruments of calling as evidence, 3005. judicial notice of terms used, 3002. keeping gaming house, 3009. keeping gaming house a nuisance, when, 2999. lottery, constitutional law, 3011. manner of playing, proof of, 3002. minors playing, proof of, 3010. minor playing, burden of defense, 3010. other offenses, proof of, 3004. pool room, evidence of, 3005. prima facie evidence, statutes concerning, 3003. price of refreshment, wager of, 3000. publicity of the game, proof required when, 3001. reputation of house as proof of, 3063. table hire, wager of, 3000. value of wager, proof essential, 3000. variance, what constitutes, 3007. wager is an essential element of, 2999. wager, proof of, 3000. GAMBLING HOUSE, prima facie evidence of renting or keeping, 3003. reputation as proof of, 3063. GARRISON, court martial appointed in, 3405. jurisdiction of court martial defined by statute, 3418. GIFT ENTERPRISE, judicial notice of law forbidding, 3011. GIRL, abduction, definition of, 2740. for unlawful purpose, 2740-2757. kidnapping, proof concerning, 2739. GOOD FAITH, malicious mischief, defense to prosecution, 3172. GREAT LAKES, admiralty jurisdiction upon, 3247. GUARDIAN AND WARD, abduction, taking child without consent of, 2748. equity cases, competency of witnesses, 3178. 820 INDEX. [References are to Sections.'i GUERILLA, court martial, sentence for, 3457. GUILTY KNOWLEDGE, forgery, proof of, 2990. other crimes of defendant, 2994. similar acts proved to establish, 2768. GUN, assault by drawing, what constitutes, 2829. by use of, what constitutes, 2827. burden of proof as to being loaded, 2834. unloaded gun, 2830-2833. pointing is an essential element, when, 2830. pointing at another, presumption from, 3023. GUN POWDER, storage constitutes nuisance, when, 3068. H HABEAS CORPUS, jurisdiction of courts martial, burden of proof, 3425. HABIT, murder trial, habits of deceased as evidence, 3040. HANDWRITING, forgery, proof of, 2991. signatures, comparison of in criminal prosecution, 2991. HARBOR, high seas distinguished from, 3246. HEARSAY, admiralty, admissibility of evidence, 3253. disorderly house, reputation of, 3065. dying declarations admissible, 3033. homicide, hearsay competent when, 3045. public indecency not established by, 3068. robbery, statements and declarations inadmissible when, 3134. seduction, preparations for marriage, 3149. HEIRS, reference to master, 3219. HIGH SEAS, admiralty jurisdiction, effect of, 3246. great lakes, admiralty jurisdiction upon, 3247. HIGHWAY, existence proved in prosecution for obstruction, 3066. nuisance by obstructing, 3066. INDEX. 821 [References are to Sections.'] HOMICIDE, See Murder; Manslaigiiter. accidental killing, proof of, 3042. alibi, proof of, 3042. articles admissible in evidence, 3028. attendant circumstances, proof of, 3029, 3030. blood spots, evidence concerning, 3044. burden of proof, malice shown how, 3021. self-defense and insanity, 3022. character of accused, evidence of, 3039. of deceased, evidence of, 3038. circumstantial evidence competent in prosecution for, 3043. confessions as evidence, 3034. corpus delicti, proof by circumstantial evidence, 2708. defense, evidence must be relevant to, 3042. definition and classification, 3012. destruction of body, effect of, 3046. dying declarations as evidence, 3031. evidence admissible, general discussion, 3043, 3044. of physical condition of deceased, 3025. weight and sufficiency of, 3046. guilt of another person as a defense, 3042. inquest, proceedings of coroner, 3037. intent, evidence of, 3044. to kill, burden of proof, 3023. intoxication of deceased, evidence concerning, 3045. justification or excuse for killing, 3041a. law and fact, questions of, 3024. malice presumed, when, 3016. means used to cause death, 3027. mitigating facts, burden of proof, 3023. motive, evidence concerning, 3026. other offenses proved, when, 3043. passion or sympathy, evidence to arouse inadmissible, 3043. physician's evidence concerning, 3044. place where body was found, proof concerning, 3029. poisoning proved without chemical analysis. 3046. premeditation and malice presumed, when, 3017. presumptions generally, 3020. as to degree of offense, 3019. as to intent, 3013. not indulged when, 3018. of criminal intent, 3014. of innocence, 3013. provocation, proof of, 3042. rebuttal evidence, what competent, 3041. retreating to wall not required, 3041a. self-defenpe, evidence concerning, 3041. somnambulism as a defense, 3042. 822 INDEX. [References are to Sections.'] HOMICIDE— Coniinited. threats as evidence, 3035. not admissible in evidence, when, 3045. weapons carried by deceased, proof of, 3041. variance between allegations and proof, 3046. HORSE RACE, gambling by betting on, 2999. HUSBAND AND WIFE, bigamy, first and second wives as witnesses, 2874. law concerning, 2858-2874. proof as to life of, 2866. conspiracy between, criminal prosecution not maintained, 2935, equity cases, answer responsive when, 3201. motive for homicide, how established, 3026. murder, motive shown how, 3026. presumption of innocence, 3013. self-defense, right of, 2850. I IDEM SONANS, proof sufficient in criminal charge, when, 2714. IDENTIFICATION, receiving stolen goods, what must be proved, 3117. IDENTITY, arson, proof to establish, 2816. recognition of voice, 2816, bribery, proof of, 2900. burglary, proof of, 2916. declarations of defendant admissible, when, 3030. evidence to establish, what sufficient, 2715. homicide, identity of deceased proved how, 3044. other offenses proved to establish, 2720. property of accused near scene of crime, 2715. rape, confession as proof of, 3103, n. 79. robbery, identity established how, 3133. voice' of robber recognized, 3133. IDIOT. rape, consent need not be disproved, 3096, 3097. IGNORANCE OF LAW, treason not excused by. 3162. IMPRISONMENT, courts martial in garrisons may inflict, 3405. INDEX. 823 [References are to Sections.'i IMPEACHMENT OF WITNESS, character of prosecuting witness, proof of, 2722. coroner's inquest, proceedings admissible when, 3037. court martial, witnesses impeached in, 3476. equity case, defendant not impeached when, 3205. perjury by false answers to impeaching questions, 3074. rape, admissions of prosecutrix, 3103. complaint by prosecutrix competent when, 3099. INCEST, accomplice, corroboration of, 3168. confessions as evidence, 3168. definition of, 3168. relationship of parties, 3168. INCONSISTENT STATEMENTS, arson, evidence in, 2815. INDECENT ASSAULT, rape not proved by evidence of, 3108. INDICTMENT, conspiracy, pleading in prosecutions for, 2924-2926.. forgery, variance shown when, 2998. names and dates, proof of, 2714. surplusage need not be proved, 2714. INFANCY, criminal capacity of infant, 2704. equity cases, answer not evidence when, 3207. treason not excused, when, 3162. INFERIOR COURTS, courts martial are, 3424. INFORMER, liquor law violations, proof by, 3171. INFORMATION AND BELIEF. answer in equity overcome by one witness, 3199. INJUNCTION, verdict where title was also quieted, 3175. INNOCENCE, bigamy, presumption of. 2867. presumption of, burden of proof concerning, 2706. INQUEST, proceedings of coroner as evidence. 3037. 824 INDEX. [References are to Sections^ INSANE ASYLUM, kidnapping person to confine within, 2737. INSANITY, burden of proof to establish as a defense, 2728. criminal capacity, effect on, 2704. homicide, burden of proof to establish, 3022. instructions cautioning jury against defense of, 2733. intoxication producing, defense to criminal prosecution when, 2729. rape, lack of consent, 3092. reasonable doubt, degree of proof, 3022. treason not excused, when, 3162. INSCRUTABLE FAULT, collisions at sea, rule applied, 3368. INSTRUCTIONS, caution by court against certain defenses, 2733. INSURANCE, arson, legal existenc»3 of insurance company need not be proved 2816. proof concerning, 2810. INSURRECTION, levying war, what constitutes treason, 3158. treason, what constitutes, 3154. INTENT, abduction, proof sufficient when, 2744. subsequent acts admissible when, 2744. abortion, proof of intent. 2760, 2761. corroboration of prosecuting witness, 2769. accessory, proof required, ^782. arson, other similar crimes proved when, 2813. previous attempts as proof of criminal purpose, 2812. ■ proof sufficient when, 2807. assault and battery, elements of offense, 2838. intent inferred when, 2841. presumption of, 2840. shown without proof of, 2839. assault committed without entertaining, when, 2820. criminal intent an essential element, 2718. drawing unloaded gun, 2831, 2832. inference from act, 2819. need not establish, when, 2821. proof of intent, 2818. violence intended, 2828. bigamy, good faith of second marriage, 2871, 2872. INDEX. 825 [References are to Sections.1 INTENT — Continued. blackmail, criminal intent established how, 2884, 2885. by criminal prosecution, 2884, 2885. knowledge of threatened person's guilt no defense, 2888. truth of criminal charge immaterial when. 2887. bribery, proof of intent, 2901. burglary, criminal intent established how, 2915. carrying concealed weapons, proof of, 31G6. circumstantial evidence in prosecution for murder, 3014. counterfeiting, inference of intent, 2953, 2954. court martial, proof required, 3464. criminal intent must be proved, when, 2716. deadly weapon used, question for jury, 3024. desertion involves criminal intent, 3485. embezzlement distinguished from larceny, 2963. effect of good intent, 2971. evidence of intent, 2967. felonious intent must be shown, 2972. questions of law and fact, 2966. false pretense, defendant as a witness concerning, 2982. elements of, 2975. forgery, circumstantial evidence of, 2995. drunkenness as a defense, 2996. evidence in general, 2995. other forged instruments executed or possessed by defendant, 2994. presumption concerning, 2986. proof of, 2990. proof of similar offenses, 2990. homicide, accused as a witness concerning, 3044. criminal prosecution for, 3014. presumption as to degree of qffense, 3019. proof of, 3046. insanity disproves criminal intent, 2728. intoxication rebuts, when, 2729. jury may infer fraudulent intent, when, 2988. kidnapping, proof of criminal intent, 2738. larceny, accused as witness concerning, 3055. essential elements of, 3049-3055. felonious intent shown how, 3055. fraudulently obtaining possession, 3056. other crimes proved when, 3057. libel, question of intent for jury, 3169. liquor law violations, proof of, 3171. motive distinguished from, 2719. mutiny, offense proved how, 3500. nuisance not excused by good intent, 3064. opinion of witness not competent, 3045. 826 INDEX. [References are to Sections.} INTENT — Continued. perjury, other crimes as evidence af, 3078. proof of corrupt intent, 3078. proof of other crimes to establish, 2720. n. 85. public indecency, proof of, 3068. rape, circumstantial evidence of, 3104. receiving stolen goods, proof of, 3115. riot, burden of proof concerning, 3123. defendant's fellows may not testify to intent, 3128. robbery, defense to prosecution for, 3140. possession of stolen property as p"oof of, 3136. proof of intent, 3132. subsequent acts admissible to establish, when, 2744. teacher punishing pupil unreasonably, 2844. testimony of accused and others concerning, 2717. weapon used, intent presumed when, 3014. INTEREST, reference to master for computation of, 3219. INTERLOCUTORY ORDER, confirmation of master's report, 3235. INTERNATIONAL LAW, admiralty jurisdiction, extent of, 3237-3247. INTERROGATORIES, admiralty courts, libelant propounding, 3275. answers as evidence against person making them, 3281. defendant's right to propound in admiralty, 3276. equity cases, answer not evidence when, 3199. form under United States court rules, 3184. testimony taken by, 3181. evidence supplied, when, 3280. limitations on privilege of propounding, 3278. materialty in admiralty cases, 3279. office in admiralty proceedings, 3277. practice in courts of admiralty, 3273. INTOXICATING LIQUOR, circumstantial evidence of illegal sale, 3170. intent in violating law, 3171. judicial knowledge of qualities of, 3170. knowledge of facts constituting violation, rroof of, 3171. license disproved by positive evidence, 3170. name of purchaser, variance in proof of, 3170. presumptions in prosecution for illegal sale, 3171. quantity sold, proof not essential, 3170. rumor of sales not competent, 3170. IXDEX. 837 [References are to 8ecti07is.'\ INTOXICATING L,lQ\JOR— Continued. sales, prima facie evidence of, 3170. sale to drink on premises, proof of, 3171. to drunkard, proof of, 3171. to minor, proof of, 3171. what constitutes, 3170. violations of law, proof of, 3170. INTOXICATION, See Drunkenxess. bribery, defense to charge of, 2908. burglary, defense to prosecution for, 2919. counterfeiting, defense to prosecution for, 2961. defense to criminal prosecution, when, 2729. kidnapping intoxicated sailor, proof of, 2738. perjury, defense to prosecution for, 3090. rape, consent negatived how, 3096, 3097. robbery, intent disproved by evidence of, 3140. treason not excused by, 3162. ISSUE, admiralty courts, rules of proof, 3259. equity cases, proof under, 3212-3214. interrogatories must be material to, 3279. reference to master made, when, 3221. J JOINT OFFENSE, riot, number of persons engaged, 3125. JEALOUSY, motive for crime, proof of, 3026. JEOPARDY, defense to criminal prosecution, when, 2730, 2731. burden of proof of former jeopardy, 2731. evidence to establish former jeopardy, 2731. indictment insufficient, effect of acquittal, 2730. record evidence to establish conviction or acquittal, 2731. JOINT CAPTURE, presumption in prize cases, 3344. JUDGE ADVOCATE. appointment in court martial, 3409. authentication of records by, 3409. charges corrected, when, 3411. court martial, appointment of, 3409. duties to accused officer, 3413. 828 INDEX. [References are to 8ections.'\ JUDGE ADVOCATE— Continued. duties to court martial, 3412. enlistment not essential, 3410. oath of members of court administered by, 3414. powers and duties in court martial, 3411. statute of limitations, duty as to plea of, 3413. who may be appointed, 3410. JUDICIAL NOTICE, admiralty courts take, when, 3257. admiralty courts will notice, what, 3257. counterfeiting, proof unnecessary when, 2953. court martial, general orders noticed, 3466. gambling, courts notice what, 3002. intoxicating liquor, qualities of, 3170. lottery, what notice taken by court, 3011. perjury, record of former case in same court, 3082. Jj JUNK DEALER, receiving stolen goods, evidence against, 3120. JURISDICTION, admiralty courts, extent of, 3237-3247. showing of jurisdiction, 3243. bigamy, proof of jurisdiction, 2860. courts martial, exceeding authority of civil courts, 3427. extent of jurisdiction, 3415-3427. have limited jurisdiction, 3424. criminal case, proof required, 2714. perjury, court in which testimony was given, 3075. prize cases, admiralty courts, 3319. possession of goods, 3325. JURY, criminal prosecution, province of, 2732. equity, discretion of court in calling, 3175. submitting issues to jury, 3176. use of jury, 3175. JUSTIFICATION, truth as a defense in criminal libel, 3169. violation of marine laws justified, when, 3376. K KEEPING GAMING HOUSE, offense established how, 3009. reputation of house, proof of, 3009. INDEX. 829 [References are to Sections^'] KIDNAPPING, age, defendant's belief concerning, 2739. proof essential when, 2739. consent of injured party must be disproved, when, 2739. definition and meaning of, 2735. girl or woman, proof concerning, 2739. intent, proof of, 2738. proof, essential elements of, 273G. secrecy as element of offense, 2737. statutory change of common law rule, 2737. KNIFE, malice inferred from use of, question for jury, 3024. KNOWLEDGE, adulteration of food, guilty knowledge proved when, 3165. L LABOR UNION, combination as unlawful conspiracy, when, 2949-2951. LARCENY, alibi as a defense, 3059. bailment of property, effect of, 3050. brands and marks recorded, proof of, 3052. carrying away as an element of crime, 3051. character evidence admissible, 3059. consent of injured party, effect of, 2726. of owner disproved how, 3054. constructive taking, proof of, 3049. defenses to prosecution for, 3059. definition of elements, 3047. distinguished from other crimes, 3048. embezzlement distinguished from, 2962, 2963. false pretense distinguished from, 2974. felonious intent essential, 3047. fraud or trick to obtain possession, effect of, 3050. identification of property, 3052. intent an essential element of, 3049-3055. drunkenness as evidence to disprove, 3059. fraud to obtain possession of property. 3056. proof required, 3055, 3464. secreting property as proof of, 3056. testimony of accused concerning, 3055. malicious destruction of property does not constitute, 3056. name of owner, proof of, 3053, n. 44. other crimes proved in prosecution for, 3057. ownership, proof essential, 3053. 830 INDEX. [References are to Sections.^ LARCENY — Continued. owner stealing from bailee, 3053. parol evidence of ownership, 3053. possession as proof of ownership, 3053. honestly acquired, effect of, 3048. of stolen goods as evidence, 3058. of stolen property as evidence, 2725. what constitutes, 3049. taking of property must be established, 3049. trespass essential to commission of, 3050. value of property, proof of, 3052. LAW AND FACT, arson, questions of, 2809. bribery, questions of, 2899. burglary, questions of, 2911. criminal intent in prosecution for libel, 3169. prosecution, province of court and jury, 2732. embezzlement, questions of, 2966. forgery, questions of, 2988. homicide, questions of, 3024. larceny, felonious intent of accused, 3055. perjury, questions in prosecution for, 3073. seduction, questions of, 3144. self-defense, questions of, 3024. LAW OF FORUM, log book, competency and weight as evidence, 3314. LAW OF THE SEA, usage as proof of, 3395. LAWYER, court martial, counsel for accused, 3431. LEADING QUESTION, arson, feeling toward owner of property, 2816. LETTERS, blackmail, proof of charge, 2880. homicide, letters as evidence, 3044. seduction, admissions as evidence, 3150. LIBEL, blasphemy by means of, 2891. criminal evidence of, 3169. definition of criminal libel, 3169. intent, proof of, 3169. malice inferred from circumstances, 3169. INDEX. 831 [References are to Sections.'^ LIBEL — Ccmtinued. parol evidence to explain meaning of, 3169. reasonable doubt of falsity, effect of, 3169. truth as a defense, 3169. LICENSE, intoxicating liquor, negative proof of, 3170. LIFE INSURANCE, motive for committing murder, proof of, 3026. LIQUOR LICENSE, violation of law, proof of, 3170. LOG BOOK, absence or concealment of, presumption in prize cases. 3341. admissibility in evidence, 3313. burden of proof concerning recitals of, 3312. conclusive evidence not supplied by, 3315. desertion of seaman, evidence of, 3307, 3317. entries not evidence for persons making them, 3314. entry of desertion, forfeiture of wages, 3307. identification of, 3313. notice to produce, effect of, 3313. parol evidence to vary statements of, 3316. prima facie evidence, when, 3312. wages of seaman, evidence of, 3317. weight and competency as evidence, 3314. LOOKOUT, absence from vessel, effect of, 3380. burden of proof as to absence, 3381. LOTTERY, constitutionality of laws forbidding, 3011. judicial notice taken, when, 3011. policy tickets as lottery tickets, 3011. tickets competent as evidence, when, 3011. what constitutes, 3011. M MALICE, admissions of previous difficulty as evidence, 3036. arson necessarily involves, 2806. assault and battery by school teacher, 2844. burden of proof in prosecution for murder, 3021. cruelty to animals, proof of malice not required, 3167. definition as applied to murder, 3012. homicide, evidence of malice, 3044. 832 INDEX. [References are to 8ections.'\ MALICE — Continued. libel, inference from circumstances, 3169. malicious mischief, proof of, 3172. perjury, defendant's motive for crime, 3078. presumption from use of deadly weapon, burden of rebutting, 3023. in prosecution for homicide, 3014, 3016, 3017. not indulged, when, 3019. threats of murder as evidence of, 3035. MALICIOUS DESTRUCTION, larceny not proved by evidence of, 3056. MALICIOUS MISCHIEF, cruelty to animals distinguished from, 3167. distinguished from larceny, 3172. good faith as a defense, 3172. MALICIOUS TRESPASS, distinguished from larceny, 3172. ownership of property proved, how, 3172. MANSLAUGHTER, See Homicide. abortion, statutory offense of, 2759. definition of, 3012. presumption of innocence, 3013. MAP, arson, admissibility in evidence, 2814. description of premises by, 2816. homicide, evidence in prosecution for, 3044. MARINE INSURANCE, discovery of contents of log, 3287. letters of captain, discovery of, 3287. salvage, law concerning, 3348-3366. MARITIME CONTRACTS, admiralty jurisdiction in the United States, 3240. MARITIME LAW, admiralty jurisdiction controlled by, 3242. admiralty jurisdiction, extent of, 3237-3247. collisions in fog caused by violation of, 3385. great lakes, admiralty jurisdiction, 3247. interrogatories in admiralty courts, 3273-3281. judicial notice of admiralty courts, 3258. violation, justification for, 3376. wages of seaman, admiralty jurisdiction 3292-3311. INDEX. 833 [References are to Sections.l MARRIAGE, adultery, proof of marriage essential to conviction, 2798. proof of marriage made, how, 2799-2803. bigamy, law concerning. 2858-2874. second marriage proved, how. 2864. validity of first marriage must be proved, 2861. void second marriage, 2864. criminal prosecutions, inference not raised when, 2799. invalidity as a defense to prosecution for adultery, 2804. life of husband or wife, proof and presumptions, 2866, 2867. presumption in prosecution for bigamy, 2865. prima facie proof in criminal prosecution, 2803. proof in prosecution for bigamy, 2861, 2863. record proof in prosecutions for adultery, 2800. seduction, burden of proof, 3142. preparations as res gestae, 3149. prosecution barred by, 3153. under promise of, 3141, 3148. witnesses present at ceremony, 2801. MARTIAL LAW, distinguished from military law, 3400. drunkenness of seaman, forfeiture of wages, 3301. jurisdiction, extent of, 3400. necessity as foundation for, 3400. MASTER AND SERVANT, embezzlement, presumption concerning, 2964. larceny from employer, what constitutes, 3049. robbery of servant, ownership of property, 3130. self-defense, right of, 2850. MASTER IN CHANCERY, consent of parties to reference, 3218. equity cases, proceedings before, 318-5-3191. proceedings under United States court rules, 3186. reference to master, 3218-3236. is discretionary with court, 3218. of whole case, 3218. to master, 3128-3236. under United States court rules, 3185. MENACE. assault distinguished from, 2827. MENTAL ANGUISH, assault and battery, injury to feelings, 2842. Vol. 4 Elliott Ev. — 53 334 INDEX. [References are to Sections.! MILITARY LAW, arrest before calling court martial, 3428. courts martial, relation to, 3399. practice, matters of, 3428-3436. MILITARY OFFENSES, officer's misconduct, 34S2. MILITARY STORES, embezzlement, proof before court martial, 3495 MINOR, gambling, proof of offense, 3010. sale of intoxicating liquor to, proof of, 3171. MISCARRIAGE, abortion, law concerning, 2758-2771. MISDEMEANOR, crimes include misdemeanors, 2702. MISPRISION OF TREASON, definition of, 3164. MISTAKE, equitable proceeding, parol evidence of, 3215. perjurj% defense to charge of, 3071. MITIGATION, court martial, character evidence in, 3475. MOB, fleeing from as evidence of guilt, 2724. MONOPOLY, conspiracy to effect unlawful purpose, 2930. MORTGAGE, equitable proceeding, parol evidence concerning, 3215. MOTION. master's report, how disposed of, 3230. MOTIVE, abortion, proof of motive, 2762. acts following crime inadmissible, 3026. arson, evidence of, 2810. carrying concealed weapons, proof of, 3166. criminal intent established how, 2717. fraudulent claims presented by soldier, motive immateriaL 3498. homicide, evidence concerning, 3026. evidence of motive not essential, 3046. motive of another person for committing, 3044. INDEX. 833 [References ore to Sections.] MOTIYE— Continued. ill will, proof of. 3026. intention distinguished from, 2719. law and fact, questions of, 3024. nuisance not excused by, 3064. other offenses proved when, 3043. perjury, proof of corrupt motive. 3078. proof not essential to conviction of criminal, 2719. public indecency, proof of, 3068. rape, improper motive of prosecution shown when, 3108. robbery or larceny, proof of, 3026. MURDER, See HoMK iDK. absence of justification, burden of proof, 3023. admissions of previous difficulty as evidence, 3036. appearance of accused, res gestae, 3029. articles admissible in evidence, 3028. attendant circumstances, proof of. 3029, 3030. body and skeleton as evidence, 3025. burden of proof as to time of death, 3023. malice shown how, 3021. self-defense and insanity, 3022. character of accused, evidence of, 3039. of deceased, evidence of, 3038. confessions as evidence, 3034. corpus delicti, burden of proof, 3023. proof by circumstantial evidence. 2708. defenses, evidence in favor of accused, 3042. definition of, 3012. deliberation, preparation as evidence of, 3036. degree, presumptions concerning, 3019. dying declarations as evidence, 3031. evidence as to physical condition of deceased, 3025. in general in prosecution for, 3043. experiments in presence of jury, 3028. footprints of accused as evidence, 3044. habits and disposition of deceased, evidence of, 3040. homicide, law of, 3012-3046. immoral habits of deceased proved when, 3040. ill will, evidence of, 3036. inquest, proceedings of coroner as evidence, 3037. intent not conclusively presumed, 3015. preparations as evidence of, 3036. proof required, 3464. justification or excuse for killing, 3041a. law and fact, questions of. 3024. means used to cause death, 3027. 836 INDEX. ^References are to Sections.} MURDER— Continued. mitigation, burden of proof, 3022. motive, evidence concerning, 3026. name of deceased, law and fact, 3024. physician's testimony, what competent, 3027. premeditation and malice presumed when, 3017. premeditation shown by threats, 3035. preparations for commission of, 3035. presumption from use of deadly weapon, 3014-3017. of innocence, 3013. of malice indulged when, 3016. not indulged when, 3018. previous circumstances as evidence, 3035. quarrels and ill will, proof of, 3026. as evidence of malice, 3036. rebuttal evidence, what competent, 3041. reputation of deceased as evidence, 3038. self-defense, evidence concerning, 3041. character of deceased as evidence, 3038. previous difficulties as evidence of, 3036. stolen goods, motive shown how, 3026. threats as evidence, 3035. wounds as evidence, 3025. MUTINEER, court martial, sentence for, 3457. MUTINY, court martial for offense of, 3499. definition of, 3499. forfeiture of seaman's wages, 3300. intent an element of offense, 3500. proof required, 3464. suppression, duty of officer or soldier, 3500. words alone do not constitute, 3500. MUTINY ACT. courts martial established in England how, 3397. N NATURALIZATION, parol evidence of perjury, 3085. NAVIGABLE WATER, obstruction as a nuisance, 3061, 3067. INDEX. 837 [References are to Sections.l NAVIGATION, admiralty courts, evidence of usage, 3256. jurisdiction, extent of, 3237-3247. collisions, equitable principles applied in admiralty courts, 3251. law of, 3367-3395. contributory negligence as a defense, 3392, 3393. log book as evidence. 3312-3317. nature of admiralty jurisdiction, 3239. salvage, law concerning, 3348-3366. usage, proof of, 3395. violating laws of, justification for, 3376. wages of seaman, admiralty jurisdiction, 3292-3311. law concerning, 3292-3311. wreck of vessel, wages of seaman, 3306. NAVY, courts martial, 3396-3502. NEGATIVE PROOF, abortion, necessity must be disproved, 2771. equity cases, weight and sufficiency of, 3216. NEGLIGENCE, admiralty courts, apportionment of damages, 3251. equitable principles applied when, 3251. collision at sea, fault presumed when, 3370. inevitable accident, 3369. comparative negligence, division of damages in admiralty, 3373. fog, speed causing collision, 3390. mutual negligence, admiralty rule, 3391. tug boat liable for injuries when, 3384. NEUTRAL VESSELS, capture of prizes, burden of proof, 3326. burden of proof on claimant when, 3327, 3328, 3329. NEUTRAL WATERS, capture of vessel in, effect of, 3321. proof and effect of, 3322. NEW TRIAL, motion in court of equity when, 3175. NOTARY PUBLIC, certificate as evidence in admiralty, 3253. NOTE, Talue, how proved, 2972. 838 INDEX. [References are to flections.! NUISANCE, defense, evidence competent. 3064. definition of public nuisance, 3060. disorderly house as a public nuisance, 3065. elements which must be proved in prosecution, 3062. examples of public nuisance, 3061. explosives, storing of, 3069. gaming house constitutes when, 2999. motive or intent immaterial, 3064. obstructing highways, 3066. navigable stream, 3067. pollution of waters, 3067. prescription gives no right to maintain, 3064. profanity amounts to when, 2895. public indecency constitutes when, 3068. reputation, evidence of, 3063. wreck in channel as a nuisance, 3067. O OATH, court martial, members taking, 3414. swearing witnesses in, 3447. perjury in taking, what constitutes. 3070. falsity proved how, 3077. corroboration as to falsity of, 3089. presumption in prosecution for perjury, 3072. OBSCENITY, nuisance constitutes when. 3068. OBSTRUCTING HIGHWAY, nuisance constitutes when, 3066. public nuisance, examples of, 3061. OCEAN, admiralty jurisdiction upon, 3246. OFFICER, authority, proof in perjury cases, 3075. bribery, law concerning, 2897-2908. carrying concealed weapons, excuse of, 3166. conduct unbecoming an officer, court martial for, 3484. court martial for misconduct, 3482. presumption in prosecution for perjury, 3072. OPINION, false pretense, expression does not constitute, 2978. INDEX. 839 [Referetrces are to Sections.'] OPINION EVIDENCE, court martial, admissibility in. 3472. intent to kill not proved by, 3045. intoxication proved by, 2729. perjury, materiality of statement not proved by, 3079. rape, age of prosecutrix, 3095. seduction, prosecution for, 3144. OPPORTUNITY, abortion, evidence to support charge of, 2767. ORAL EVIDENCE, master in chancery, power to hear, 3223. wages of seamen, contract proved by, 3292. ORDER OF PROOF, riot, guilt established how, 3124. ORPHAN, seduction, evidence of death of parents, 3151. OTHER CRIMES, bribery, proof of similar offenses, 2902. burglary, proof of, 2917. counterfeiting, proof admissible when, 2954. false pretense, intent proved by, 2976. former acts not competent in prosecution for riot, 3128. gambling, proof competent when, 3004. incest, probability of commission, 3168. Intent established by proof of, 2720. larceny, proof in prosecution for, 3057. rape, admissions of defendant as to other misconduct, 3103. proof by evidence of, 3105. receiving stolen goods, evidence competent when, 3118. robbery, evidence admissible when, 3137. treason, proof in prosecution for, 3161. OVERT ACT, conspiracy, proof not required when, 2946, 2947. treason, confession as evidence, 3157. testimony to establish, 3156. OWNERSHIP, burglary, proof and prosecution for, 2913. cruelty to animals, proof required when, 3167. larceny, proof essential, 3053. malicious trespass, property injured. 3172. robbery, presumption from possession, 3130. 840 INDEX. [References are to Sections.^ P PARENT AND CHILD, abduction, active opposition not essential, 2750. taking child without consent of parent, 2748, 2750. assault and battery bj^ parent on child, 2843. presumption and burden of proof, 2845. excessive punishment, what constitutes, 2846. murder, presumption of innocence, 3013. self-defense, right of, 2850. PAROL EVIDENCE, arson, ownership proved by, 2814. blackmail, writing aided or explained by, 2881. counterfeiting bank notes, existence of bank proved how. 295S. enlistment of soldier proved how, 3497. equity cases, introduction of, 3178. use allowed when, 3215. forgery, contents of forged instrument proved by, 2993. larceny, ownership of property proved by, 3053. libel explained and identified by, 3169. log book varied or impeached by, 3316. malicious mischief, proof of, 3172. perjury, authority of officer to administer oath, 3075. introduction as proof of, 3085. PARTIES, admiralty, testimony admissible when, 3253. prize cases, competency as witnesses, 3330. PARTNERSHIP, equity cases, answer not responsive when, 3202. co-defendant's answer as evidence, 3206. PASSION, evidence to arouse inadmissible when, 3043. PASSPORT, prize cases, effect of, 3343. PATENT, recommittal after reference to master, 3234. PAYMENT, equity cases, answer not responsive when, 320E. PENETRATION, circumstantial evidence of, 3104. sodomy, law requires proof, 3172a. PENITENTIARY, court martial inflicts when, 3453. INDEX. 841 [References are to Sections.1 PERJURY, acquittal at trial where perjury was committed no defense, 3090. admissions and confessions of defendant, 3088. affidavit for criminal prosecution, effect of. 3074. authority of officer administering oath, proof of, 3075. belief without foundation no defense, 3091. best evidence of false affidavit, 3083. burden of proof, 3071. circumstantial evidence of commission of, 3087. collateral matters, testimony constitutes when, 3080. statements material when, 3079. corroboration of witness, reputation of. 3089. what necessary, 3089. by circumstantial evidence, 3087, 3089. cross-examination, materiality of answers, 3079. definition and essential elements, 3070. deliberation, evidence admissible, 3078. documentary evidence sufficient to prove when, 3089. defenses, how established, 3090. effect of false statements on jury immaterial, 3080. elements of offense, 3070. evidence of offense, 3070-3091. falsity of oath, proof of, 3077. identity of accused, how proved, 3083. impeaching questions, false answers to, 3074. incompetency of witness, effect of, 3074. intent implied from act, 3464. proof of, 3078. intoxication as a defense, 3090. jurisdiction of court, law and fact, 3073. proof of, 3075. recent cases, 3076. law and fact, questions of, 3073. materiality, how shown, 3081. not presumed, 3071. of false statement, 3079. questions of law and fact, 3073. motive, proof of, 3078. oath, form of, 3074. officer de facto, oath administered by, 3075. other crimes, intent shown by proof of, 3079. paper sworn to as evidence, 3074. parol evidence competent to prove when, 3085. of former testimony, 3082, 3085. of officer's authority, 3075. presumptions concerning, 3072. record of former proceedings as evidence, 3081. res gestae, acts and declarations constitute when, 3086. 842 INDEX. [References are to Sections.'] PERJURY— Continued. retraction of false statement, effect of, 3078. self-defense no excuse for false denial of killing, 3090. signature by mark, effect of, 3071. stenographer's notes of former testimony, 3084. use or failure to use false oath at trial immaterial, 3090. variance between pleading and proof, 3091. witnesses to fact of oath, 3074. PERSONAL INJURIES, admiralty courts, apportionment of damages, 3251. salvage, allowance in case of, 3360. PERSONAL PROPERTY, larceny, what are subjects of, 3052. PHOTOGRAPH, arson, description of premises by, 2816. forgery, instrument proved by copy when, 2993. homicide, evidence in prosecution for, 3044. PHYSICAL EXAMINATION, identifying criminal by, 2715. rape, corroboration of prosecutrix, 3102. refusal of prosecutrix to submit to examination, 3102. PHYSICIAN, abortion, necessity declared by, 2771. murder, testimony as to cause of death, 3027. PICKETS, labor combination as unlawful conspiracy, 2949-2951. PISTOL, assault by drawing, what constitutes, 2829. by use of, what constitutes, 2827. pointing is an essential element when, 2830. PLEA IN ABATEMENT, jurisdiction of admiralty courts denied by, 3243. PLEADINGS, admiralty courts, answers as evidence, 3250. omissions and variations, 3262. parties bound by allegations, 3260. pleading special damages, 3272. rules of, 3259-3272. admission by failure to deny allegations, 3271. effect in admiralty courts, 3271. amendment in admiralty courts, 3262-3267. answer in court martial, 3442. INDEX. 843 [References are to Sections.'^ PLEADINGS— Con ftnwed. charge and specification in court martial, 3439. conspiracy, pleading in prosecution for, 2924-2926. court martial may conform to findings, 3455. "on or about" used when, 3441. pleadings in. 3437-3442. statement of charge, 3440. time and place specified how, 3441. equity cases, admissions contained in, 3193. answer as evidence for defendant, 3198. bill as evidence for complainant, 3197. evidence constitute when, 3193. in United States courts, answer as evidence, 3180. plea not evidence when, 3208. sworn pleadings as evidence, 3174. evidence in admiralty courts when, 3270. infant not bound by admissions in, 3207, interrogatories as an aid in, 3277. reference to master, 3219. sworn answer in admiralty court, 3270. PLEDGE, equity cases, answer responsive when, 3201. POISON, abortion by administering, proof of, 2765. homicide, evidence as to administering. 3044. proved without chemical analysis, 3046. presumption from administering, 3017. testimony as to behavior of deceased, 3027. POLICE, robbery of prisoner, what constitutes, 3140. POLLUTING WATERS, nuisance constitutes when, 3067. public nuisance, examples of, 3061. POLYGAMY, United States statutes for suppression of, 2870. PONDS. public nuisance, examples of, 3001. POOL ROOM, gambling, evidence of, 3005. minor allowed to play, proof of offense, 3010. POSSESSION, larceny as an offense against, 3048. robbery, ownership presumed from. 3130. self-defense covers protection of, 2851. 844 INDEX. [References are to Sections.! PRACTICE, courts martial, practice in, 3428-3436. equity proceedings generally, 3174-3217. master's report, irregularities attacked how, 3230-3234. prize cases in admiralty courts, 3318. report of master in chancery, submitting draft of, 3228. PRELIMINARY PROOF, declaration of co-conspirator admitted when, 2940. PREMEDITATION, circumstantial evidence sufficient when, 3046. intoxication rebuts when, 2729. law and fact, questions of, 3024. malice presumed from homicide when, 3016. perjury, elements of offense, 3078. threats as proof of, 3035. PREGNANCY, abortion, proof in prosecution for, 2766. seduction, inference from, 3151. promise of marriage in case of, 3148. PREPONDERANCE OF EVIDENCE, insanity of defendant, how established, 2728. PRESCRIPTION, right to maintain not gained by, 3064. PRESIDENT, court martial findings, approval required when, 3457. PRESUMPTION, abduction, character of victim presumed good, 2753. previous chaste character presumed, 2755. abortion, necessity for producing, 2771. arson, what presumptions indulged in prosecution for, 2807. assault and battery by parent, proof of, 2845. intent to injure, 2840. bigamy, living husband or wife, 2867. second marriage, 2865. blockade of enemy's ports, 3324. burglary, possession of stolen property, 2918. what presumptions indulged, 2910. chastity of abducted female, 2753, 2754, 2755. collision at sea, fault presumed when, 3370. with drifting vessel, 3383. conclusive presumption not indulged when, 3015. corroboration of witness as to perjury, 3089. counterfeiting, offense established how, 2953. INDEX. 845 [References are to Sections.} PRESUMPTION— Continued. courts martial, jurisdiction of, 3424. criminal capacity presumed, 2704. Intent established how, 2717, 2718. destruction of ship's papers, effect of, 3340. embezzlement, prosecution for, 2964. of military property, 3496. equity cases, sworn answer does not overcome when, 3199. weight and sufficiency of evidence, 3216. forgery, what Indulged, 2986. homicide, degree of offense, 3019. malice presumed when, 3016. presumptions generally, 3020. presumption not indulged when, 3018. innocence of charge of murder, 3013. effect of presumption of, 2706. presumed In court martial, 3461. insanity as a defense to criminal prosecution, 2728. intent not conclusively presumed, 3015. to kill, presumption concerning, 3014. joint capture, prize cases, 3344. larceny, possession of stolen goods as proof of, 3058. master's finding, weight of, 3236. materiality of perjured statement not presumed, 3071. perjury, what presumed in prosecution for, 3072. possession of forged paper, guilt presumed when, 2986. of stolen property as evidence of, 2725. prize cases, what presumptions Indulged, 3323. rape, age of defendant, 3108. age of prosecutrix raises, presumption when, 3095. prosecution for, 3094. receiving stolen goods, possession raises presumption when, 3111. residence of child or woman when abducted, 2749. riot, intent presumed when, 3123. robbery, evidence aided by, 3130. possession of stolen property raises no presumption, 3136. fear presumed when, 3131. fear raises what presumption, 3131. salvage undertaking, compensation for, 3365. principles applied in awarding, 3361. seaworthiness of vessel, wages of seaman, 3299. seduction, what indulged, 3143. statutory crimes, evidence of, 2703. time of unloading of vessel, seaman's wages, 3304. wages of seamen, action for, 3296. 846 INDEX. [References are to Sections.'i PRIMA FACIE. accessory, record of principal's conviction, 2778. collision of vessels in fog, 3387. with anchored vessel, 3379. conspiracy, declarations of co-conspirator, 2941, 2942. embezzlement of military property, proof of, 3496. homicide, malice proved how, 3014. marriage, proof in prosecution for adultery, 2803. possession of stolen property, 2725. prize cases, ship's papers as evidence, 3337. what sufficient in, 3325. sales of intoxicating liquor, proof of, 3170. statutes declaring what constitutes, 3003. statutory crimes, evidence in, 3173. PRINCIPAL AND AGENT, embezzlement, agency proved how, 2969. equity cases, co-defendant's answer is evidence when, 3206. PRIVILEGE, affidavit as to character of documents, what sufficient, 3289. communications between solicitor and client, 3290. discovery denied in admiralty cases, when, 3288. documents privileged, when, 3290. privileged from discovery, when, 32S8. shorthand report of evidence privileged, when, 3289. waiver in admiralty cases, 3291. PRIZE CASES, admiralty practice, 3318. burden of proof, 3326. as to joint capture, 3345. on claimant, when, 3327. general rule, 3327, 3328. Illustrations of, 3329. capture in neutral territory, effect of, 3321. cargo, presumptions concerning, 3323. concealment of ship's papers, 3341. condemnation presumed, when, 3323. consul of neutral power trading in belligerent country, 3323. contraband of Avar, what constitutes, 3323. destruction of papers, effect of, 3340. enemy's license, effect of, 3342. examination of crew, time and manner of, 3333. false claims and fraud, effect of, 3331. flag carried b^/ dhip, effect of, 3323, 3343. fraud or misconduct, effect of, 3332. further proof allowed when, 3332, 3334, 3336. INDEX. 84T [References are to Sections.} PRIZE CASES— Continued. joint capture, burden of proof, 3345. common enterprise, 3347. further proof concerning, 3336. presumption concerning, 3344. sight and signal distance, 3346. jurisdiction over, 3319, 3320. and relief, extent of, 3320. master and crew, presumptions concerning, 3323. neutral protection, proof and effect, 3322. burden of proof, 3322. passport, necessity and effect of, 3343. possession, presumption from, 3323. preparatory hearing, decision upon, 3332. presumption as to blockade, 3324. indulged by prize courts, 3323. prima facie evidence in, 3325. relief afforded, when, 3320. ship's papers as evidence, 3337. absence of, 3341. custody of, 3339. production of, 3338. voyage, presumption concerning, 3323. war, burden of proof as to existence of, 3326. witnesses, competency of, 3330. PRIZE COURTS, log book as evidence, 3312-3317. statutes and ordinances do not apply when, 3255. PROCEEDINGS, admiralty courts subject to statutes when, 3255 PROCEEDINGS IN REM, admiralty proceedings, nature of, 3249. PRODUCTION OP PAPERS, forgery, production of instrument, 2992. PROFANITY, blasphemy, law forbidding, 2889-2896. nuisance constitutes, when, 2895. words used, what sufficient, 2896. PROMISE, false pretense does not constitute, 2978. PROMISE OF MARRIAGE. seduction, proof of. 3148. 848 INDEX. [References are to Sections. '\ PROPERTY, assault and battery to retake possession, 2856, 2857. PROSECUTION, blackmail by threats of, 2882-2884. collecting debt by threats of, 2886. PROSTITUTION, abduction for purpose of, 2740-2757. proof sufficient when, 2745, 2746. adultery inferred from association with prostitute, 2794. PROVINCE OP COURT, equity proceedings, jury called when, 3175. PROVISIONS, wages of seaman, effect of short allowance, 3310. PROVOCATION, homicide, proof permitted, 3042. law and fact, questions of, 3024. malice presumed from killing without provocation, 3016. murder extenuated, question of law, 3024. PUBLIC INDECENCY, blasphemy, law forbidding, 2889-2896. nuisance, examples of, 3061. constitutes, when, 3068. PUBLIC INJURY, conspiracy to inflict, prosecution for, 2931. PUBLICITY, gambling in public, proof of, 3001. PUBLIC MORALS, nuisance by public indecency, 3068. PUBLIC NUISANCE, blasphemy as constituting, 2893. nuisance, law concerning, 3060-3069. PUBLIC OFFENSE, definition of crime, 2702. PUBLIC OFFICER, bribery, law concerning, 2897-2908. proof of election and qualification, 2905. embezzlement, presumption arises when, 2964. extortion constitutes blackmail, 2878. PUNISHMENT, parent and child, assault and battery when, 2843. INDEX. 849 [References are to Sections.l Q QUIET TITLE, verdict in case where injunction was asked, 3175. R RAPE. acts of unchastity by prosecutrix not competent, when, 3101. admissions and confessions of defendant, 3103. by prosecutrix as impeaching evidence, 3103. age of defendant, 3108. of prosecutrix, 3095. burden of proof, 3093. "' character and reputation of prosecutrix, 3101. child of tender years as a witness, 3102. circumstantial evidence of, 3092-3104. complaint and declarations as res gestae, 3098. as corroborative evidence, 3099. condonation not a defense, 3108. consent as a defense, 3096. corpus delicti not proved by confession alone, 3103. corroboration of prosecutrix, 3102. of prosecutrix under age of consent, 3105. cross-examination of prosecuting witness, 3094. defenses to prosecution for. 3108. definition of, 3092. deposition of prosecuting witness denied by her, use of, 3103. force proved by threats, 3093. indecent liberties with female under age of consent, 3108. intoxication negatives consent, when, 3096. other offenses as evidence, 3105. outcries, proof concerning. 3098. penetration, proof of. 3092, 3093. physical examination of prosecutrix, 3107. physician as witness. 3107. presumptions in prosecution for, 3094. prosecuting witness not a party to prosecution, 3103. real evidence as proof, 3106. reputation of prosecuting witness, burden of proof, 3093. res gestae, proof of, 3098. resistance, proof of, 3097. seduction, action for as evidence, 3104. sleep negatives consent, when, 3096. sodomy, law similar, 3172a. statements of prosecutrix as evidence, 3096. variance between pleadings and proof. 3109. Vol. 4 Elliott Ev.— 54 860 INDEX. [References are to SectionsA REAL ESTATE, larceny, rule at common law, 3052. sale, reference to master, 3219. REAL EVIDENCE, arson, proof in, 2816. gambling instruments admissible, when, 3005. homicide, articles admissible when, 3028. lottery tickets competent, when, 3011. rape proved by, 3106. REASONABLE DOUBT, abortion, negative allegation as to necessity for producing, 2771. pregnancy proved when, 2766. accessory, proof of guilt, 2777-2781. alibi proved justifying an acquittal, 2727. arson, burden of proof in, 2808. bigamy, proof of first marriage, 2863. bribery, proof of crime, 2898. burden of proof not shifted by raising doubt, 3474. circumstantial evidence of murder, 3043. proof of crime by, 2707. proof of each link in chain, 2713. collisions at sea, effect of, 3367. corroboration as to accomplice, 2786. court martial, effect of, 3470. rule concerning, 3461. criminal prosecution, burden of proof. 2706. definition of, 2707. embezzlement, proof of crime, 2972. forgery, burden of proof, 2987. Insanity as a defense, proof sufficient, when, 2728. larceny, intent proved how, 3055. perjury, degree of proof required, 3071. proof to exclude, what necessary, 2709. rape, child not corroborated, 3102. proof of, 3093. receiving stolen goods, burden of proof, 3112. self-defense, proof of, 3022. truth of alleged libel, proof of, 3169. RECAPTURE, assault and batterj' in recovering property, 28.56, 2857. RECEIVERS, master in chancery, authority over, 3219. RECEIVING STOLEN GOODS. acquittal of thief no defense, 3120. aiding thief, effect of, 3115. iNDii:x. 851 [References are to Sections.] RECEIVING STOLEN GOODS—Contimied. burden of proof, 3112. character evidence in trial for, 31 It), circumstantial evidence of guilty knowledge, 3114. confession of accused, corroboration of, 3120. of thief not competent, 311:!. concealment as evidence of guilty knowledge, 3113. conspiracy, proof of, 3120. conversation with thief, evidence of. 3120. conviction of thief proved by record. 3120. defenses, proof of, 3119. definition of term, 3110. drunkenness not competent to disprove guilty knowledge, 3114. elements of crime, proof required, 3113. evidence, sufficiency of, 3121. exclamations admissible as res gestae, when, 3119. explanation of possession, 3111. from whom received, proof concerning, 3113. guilt presumed from possession, when, 3111. identification of property, 3117. intent to defraud, proof of, 3114. junk dealer, law not complied with, 3120. knowledge of theft inferred, when, 3113. presumption from possession, 3111. that goods were stolen, proof of, 3113. other offenses proved, when, 3118. possession as evidence of guilty knowledge, 3114. presumptions from possession, 3111. purchase for less than value, effect of. 3111. receipt by defendant, what constitutes. 3121. reputation of thief, guilty knowledge shown by, 3116. restoration to owner, honest intention, 3119. robbery proved by possession of, 3136. second-hand dealer, customs of, 3119. statute of limitations, defense of, 3119. subsequent acts admissible to prove guilty knowledge, 3114. thief as an accomplice, corroboi-ation, 3120. value proved, how, 3120. wrappings as proof of identity, 3117. RECORD EVIDENCE, accessory, conviction of principal shown how, 2778. age, school register not competent when. 3095. brands and marks on stolen property, proof of, 3052. embezzlement proved by, 2968. perjury, proof to establish, 3081. record must be introduced, when. 3083. receiving stolen goods, conviction of thief proved how, 3120. 853 INDEX. [References are to Sections.] REFERENCE TO MASTER, accounts, production in equity cases, 3190. taking of, 3219. additional testimony after time fixed, 3225. aflBdavits and documents as evidence before, 3188. confirmation, necessity for, 3235. correction of report by court, 3235. discretionary power of court, 3218. as to taking additional testimony, 3225. documentary evidence, consideration of, 3223. equity case, attendance of witnesses, 3187. examination of claimant or creditor, 3189. United States court rules, 3185. evidence before master, 3223. exceptions to report, 3191, 3231, 3232. action upon, 3233. immaterial, action of court, 3233. to report, form of, 3232. finding of master, weight given to, 3236. hearing on bill and answer, reference not made, 3220. time and place of, 3222. irregularities in proceedings, how questioned, 3230. issues must be formed before reference, 3221. objections to evidence before master, 3224. order of reference, authority of, 3221. pleading, scope of authority, 3221. proceedings under United States court rules, 3186. prosecution of cause, duty in regard to, 3222. recommittal after reference, 3234. evidence of necessity for, 3234. report, additions to by court, 3235. essentials of, 3227. incomplete, recommittal of case, 3234. objection to acceptance before master, 3228, 3229. of master, duty concerning, 3227. submitting draft of, 3228. re-reference, power exercised when, 3234. rules of court, effect of, 3221. title, investigation of, 3219. when evidence should be reported, 3226. REFORMATION, seduction of woman formerly unchaste, 3147. REFRESHING MEMORY, log book used by captain, 3314. REGIMENT, courts martial appointed for, 3403. IXDEX. 853 [References are to Sections.} REGIMENTAL COURTS, ancient history of, 3396. creation of in United States, 3398. jurisdiction defined by statute, 3418. REPORT, master in chancery, essentials of report, 3227, REPUTATION. corroborating witness in perjury case, 3089. court martial, evidence concerning, 3475. disorderly house, prosecution for keeping, 3065. gambler not convicted by proof of, 3008. incest, relationship of parties, 3168. intoxicating liquor, sales not proved by, 3170. keeping gaming house, proof made how, 3009. marriage not proved by in criminal prosecution. 2799. murder trial, reputation of deceased as evidence, 3038. nuisance, evidence of, 3063. rape, proof of reputation of prosecutrix, 3101. prosecutrix under age of consent, 3095. receiving stolen goods, guilty knowledge proven how, 3116, seduction, presumption in prosecution for, 3143. proof of reputation. 3146. time referred to, 3145. RESCUE OF PRISONER, riot, what constitutes, 3127. RES GESTAE, bribery, documentary evidence admissible when, 2903. declarations accompanying killing, 3030. admissible when, 3030. of bystander during murder, 3030. of deceased admissible, when, 3030. of deceased admissible at murder trial, 3041. dying declarations, admissibility of, 3033. homicide, what competent, 3029, 3030. perjury, acts and declarations in connection with, 3086. rape, other offenses as evidence, 3105. proof of matters of, 3098. receiving stolen goods, exclamations as evidence, 3119. riot, proof of circumstances of. 3128. robbery, proof of facts connected with, 3134. seduction, what competent as evidence, 3149. treason, what admissible as, 3160. RESIDENCE, abduction, what constitutes residence in prosecution for, 2749. 854 INDEX. [References are to Sections.^ RESISTING ARREST, consciousness of guilt indicated by, 2724. RETRACTION, perjury, effect of subsequent retraction, 3078. REVENUE. admiralty jurisdiction over subject of, 3240. REVIEW OF JUDGMENT, courts martial not subject to civil courts, 3426. REWARD, arrest of deserter, reward due when, 3492. RIOT, assault, present ability need not be proved, 3128. burden of proof, 3123. definition of, 3122. evidence in general, 3128. former riotous acts not competent, 3128. intent as an element of, 3122. not proved by members of party, 3128. number of persons engaged, proof of, 3125. order of proof as to guilt, 3124. participation, proof concei'uing, 3126. presumptions in aid of evidence, 3123. refusal to disperse, proof of, 3126. res gestae, proof of, 3128. secret society membership as proof, 3128. terror of people, proof of, 3127. threats constitute violence, when, 3127. treasonable levying of war distinguished from, 31! trespass constitutes, when, 3127. ROBBERY, accomplice wounded, proof concerning, 3139. alibi as a defense, 3140. proof of identity to overcome, 3133. assumed name as evidence of guilt. 3139. belief of defendant, testimony concerning. :;140. burglar tools as evidence, 3138, 3139. circumstantial evidence as proof of, 3138. corroboration necessary, 3139. complaint by victim proved, when, 3134. court martial, sentence in time of war. 34.^)7. defenses to prosecution for. 3140. definition of offense, 3129. distinguished from larceny, 3129. identity of accused, proof of, 3133. INDEX. 855 [References are to Sections.'] ROBBERY— Continued. implements found in defendant's possession are evidence, when, 3138. intent, defendant may testify to, 3140. proof of, 3132. joke as a defense, value of property, 3135. marked currency as evidence, 3139. other offenses, evidence admissible when, 3137. ownership established by mere possession, 3130. police officers guilty, when, 3140. possession of stolen property, proof of, 3136. presumption as to fear, 3131. as to force. 3131. as to ordinary course of business, 3131. in aid of evidence, 3130. res gestae, proof of, 3134. value, evidence of, 3135. ROMAN LAW, admiralty jurisdiction determined by, 3241. ROUT, definition of. 3122. law concerning unlawful assemblies, 3122-3128. RULES OF COURT. equity cases, form of last interrogatory, 3184. United States rules, 3179. interrogatories in admiralty court, 3274. United States court, equity cases, 3178. RUMOR. disorderly house, evidence of, 3065. S SAILING VESSEL, collision, burden of proof concerning, 3378. SAILOR, kidnapping, what constitutes, 2738. wages of seaman, 3392-3311. SALE. reference to master, 3219. SALVAGE, agreement for services, effect of, 3361. agreement to pay, burden of proof. 3365. amount allovced, how determined, 3360. >S56 INDEX. [References are to Sections.'\ SAhYAGE— Continued. burden of proof in claim for, 3353. circumstances determining amount of, 3360. claim forfeited, when, 3366. contract as measure for amount of, 3362. bars claim, when, 3363. invalid, when, 3364. contribution to saving of property, 3352. definitions of, 3348-3350. derelict property, duty of finder, 3358. recovery of, 3357. discretion of court in allowing, 3360. elements of claim to be proved, 3354. essential elements of claim, 3354. from what payable, 3351. general rules of law concerning, 3348. peril of property, proof of, 3355, 3356. degree of proof required, 3356. personal injuries suffered in rescue work, 3360. success essential to payment of, 3351. not essential, when, 3352. towage allowed as salvage, when, 3359. volunteer has no rights in, 3352. SCHOOL TEACHER, assault and battery on pupil, what constitutes, 2844. SCOLDING, public nuisance, examples of, 3061. reputation of common scold, 3063. SEAL, admiralty, contracts under, 3248. SEAMEN, presumption as to nationality of, 3323. prize cases, examination of crew, 3333. wages of seaman, admiralty jurisdiction, 3292-3311. SEARCH, police guilty of robbery, when, 3140. SEAWORTHINESS, wages of seaman, refusal to perform contract, 3299. SECONDARY EVIDENCE, equity cases, use allowed when, 3215. INDEX. 857 [References are to Sections.! SEDUCTION, admissions as evidence, 3150. burden of proof, 3142. chastity of prosecutrix, proof of, 3145. burden of proof, 3142. circumstantial evidence of, 3151. corroboration, extent required, 3152. cross-examination as to unchaste acts, 3145. defenses to criminal action, 3153. definition of crime, 3141. law and fact, questions of, 3144. marriage as a bar to criminal prosecution, 3153. presumptions in criminal prosecution, 3143. promise of marriage, 3148. rape disproved by bringing action for, 3104. reformation of prosecutrix, 3147. presumption concerning, 3143. reputation of prosecutrix, 3146. res gestae, what competent as evidence, 3149. unmarried woman only can be criminally seduced, 3141. SELF-DEFENSE, assailant has right of, when, 2849. assault and battery, when justified, 2847-2855. burden of proof in criminal case, 2855, 3022. character of deceased in murder trial, 3038. declarations of deceased as res gestae, 3041. degree of force permitted, 2853, 2854. excessive force, effect of, 2848. family and servants may be protected, 2850. homicide, character of deceased as evidence, 3041. justification or excuse for killing, 3041a. law and fact, questions of, 3024. murder, evidence of previous difficulties, 3036. evidence to establish self-defense, 3041. motive established how, 3026. opinions of bystanders incompetent, 3041. possession may be defended, 2851. property, defense of, 2852. provoking quarrel, effect on right of, 2849. punishment of assailant unlawful, when, 2848. reasonable doubt, degree of proof required, 3022. retreating to wall not required, 3041a. threats, evidence admissible, when, 3041. weapons carried by deceased, proof of, 3041. SENTINEL, sleeping on post, extenuating circumstances. 3503. 858 INDEX. [References are to ^Sections.] SEPARATION OF WITNESSES, court martial, separation allowed when, 3448. SHIP'S ARTICLES, wages of seamen, evidence concerning, 3292. SHIP'S PAPERS, absence, effect in prize cases, 3341. destruction, presumption raised by, 3340. enemy's license, effect of, 3342. passport, necessity and effect of, 3343. prima facie proof required in prize cases, 3337. prize cases, burden of proof on claimant when. 3327. 3328. deposit with court, 3339. prize courts, evidence in, 3338-3343. production in prize court, 3338. SHIPPING, collisions, law of, 3367-3395. derelict property, what constitutes, 3357. desertion by seaman, effect of, 3307-3309. effect on wages, 3307. log book as evidence, 3312-3317. prize cases, law of, 3318-3347. salvage, law concerning, 3348-3366. SHIPWRECK, salvage, law concerning, 3348-3366. SHOOTING, presumption of intent, 3014. SIGNATURE, forgery, comparison of, 2991. proof of handwriting, 2991. perjury, signing by mark, 3071. SILENCE, accused failing to deny charge, 2723. SLANDER, abortion held not necessarily a crime, 2759. SLEEP, rape, consent negatived how, 3096. SODOMY, law concerning, 3172a. IXDEX. 859 [References are to Sections.^ SOLDIERS. courts martial, 3396-3502. jurisdiction to determine status of, 3420. drunkenness on duty, punishmrnt for, 3493. SOMNAMBULISM, homicide, defense to prosecution for, 3042. SPECIFIC PERFORMANCE, equity cases, answer not responsive when, 3202. SPEED OF VESSEL, fog. moderate rate of speed, 3388. SPY, court martial, sentence for, 3457. STATE PAPERS, discovery refused in admiralty cases, when, 3288. STATUTES, abortion as defined by statute, 2759. accessory tried, when, 2777. admiralty courts controlled, when, 3255. bigamy, definition of, 2859. distinction between various statutes, 2869. blackmail defined by. 2877. conspiracy, offense under statutes, 2922. courts martial, jurisdiction regulated by, 3419. evidence of statutory crimes, rules concerning, 2703. kidnapping, common law rule changed by, 2737. perjury forbidden by, 3070. prima facie evidence of gambling, 3003. STATUTES AND ORDINANCES, admiralty jurisdiction, effect upon. 3245. collision at sea. burden as to violation of statute, 3375. in fog caused by violation of, 3385. violation as negligence, admiralty rule, 3392. STATUTE OF LIMITATIONS, carrying concealed weapons, proof concerning, 316G. court martial, judge advocate's duty as to plea of. 3413. receiving stolen goods, defense of, 3119. STEALING, larceny, law concerning, 3047-3059. STEAMBOAT, admiralty, judicial notice concerning, 3257. 860 INDEX, [References are to Sections.] STEAMSHIP, collision, burden of proof imposed upon. 3377. lookout not provided, prima facie evidence, 3380. STENOGRAPHER, equity, testimony taken by, 3181. perjury, notes of former testimony as evidence, 3084. STEVEDORE, seaman's failure to perform duties of, 3308. STOLEN PROPERTY, accessory distinguished from receiver of, 2775. larceny, possession may be explained by defendant, 3059. proved by possession of, 3058. possession as circumstantial evidence of larceny, 2712-2725. as evidence of burglary, 2918. as evidence of robbery, 3136. explanation of, 2725. receiving stolen property, 3110-3121. STRIKE, labor combination as unlawful conspiracy, 2949-2951. SUBORNING WITNESSES, court martial, offense committed in, 3481. SUBPOENA DUCES TECUM, court martial, judge advocate may issue, 3466. telegram obtained by, 3469. SUBSCRIBING WITNESS, forgery, testimony of, 2989. SUICIDE, habitual carrying of weapons, proof of, 3040. homicide, defense to prosecution for, 3042. surgeon's opinion concerning, 3027. SUMMARY PROCEEDINGS, court martial conducts, when, 3406. jurisdiction of summary courts martial, 3418. SUPPRESSION OF EVIDENCE, circumstantial evidence of crime, 2712. forgery, destruction of forged instrument, 2993. homicide, removing traces of killing, 3029. motive for crime, proof of, 3026. ship's papers destroyed, presumption indulged, 3340. SURGEON, judge advocate may be, 3410. INDEX. " 861 [References are to Sections.1 SURPRISE, perjury, defense to charge of, 3071. SYMBOL. false pretense, what constitutes, 2977. SYMPATHY, evidence to arouse inadmissible, when, 3043. TEACHER, assault and battery on pupil, what constitutes, 2844. TELEGRAMS, court martial, proof in, 3469. THEORY, equity cases variance from theory of pleading, 3213. THREATS, arson, admissibility of evidence, 2811. motive proved how, 2810. assault by means of making threats, 2821. with unloaded gun, 2831, 2832. blackmail, criminal prosecution as means of, 2882-2884. debt collected by means of, 2886. parol proof to aid or explain writing, 2881. proof necessary to support charge of, 2880. prosecution hinted at, 2882. confession of murderer admissible when not induced by, 3034. forcible abduction by means of, 2741. homicide, admissibility of, 3030. threats inadmissible, when, 3045. malice shown by proof of, 3035. premeditation established by, 3035. rape by means of, 3092. 3093. statements of accused, 3103. riot, violence proved how, 3127. robbery accomplished by means of, 3129. self-defense, evidence admissible when, 3041. stranger making, admissibility of evidence in defense, 2811. TIDES, judicial notice concerning, 3257. TIDE WATER, admiralty courts, jurisdiction of. 3240-3243. jurisdiction, extent of, 3240. 862 INDEX. -Pjj^p, [References are to Sections.-i burglary, proof as to breaking and entering, 2914. court martial, pleading concerning, 3441. criminal case, proof sufficient when, 2714. TITLE, reference to master for investigation, 3219. TOKEN, false pretense, what constitutes, 2977. TOW BOAT, See Tug Boat. TRACKS, arson, proof of identity, 2816. TRADE SECRETS, discovery of contents of documents, 3287. TRAITOR, court martial, jurisdiction to punish, 3422. TREASON, accessories deemed principals in, 3159. allegiance, burden of proof concerning, 3155. burden of proof. 3155. concealment of knowledge concerning, 3164. confession as corroboration of circumstances, 3163. as evidence, 3157. corroboration of confession, 3157. defenses to prosecution for, 3162. definition of term, 3154. desertion constitutes levying war, when, 3158. enlisting soldiers does not constitute, 3158. evidence in general, 2163. levying war, evidence required, 3158-3163. what constitutes, 3154. misprision of treason, 3164. other overt acts as evidence, 3160. res gestae, evidence admissible as, 3160. riot distinguished from, 3158. witnesses, two essential, 3156. words alone do not constitute.? 3160. TRESPASS, assault and battery, ejection from premises, 2852. jurisdiction of court martial exceeded, 3415. larceny, essential elements of, 3050. malicious trespass distinguished from, 3172. riot proved by evidence of, 3128. INDEX. S63 [References are to Sections.] TRIAL. court martial, manner of conducting, 3442-3451. TRUST, equitable proceedings, parol evidence to establish. 3215. equity cases, variance between pleading and proof, 3213. evidence in equity proceedings distinguished, 3174 TUG BOAT, collision with towed vessel, liability for, 3384. salvage allowed for towing, when, 3359. TYPEWRITER, equity, evidence taken by, 3181. U UNITED STATES COURTS. admiralty jurisdiction in. 3244. equity cases, competency of witnesses, 3178. depositions taken in, 3178. rules of court, 3179. equity rules, depositions taken, how, 3182. time allowed for taking testimony, 31S3. UNLAWFUL ASSEMBLY, burden of proof, 3123. definition at common law, 3122. number of persons engaged, proof of. 3125. participation by defendant, proof concerning, 3126. presumption in aid of evidence, 3123. USAGE, admiralty, evidence of, 3256. collision at sea, proof affecting recovery, 3395. VALUE, larceny, elements of, 3052. robbery, evidence of, 3135. VARIANCE, admiralty practice, effect of, 3261. assault by striking at another, proof of, 2825. bribery, what constitutes a variance, 2905. burglary, ownership of building and property, 2913. criminal case, proof sufficient when, 2714. equity cases, what constitutes. 3213. false pretense, what constitutes variance, 2984. forgery, what constitutes, 2998. 864 INDEX. [References are to Sections.} VARIANCE — Continued. gambling, what constitutes variance, 3007. homicide, proof sufficient when, 3046. intoxicating liquor, name of purchaser, 3170. perjury, what constitutes, 3091. rape, effect in prosecution for, 3109. VENUE, arson, proof in, 2808. court martial, jurisdiction of, 3416. criminal case, proof required, 2714. false pretense, how determined, 2984. forgery, circumstantial evidence to prove, 2995. homicide, proof sufficient when, 3046. libel prosecutions, over, 3169. VERDICT, equity, effect of verdict, 3177. use of verdict in, 3175. VESSEL, abandonment, effect on seaman's wages, 3297. VIEW OF PREMISES, arson, proof in, 2816. VOICE, Identifying accused by means of, 2715, 3133. VOYAGE, abandonment of vessel on change of voyage, 3298. desertion after termination of, 3308. wages due at end of, burden of proof, 3303. W WAGER, gambling, law concerning, 2999-3011. WAGES, labor combination as criminal conspiracy, 2949-2951. WAGES OF SEAMEN, abandonment of vessel, effect of, 3297. proof of, 3294. burden of proof in action for, 3295. certificate of due performance of duty, 3306. change of voyage, abandonment of vessel by seaman, 3298. contract of hiring, dissolution of, 3294. burden of proof, 3293. construction of, 3293. damages caused by misconduct, proof of, 3296. INDEX. [References are to Sections.] WAGES OF SEAMEN— Continued. desertion and return, effect on wages, 3309. at end of voyage, 3308. effect of, 3307. log book as evidence, 3307. what constitutes, 3307. discharge by master, effect of, 3294. for drunkenness, 3301. for misconduct, effect of, 3300. discipline, offenses against, 3300. dissolution of contract, how effected, 3294. employment of officers and seamen, contract of, 3292. extra wages allowed, when, 3311. forfeiture for drunkenness, 3301. how established, 3296. freight not earned, seaman's claim, 3306. increase of wages, promise for, 3305. log book as evidence, 3312-3317. loss of ship, effect of, 3306. misconduct, what justifies discharge, 3300. of master or mate, effect of, 3302. presumption as to seaworthiness, 3299. provisions insufficient, burden of proof, 3311. effect on wages, 3310. salvage, law of, 3848-3366. ship's articles as evidence, 3292. sickness at foreign port, effect of, 3308. time of unloading vessel, presumptions concerning, 3304. unloading vessel, wages become due when, 3303. unseaworthiness of vessel, effect of, 3299. voyage ended, duty of sailor, 3308. what constitutes, 3303. wreck, effect on claim for wages, 3306. WAIVER, equity cases, answer under oath waived. 3199. objections and exceptions, 3217. privilege against disclosure in admiralty proceedings, 3291. WAR, blockade, presumption concerning, 3324. burden of proof in prize cases, 3326. courts martial, 3396-3502. martial law enforced, when, 3400. prize cases in admiralty, 3318-3347. treason, what constitutes levying war, 3154-3158. Vol. 4 Elliott Ev.— 55 865 866 INDEX. [References are to Secti07is.'\ WEAPON, admissibility in evidence, 3028. assault by drawing fire-arms, 2829. witli intent, burden of proof, 3023. carrying concealed weapons, apprehension of danger, 3166. circumstantial evidence of, 3166. concealment an essential element, 3166. innocent purpose, 3166. officer excused, when, 3166. statute of limitations, 3166. conclusive presumption of criminal intent not indulged, when, 3015. homicide, evidence as to possession of weapon, 3044. variance between allegations and proof, 3046. law and fact, questions concerning, 3024. murder, means of causing death, 3027. habitually carrying by deceased, 3040. presumption of intent from use of, 3014. of malice not indulged, when, 3018. robbery proved by possession of, 3138. self-defense, burden of proof as to use of, 3022. use justified, when, 2849. what constitutes deadly weapon, law and fact, 3024. WEIGHT OF EVIDENCE, court martial determines, 3453. embezzlement, proof of crime, 2972. equity cases, number of witnesses does not determine, 3198. rule in. 3216. forgery, proof sufficient when, 2997. homicide, prosecution for, 3046. instructions cautioning jury concerning, 2733. log book, effect of, 3314. master in chancery, finding of, 3236. threats of murder, weight as evidence, 3035. WITNESS, absence as ground for continuing court martial, 3444. accessory, corroboration required when, 278". accomplice, corroboration of, 2786. admiralty courts, rules in, 3250. aliens competent in prize cases, 3330. answer in equity overcome, how, 3199. attendance before master in equity case, 3187. bigamy, first and second wives as witnesses, 2874. competency in prize cases, 3330. corroboration in prosecutions for abduction, 2757. in prosecution for perjury, 3089. in prosecution for seduction, 3152. INDEX. 867 [References are to Sections.} WITNESS— Cowiinwed. court martial, examination by counsel, 3433. impeachment of, 3476. credibility determined by court martial, 3453. criminal prosecution, defendant as a witness, 2705. equity cases, competency of witnesses, 3178. testimony of, 3210. examination in courts martial, 3413. forgery, competency of, 2989. interest, effect in equity cases, 3216. oral examination in United States courts of equity, 3181. perjury by incompetent witness, 3074. prize cases, examination of crew, 3333. rape, child of tender years as witness, 3102. receiving stolen goods, who competent, 3120. separation in court martial, 3448. swearing in court martial, 3447. treason, two witnesses essential, 3156. WOMAN, abduction, definition of, 2740. for unlawful purpose, 2740-2757. detention for illicit intercourse, proof of, 2747. kidnapping, proof concerning, 2739. WOUND, murder, evidence of, 3025. WRECK, nuisance when channel is obstructed by, 3067. wages of seaman, effect of wreck, 3306. WRITING, alteration constitutes forgery, when, 2985. forgery, character determined by jury, when, 2988. proof of handwriting, 2991. proof in courts of equity, 3196. WRITTEN EVIDENCE, blackmail, parol proof to aid or explain writing, 2881. embezzlement proved by, 2968. false pretense in writing, how proved, 2980. forgery, production of instrument, 2992. secondary evidence of forged instrument, 2993 log book varied by parol evidence, 3316. perjury, proof of offense by, 3089. master in chancery, power to hear, 3223. Whole niuiiber of pagfes, 94i6. LAW LIBRARY iV^ ''4'^0:invj-jo' '^A^iJiAIN.lJ^V -< iVJ-iO-^ ^«!/0JllV3Jl ,V^^' .liHiVV^ III nf WFRS//; '/- / o .^kIOSA IVERS/A ^lOSANCElf O uL •^/f M3M !f .:lOSANCflfr> v/saaAiNfl-3^v» ^lOSANCEl£j,^ o = ■< AA 000 728 215 5 <^d: i\ms//^r ^..viosANrFifr.> cs .-aF-rz-nrnp' .nF- pV .^ 0^ ^HIBRARYQ^^ ,^^\^E ANCflfj;> INV '% ^OFCAIIFO% jNn-^vVv"' ^cyAHV«aiiA^^^' Haiv^v*' ■'^•i^iij'jN^sui^''^ "^^'.sa: ■j^i V '/m % 5? AilFO% 0\> ^^ ^ (ncuirri r.- ^ # ■ JUJ' \li'il J'