^0FCAIIF0% ^oi-LAiiruftjk. ^vjr-LAiiruw^ ^lOSANCEl!^^ ^-UBRARVO^, ^UBRARYO^, O ^ 0^^^^ r" r"* I II '■»' !-^ I II f"" "^aMiNajyiv \w^ .5J\MINIVEI?S/A ^lOSAHCElfju ^-sojnvDjo^ %ojiivDio'«^ ^.|HVM«in.lV5S' ;f^m\mS//j, ^lOSAKCEl^^ >■ =: ^•UBIlAflYQr, ^OFCAUFOI?^ ^i>tf«NIVEI% J ^ u_ T O ^•UBRARY^/, ii irri § 45^l-UBRARY...., J JO"^ %0JI1VJJ0'»^ ^OFCAUFOff^ ^OFCA1IFO% .^lOSAHCFlEf^ ia I ^lilBRARYO/ \ ^lOSAMCEltr^ '^' "^.SOJIIVDJO^ 5J^EIINIVER% •soi^^ ^/sajAiNnjy^^ '^itfojiivjjo'^ '^aojiivdjo^ %udnvsoi^ ^lOSAW %a3AIN g ^lOSANCElfju o AOFfAlIF0% aOFCAIIF0% OS n f j0* mo OS I\ / -.-« \ o >i9lMV/)lflna^«^ '^•iHVJJflliaV^ .5J\EUNIVER% '^r^wwvcnv'^ ^lOSANI ARYQ^ 5^1-UBRARYa^, ^3jo^ \oi\m'i^^ MWNmth ^iJUONVSOl^ ^•lOSAf«;El^^ O ■^/^a3AINn-3WV' -5;^t-UBRARYQ<. <^mV^ %ojiiv3jo^ \Qm. lifo% a-ofcaufo^ ^WEUNIVERS/A =3 ^lOSAJlCElCr^ o > %a3AWn-3V\V^ ^OFCAllFOff^ ^OFCAll ^^•AHvaanv*^ j^CAavat >^iosaw:ei% ^^tUBRARY(?A, u3 i I/-*' 5: ^SOl^ "^AiGAINaJWV^ ^OJIIVDJO'^ ^HIBRARY(?/ .5MEUNIVERS/A <»3U3NVS0\^ %a3AIN IVEj% ^lOSANCElfj-^ O ^•OFOaiFOIKi^ ^OFCAHFORij^ .\MEUNIVERS'/4 I/Or ''^fiK> ^^J-^/S3 PRECEDENTS OF INDICTMENTS AND PLEAS, ADAPTED TO THE USE BOTH OF THE COURTS OF THE UNITED STATES AND THOSE OF ALL THE SEVERAL STATES; TOGETHER WITH XOTES ON CRIMINAL PLEADING AND PRACTICE, EMBRACING THE ENGLISH AND AMERICAN AUTHORITIES GENERALLY. BY FRANCIS WHARTON, LL.l)., AUTHOR OF TREATISES ON CRIMINAL LAW ; ON EVIDENCE ; ON NEGLIGENCE ; AND ON MEDICAL JURISPRUDENCE, FOURTU AND REVISED EDITION. VOL. I. PHILADELPHIA: KAY & BROTHER, 17 AND \\) SOUTH SIXTH STREET, LAW I300KSELLEJIS, PUBLISHERS AND IMPoKTKRS. 1881. JA'^ '^^/h^ T Entered according to the Act of Congress, in the year 1848, by Kay and Brother, in the Office of tlie Clerk of the District Court of the United States in and for the Eastern District of Pennsylvania. Entered according to the Act of Congress, in the year 1857, by Kay and Brother, in the Office of the Clerk of the District Court of the United States in and for the Eastern District of Pennsylvania. Entered according to Act of Congress, in the year 1871, by Kay and Brother, in the Office of the Librarian of Congress, at Washington. Entered according to the Act of Congress in the year 1881, by Francis Wharton, in the Office of the Librarian of Congress, at Washington. COLLINS, PRINTER, PREFACE TO FOURTH EDITION. In the present edition several superfluous forms have been thrown out ; a number of new forms have been introduced ; and the notes have been carefully revised and largely in- creased. F. W. Narragaxsktt PiEi;, R. 1., Aiujust 3, 1881. iii 740118 PREFACE TO THIRD EDITION. In the following pages I have introduced a series of new precedents, based on recent legislation, dropping such forms as have become obsolete ; and I have added to the notes such English and American decisions on crimi- nal pleading as have appeared since the last edition was prepared. F. W. March, 1871. PREFACE TO SECOND EDITION. In this edition a large number of new precedents have been added, and those given in the former edition modi- fied, so as to adapt the collection, as far as is practicable, to the practice of the criminal courts at the present period throughout the entire Union. In addition to this, both the text and the notes have been remodelled and classified, so as to place them on a uniform basis, both as to interchange of references, and harmony of subject matter, with the fourth and revised edition of my work on American Crimi- nal Law, which issues simultaneously with this through the press. F. W. May 1, 1857. vii PREFACE. On submitting to the profession, in 1846, a Treatise on American Criminal Law, my first design was to annex to it a Collection of Precedents of Indictments and Pleas suited to the use of practitioners throughout the Union. The great number of forms, however, which the varying systems of the federal and state courts made necessary, and the large amount of notes called for, both by the newness of the material and by the increasing intricacy of criminal pleading, led to a variation from my original plan. The forms which are now presented may be considered under three classes : first, those which have been directly sustained by the courts ; second, those which have been prepared by eminent pleaders, but which have not been judicially tested ; and third, those which have been drawn from the English books. Those composing the first class, wherever the pleading in the par- ticular case is not set out in the report, have been made up by recourse to the records of the court in which the trial took place. In preparing the second., I have to acknowledge my indebtedness to the printed volume of Mr. Daniel Davis, for many years solicitor-general of INIassachusetts, and to a manuscript collection, begun in 1778, by Mr. Bradford, attorney-general successively of Pennsylvania and of the United States, and continued by Mr. J. D. Sergeant, Mr. Jared Ingersoll, Mr. Charles Lee, Mr. IIawle, Mr. A. J. Dallas, and Mr. Hush, who were either his contemporaries, or his immediate successors, in the state or federal prosecu- tions. In selecting the forms which fall under the tliird head, I have relied chiefly on the treatises of Mr. Starkie, ix PREFACE. Mr. Archbold, and Mr. Dickinson, introducing, in addition, a series of indictments which have been sustained by the Enghsh courts since the date of those pubHcations. In the first book is given a general form of indictment with caption, commencement, and conclusion ; adapted to the federal courts, and to those of the several states ; and to each averment in the text is attached a note incorporating the doctrine bearing upon it. The indictments relating to each individual offence are in like manner preceded by a general preliminary form, to which are appended notes divided on the same principle of analysis. On such a plan, the duty of the Editor is first to separate the authorities, English and American, into compartments corresponding in subject matter with the several averments in the indict- ment, and then to connect with each of them, in the order in which they stand, its own particular portion of com- mentary. It is plain, that the value of a work thus pre- pared must depend upon the fidelity with whicli, both in text and note, the settled law is observed ; and I have thought it judicious, therefore, when referring to the Eng- lish learning, to depend chiefly on the expression given to it by the recognized English commentators. On tliis prin- ciple, I have placed gTeat reliance on the very elaborate and lucid notes by Mr. Serjeant Talfourd to Dickinson's Quarter Sessions, many of which I have incorporated at large, and which may be safely referred to, as containing not only the most modern, but the most succinct exposition of the English crown law of pleading. I should be doing great injustice, not only to myself, but to others to whose prompt and intelligent kindness I am under the strongest obligations, did I withhold, at the close of this undertaking, my thanks to the many professional brethren, both here and throughout the Union, from whom I have recei^'ed aid during its progress. PiiiLADELrniA, Kovemher, 1848. X ANALYTICAL TABLE. BOOK I. GENERAL FORM OF INDICTMENT. CHAPTER I. CAPTION, 1. CHAPTER II. GENERAL FORM OF INDICTMENT AT COMMON LAW, 2. CHAPTER III. COMMENCEMENTS AND CONCLUSIONS IN THE FEDERAL AND STATE COURTS. I. Federal Courts, 3. II. State Courts, 19. BOOK II. CHAPTER I. accessaries, 97. BOOK III. OFFENCES AGAINST THE PERSON. CHAPTER I. homicide, 114. xi ANALYTICAL TABLE. CHAPTER II. KAPE, 186. CHAPTER III. SODOMY, 191. CHAPTER IV. MATHEJI, 192. CHAPTER V. ABDUCTION KIDNAPPING, 200. CHAPTER YI. ABORTION, 204. CHAPTER VII. ASSAULTS, 213. BOOK IV. OFFENCES AGAINST PROPERTY. CHAPTER I. FOUGERY, COINING, UTTERING, ETC., 264. CHAPTER II. BURGLARY, 3.57. CHAPTER III. ARSON, 389. CHAPTER lY. ROBBERY, 410. xii ANALYTICAL TABLE. CHAPTER V. LARCENY, 415. CHAPTER VI. RECEIVING STOLEN GOODS, 450. CHAPTER VII. EMBEZZLEMENT, 460. CHAPTER VIII. MALICIOUS MISCHIEF, 470. CHAPTER IX. FORCIBLE ENTRY AND DETAINER, 489. CHAPTER X. fraud, etc. Cheats at Common Law, 499. False Personation of Bail, 50G. Secreting Goods, etc., 507. Fraudulent Insolvency, 519. Violation op Factor Law, 525. Obtaining Goods by False Pretences, 528. CHAPTER XL destroying a vessel at sea, etc., 575. BOOK V. OFFENCES AGAINST SOCIETY. CHAPTER I. PERJURY, 577. CHAPTER II. conspiracy, G07. xiii ANALYTICAL TABLE. CHAPTER III. nuisance. Obstruction to Highways, etc., 675. Unwholesome Smells, etc., 705. Disorderly and Gaming Houses, 722. Profanation of Lord's Day, 750. Selling Unavholesome Meat, etc., 759. Scandalous Exhibitions and Indecent Exposures, 765. Lewdness and Drunkenness, 774. Common Scold, Night Walker, Barratry, 779. Non-repairing Eoads, 781. Violations of License Laavs, 792. Offences to the Dead, 821. CHAPTER IV. riot, affray, tumultuous conduct, rescue, prison breach, resistance to officers. Riot, 846. Disturbance of Elections, 858. Disturbing Religious Meetings, 861. Going Unlawfully Armed, 866. Refusing to Quell Riot, 870. Rescue, etc., 872. Assaults on, and Resistance to Officers, 879. CHAPTER V. compounding felony, 895. CHAPTER VI. misconduct in office, etc. Against Magistrates and Constables for Misconduct, 897. Against Toll Collectors, 910. Against Innkeepers, 911. Against Attorneys, 913. Against Masters, 914. Against Overseers, 916. Against Juror for not Serving, 917. xiv ANALYTICAL TABLE. Refusals to Serve in Office, 918. Against Jailor for Escape, 921. Against Prisoner for Escape, 924. Against Officers of Vessels, G25. CHAPTER VII. libel, blasphemy, and threatening letters. Libel, 939. Seditious Words, 961. Blasphemy, 963. Obscenity, 968. Threatening Letters, 972. CHAPTER VI 1 1. offences against foreign ministers, 976. CHAPTER IX. BIGAMY, ADULTERY, FORNICATION, 984. CHAPTER X. usurpation, maintenance, bribery, etc. Usurpation, 1005. Forestalling, 1007. Holding Vendue Unlaavfully, 1010. Maintenance, 1011. Bribery, 1012. Embracery, 1022. Betting, etc., 1023. CHAPTER XL challenging to fight, 1028. CHAPTER XIL ATTEMPTS AND SOLICITATIONS TO COMMIT OFFENCES, 1046. XV ANALYTICAL TABLE. CHAPTER XIII. REVOLT, PIRACY, AND SLAVE TRADE, lOGl. CHAPTER XIV. OFFENCES AGAINST POST-OFFICE AND REVENUE LAWS, 1095. CHAPTER XV. TREASON, SEDITION, AND VIOLATION OF NEUTRALITY LAWS, 1117. BOOK VI. CHAPTER I. PLEAS AND REPLICATIONS, 1138. CHAPTER II. DEMURRERS, llGl. xvi BOOK I. GEN^EEAL FOEM OF i:N'DICTME]SrT. CHAPTER I. ' CAPTION. GENERAL COMMENCEMENT OF CAPTION. (1) State of, etc. etc. {Giving state and county.) At (a) the general quarter sessions of the peace {stating style of couri),{b) holden at Washington {stating county towii, or loherever the court is holden) in and for the county aforesaid,(c) the day of in the year of our Lord one thousand eight hundred and forty ,(r?) before A. B. and C. D., esquires, and others their asso- ciates, justices of the said state, assigned to keep the peace of the said state, and also to hear and determine divers felonies, trespasses and other misdemeanors, in the said county com- mitted, by the oaths (or oaths and affirmations) of {naming the grand juror s),{e) good and lawful men of the county afore- said,(/) then and there sworn and charged (^) to inquire for the said state, and for the body of the county aforesaid, it is pre- sented that, etc.(A) («) The caption is no part of the indictment. 1 East P. C. 113 ; Fost. 2 ; Ch. C. L. 327 ; 1 Saund. 250 d, n. 1 ; 1 Stark. C. P. 238 ; R. v. March, 6 A. & E. 236 ; State v. Gary, 36 N. H. 359 ; State v. Gilbert, 13 Vt. 647 ; State v. Thi- beau, 30 Vt. 100 ; People v. Jewett, 3 Wend. 319 ; People v. Bennett, 37 N. Y. 117; State t). Price, 6 Halst. 203; Berrian v. State, 2 Zab. 9; State v. Smith, 2 Barring. 532; States. Brickell, 1 Hawks, 354; State v. Haddock, 2 Hawks, 261 ; Noles r. State, 24 Ala. 672. See Caldwell o. State, 3 Ba.xter, 429. Its object is to state the style of the court, the time and place of its meeting, the time and place where the indictment was found, and the jurors by whom it was found ; and these particulars it must set forth with reasonable certainty for the use of a superior or appellate court to which it may be removed. U. S. v. Thompson, 6 McLean, 56 ; State v. Conley, 39 Me. 78 ; McClure v. State, 1 Yerg. 206 ; English v. State, 4 Tex. 125 ; lieeves v. State, 20 Ala. 33. Facts VOL. I. — 1 1 (1) CAPTION. essential to juvlsdiction in the trial eourt must in this way be spread on record. State V. Hunter, Peck's Tenn. 11. IGG. See State v. Fields, Ibid. 140 ; State u. Williams, 2 MeCord, 301. In England, the caption in general does not appear until the i-eturn to a writ of certiorari, or a writ of error, yet, in cases of high tr(>ason, the defendant is entitled to a coj^y of it in the first instance, after the finding of the indictment, in order that he may be acquainted with the names of the juroi-s by whom it was presented. 1 East P. C. 113; Fost. 2; Ch. C. L. 327. As it forms no part of the indictment, it has been held no ground for arresting judgment that the indict- ment does not show, in its caption, that it was taken in the State ; for, it is said, while it stood on the records of the court below, it appeared to be aii in- dictment of that court, and, when sent to the Supreme Court, the caption of the record, of which it is a part, oilicially certified, renders it sufiiciently certain. State V. Brickell, 1 Hawks, 354 ; 1 Saunders, 250 d, n. 1. If wholly omitted in the court belo-\?, it is said the indictment may nevertheless be sufficient, as the minute of the clerk upon the bill, at the time of the presentment, and the gene- ral records of the term, will supply any defect in such prel'ace. State i'. Gilbert, 13 Vt. G4 7 ; State v. Smith, 2 ilarring. 532. In North Carolina, it was held that a caption to an Indictment is only neces- sary where the court acts under a special commission. State v. Wasden, N. C. Term, 1()3. Giving only the initials of the first names of the grand jurors is no defect. Stone ?'." State, 30 Ind. 115. In Massachusetts practice, it seems, each indictment is framed with its own special caption, instead of leaving the caption to be made up, as is the usual and better course, from the records of the court, by the clerk, when the record is taken into another court. Yet even in INIassachusetts, this "caption," if it is so to be called, is purely formal, and is amendable. See Com. v. Edwards, 4 Gray, 1. See also State r. Conley, 39 Me. 78. The allegation "at the court" etc. implies that the grand jury were sworn in open court. (/;) When the indictment is returned from an inferior court, in obedience to a writ o^ certiorari, the statement of the previous proceedings sent with it is termed the schedule, and from this instrument the caption is extracted. 1 Saund. 309. The style should properly represent the court, so as to show it to have jurisdic- tion, this being the chief object of the caption. Dean v. State, Mart. & Yerg. 127 ; State v. Lisle, 5 Halst.' 348 ; 2 Hale, 1G5 ; 2 Hawk. c. 25, s. IIC, 117, 118, 119, 120; Burn's Just. 29th ed.. Indict, ix. When taken from the schedule it is entered upon the record, and prefixed to the indictment. 2 Hale, 1G5 ; Bac. Ab. Indictment, J.; Burn, J., Indictment, ix. ; Williams, J., Indictment, iv. The object being to show that the inferior court had jurisdiction, a certainty in that respect is requisite. 2 Sessions Cases, 316 ; 1 Ch. C. L. 327. See State o. Wasden, 2 Taylor N. C. 1G3 ; State v. Haddock, 2 Hawks, 461 ; 2 Hale, 165 ; 2 Hawk. c. 25, ss. 16, 17, 118, 119, 120; Biu'n's Justice, 29th ed. by Chitty & Bears, Indict, ix. ; Dean v. State, Mart. & Yerg. 127 ; State v. Zule, 5 Ha'lst. 348. But a formal statement in the indictment that it was found by the autho- rity of the State is not necessary, if it appear, from the record, that the prosecu- tion was in the name of the State. Greeson v. State, 5 Howard's Miss. 33. (c) Next to the statement of the court follows the name of the place and county where it was holden, and which must always be inserted ; Dyer, 69, A. ; Cro. Jac. 276 ; 2 Hale, 166 ; 2 Hawk. c. 25, s. 128 ; Bacon Ab. Indictment, i. ; and though it maybe enough, after naming a place, to refer to "the county aforesaid," yet, unless there be such ex|)ress reference to the county in the mar- gin, or it be repeated in the body of the caption, it will be insufficient. 2 Hale, 180; 3 P. Wms. 439; 1 Saund.'soS, n. ; Cro. Eliz.. 137, 606, 738; U. S. v. Wood, 2 Wheel. C. C. 336. This is necessary in order to show that the place is within the limits of the jurisdiction. R. v. Stanbury, L. & C. 128. As to venue see Wh. Cr. PI. & Pr. § 139. Hence, whether the caption wholly omit the place, or do not state it with sufficient certainty, the proceedings will be alike 2 GENERAL FORM. (1) invalid, though amendable. Cro. Jac. 27G ; 2 Hale, 166 ; 2 Hawk.c. 25, s. 128 ; Bac. Ab. Indictment, i. If, therefore, the caption state the inquisition to be taken only at the town, ■without adding '■^ the county aforesaid," the omission will vitiate unless amended. Cro. Eliz. 137, COB, 738, 751; 2 Hale, 1G6 ; 2 Hawk. c. 25, s. 128; Bac. Ab. Indictment, i. ; AVilliams, J., Indictment, iv. ; U. S. V. Wood, 2 Wheel. C. C. 336. See Teft v. Com., 8 Leigh, 721. The omission of " North Carolina," in an indictment found in a court in that state, where the name of the county is inserted in the margin or body of the indictment, is not a cause for arresting the judgment. State v. Lane, 4 Ired. 113. An indictment in the same state, containing in its caption a statement of the term in these words: "Fall Term, 1822," and, in the body of the indict- ment, charging the time of the offence in these words : " On the first day of Au- gust in the present year," was held good ; and it was said that there was no necessity for stating anytime in the caption of an indictment found in the county or supreme courts. State v. Haddock, 2 Hawks, 461. In ]\Iassachusetts, an indictment with this caption : " Commonwealth of Massa- chusetts, Essex, to wit: At the Court of Common Pleas, begun and holden at Salem, within and for the county of Essex," on a certain day, sufficiently shows that it was found at a court held in this Commonwealth. Com. v. Fisher, 7 Gray, 492. See also Jeffries v. Com., 12 Allen, 145 ; Com. v. Mullen, 13 Allen, 551. In the same state, an indictment which purports by its caption to have been found at a court of common pleas for the county of Hampshire, and in the body of which "the jurors of said commonwealth on their oath present," sufficiently shows that it was returned by the grand jury for the county of Hampshire. Com. V. Edwards, 4 Gray, 1 ; Wh. Cr. PL & Pr. | 134. And in Maine, where the record commenced: " State of Maine, Cumberland, ss. At the Supreme Court begun and holden at Portland, within the county of Cumberland," it was held that this was sufficient to show that the court at which the indictment was found was held for that county in the State of Maine. State c. Conley, 3!) Me. 78; Wh. Cr. PI. & Pr. ? 139. I" or other rulings on captions see Davis V. State, 19 Oh. St. 270; Lovell y. State, 45 Ind. 550; Woodsides v. State, 2 How. Miss. 655; Reeves v. State, 20 Ala. 33. A party was indicted for murder in the Circuit Court for Carroll County, was arraigned, pleaded not guilty, and was put upon his trial ; the jury failing to agree were discharged, and at the suggestion of the prisoner, the record of pi"0- ceedings Avas transmitted to the Circuit Court for Washington County. The transcript of the record so transmitted stated that the grand jurors who Ibund the presentment were "good and lawful racrx. oi' Baltimore County." All the pro- ceedings prior and subsequent to this statement were properly recorded as of Carroll County. It was ruled that this did not vitiate the indictment. Davis v. State, 39 Md. 353. {d) The term of court need not be set out. State v. Haddock, 2 Hawks, 462. (e) In England it was once held that the indictment must, in all cases, be shoAvn to have been taken upon oath, and if this allegation be omitted, the cap- tion cannot be supported. 2 Keb. 67G; 1 Keb. 329; 1 Sid. 140; 3 ]\Iod. 202; 2 Hale, 167 ; 2 HaAvk. c. 25, s. 126 ; Bac. Ab. Indictment, i. ; Burn, J., Indict- ment, ix. ; Williams, J., Indictment, iv. It is otherwise, however, under statutes permitting affirmations. And an indictment ])urporting to be i)resented by the grand jurors "upon their oath and affirmation" n<'ed not state the reasons why any of the jurors affirmed instead of being sworn. Mulcahy i". R., 3 L. R. H. L. Cas. 306; Com. v. Brady, 7 Gray, 320; Cora. v. Fisher, 7 Gray, 492, cited infra. See, however. State v. Harris, 2 Halst. 361. Whether "oath" or " oatlis" is averred is immaterial. Com. v. Sholes, 11 Allen, 554; State v. Dayton, 3 Zab. 49 ; Wh. Cr. PI. & Pr. § 277. It must appear at common law on the face of the record, that the bill was found by at least twelve jurors, or it will be insufficient. Cro. Eliz. 654 ; 2 Hale, 167; 2 Hawk. c. 25, ss. 16, 126; 1 Saund. 248, n. 1; Andr. 230; Bac. Ab. Indictment, i. ; Burn, J., Indictment, ix. ; Williams, J., Indictment, iv. 3 (1) CAPTION. "Where the statute requires more than twelve, the requisite number must be aveiTed. Fitzgerald v. State, 4 Wis. 395. Thej' are usually described, also, as "good and lawful men," which is suflioient (2 Hale, 167 ; Cro. Eliz. 731; 1 Keb. 629; Cro. Jac. 635; State v. Price, 6 Halst. 203; see State v. Jones, 4 Halst. 357) ; but this is not in England absolutely essential, especially when the indictment is found in a superior court, because all men shall be so regarded until the contrary appear. 2 Keb. 366; 2 Hawk. c. 25, ss. 16,_ 126; Bac. Ab. In- dictment, i.'; Burn, J., Indictment, ix. ; Williams, J., Indictment, iv. ; Stark, C. P. 236-7 ; R. V. Buttertield, 2 M. & R. 522. See Jerry v. State, 1 Blackf. 395; Beauchamp v. State, 6 Blackf. 299; Bonds r. State, Mart. & Yerg. 143; State V. Glasgow, Conf. 38; State >\ Yancy, 1 Tread. 23 7. The caption then must state that they are " of the county aforesaid " or other vill or precinct for which the court had jurisdiction to iiupiire : and, if these words are omitted, tlie whole will be vicious. Tipton i;. State, Peck's R. S ; Cornwell v. State, Mart. & Yerg. 147; Cro. Eliz. 667; 2 Keb. 160; 2 Hale, 167; 2 Hawk. c. 25, ss. 16, 126; Bac. Ab. Indictment, i. ; Burn, J., Indictment, ix. ; Williams, J., Indictment, iv. The caption, by implication at least, must show that the grand jury were of the county where the indictment was taken. Tipton v. State, Peck's Term. R. 308; per Haywood and Beck, f],]., contra, White, J. ; Woodsides o. State, 2 How. (Miss.) 655. It is not, under the present practice, requisite to give the names of the grand jurors. R. v. Aylett, 6 A. & E. 247 ; R. v. Marsh, Ibid. 236. If the names are given, a variance as to one of them is not fatal. State V. Norton, 3 Zab. 33 ; State v. Dayton. Ibid. 49. How far specification is necessary, see Wh. Cr. PI. & Pr. §§ 345 ct seq. Where it appeared by the record that a foreman was appointed, and the indict- ment was returned, signed by him, and the caption stated that the grand jury returned the bill into court by their foreman, it was lield sufficient evidence that the bill was returned by the authority of the ) upon tlieir oaths (or oaths and afBrmations),(e) do present, that A. B.,(c/) hite of the said county ,(£>) yeonian,(/) on the [g) witli force and arms,(A) at aforesaid, in the county aforesaid,(^) and within the jurisdiction of the said court, in and upon, etc., one E. F., etc./yj) against the form of the statute {or statutes) in such case made and provided, and against the peace and dignity {of the sovereign authority). {k) 2d Count. And the jurors aforesaid, upon their oaths (or oaths and affirmations) aforesaid, do further present, that the said A. B. aforesaid, to wit, on the day and year aforesaid, at iu the county and within the jurisdiction aforesaid, did, etc.(^) {Conclude as in first count.) (a) It must appear in the commencement of each count of an indictment tliat it was found by the jurors of the particuhir jurisdiction, on tlieir oaths or affirma- tions. 2 Hale, 167; 2 Hawk. c. 25, s. 126; Burns, J., Indictment, ix.; State V. Conley, 89 Me. 78 ; State v. Nixon, 18 Vt. 70 ; Com. v. Fisher, 7 Gray, 492 ; Young V. State, 6 Ohio, 43.5 ; Burgess v. Com., 2 Va. Cas. 483 ; Clark v. State, 1 Carter, Ind. 253; State v. Williams, 2 IMcCord, 301 ; Morgan v. State, 19 Ala. 556; Byrd i;. State, 1 How. (Miss.) 163; Abram v. State, 25 Miss. 589. As to inserting "good and lawful men," see Weinzorpflin v. State, 7 Blackf. 186. The usual form is, " The grand jurors for the State (or Commonwealth) of A., infjuiring for the city (or town) of B., upon their oaths and affirmations respectively do present." 'Fo this, as a title, is prefixed the statutory name of the court. "Oath" maysup])ly the place of "oatlis." State v. Dayton, 3 Zab. 49; Jerry v. State, 1 Blackf. 395. That the commencement may be amended see Com. v. Colton, 11 Gray, 1 ; State v. INlathis, 21 Ind. 277; State r. Eng- land, 19 Mo. 481. The want of such allegation in a subsequent count will not be aided by such allegations in a former count, when; there is no reference to such former count for the finding of that fact. R. v. Wavcrton, 17 Q. B. 562; 2 Den. C. C. 347; State v. McAlister, 26 Me. 374. It is not necessary that tlie com- mencement should use tlie term "grand" before jurors, when the rest of the record shows that it was " grand jurors" that was meant. U. S. v. Williams, 1 Cliff. C. C. 5; Com. v. Edwards, 4 Gray, 1 ; State ;;. Pearcc, 14 Fla. 153. The jurors " ot"" instead of "for" is not bad on arrest of judgment. R. v. Turner, 2 M. k Hob. 214, Burke, J. ; see 1 Chit. C. L. 327. 9 (2) GENERAL FRAME OF INDICTMENT. (h) At common law the jurors must appear to be of the county. Whitehead V. R., 14 Law J. (i\I. C.) 1G5; see infra, 3, 4, 5, et seq., tor the forms and autluirities in the several States. (c) Wiiere the jurors entertain conscientious objections to taking an oath, the proper course is to insert " oaths and affirmations" (Dickinson's Q. 8. 200 ; Key's case, 9 C. & P. 78) ; and this is always the case in Pennsylvania, though in other states the practice has been relaxed, and the phrase "oath" seems adopted as a settled form. And it is enough to state simply " oath and affirmation," without giving reasons wh}' any of the jurors were affirmed instead of being sv/orn. Com. V. Brady, 7 Gray, 32(). Supra, p. 5; though see State v. Harris, 2 Halst. 457. (d) The indictment must be certain as to the defendant's name. Bac. Abr. Misn. B. ; 2 Hale, 175; Chitty's C. L. 167; Enwrigdit v. State, 58 Ind. 5G7. The name should be repeated to every distinct allegation ; but it Avill suffice to mention iit once as the nominative case in one continuing sentence. When once given in full, the name need only be repeated by the Christian title as "tlie said John" or "James," as the case may be. State v. Pike, 65 Me. 111. But each count must describe the defendant by his full name. R. v. Waters, 1 Den. C. C. 356 ; Com. v. Sullivan, G Gray, 478. An indictment against "Edward Toney Joseph Scott," laborers, intended for Edward Toney and Joseph Scott, is bad. State v. Toney, 13 Tex. 74. If the surname of the defendant be omitted in the presenting portion of an in- dictment, the defect is fatal, tliough the full name be mentioned in subsequent allecations referring to the name as their antecedent. State v. Hand, 1 Eng. (Ark.) 165. A ])lea in abatement will be maintained when the Christian name of the defendant is mistaken. 2 Hale, 176, 237, 238 ; 2 Hawk. c. 25, s. 68 ; Bac. Ab Ind. G. 2, Misn. B. ; Burn, J., Indict.; Gilb. C. P. 217; Com. v. Deniain, Brightly R. 441. A mistake as to the surname is now held equally fatal. 10 East, 83; Kel. 11, 12. After verdict the objection is too late. Wh. Cr. PI. & Pr. §§ 106, 423; State v. Bishop, 15 Me.'] 22; State v. Nelson, 29 Me. 329; Smith v. Bowker, 1 Mass. 76; Com. o. Lewis, 1 Met. 151; Com. u. Fredericks, 119 Mass. 199; Com. v. Cherry, 2 Va. Cas. 20; State v. White, 32 Iowa, 17 ; Miller v. State, 54 Ala. 155 ; Foster v. State, 1 Tex. Ap. 531. Misspelling does not vitiate if the sound of the name is not affected. 10 East, 84; 16 East'", 110; 2 Hawkins, c. 27, s. 81; Wii. Cr. PI. & Pr. ^ 119; Wh. Cr. Ev. §§ 94 et seq. If two names are, in original derivation, the same, and are taken promiscuously in common use thougii they differ in sound, there is held to be no variance. 2 Rol. Ab, 135 ; Bac. Ab. Misn., where the instances of this principle are stated at large. A blank in either Christian name or surname is ground for a motion to quash, or plea in abatement. Wh. Cr. PI. and Pr. §§ 385, 425. The surname may be such as the defendant has usually gone by or acknowl- edged ; and if there be a doubt Avhich one of two names is his real surname, the second may be afhled in the indictment after an alias dictus. Bro. Misn. 37. Proof of either will be enough. State v. Graham, 15 Rich. (S. C.) 310. It was once doubted whether there could be an alias of the Christian name. 1 Ld. Raym. 562; Willes, 554; Burn, J., Indict. ; 3 East, HI. This doctrine, Mr. Chitt}' well argues, is not well founded ; for, admitting that a person cannot have two Christian names at the same time, yet he may be called bv two such names, which is sufficient to support a declaration or indictment, ba])tism being immaterial. R. T. H. 26 ; 6 Mod. 116 ; 1 Camp. 479. And Lord Ellenborough said tliat for all he knew, on a demurrer, "Jonathan, otherwise John," might be all one Christian name. Scott v. Soans, 3 East, 111. The inhabitants of a parish, in England, may be indicted for not repairing a highway, or the inhabitants of a county, for not repairing a bridge, without naming any of tliem. 2 Roll. Abr. 79. And for all disobedience to statutes and derelictions of duty, the better opinion is that a corporation aggregate may be indicted by its corporate name ; wliich name must, as a rule, be correctly alleged 10 NAMES OF DEFENDANTS. (2) as it existed at the time of the offence. Wh. Cr. L. 8tli ed. §§ 91-2; R. v. Creat North of Entrlaiid 11. 11. Co., 9 Q. B. 315; R. r. Mayor,' etc., of Man- chester, 7 El. & B\. 453; R. V. Birni. & Glou. Railway Co., 3 Ad. & El. 223 ; 9 C. & P. 478 ; State v. Vermont C. R. R., 28 Vt. 583 ; Com. v. Philips- burp, 10 Mass. 78; Com. v. Dedham, 16 Ibid. 142; Com. v. Demiith, 12 S. & R. 389. But see State v. Great AVorks, 20 Me. 41 ; McGary v. People, 45 N. Y. 153 ; Com. i'. Turnpike Co., 2 Va. Cas. 3G2. In several jurisdictions it has been determined that the law does not recotrnize more than one Christian name, and, therefore, when the middle names of the defendant are omitted, the omission is right. R. i\ Newman, 1 Ld. Raym. 562; Roozevelt v. Gardiner, 2 Cow. 463; People v. Cook, 14 Barb. 259; Edmondson ?•. State, 17 Ala. 179; State i'. Manninjr, 14 Texas, 402; State v. Williams, 20 Iowa, 98. See State v. Smith, 7 En^. 622 ; West v. State, 48 Ind. 483; State i\ Martin, 10 Mo. 391. The averment, if made, must be proved. Price V. State, 19 Oh. 423; State v. Hughes, 1 Swan (Tenn.), 261; State v. Webster, 30 Ark. 16G ; but see contra, People v. Lockwood, 6 Cal. 205 ; Mil- ler V. People, 39 111. 457. It was held a misnomer, however, when T. H. P. was indicted by the name of T. P. ; he being generally known as T. H. P. Com. V. Perkins, 1 Pick. 388. See, to same effect. State v. Homer, 40 Me. 438; Com. v. Halt, 3 Pick. 362. The omission of the first name, giving only the middle, is fatal, unless the party is only known by the middle name. State V. Hughes, 1 Swan, 266 ; State v. "Martin, 10 Mo. 391. See Hardin v. State, 26 Tex. 113. The true view is that when a party is known b}' a combination of names, by these he should be described ; though it is otherwise when he is only known by a single name. Wh. Cr. Ev. § 100. Where names are ordinarily written with an abbreviation, this will be sufficient in an indictment. State v. Kean, 10 N. H. 347. See Com. v. Kelcher, 3 Mete. (Ky.) 484 ; Gatty r. Eield, 9 Ad. & El. (N. S.) 431. And where a luan is in the habit of using initials for his Christian name, and he is so indicted, and the fact Avhether he was so known is put in issue, and he is convicted, the court will not interfere on that ground. R. V. Dale, 17 Q. B. 64; Tweedy v. Jarvis, 27 Conn. 42; Vandermark v. People, 47 111. 122; City Coun. v. King, 4 McCord, 487; State v. Anderson, 3 Rich. 172; State v. Bell, 65 N. C. 313; State v. Johnson, 67 N. C. 58; State V. Black, 31 Tex. 560. " Lord Campbell, Avhen an objection was made to a recognizance taken before L. B. Townshend, Esq., and I. H. Harper, Esq., that only the initials of the Christian names of the justices were mentioned, remarked: ' I do not know that these are initials; I do not know that they (tlie justices) were not baptized with those names ; and I must say that I cannot accjuiesce in the distinction tluit was made in Lomax v. Tandels, that a vowel may be a name but a consonant can- not. I allow that a vowel may be a Christian name, and why may not a conso- nant ? Why might not the parents, for a reason good or bad, say that their child should be baptized by the name of B., C, D., E., or H. ? I am just informed, by a person of most credible authority, that within his own knowledge a person has been baptized by the name of T.' And in tliis opinion of tlie chief. Justices Patterson, Wightman, and Erie concurred. R. u. Dale, 15 Jur. 657; 5 E. L. & E. 360." 18 Alb. L. J. 127 ; S. P., Tweedy v. Jarvis, 27 Conn. 42. But in Kinnersley v. Knott, 7 C. B. 980, ]Mr Sergeant Talfourd contended that a defendant called "John M. Knott" was not legally and ])roperly desig- nated, saying that the letter M, standing by itself, could not be pronounced and meant nothing, but that in this connection it meant something, and that that something ought to be stated, for the law forbade the use of initials in pleadings. The court held that INI was not a name. Maule, J., said, that vowels might be names, and that in Sully's Memoirs a Monsieur D'O is spoken of; but that consonants coulil not be so alone, as they require in pronunciation the aid of vowels ; and the chief justice said that the courts had decided tliat they would not assume that a consonant expresses a name, but that it stood for an initial only, and that the insertion of an initial instead of a name was a ixroimd of demui-rer. 11 (2) GENERAL FRAME OF INDICTMENT. In this country sinfjlc consonants may be names. 18 Alb. L. J. 127. See Mead V. State, 2(3 Oh. St. 505 ; State v. Brite, 73 N. C. 2G. In Gerrish v. State, 53 Ala. 47G, the defendant was indicted by the name of F. A. Gerrish, and he pleaded that his name was not F. A. Gerrish, but Frank Augustus Gerrisli, and that he was o-enerally known as Frank A. Gerrish, and that this was known to the grand jury that indicted liim. The plea was held good. A motion to quash will be refused when based simply on the adoption of ini- tials for Christian names. U. S. i\ Winter, 13 Blatch. 276. UnJcnoivn. — Where the name of the defendant is unknown, and he refuses to disclose it, he may be described as a person whose name is to the jurors unknown, but who is personally brought before them by the keeper of the prison. State v. Angell, 7 Iredell, 27. An indictment against him as a person to the jurors un- known, without something to ascertfiin whom the grand jury meant to designate, will be insuflicient. R. v. , R. & 11. 489. The practice is to indict the defendant by a specific name, such as John No-name, and if he pleads in abate- ment, to send in a new bill, inserting the real name which he then discloses, by which he is bound. This course is in some States prescribed by statute. See Geiger v. State, 5 Iowa, 484. A known party cannot be indicted as unknown. Wh. Cr. PI. & Pr. § 211 ; W'h. Cr. Kv. 8th ed. § 97; Geiger v. State, 5 Iowa, 484. See, as to Christian name. Stone v. State, 30 Ind. 115 ; Wilcox v. State, 31 Tex. 58G. The Christian name may, if necessary, be averred to be unknown. Kelley r. State, 25 Ark. 392 ; Bryant v. State, 3G Ala. 270; Smith v. Bayonne, 23 La. An. 78. As to pleading unknown co-conspirators see Wh. Cr. L. 8th ed. § 1393. Junior and Senior. — The old rule was that when a father and son of the same name lived in the same community, they should be distinguished as " Senior" and "Junior." 1 Bulst. 183; 2 Hawk. c. 25, s. 70; Salk'^ 7. This, however, is not now requisite in cases where a party is not known by a designation of this class. Hodgson's case, 1 Lewin C. C. 23G ; Peace's case, 3 Barn. & Aid. 579 ; State V. Grant, 22 ]\Ie. 171 ; State v. AVeare, 38 N. H. 314 ; Allen v. Taylor, 26 Vt. 599 ; Com. v. Perkins, 1 Pick. 388; Com. (;. Parmenter, 101 Mass. 211 ; People V. Cook, 14 Barb. 259 ; People v. Collins, 7 Johns. 549 ; jNIcKay v. State, 8 Tex. 3 7G. See Coit v. Starkweather, 8 Conn. 289 ; Com. r. East Bos- ton Ferry Co., 13 Allen, 589 ; State r. Yittum, 9 X. H. 519 ; R. r. Bailey, 7 C. & P. 264 ; R. V. Peace, 3 Barn. & Aid. 579 ; Jackson ex dem Pell iu Provost, 2 Caines, 165. In Com. v. Parmenter, 101 Mass. 211, it was held that "W. R., Jr.," might be indicted as " W. R.," the second of that name. The question is one of usage, li a party is commonly known as "Junior" or as "2d," as such he must be indicted ; otherwise not. AVh. Cr. Ev. § 100. (e) Residence. — The defendant must be described as of the town or hamlet, or place and county, of which he was or is, or in which he is or was, conversant. Archbold's C. P. 27. In most States, the forms in common use give the addi- tion of place, as "late of the same county," or " of the county of ." The place may be averred to be that of the commission of the crime. Com. v. Taylor, 113 Mass. 1. Addition. — Stat. 1 Henry 5, c. 5, in force in several states, specifies the following additions : "Estate, or degree, or mystery;" and also the addition of the "towns, or hamlets, or places, and counties of which they were or be, or in which they be or \^ere conversant." See, as to Pennsylvania, Roberts's Dig. 2d ed. 374. The construction given to the statute in England has been, that the words " estate or degree" have the sami? signification, and include the titles, dig- nities, trades, and professions of all ranks and descriptions of men. 2 Inst. 666. This statute is in force in Pennsylvania. Com. v. France, 3 Brewster, 148. The omission of the addition is at common law fatal. State v. Hughes, 2 Har. & McH. 479, Com. v. Sims, 2 Va. Cases, 374. As to Indiana see State v. 12 NAMES — TIME. (2) McDowell, 6 Blaokf. 49. In most jurisdictions additions are no longer necessary. ]\Iystery means the defendant's trade or occupation ; such as merchant, mercer, tailor, schoolmaster, husbandman, laborer, or the like. 2 Hawk. c. 33, s. 111. AVhere a man has two.trades, he may be named of either. 2 Inst. G58. But if a man who is a "gentleman" in England be a tradesman, he should be named by the addition of gentleman. 2 Inst. GG9. In all other eases he may be in- dicted by his addition of degree or mystery, at the option of his prosecutor. See Mason c. Bushel, 8 Mod. 51, .52; Horspoole v. Harrison, 1 Str. 55G ; Smith v. Mason, 2 Str. 816; 2 Ld. Raym. 1541. (/) Though, Avhen tiiere is no addition, the correct course at common law is to quash, yet, when there is a misnomer, the only method of meeting tlie ei-ror is by plea in abatement. State v. Bishop, 15 Me. 122; State v. Nelson, 29 ]\le. 329; Smith v. Bowker, 1 Mass. 76; Com. v. Lewis, 1 Met. 151 ; Com. v. De- main, Briglitly R. 441 ; Lynes v. State, 5 Port. 236 ; Com. v. Cherry, 2 Va. Cas. 20; State v. White, 32 Iowa, 17. Wh. Cr. PL & Pr. §§ 385, 423. The error, however, must be one of substance ; hence a plea in abatement that James Baker is a husbandman, and not a laborer, being demurred to, was adjudged bad. Haught V. Com., 2 Va. Cas. 3. See, however. Com. v. Sims, 2 Va. Cas. 374. In ordinary cases it is sufficient to give the additions of yeoman or laborer. 8 Mod. 51, 52 ; 1 Str. 556 ; 2 Str. 816 ; 2 Ld. Raym. 1541. To tradesmen may be given the addition of their trade ; to widows, the addition of widows ; to single women, the addition of spinster or single woman ; to married women, usually thus : "Jane, tlie Avife of John Wilson, late of tlie parish of C, in the county of B., laborer," though "matron" is not fatal. State r. Nelson, 29 Me. 329. La- borer (R. V. Franklyn, 2 Ld. Raym. 1179), or yeoman (2 Inst. 668), is not a good addition for a woman. Servant is not a good addition in any case. R. v. Checkets, 6 M. & S. 88. Any addition calculated to cast contempt or ridicule on the defendant is bad ; and it has been held, in Maine, that the addition " lottery ?;e?;c/e?"," when the defendant was, in fact, a lottery broker, is bad on abatement. State v. Bishop, 15 Me. 122. Where, in an indictment against a woman, she is described as A. B., " wife of C. D.," these latter words are held to be mere additions, or descriptio personae, and need not be proved on trial. Com. v. Lewis, 1 Met. 151. {(j) Time and place must be attached to every material fact averred. 1 Chit, on Pleading, 4th ed.. Index, tit. Time; R. v. Hollond,5T. R. 607 ; R. v. Avlett, 1 T. R. 69 ; Stand. 95 a ; R. v. Haynes, 4 M. & S. 214 ; State v. Baker, 4 "Red- ing. 52; State v. Hanson, 39 Me. 337; Criehton v. People, 6 Park. C. R. 363 ; Roberts v. State, 19 Ala. 526 ; State v. Walker, 14 Mo. 398; State v. Beck- with, 1 Stewart, 318; Sanders v. State, 26 Tex. 119; State v. Slack, 30 Tex. 354; People v. Littlelield, 5 Cal. 355; though see State y. Barnett, 3 Kans. 250. The time, however, of committing the otl'enee (except where the time enters into the nature of the offence) may be laid on any day previous to the iinding of the bill, during tlie period witliinwhicli it may be prosecuted. Wh. Cr. Ev. § 102; U. S. V. Bowman, 2 AVash. C. C. 328 ; Com. v. Dillane, 1 Gray, 483 ; Peoi)le v. Van Santvoord, 9 Cow. 660 ; Turner n. People, 33 Mich. 363 ; Cook ?'. State, 11 Ga. 53; Wingard v. State, 13 Ga. 396; Shelton v. State, 1 Stew. & Por. 208 ; M'Dade v. State, 20 Ala. 81 ; McBryde v. State, 34 Ga. 202 ; State v. .Alagrath, 19 Mo. 678. To assign the day as that of the finding of the bill, or subsequent thereto, is bad. State ('. Munser, 15 Vt. 291 ; State c.^Litch, 33 Vt. 67 ; Com. v. Doyle, 110 Mass. 103 ; Jacobs v. Com., 5 S. & R. 316 ; State v. Noland, 29 Ind. 212 ; Joel V. State, 28 Tex. 642. Wii. Cr. PI. & Pr. § 134. If a day certain be laid before the finding, other insensible dates may be re- jected as surplusage. Wells v. Com., 12 Gray, 326 ; State v. Woodman, 3 Hawks, 384 ; Cook v. State, 11 (ia. 53. Wh. Cr. PI. & Pr. § 125. Where there is a statute autiiorizing amendments of formal errors, dates when formal may be amended. Myers v. Com., 79 Penn. St. 308. 13 (2) GENERAL FRAME OF INDICTMENT. Sunday. — ^The statement of the day of the month, in an indictment for an offence on Sunchiy, tlioiigh the doing of the act on that day is the gist of tlie oifence, is not more material than in other cases ; and lience, if the indictment charge the offence to have been committed on Sunday, thougli it names a day of the month wliich does not fall on Sunday, it is good. II. v. Trehearne, 1 Mood. C. C. 298; Com. v. Harrison, 11 Gray, 308; People v. Ball, 42 Barbour, 324; State v. Eskridge, 1 Swan (Tenn.), 413 ; State v. Drake, 64 N. C. 589. But see Werner v. State, 51 Ga. 426. For proof see Wh. Cr. Ev. § 106. But " Sunday" or " Sabbath" must be averred, whichever tlie statute may i)rescribe. See R. v. Trehearne, 1 Mood. C. C. 298; Com. v. Harrison, 11 Gray, 308; McGowan v. Com., 2 Mete. (Ky.) 3 ; Frazier v. State, 19 Mo. 6 78. Cf. State V. Land, 42 Ind. 311. And it has been said that " Sabbath" for " Sunday" is no variance. State v. Di-ake, 64 N. C. 589. A videlicet {i. e., " that afterwards, to wit," etc.) was used by the old pleaders when they wished to aver a date or other fact tentatively, for information, with- out binding themselves to it as a matter of essential description, a variance in re- spect to wliich would be fatal. And the videlicet can, if repugnant, be stricken out as surplusage, when there is enough remaining to make out the charge. Ryalls r. R. (in error), 11 Q. B. 781;"l8 L. J. M. C. 69— Exch. Cham. But see People c. Jackson, 3 Denio, 101 ; and Mallett r. Stevenson, 26 Conn. 428; where the indclicet was held to narrow the preceding averment. AVh. Cr. Ev. § 141. A videlicet relieves the pleader from the necessity of proving a non- essential descriptive averment 1 Green. Ev. § 60 ; 1 Ch. PI." 31 7 ; State i'. Heck, 23 Minn. 551. After verdict, to support an indictment, and to show that the provisions of a statute have been complied with, dates laid under a videlicet may be taken to be true. R. V. Scott, D. & B. C. C. 47. Before vei-dict, however, and at common law, dates laid in a videlicet, when time is material, may be traversed ; and hence, if laid insensibly, will vitiate the context. In other words, when an allegation is material, accuracy in stating it cannot be dispensed with by thrusting it into a videlicet. See State v. Phinney, 32 Me. 440; Paine v. Fox, 16 Mass. 129; State v. Haney, 1 Hawks, 4C0; 2 Saund. 291 ; 1 Ch. C. L. 226. The month without the year is insufficient. Cora. Dig. Ind. s. 2 ; Com. v. Griffin, 3 Cush. 523. And so wiien the month is given but the day is left blank. Clark V. State, 34 Ind. 436. If tlie date be laid in blank the judgment will be arrested. Stater. Beckwith, 1 Stew. 318; State v. Roache, 2 Hayw. 352 ; Jane v. State, 3 Mo. 45 ; see Com. v. Hutton, 5 Gray, 89 ; Jacobs v. Com., 5 S. & R. 315; Simmons y. Commonwealth, 1 Rawle, 142; State v. Hopkins, 7 Blackf. 494. It is ruled that A. D., in initials, will be sufficient where a reference to the Christian era is required. State v. Reed, 35 Me. 489 ; State v. Hodgeden, 3 Vt. 481. But the better opinion is that '■^anno domini," " A. D.," and " in the year of our Lord," may be dispensed with. Broome v. R., 12 Q. B. 834 ; State V. Gilbert, 13, Vt. 647 ; State v. Haddock, 2 Hawks, 461 ; State v. Dickens, 1 Hayw 406; Halle. State, 3 Kelly, 18; Engleman v. State, 2 Carter (Ind.), 91 ; State v. Munch, 22 Minn. 67 ; though see Whitesides v. Peojile, 1 Breese, 4. The dates may be given in Arabic figures. Wh. Cr. PI. & Pr. § 274 ; State V. Reed, 35 Me. 489 ; State v. Hodgeden, 3 Vt. 481 ; State v. Jerfcho, 40 Vt. 121; Com. v. Hagarman, 10 Allen, ^401 ; Com. v. Adams, 1 Gray, 48: Lazier /■. Com., 10 Grat. 708 ; Cady v. Com., lOGrat. 776; State v. Dickens, 1 Hayw. 406; State v. Haddock, 2 Hawks, 461; Stater. Lane, 4 Ircd. 113; Stater. Raiford, 7 Port. 101; State v. Smith, Peck, 165; State v. Egan, 10 La. An. 699; Kelly r. State, 3 S. & M. 518; State v. Seamons, 1 Iowa, 418; though see contra, at common law in New Jersey and Indiana, Berrian r. State, 2 Zabriskie, 9; State v. Voshall, 4 Ind. 590; Finch v. State, 6 Blackf. 533. In both States this is corrected by statute. Johnson v. State, 2 Dutch. (N. J.) 133. So also as to Indiana, Hizer r. State, 12 Ind. 330. It should be averred 14 TIME. ■ (2) which figures designate the year. It is not enough to say "the fifteentli of June 1855." Com. V. McLoon, 5 Gray, 91. To aver that the defendant, on divers days, committed an offence, is bad ; and so where two distinct days are averred. 1 Ld. Raym. 581; 10 Mod. 249; 2 Hawk. c. 25, s. 82 ; Cro. C. C. 36 ; 4 Mod. 101 ; Com. v. Adams, 1 Gray, 481 ; State V. Brown, 3 Jlurph. 224 ; State v. Weller, 3 Murph. 229 ; State r. 'Hayes, 24 Mo. 358, corrected by statute, 1852, p. 368; Hampton i;. State, 8 Ind. 3'36 ; State V. Hendricks, Conf. 369. Aliter under N. Y. statute. New York v. Mason, 4 E. D. Smith, 142. To aver a series of blows on successive days, resulting in death, is not bad. Com. v. Stafford, 12 Cush. 619. It is sufficient to state that on a day specified, as well as on certain other days, the defendant kept a gaming-house, a tippling-house, or a common nuisance ; the allegation, "certain other days," being rejected as surplusage. Starkie's C. P. 60; U. S. V. La Costa, 2 Mason, 129; States. Cofren, 48 Me. 365; Com. .u. Pray, 13 Pick. 359; Wells v. Com., 12 Gray, 326; People v. Adams, 17 Wend. 475; States. Jasper, 4 Dev. 323 ; State i?. May, 4 Dev. 328; Cook t-. State, 11 Ga. 53. Continitnndo. — When a continiiando is to be aveiTcd (e. y., in cases of continu- ous bigamy or continuous nuisance), the periods between v.diich the oM'ence is charged to continue should be specified. See 2 Hawk. P. C. c. 25, s. G2 ; U. S. V. Fox, 1 Low. 301 ; U. S. v. La Co.sta, 2 Mason, 140; State v. Munger, 15 Vt. 290; State v. Temple, 38 Vt. 37; Wells c. Com., 12 Gray, 326; Com. v. Tower, 8 Met. 527; Com. i\ Travers, 11 Allen, 260; Peojde v. Adams, 17 Wend. 475. The limit may be fixed at the day of finding tiie bill. Com. v. Stone, 3 (iray, 453 ; but see Com. r. Adams, 4 Gray, 27. Without the allegation of a contimntndti, or a tantamount allegation of con- tinuance, there can, on indictments for nuisance, be no abatement. AVli. Cr. L. 8th ed. § 1426 ; R. v. Stead, 8 T. R. 142. An allegation that the offence therein charged was committed on a certain specified "day of September nuw passed," is not stated with sufficient certainty ; Com. V. Griffin. 3 Cush. 523. It has been said that the words "on or about" a particular day may be treated as mere surplusage. State v. TuUer, 34 Conn. 280; Hampton v. State, 8 Jnd. 336. This, however, cannot be accepted at common law. U. S. v. Crittenden, Hemp. 61; U. S. v. Winslow, 3 Sawyer, 337; State v. O'Keefe, 41 Vt. 691 ; State V. Land, 42 Ind. 311 ; Effinger v. State, 4 7 Ind. 256 ; Barnhouse v. State, 31 Oh. St. 39; Morgan v. State, 'l3 Florida, G71. It is incorrect to lay the ofFence between two days specified. 1 Ld. Raym. 581; 10 Mod. 249; 2 Hawk. c. 25, .s. 82; Cro. C. C. 36; Burn, J., Indict.; Williams, J., Indict, iv. ; 1 Chitty, C. L. 216; State v. Temple, 38 Vt. 37. Neglect or non-performance, it has been argued, requires no specification of either time or ])lace. 2 Hawk. c. 25, s. 79 ; Starkie's C. P. 61. But see Arch- bold's C. P. 34; Com. v. Slicifield, 11 Cush. 178. But the proper course is to aver that the defendant, at an assigned time, had a j)articular duty imjiosed on him, and that he, at that time, neglected to discharge that duty. See AVh. Cr. L. 8th ed. §§ 125, 329, for cases. The practice is to give the day and year of the Christian era according to the calendar rendering. Bac. Ah. Lidict. G. 4. I'he wrong recital of Ihe date of a statute is immaterial. People r. Reed, 47 Barb. 235. And such is the case with all erroneous I'ecitals except those of writ- ten or printed documents in cases where such documents nuist be accurately set forth. The hour .at which an act was done, unless it be required by the statute upon which the indictment is framed, need not be specified. 2 Hawk. c. 25, s. 76. And see Combe r. Pitt, 3 Burr. 1434 ; R. v. Clarke, 1 Bulst. 204 ; 2 Inst. 318; R. V. Davis, 10 B. & C. 89. In burglary. Indeed, it Is usual to state it; but alleging the ofi'ence to have been committed " 2« the night," without men- tioning the hour, has been held to be sufficient ; Com. v. Williams, 2 Cush. 582 (under statute); People v. Burgess, 35 Cal. 115; though at connnon law is (2) GENERAL FRAME OF INDICTMENT. the practice is to aver the hour. 1 Hale, 549 ; R. v. Waddlnprton, 2 East P. C. 513; 2 Hawk. c. 25, ss. 76, 77; State v. G. S., 1 Tyler, 295. And see Wh. Cr. L. 8th ed. § 817 ; Wh. Cr. Ev. § 106. When the time has been once named with certainty, it is afterwards sufficient to refer to it by the words then and there, which have the same effect as if the day and year were actually repeated. 2 Hale, 178; 2 Stra. 901; Keil. 100; 2 Hawk, cl 23, s. 88; c. 25, s. 78; Bac. Ab. Indict. G. 4; Williams, J., Indict. iv. ; Comyns, 480; Stout ik Com., 11 S. & R. 177; State v. Cotton, 4 Foster, 143 ; State v. Bailey, 21 Mo. 484 ; State v. Williams, 4 Ind. 235 ; State i'. Reid, 20 Iowa, 413. The mei'e conjunction and without adding then and there will be insufficient to make an adequate independent averment. 2 Hale, 173 ; Dyer, 69 ; 2 Hawk. c. 23, s. 88; Cro. C. C. 35; 1 East P. C. c. 5, s. 112; Wh. Cr. L. 8th ed. § 529. See State v. Johnson, 12 Minn. 476; State v. Slack, 30 Tex. 354. Though see Com. i\ Bugbee, 4 Gray, 206 ; Resp. v. Honeyman, 2 Dall. 228; State v. Price, 6 Halst. 210. If the words " then and there" precede every material allegation, it is suffi- cient, though these words may not precede the conclusions drawn from the facts. 1 Leach, 529 ; Dougl. 412 ; State v. Johnson, 1 Walker, Miss. R. 392. If the indictment allege that the defendant feloniously and of malice afore- thought made an assault, and with a certain sword, etc., then and there struck, the previous omission will not be material, for the words felonioudy and loith malice aj'orethouf/ht, previously connected with the assault, are by the words then and there adecpiately applied to the murder. See 4 Co. 41, b; Dyer, G9, a; 1 East P. C. 346 ; 1 Ch. C. L. 221 ; Wh. Cr. L. 8th ed. § 529. In an indictment for breaking a house with intent to ravish, " then and there" is not necessary to tiie intent. Com. v. Doharty, 10 Cush. 52. In jNIassachusetts it is held that an indictment which avers that the defendant, at a time and place named, feloniously assaulted A. B., and, being then and there armed with a dangerous weapon, did actually strike him on his head Avith said weapon, is sufficient, without repeating the words "then and there" before the words "did actually strike ;" the court rejecting the English rule above stated requiring such repetition. Com. v. Bugbee, 4 Gray, 20G. The same inqjlication exists as to the averment of wounding. State v. Freeman, 21 Mo. 481 ; State v. Bailey, 21 Mo. 484. This is established in Indiana by statute. Thayer v. State, 11 Ind. 287. In North Carolina it has been held that an indictment may contain enough to induce the court to jiroceed to judgment, if the time and place of making the assault be set foi'th, though they be not repeated as to the final blow. State V. Cherry, 3 Murph. 7. See Jackson v. People, 18 111. 264. "Then and there" is insufficient where it is necessary to prove, as part of the description of the offence, an act at some specific portion of a day, as where it is necessary to aver the possession of ten or more counterfeit bills at one time. Edwards v. Com., 19 Pick. 124. The word being (^existens), unless necessarily connected with some other matter, is not sufficiently definite. Bac. Ab. Indict. G. 1; Cro. Jac. 639; 2 Lord Raymond, 1467, 1468 ; 2 Rol. Rep. 225; Com. Dig. Indict. G. 2. It is otherwise when part of an independent adequate averment. R. v. Boyall, 2 Burr. 832. Neither "Instantly" (1 Leach, 4th ed. 529 ; Chitty C. L. 221 ; R. v. Brown- low, 11 A. & E. 119; Lester v. State, 9 Mo. 666 ; State v. Lakey, 65 Mo. 217 ; State V. Testerman, 68 Mo. 408. See Com. v. Ailstock, 3 Grat. 650 ; State v. Cherry, 3 Murph. 7), nor "immediately" (R. v. Francis, Cunning. 275; 2 Strange, 1015), nor "whilst" (R. v. Pelham, 8 Q. B. 959), can supply the place of "then and there." Where the antecedent averment is In any way ambiguous as to time or place, the reference " then and there" is defective. R. v. Devett, 8 C. & P. 639; State v. Jackson, 39 Me. 291 ; Edwards u. Com. 19 Pick. 124; Com. v. 16 time; place. (2) Butterick, 100 Mass. 12; Com. v. Goldstein, 114 Mass. 272; Storrs f. State, 3 Mo. 9 ; Jane v. State, 3 Mo. 61 ; State v. Hayes. 24 Mo. 358. If the fact be stated, as to the time or place, with repugnancy dr uncertainty, the indictment will be bad. See JetTries v. Com., 12 Allen, 145; Com. v. Grif- fin, 3 Cush. 523 ; People r. Mather, 10 Mo. 291 ; State u. Hendricks, Con. (N. C.) 369 ; Hutchinson v. State, 62 Ind. 556 ; Serpentine v. State, 1 How. (Miss.) 260; McMath v. State, 55 Ga. 303. And an indictment alleging the offence to have been committed on an impossible day (People v. Matlier, 4 Wend. 229; ]\Iarkley v. State, 10 Mo. 291), or a day 'subsecpient to the finding of the bill (State I'.'Munger, 15 Vt. 291; State v. Litch, 33 Vt. 67; Com. v. Doyle, 110 JNIass. 103 ; Penns. v. McKee, Add. 36 ; Jacobs v. Com., 5 S. & R. 316; State v. Noland, 29 Ind. 212; State v. Davidson, 36 Te.\. 325; see Wh. Cr. PI. & Pr. § 120), is defective. But an indictment may be found for a crime committed after the term commenced to which it is returned. Allen v. State, 5 AVis. 329. In perjury and cognate cases, when the time of the alleged false oath enters into the essence of the offence, and is to be shown by the records of the court where the oath was taken, a variance in the day is fatal. Wh. Cr. L. 8th ed. § 103 a; Green v. Rennett, 1 T. R. 656 ; Freeman y. Jacob, 4 Camp. 209 ; Pope V. Foster, 4 T. R. 590; Woodford v. Ashlev, 11 East, 508; Restall v. Stratton, 1 H. Bl. 49 ; U. S. V. M'Neal, 1 Gallis. 387 ; U. S. v. Bowman, 2 Wash. C. C. R. 328; Com. v. Monahan, 9 Gray, 119. Dates of hills of exchange, and other loritten instruments, must be truly stated when necessarily set out. Wh. Cr. Ev. § 103 a; Archbold'sC. P. 9th ed. § 90. Deeds must be pleaded either according to the date they bear, or to the day on which they were delivered. Ibid. Where a time is limited by general statute for preferring an indictment, the time laid should ordinarilv appear to be within the time so limited. Wh. Cr. Ev. § 105. See R. v. Brown, M. & M. 163 ; U. S. v. Winslow, 3 Sawy. 337 ; State V. Hobbs, 39 Me. 212; State v. J. P., 1 Tyler, 283; State v. Rust, 8 Black. 195 ; State v. Robinson, 9 Foster, 274 ; Hatwood i'. State, 18 Ind. 492; Peoples. Gregory, 30 Mich. 371; People v. Miller, 12 Cal. 291; McLane v. State, 4 Ga. 335 ;"'Shelton v. State, 1 St. c^ P. 208 ; State r. McGrath, 19 Mo. 678. (h) Vi et armis. This allegation (unless in indictments for forcible entry) is no longer essential. Wh. Cr. PI. & Pr. § 271. («■) As to conflict in cases of venue, see Wh. Cr. L. 8th ed. §§ 269 et seq. ; and as to whether the venue is to be in the place where the offence was consummated, or in the place where the offender was at the consummation, see, particularly, Ibid., § 284, note. As to change of venue, see AVh. Cr. PI. & Pr. § 602. In England, it is now enough to aver the county as the place of the commission. Stat. 6 Geo. 4 ; 14 & 15 Vict. In the United States, the latter practice Is gene- rally accepted wherever the county Is conterminous with the jurisdiction of the court. Wh. Cr. PI. & Pr. § 146 ; Wh. Cr, Ev. § 107 ; People v. Lafuente, 6 Cal. 202. That "county" is necessary see People o. Gregory, 30 Mich. 371. Though It is otherwise when the jurisdiction of the court embraces but a fraction of the county. Wh. Cr. PI. & Pr. §§ 141-2; 2 Hale, P. C. 166; McBride r. State, 10 Humph. 615. So, mutatis mutandis, as to towns. Com. v. Spring- field, 7 Mass. 9. But as a rule, it is sufficient if the place stated correspond with tlie jurisdiction of the court. R. v. Stanbury, L. & C. 128 ; People v. Barrett, 1 .lohnson R. 66 ; State v. G. S., 1 Tyler, 295; State v. Jones, 4 Halsted, 357. This may be "county," "city," or "town," wlienever the place described constitutes a distinctive jurisdiction recognized as such by the law. In several jurisdictions, by statute, when an olFence is committed near the boundary line between two counties, it may be averred to be in either county. People V. Davis, 56 N. Y. 95 ; Wh. Cr. L. 8th ed. § 290. The jurisdiction of the federal courts, where crimes have been committed at sea or abroad, is discussed at large in anotlier work. Wh. Cr. L. 8th ed. §;? 269 et seq. VOL. I.— 2 17 (2) GENERAL FRAME OF INDICTMENT. In such cases the trial of the ofTciice is, by Act of April 30, 1 790, to be " in the district -where the olfcnder is ap])rehended, or into which he may tirstbe brought." For j)ractice see U. S. ;;. Arwo, 19 Wall. 486; U. S. v. Anderson, 8 Keporter (1879), 677. Where an offence is committed within a State by means of an agent, tlie employer is guilty as a principal, justiciable in such State, though he did not personally act in that State, and at the time the offence was committed was in another State. See Wh. Cr. L., 8th ed. §§ 278 et scq., 282, 284. Where an offence is committed within the county of A., and after the com- mission of the ofl'ence the county is di^-ided, and the part of the county in which the offence was committed is created a new county called B., the latter county has jurisdiction over the offence. State v. Jones, 4 Halst. 357 ; Searcy v. State, 4 Tex. 450. See U. S. v. Dawson, 15 How. U. S. 467; State v. Jackson, 39 Me. 291 ; State v. Fish, 4 Ired. 219. Wh. Cr. PL & Pr. § 147. As dif- fering from text see INIcElroy v. State, 13 Ark. 708. In such case, however, the indictment mav charge the perpetration in the former county while the trial is in the latter. Jordan v. State, 22 Ga. 545 ; McElroy v. State, 13 Ark. 708. Where there are distinct judicial districts in the county, it is not sufhcient that the indictment names the county. State v. Adams, 2 Battle's Dig. 729 ; Com. V. Springfield, 7 Mass. 9. And so in all cases where the jurisdiction is less than the county. Taylor v. Com. 2 Va. Cas. 94 ; McBride v. State, 10 Humph. 615. The court will take judicial notice of statutory subdivisions of counties. Ibid. ; Com. r. Springfield, 7 IMass. 9 ; State v. Powers, 25 Conn. 48. But it is said that averring a place to be at " W.," and not at the " city" or " town" of " W.," is not enough. Com. v. Barnard, 6 Gray, 488. See, however. Tower v. Com., 1 11 Mass. 117, where it was held that it was enough, in error, to aver the toitnt ; the court taking notice that the town was in a particular county. Compare com- ments in Heard's Pleading, 81. W^here the caption gives the name of the State, it need not be repeated in the indictment. Com. v. Quin, 5 Gray, 478. And, generally, as the name of the State is assumed, in all the proceedings, it need not be given in the indictment. State V. Wentworth, 37 N. H. 196 ; State v. Lane, 4 Ired. 113. Of transitory offences, as they are called (e. g. offences of which the object of the offence is not necessarily attached to a particular spot), a variance as to specification of place is not fatal il" jurisdiction be correctl}- given. In tlie city of New York, the practice is to charge the ward as part of the venue : thus : " In the First Ward of the city of New York ;" in New Orleans, to name the parish. The same ])ractice obtains elsewhere. If, however, the offence is shown to be within the jurisdiction of the court, the special place averred, if unessen- tial, need not, when the offence is transitory, be proved. 2 Hale, 179, 244, 245; 4 Bla. Com. 306 ; 2 Hawk. c. 25, s. 84; c. 46, ss. 181, 182; 1 East P. C. 125; Holt, 534; R. v. Woodward, 1 Mood. C. C. 323; Com. v. Gillon, 2 Allen, 502; Carlisle v. State, 32 Ind. 55; Heikes v. Com., 26 Penn. St. 531 ; Wh. Cr. Ev. § 109. But where the case is stated by way of local description and not as a venue merely, a variance in what are called local offences (e. g. where the object is necessarily attached to a place) is fatal. R. v. St. John, 9 C. & P. 40 ; R. v. Redley, R. & M. 515 ; State v. Cotton, 4 Foster (N. H.), 143 ; People v. Slater, 5 Hill'N. Y. R. 401 ; Moore v. State, 12 Ohio St. 387 ; State v. Crogan, 8 Iowa, 523 ; Norris v. State, 3 Greene, Iowa, 513 ; Chute v. State, 19 Minn. 271 ; Grimme v. Com., 5 B. Mon. 263; Wh. Cr. Ev. § 109. Under the same head are to be included injuries to machinery permanently fixed, and buildings : R. I'. Richards, 1 J\I. & R. 1 77 ; nuisances, when emanating from local sites ; Com. v. Heffron, 102 Mass. 148; and houses of ill-fame; State v. Nixon, 18 Vt. 70. Such speclffcations, though unnecessary, must be proved. Wh. Cr. Ev. § 109. It is sufficient if the place be averred simply as "the county aforesaid," when the county is named in tlie caption, or in the commencement, for which the grand jurors were sworn. Com. v. Edwards, 4 Gra-\-, 1 ; State v. Smith, 5 Harring. 18 PLACE AND VENUE (2) 490; Winfrard v. State, 13 Ga. 396 ; State v. Ames, 10 Mo. 743; State v. Simon, 50 Mo. 370 ; State v. Shall, 3 Head (Tenn.), 42 ; Evarts v. State, 48 Iiul. 422; Noe V. People, 39 111. 96. See, to same effect. State v. Baker, 50 Me. 45 ; State V. Roberts, 26 Me. 263 ; State v. Conley, 39 Me. 78; Haskins v. People, 16 N. Y. 344; State v. Lamon, 3 Hawks, 175 ; State v. Bell, 3 Ired. 506 ; State v. Tolever, 5 Ired. 452. Compare 1 Wms. Saund. 308. It is otherwise when two counties are previously named. State v. McCracken, 20 Mo. 411. Even " county" may be left out in the statement of place, when it can be presumed from prior averments. See CoYn. v. Cummings, 6 Gray, 487. State V. Walter, 14 Kans. 375. Where it was alleged that the defendant broke and entered " the city hall of the city of Charlestown ;" this was held a sufficient averment that the property of the building alleged to be broken and entered is in the city of Charlestown. Com. v. Williams, 2 Cush. 583. " County" or "town" or *'city," however, must somewhere appear; and it is not enough to aver the offence to have been committed in C. The indictment must say, either directlj^ or by reference to the caption, that C is a town or city or county. Com. v. Barnard, 6 Gray, 488. Wb. Cr. PI. & Pr. § 142. But an indictment for burning a barn situate at a certain place, which was ■within the jurisdiction of the court, and alleged to be " within the curtilage of the dwelling-house of A.," need not also aver that the dwelling-house was at that place. Commonwealth v. Barney, 10 Cush. 480. The effect of "then and there" has been already considered In the note to the allegation of time. A change of local title, when enacted by the legislature, must be followed by the pleader. State v. Fish, 4 Ired. 219; and authorities on prior page. It has, however, been held not error to describe a county within which the offence was committed by the name belonging to it at the time of trial, even though it went by another name at the time when the act was committed. McElroy v. State, 8 Eng. (13 Ark.) 708 ; and see Jordan v. State, 22 Ga. 545. Where a fine is payahle, or penalty is special, to a subdivision of county, it has been said that the pleading should aver such subdivision, so as to guide the court in the application of the fine or penalty; Botto i'. State, 26 Miss. 108. See Legori v. State, 8 Sm. & M. 697 ; State v. Smith, 5 Harring. 490, and cases cited supra ; though this has been doubted in cases where the court can ascertain the place of the defendant's residence otherwise than by the verdict of the jury. Duncan v. Com., 4 S. & R. 449. In. larceny, the venue may be laid in any county in which the thief was pos- sessed of the stolen goods. See Wh. Cr. L. 8th ed. §§ 391, 930; and see R. V. Peel, 9 Cox C. C. 220; Wh. Cr. Ev. § HI. Where an indictment omits to lay a venue of the offence charged, it is a fatal defect, on motion to quash, or in arrest of judgment. Wh. Cr. PI. & Pr. § 385 ; Thompson v. State, 51 Miss. 353 ; Searcy v. State, 4 Tex. 450 ; Morgan v. State, 13 Flor. 671. In another work the proof of place is discussed at large ; and it is shown that the place of the offence must be proved to be within the jurisdiction of the court (Wh. Cr. Ev. § 107), though the proof of this is inferential. Ibid. § lOS. It will also be seen that when a place is stated as matter of description, a vari- ance may be fatal. Ibid. § 109. The venue in homicide may be placed by statute in the place of death (Ibid. § 110; see Wh. Cr. L. 8th ed. § 292) ; and that of conspiracy in the place of any overt act. Wh. Cr. Ev. § 111 ; Wh. Cr. L. 8th ed. § 1397 ; Inf. 607, note. [j) The statute of additions extends to the defendant alone, and does not at all affect the description eitiier of the j)rosecutor, or any other indidlvuals whom it maybe necessary to name. 2 Leach, 861 ; 2 Hale, 182; Burn, J., Indict- ment; Bac. Ab. Indictment, G. 2 ; R. r. Graham, 2 Leach, 547; R. v. Ogilvie, 2 C. & P. 230; Com. v. Varney, 10 Cush. 402; though see R. r. Deeley, 1 Mood. C. C. 303. Tlie name thus given must be the name by which the person is generally known. Wh. Cr. PI. & Pr. §§116, 119; R. v. Norton, Rus. & Ry. (2) GENERAL FRAME OF INDICTMENT. 510 ; R. V. Berriman, 5 C. & P. 601 ; R. v. Williams, 7 C. &. P. 298 ; State V. Haddock, 2 Hayw. 162 ; Walters v. People, 6 Park. C. R. 16. Christian as well as surname must, if known, be given. Morningstar v. State, 52 Ala. 405 ; State V. Taylor, 15 Kans. 420 ; Collins v. State, 43 Tex. 577. When an addition is stated descriptively, a variance may be fatal. R. v. Deeley, 1 Mood. C. C. 303 ; 4 C. & P. 579 ; Wh. Cr. Ev. § 100. When the name of a corporation is given, the corporate title must be strictly pursued, unless specification is made unnecessarily by local statute. AVh. Cr. L. 8th ed. § 941 ; R. v. Birminrrham R. R., 3 Q. B. 223 ; State v. Vt. R. R., 28 Vt. 583 ; Fisher v. State, 40 N. J. L. 169 ; McGary v. Pet)pie, 45 N. Y. 153 ; Litho-ow V. State, 2 Va. Cas. 296 ; Smith i'. State, 28 Ind. 321 ; Wallace v. People, 63 111. 481. Wliether at common law, in an indictment for stealing the goods of a corpora- tion, it is requisite to aver that the corpoj-ation was incorporated, has been much disputed. Tiiat it is necessary is ruled in State y. Mead, 27 Vt. 722; Cohen v. People, 5 Parker C. R. 330 ; Wallace v. People, 63 111. 451 ; People v. Schwartz, 32 Cal. 160. That it is unnecessary, unless made so by statute, is ruled in R. v. Patrick, 1 Leach, 253; Com. v. Phillipburg, 10 Mass. 70; Com. v. Dedham, 16 Mass. 141 ; People i'. McCloskey, 5 Parker C. C. 57, 334; People v. Jackson, 8 Barb. 63 7 ; McLaughlin v. Com., 4 Rawle, 464 ; Fisher v. State, 40 N. J. L. 169 ; Johnson v. State, 65 Ind. 204. See Wh. Cr. L. 8th ed. § 716. The ques- tion depends upon whether the court takes judicial notice of the charter. Wh. on Ev. §§292-3. Unknown. — Where a third party is unknown, he may be described as a "cer- tain person to the jurors aforesaid unknown." 2 Hawk. c. 25, s. 71 ; 2 East P. C. 651, 781; Cro. C.C. 36; Plowd. 85, b ; Dyer, 97, 286 ; 2 Hale, 181 ; Com. V. Tompson, 2 Cush. 551; Com. v. Hill, 11 Cush. 137; Com. v. Stoddard, 9 Allen, 280; Goodrich v. People, 3 Parker C. 11. 622; Com. v. Sherman, 13 Allen, 248; AVillis v. People, 1 Scam. 399; State v. Irvin, 5 Blackf. 343; Brooster v. State, 15 Ind. 190; State v. McConkey, 20 Iowa, 574; State v. Bryant, 14 Mo. 340. A Christian name may be averred to be unknown. Bry- ant V. State, 36 Ala. 270; Smith v. Bayonne, 23 l^a. An. 68. An averment of " unknown" will stand, if the party Avas at the time of the indictment unknown to the grand jury, though he became known afterwards. 2 East P. C. 651 ; Stra. 186, 49 7 ; Com. v. Hendrie, 2 Gray, 503 ; Com. v. Intoxicating Liquors, 116 Mass. 21. As to vendee in liquor sales, see Wh. Cr. L. 8th ed. § 151 1 ; as to deceased persons, see R. v. Campbell, 1 Car. & K. 82 ; State v. Haddock, 2 Hayw. 348 ; Reed v. State, 16 Ark. 499 ; as to owners of stolen property, see 2 East P. C. 651, 781 ; 1 Ch. C. L. 212 ; 1 Hale, 181 ; 2 B. & Aid. 580 ; Com. v. Morse, 14 Mass. 217 ; Com. v. Manley, 12 Pick. 173 ; Wh. Cr. L. 8th ed. § 949. To sup- port the description of "unknown," remarks Mr. Sergeant Talfourd, "it must appear that the name could not well have been supposed to have been known to the grand jury." R. v. Stroud, 1 C. & K. 187. A bastard is sufficiently iden- tified by showing the name of its parent, thus: " A certain illegitimate male child then lately born of the body of A. B. (the mother)." R. v. Hogg, 2 M. & Rob. 380. See R. v. Hicks, 2 Ibid. 302, where an indictment for child-mur- der was held bad for not stating the name of the child, or accounting for its omis- sion. A bastard must not be described b^- his mother's name till he has ac(juired it by reputation. R. v. Clark, R. & R. 358 ; AVakefield v. JMackey, 1 Phill. R. 134, contra. A bastard child, six weeks old, who was baptized on a Sunday, and down to the following Tuesday had been called by its name of baptism and mother's surname, was held by Erskine, J., to be properly described by both those names in an indictment for its murder; R. v. Evans, 8 C. & P. 765; but where a bastard was baptized " Eliza," without mentioning any surname at the ceremony, and was afterwards, at three years old, sullbcated by the prisoner, an indictment, styling it "Eliza ]Vaters," that being the mother's surname, was held bad by all the judges, as the deceased had not acquired the name of Waters by reputation. R. v. Waters, 1 Mood. C. C. 457 ; 2 C. & K. 862. (N. B. No 20 NAMES OF THIRD PARTIES. (2) baptismal register, or copy of it, was produced at either trial. Semh. : " Eliza" would have sufficed. See R. v. Stroud, 1 C. & K. 187, and cases collected ; Williams v. Bryant, 5 M. & W. 44 7.) In the previous case of R. v. Clark, R. & R. 358, an indictment stated the murder of " George Lakemnn Clark, a base- born infant male child, aged three weeks," by the prisoner, its mother. The child had been christened George Laleman, being the name of its reputed father, and was called so, and not by any other name known to the witnesses. Its mother called it so. There was no evidence that it had been called by or ob- tained its mother's n^ie of Clark. The court held the name Clark incorrect, and as nothing but the name identified the child, the conviction was held bad. See also R. v. Sheen, 2 C. & P. 634. However, in R. v. Bliss, 8 C. & P. 7 73, an indictment against a man-ied woman for murder of a legitimate child, which stated " that she, in and upon a certain infant male child offender gears, to wit, of the age of six weeks, and not baptized, feloniously and wilfully, etc., did make an assault," etc., was held insufficient by all the judges, as it neither stated the child's name, nor that it was "to the jurors unknowa." It is, however, suffi- cient to describe the child " as a certain male child, etc., of tender age, that is to say, about the age of six weeks, and not baptized, born of the body of C. B." See 2 C. & P. 635, n.; R. 'v. AVillis, 1 C. & K. 722 ; see also R. t\ Sheen, 2 C. & P. 634; Dickins, Q. S. 6th ed. 213. Junior and Senior. — As to defendants, the law on this point has been already noticed. In England, it is said that where the party injured has a mother or father of the same name, it is better to style the prosecutor " tlie younger," as it may be presumed that the parent is the party mc^ant ; for George Johnson means G. J. the elder, unless the contrary is expressed. Singleton v. Johnson, 9 ]M. & W. 67. But this was held immaterial when it is sufficiently proved who Eliza- beth Edwards, the party described assaulted, was, viz., the daughter of another Elizabeth Edwards. R. v. Peace, 3 B. & Aid. 579. And the question is whether the name specified is that by wliich the party was accustomed to go. Where the defendant was indicted for the murder of her bastard child, whose name was to the jurors unknown, and it appeared that the child had not been baptized, but that the mother had said she would like to have it called ^Vlary Ann, and little Mary, the indictment was held good. R. v. Smith, 1 Mood. C. C. 402 ; 6 C. & P. 15l'. An indictment for the murder of "a certain Wyandott Indian, whose name is unknown to the grand jury," is valid, and sufficiently descriptive of the de- ceased, without an allegation that the words " A\'^yandott Indian" mean a human being. Reed v. State, 16 Ark. 499. If it appear on the trial tliat tlie name, alleged to have been unknown, was actually known to the grand jury, the variance is fatal. 2 East P. C. 561, 781 ; 3 Camp. 265, note; THale, 5l"2; 2 Hawk. c. 25, s. 71 ; 2 Leacli, 578; R. v. Robinson, 1 Holt, 595; R. v. Stroud, 2 Mood. 270; Com. v. Sherman, 13 Allen, 249; Com. i7. Glover, 111 Mass. 401; State y. Wilson, 30 Conn. 500; White V. State, 35 N. Y. 465. See Buck v. State, 1 Ohio St. 61 ; Blodgett v. State, 3 Ind. 403 ; Jorasco v. State, 6 Tex. Ap. 283 ; Whart. Crim. Ev. § 97. (As to unknown co-conspirators, see AV'h. Cr. L. 8th ed. §§ 1393, 1511.) Dis- covery of the name std)sequentlg to the finding of the bill, however, is no ground for acquittal. Wh. Cr. Ev. § 97; R. v. Campbell, 1 C. & K. 82; R. v. Smith, 1 Mood. C. C. 402; Com. v. Hill, 11 Cush. 137; Com. v. Ilendric, 2 Gray, 503 ; Zellers v. State, 7 Ind. 659 ; Cheek v. State, 38 Ala. 227 ; State r. Bryant, 14 Mo. 340. Nor will it avail in arrest of judirment. People v. White, 55 Barb. 606 ; S. C, 32 N. Y. 465; Wh. Cr. Ev. § 9'?. But the allega- tion that co-defendants or principals are "unknown" is material, ami maybe traversed under the plea of not guilty. 3 Camp. 264, 265 ; 2 East P. C. 781 ; Bark man t\ State, 8 Eng. (13 Ark.) 703; Cameron v. State, Ibid. 712; Reed V. State, 16 Ark. 499. See Wh. Cr. Ev. § 97 ; Wh. Cr. L. 8th ed. § 948. It is not enough to defeat the bill, that the same grand jury found anotlier bill, specifying the "person unknown" as "J. L." R, v. Bush. 11. & R. 372. See 21 (2) GENERAL FRAME OF INDICTMENT. 1 Den. C. C. 361 ; Com. v. Sherman, 13 Allen, 250. The bm-den is on the de- fendant to prove knowledge at the time by tlic grand jury. Wh. Cr. Ev. § 97 ; Com. V. Hill, 11 Cash. 137; Com y. Gallagher, 126 Mass. 54. As to liijuor cases see Wh. Cr. L. 8th ed. §§ 1510, 1511. Ownership maybe laid in one count in ])ersons unknown, and in other counts in several ])ersons tentatively. 11" the allegation in which the misnomer appears is material, it may be rejected as surplusage. Com. v. Hunt, 4 Pick. 252; U. S. v. Howard, 3 Sumner, 12; State V. Farrow, 48 Ga. 30; Wh. Cr. Ev. § 138; Wh. Cr. PI. & Pr. § 158. An indictment lor forgery of a draft addressed to Messrs. lirummond and Com- pany, Charing Cross, by the name of Mr. Drummond, Charing Cross, without stating the names of Mr. Drunimond's ])artners, was held sufficient. 1 Leach, 248 ; 2 East P. C. 990. But where the pleader undertakes to set out the names oi a firm, a variance in the proof of these names is fatal. Doane v. State, 25 Ind. 495 ; Wh. Cr. Ev. §§ 94 et seq. Initials, it seems, are a suAicient designation of the Christian name, if the partv uses and is known by such initials. Mead v. State, 26 Oh. St. 505 ; State r. Bell, 65 N. C. 313; State v. Brite, 73 N. C. 26; Thompson v. State, 48 Ala. 165; State v. Seely, 30 Ark. 162 ; State v. Anderson, 3 Rich. 172; State V. Black, 31 Tex. 560; Vandermark v. People, 47 111. 122. As to variance see Wh. Cr. Ev. §§ 94 et seq. In any view this cannot be excepted to after verdict. Smith V. State, 8 Ohio, 294. A description by a name acquired by reputation has been held sufficiently cer- tain. Pt. V. jSTorton, R. & R. 509 ; R. v. Berriman, 5 C. & P. 601 ; Anon., 6 C. & P. 408; State v. Bundy, 64 Me. 507 ; Waters v. People, 6 Parker C. R. 16 ; Com. v. Trainor, 123 Mass. 414 ; State v. Gardiner, AVright's Ohio R. 392 ; State V. Bell, 65 N. C. 313 ; McBeth v. State, 50 Miss. 81 ; Wh. Cr. Ev. § 95. Should the name proved be idetn sonans with that stateil in the indictment, and different in spelling only, the variance will be immaterial. Wh. Cr. Ev. § 96. See R. V. Wilson, 2 C. & K. 527; 1 Den. C. C. 284; 2 Cox C. C. 426; State V. Bean, 19 Vt. 530; Point u. State, 37 Ala. 148; State v. Lincoln, 17 Wis. 579. Thus, Segrave for Seagrave (Williams v. Ogle, 2 Str. 889) ; McLaughlin for McGlotlin (McLaughlin v. State, 52 Ind. 4 76); Chambles for Chambless (Ward t'. State, 28 Ala. 53); Usrey for Userry (Gre.sham v. Walker, 10 Ala. 370) ; Authron for Autrum (State v. Scurry, 3 Rich. 68) ; Benedetto for Beni- ditto (Aliibol v. Beniditto, 2 Taunt. 401); Whyneard for Winyard, pronounced Wiunyard (R. v. Foster, R. & R. 412) ; Petris for Retries, the pronunciation being the same (Petrie v. Woodworth, 3 Caines, 219; See State v. Upton, 1 Dev. 513) ; Hutsonfor Hudson (State v. Hutson, 15 Mo. 512), form no variance. But it has been decided that M'Cann and M'Carn (R. v. Tannett, R. & R. 351), Shakespear and Shakepear (R. v. Shakespear, 10 T. R. 83), Tabart and Tar- bart (Bingham v. Dickie, 5 Taunt. 814), Shutliff" and Shirtllif (1 Chit. C. L. 216; 3 Chit. Burn, 341), Comyns and Cummins (Cruickshank v. Comyns, 24 111. 602), are fatal variances. AVhat is idem sonans is for the jury. R. ik Davis, 2 Den. C. C. 231 ; T. & M. 557 ; 5 Cox C. C. 238; Com. y. Donovan, 13 Allen, 571 ; Com. y. Jennings, 121 Mass. 47. See People v. Cooke, 6 Park. C. R. 31. See fully Wh. Cr. Ev. §§ 94 et seq. In conclusion, any variance in sound in the name of material third parties is fatal at common law, it being the duty of the Court to order an accpiittal, though such ac(juittal is no bar to a second and correct indictment. Wh. Cr. PI. & Pr. §§116, 119. The court will determine by inspection what is the name as written in the indictment. O'Neil v. State, 48 Ga. 6Q. Statement of the offence. — It is a general rule that the special matter of the whole olfence should be set forth in the indictment with such certainty, that the offence may judicially appear to the court. See U. S. v. Cruikshank, 92 U. S. 542; U. S. V. Simmons, 96 U. S. 360; Com. v. Perry, 114 Mass. 263; People V. Taylor, 3 Denio, 91 ; Biggs u. People, 8 Barb. 547 ; Kit u. State, 11 Humph. 12 STATEMENT OF THE OFFENCE. (2) 1G7; State v. Stiles, 40 Iowa, 148; State v. iMurray, 41 Iowa, 580. Elustra- tions are given in Wh. Cr. PL & Pr. § 151. When special facts are an essential part of an offence, tliey must be set out. Certainty to common intent, it is said, is what is required ; perfect certainty is un- attainable, and the attempt to secure it would in almost every case lead to a vari- ance. Wh. Cr. PL & Pr. § 151 ; R. v. Decley, 4 C. & P. 579 ; 1 Mood. C. C. 303. The certainty, in other words, must be such, so far as concerns the substance of the offence, as exhibits the truth accordini^ to its ordinary general acceptation ; not the truth with jts differentia scientifically and exhaustively displayed. See Buller, J., R. v. Lyme Regis, 1 Doug. 159. Where an act is not in itself necessarily unlawful, but becomes so by Its pecu- liar circumstances and relations, all the matters must be set forth in which its illegality consists. 2 Hawk. c. 25, s. 57; Bac. Ab. Indictment, G. 1; Cowp. 683 ; People v. jNIartin, 52 Cal. 201. Thus an indictment for obstructing an offi- cer in the execution of process, must show that he was an officer of the court out of which the process issued, and the nature of the official duty and of the process. R. V. Osmer, 5 East, 304. See R. v. Everett, 8 B. & C. 114 ; State v. Burt, 25 Vt. 3 73 ; McQuoid v. People, 3 Gilman, 7G ; Cantrill v. People, Ibid. 356. An indictment, also, for contemptuous or disrespectful words to a magistrate is de- fective without showing that the magistrate was in the execution of his duty at the time. R. v. Lease, Andr. 226. And so an indictment against a public officer for non-performance of a duty without showing that he was such an officer as was bound by law to perform that particular duty. 5 T. R. 623. At the same time it is not necessary, when a minor offence is inclosed in a greater, to introduce the averments showing the defendant to have been guilty of the greater otFence, though these should be proved by the evidence. The de- fendant, however, on such an indictment, can be convicted only of the minor offence. See State v. Bowling, 10 Humph. 52; Wh. Cr. L. 8th ed. § 27. It is not enough to state a mere conclusion of law. Wh. Cr. PL & Pr. § 230 ; and see U. S. v. Cruikshank, 92 U. S. 544; States. Record, 56 Ind. 107. Thus it would be insufficient to charge the defendant with "stealing" or ''murder- ing." 1 Roll. Rep. 79; 2 Roll. Ab. 79; 2 Stra. 699; 2 Hawk. c. 2.5, s. 59; Com. Dig. Indictment, G. 3; Bac. Ab. Indictment, G. 1. Wh. Cr. PL & Pr. § 230. So it is bad to accuse him of being a common defamer, vexer, or op- pressor of many men; 2 Roll. Ab. 79 ; 1 Mod. 71 ; 2 Stra. 848, 1246, 1247 ; 2 Hale, 182 ; 2 Hawk. c. 25, s. 59 ; Com. Dig. Indict. G. 3 ; Bac. Ab. Indict. G. 1. Or a common disturber of the peace, and having stirrred up divers quarrels. Ibid. Wh. Cr. PL & Pr. §§ 230, 231. Or a common forestaller. Moore, 302 ; 2 Hawk. c. 25, s. 59 ; Bac. Ab. Indict. G. 1. Or a common thief. Ibid. ; 2 Roll. Ab. 79 ; 2 Hale, 182; Cro. C. C. 37. Or a common evil doer. 2 Hawk. c. 25, s. 59 ; Bac. Ab. Indict. G. 1. ; Wh. Cr. PL & Pr. §§ 230, 231. Or a common champertor. 2 Hale, 182; 2 Hawk. c. 25, s. 59 ; Bac. Ab. Indict. G. 1. Or a common conspirator, or any other such vague accusation. Ibid. ; Com. c. Wise, 110 ]Mass. 181. See Wh. Cr. L. 8th ed. §§ 1429, 1442-8. On the same reasoning, in an indictment for obtaining money by false pretences, it will not sufhce merely to state that the defendant falsely pretended certain allegations, but it must also be stated by express averment, what parts of the representation were false, for otherwise the defendant will not know to what circumstances the charge of false- hood is intended to apply. 2 I\L & S. 379. See AVh. Cr. L. 8th ed. §1213. It is also not sufficient, generally, to charge " malicious mischief" or " malicious injury ;" the facts of the injury must be given. Wh. Cr. L. 8th ed. § 1080; and see Ibid. § 1841. An indictment, on the same principle, charging a man with being a common cheat, or a common swindler or defrauder, is bad, and is not helped by an averment that, by divers false pretences and I'alse tokens, he deceived and defrauded divers good citizens of the said State. Wh. Cr. L. 8th ed. §§ 1129, 1442-8, 1450; U. S. v. Royall, 3 Cranch C. C. R. 618. See for furtlier illustrations, Wh. Cr. PL & Pr. § 154; infra, 499. 23 (2) GENERAL FRAME OF INDICTMENT. A count cliargiiiff the defendant with voting without having the legal qualifica- tions of a voter is defective. People v. AV'ilber, 4 Parker C. R. 19 ; Pearce v. State, 1 Sneed, 63 ; Quinn v. State, 35 Ind. 485 ; but see State v. Lockbaum, 38 Conn. 400. And so of a count whicli charges the flefendant with unlawfully and fraudulently adulterating "a certain substance intended for food, to Avit, one pound of confectionery." Com. u. Chase, 125 Mass. 202. There are, however, several marked exceptions to the rule requiring the offence, in each case, to be specifically set forth. Tims, an indictment charging one with being a "common barrator" (Inf. 780); or, a "common scold" (Inf. 779); or, a "common night-walkei-" (State t\ Dowers, 45 N. H. 543; Inf. 779 o); is good. The same rule applies to certain lines of nuisance, to describe which generic terms are adequate, as is the case with a "house of Ill-fame;" a "disorderly house" (State i\ Patterson, 7 Ired. 70; Wh. Cr. L., rit supra. Inf. 722); and a " tippling-house." State v. Collins, 48 Me. 217. See Com. V. Pray, 13 Pick. 359; 1 Term R. 754; 1 Russell, 301. So an Indictment for betting at faro bank need not set out the particular nature of the game, nor the name of the person with whom the bet was made. State v. Ames, 1 Mo. 372. See Wh. Cr. L. 8th ed. § 146C. But an Indictment, as has just been seen, charging the defendant as a common cheat, is bad. V»'h. Cr. L. 8th ed. §§ 1128, 1129, 1442. If a particular fact whicli is matter of description and not vital to the accusa- tion cannot be ascertained, the indictment will be good, If it state that such fact is unknown to the grand jury, provided that the fact in question be described as accurately as possible. State v. Wood, 53 N. H. 484; Com. v. Ashton, 125 Mass. 384; Com. v. Fenno, 125 Mass. 387; Com. v. Martin, 125 Mass. 394; Com. V. Webster, 5 Cush. 295; People t". Taylor, 3 Denio, 91. As to Instru- ment of death see Wh. Cr. L. 8th ed. § 525; Com. v. Webster; ut supra; State V. Williams, 7 Jones (N. C), 446. Com. v. Martin, 125 Mass. 394. But " this allegation, tliat the name or other particular fact Is 'unknown to the grand jury,' is not merely formal; on the contrary. If it be shown that it was, In fact, known to them, then, the excuse failing, it has been repeatedly held that the indictment was bad, or that the defendant should be acquitted, or the judg- ment arrested or reversed." Christiancy, J., in jMerwIn v. People, 26 Alich. 298, citing R. v. Walker, 3 Camp. 2C4 ; 1 Chltty's Cr. Law, 213 ; R. v. Robin- son, Holt N. P. 595, 596; Blodget v. State, 3 Ind. 403; and see Com. v. Hill, 11 Cush. 137 ; Hays i'. State, 13 Mo. 246; Reed v. State, 16 Ark. 499. A bill of particulars or specification of facts Is a matter exclusively at the discretion of the court. Com. v. Snelling, 15 Pick. 321 ; Com. v. Giles, 1 Gray, 466. See Inf. 615, n. for form. See more fully Wh. Cr. PI. & Pr. §§ 702 et seq. As to embezzlement, see Wh. Cr. L. 8th ed. § 1048. As to con- spiracy see Ibid. § 1380 ; and see, generally, R. v. Kendrick, 5 A. & E. (Q. B.) 49 ; R. V. Hamilton, 7 C. & P. 448 ; R. v. Brown, 8 Cox C. C. 09 ; Com. v. Davis, 11 Pick. 432; Com. v. Wood, 4 Gray, 11; People u. McKiimey, 10 Mich. 54. Unnecessary averments or aggraAations can be considered as surplusage, and as such disregarded. See Wh. (Jr. Ev. §§ 138 et seq. ; U. S. v. Clailin, \'i Blatch. 178; State v. Ballard, 2 Murph. 180 ;'^' State v. Munch, 22 Minn. 67. For illus- trations see Wh. Cr. PI. & Pr. § 158. Surplusage is not ground for demurrer. Steph. PL 376. But even though an averment is more particular tlian it need bo, yet if it cainiot be stricken out with- out removing an essential part of the case, it cannot be regarded as surplusage ; and if there be a variance in proving it, tlie prosecution fails. R. v. Deeley, 1 Mood. C. C. 303 ; U. S. v. Foye, 1 Curt. C. C. 364; State v. Noble, 15 Me. 476; Com. v. Wellington, 7 Allen. 299; Wh. Cr. Ev. §§ 109, 146. A videlicet may be extended to allegations of quantity, of distance, of locali- zation, of dilferentiation, so as to Introduce a specification, by way of definition, to a clause immediatel}' jireceding, and thus to separate, by a kind of bracketing, this specification from oiher clauses. Wh. Cr. PI. & Pr. § 158 a. How 24 STATEMENT OF THE OFFENCE. (2) far ppcoifieations are requisite in indictments for assaults and attempts Avill be considered under the special forms to be hereafter given. Infra, 213, 104C. " Or." — The certainty required in an indictment prechules the adoption of an alternative statement. See States. Charlton, 11 "\V. Va. 332. Thus an indict- ment is defective which charges the defendant with one or other of two oll'ences, in the disjunctive, as tliat he murdered or caused to be murdered, forged or caused to be forged. 2 Hawk. c. 35, s. 58 ; R. r. Stocker, 1 Salk. 342, 371 ; Com. v. Perrigo, 3 Mete. (Ky.) 5 ; People i'. Tomlinson, 35 Cal. 503. So of conveyed or caused to be conveyed, etc. R. v. Flint, Hardw. 370. See R. v. JNlorelv, 1 Y. & J. 221; State v. Gary, 3G N. H. 359; State ?;. Drake, 1 Vroom, 422; Noble V. State, 59 Ala. 73. And the same, if it charge him in two different characters, in the disjunctive, as quod A. existens servus sive dejmtaiu.t, took, etc. Smith t\ ]\Iall, 2 Roll. Rep. 2G3. And so where the defendant is charged with having administereil a poison or drug (State v. Drake, 1 Vroom, 422; Com. V. France, 2 Brewst. 5G8 ; State v. Green, 3 Heisk. 131 ; Whiteside v. State, 4 Cold. 183. See Wingard v. State, 13 Ga. 39G) ; or having sold spirit- uous or intoxicating liquors. Com. v. Grey, 2 Gray, 501. But see Cunningham V. State, 5 W. Va. 508. So, generally, an indictment which may apply to either of two different offences, and does not specify which, is bad. R. v. Marshall, 1 Mood. C. C. 158; Stare v. Harper. 64 N. C. 129; Johnson v. State, 32 Ala. 583 ; Horton v. State, GO Ala. 73. As to averment of such disjunctive allega- tions see Wh. Cr. PI. & Pr. § 228. That such averments are divisible see Wh. Cr. PI. & Pr. §§ 228, 251. On the other hand, alternatives have been permitted when they qualify an unessential description of a particular oflfence, and do not touch the ofience itself. Barnett v. State, 54 Ala. 579; State w. Newsom, 13 W. Va. 859. See for illustrations Wh. Cr. PI. & Pr. § 161. The principle seems to be, that "or" is only fatal when it renders the statement of the offence uncertain, and not so Avhen one term is used oidy as explaining or illustrating tl^ie other. Com. V. Grey, 2 Gray, 501 ; Brown i'. Com., 8 Mass. 59 ; People v. Gilkinson, 4 Park. C. C. 26 ; State v. Ellis, 4 Mo. 474. See Morgan v. Cora., 7 Grat. 592. " Or," also, may be Introduced in enumerating the negative averments recjulred to ex- clude the exceptions of a statute. Ibid. ; State v. Burns, 20 N. H. 550. And ordinarily the objection, if good, cannot be taken after verdict. Johnson v. State, 50 Ala. 456. Even where a statute disjunctively enumerates offences, or the intent necessary to constitute such ofli'ences, the Idlctment cannot charge them disjunctively. U. S. V. Armstrong, 5 Phil. Rep. 273; State v. Colwells, 3 R. I. 284; States. Price, 6 Halst. 203; Jones v. State, 1 McMullan, 236; Whiteside v. State, 4 Cold. 183. Wh. Cr. PL & Pr. § 228. For illustrations see Wh. Cr. PI. & Pr. § 162. The successive gradations of statutory offences cannot, therefore, be stated disjunctively ; though to state them conjunctively, when they are not repugnant. Is allowable. R. i'. North, 6 D. & R. 143 ; "U. S. v. Armstrong, 5 Phil. Rep. 273; Com. w. Grey, 2 Gray, 501; State v. Price, 6 Halst. 203; Angel ('. Com., 2 Va. Cas. 231 ; Rasnick v. Com., Ibid. 356; Jones ?'. State, 1 ISIc^Mullan, 236 ; State v. Meyor, 1 Speers, 305; Wingard v. State, 13 (ia. 39G ; State V. McCollum, 44 i\Io. 343 ; Keefer v. State, 4 Ind. 246 ; People v. Ah Woo, 28 Cal. 205 ; and cases cited, supra. Intent., when qualifying the character of the act, as Avhen there Is an attempt or assault to commit an offence, must be averred (Com. ik Herscv, 2 Allen, 173; State r. Garvey, 11 Mum. 154; State v. Davis, 26 Tex. 201"; People r. Congleton, 44 Cal. 92) ; and must be attached to all the material allegations. R. V. Rushworth, R. & R. 317 ; Com. v. Boynton, 12 Cush. 500 ; Com. v. J^ean, 110 Mass. 64. But where the Intent Is to be prima facie inferred from the facts stated, it need not, unless part of the statutory definition, be specifically averred. Thus, while Intent must be averred in an indictment for an attempt to steal, it need not be averred in an indictment for larceny. Ibid. Where Intent Is part of the statutory definition of the offence it must be averred. 25 (2) GENERAL FRAME OF INDICTMENT. In some Stutes the .allegation of intent may by statute be dispensed with. Wh. Cr. PL cS: Pr. § 1C4. In negligent oti'ences, to allege intent is a fatal error, unless the allegation be so stated as to be capable of discharge as surplusage. See Wh. Cr. L. 8th ed. §§ 125 et seq. Scienter. — Where guilti/ knowledge is not a necessary ingredient of the offence, or, where the statement of the act itself necessarily includes a knowledge of the illegality of the act, no averment of knowledge is necessary. 1 Hale P. C. 561 ; 2 East P. C. 51 ; 6 East, 4 74 ; 1 B. & P. 86 ; Com. v. Elwell, 2 Met. (Mass.) 190 ; Com. v. Boynton, 12 Cush. 499 ; Com. v. Stout, 7 B. Monr. 247 : Turner V. State, 1 Ohio St. 422 ; State v. Freeman, G Blackf. 248 ; Wh. Cr. PL & Pr. § 272. It is otherwise where guilty knowledge is not so implied and is a sub- stantive Ingredient of the offence. U. S. v. Buzzo, 18 Wall. 125 ; State v. Card, 34 N. H. 510; Com. v. Dean, 110 Mass. 64; People v. Lohman, 2 Barb. S. C. 216; Com. v. Blumenthal, cited infra, 528, n. ; Gabe v. State, 1 Eng. (Ark.) 519 ; Norman v. State, 24 IMIss. 54 ; Stein v. State, 37 Ala. 123. Thus in an In- dictment for selling an obscene book, a scienter is necessary (Com. v. McGarri- gall. cited 1 B-'unett & Heard's Lead. Cas. 551 ; see also State v. Carpenter, 20 Vt. 9; Com. v. Kirby, 2 Cush. 577 ; State v. Brown, 2 Speers, 129), and so in an indictment for selliug unwholesome water (Stein v. State, 37 Ala. 123) ; and in indictments for assaulting officers (Wh. Cr. L. 8th ed. § 649); though it has not been held necessary in an indictment for adultery. Com. v. Elwell, 2 Met. 190 ; Wh. Cr. L. 8th ed. § 1731. Under a statute, where the guilty knowledge Is part of the statutory definition of the offence, it must be averred. R. v. Jukes, 8 Term R. 625 ; R. v. Myd- dleton, 6 Term R. 739; 1 Starkie C. P. 196; State v. Gove, 34 N. H. 5*10; People V. Lohman, 2 Barb. 216 ; State v. Stimson, 4 Zabr. 478 ; State v. Bloe- dow, 45 Wis. 279. See U. S. v. Schuler, 6 McLean, 28. As to receiving stolen goods, see Inf. 450; Wh. Cr. L. 8th ed. § 999. As to false pretences. Inf. 528 ; Wh. Cr. L. 8th ed. § 1225. As to adultery. Inf. 995 ; AVh. Cr. L. 8th ed. § 1731. As to incest, etc., Inf. 1000; Wh. Cr. L. 8th ed. § 1752. As 1o poisoning, Inf. 1059; Wh. Cr. L. 8th ed. § 524. As to offences on the high seas, Inf^ 1061 et seq.; Wh. Cr. L. 8th ed. §§ 1871, 1886. As to perjury. Inf. 577; Wh. Cr. L. 8th ed. § 1286. But where an act is made indictable irre- spective of the scienter, the scienter is not to be averred in the indictment, since if It were, It might be regarded as a descriptive allegation, which it is necessary to prove. Wh. Cr. L. Sth ed. § 88; R. v. Gibbons, 12 Cox C. C. 237; R. v. HIcklln, L. R. 3 Q. B. 360; ll. v. Prince, L. R. 1 C. C. R. 154; State v. Goodenow, 65 Me. 30 ; State v. Bacon, 7 Vt. 219 ; Com. v. Elwell, 2 INIet. 110; Com. V. Thompson, 11 Allen, 23; Com. v. Smith, 103 Mass. 444; Phillips v. State, 17 Ga. 459. Matters of inducement or aggravation do not require so much certainty as the statement of the gist of the offence. R. v. Wright, 1 Vent. 170; Com. Dig. Indict. G. 5. As to evidence of surplusage of this kind, see Wh. Cr. Ev. §§ 138 et seq. And where the offence cannot be stated with complete certainty, it is sufficient to state it with such certainty as it is capable of. R. v. , 1 Chit. Rep. 698; R. v. Eccles, 1 Leach, 274; R. v. Gill, 2 Barn. & Aid. 204; Com. V. Judd, 2 Mass. 329 ; Com. v. Collins, 3 S. & R. 220 ; Com. v. Mlffiin, 5 Watts & S. 461. Statutory Offences. — Where a statute prescribes or implies the form of the indictment, It Is usually sufficient to describe the offence In the words of the stat- ute, and for this purpose it is essential that these words should be used. In such case the defendant must be specially brought within all the material words of the statute; and nothing can be taken by intendment. Whether this can be done by a mere transcript of the Avords of the statute depends in part upon the struc- ture of the statute, in part upon the rules of pleading adopted by statute or other- wise, in the particular jurisdiction. On the general principles of common law pleading, it nuiy be said that it is sufficient to frame the indictment in the words 26 STATUTOKY OFFENCES. (2) of the statute, in all cases where the statute so far individuates the offence that the offender has })roper notice, from the mere adoption of the statutory terms, ■what the offence he is to be tried for really is. But in no other case is it suffi- cient to follow the words of the statute. It is no more allowable, under a statu- tory chai-ge, to put the defendant on trial without specification of the offence, than it would be under a common law charge. For authorities for these positions, see Wh. Cr. PI. & Pr. §§ 220 et seq. And besides this general principle, there are the following settled exceptions to the rule before us. (1) Statutes frequently make indictable common law offences, describing them in short by their technical name, e.g. "burglary," "arson." Xo one would venture to say that in such cases indictments would be good charging the defend- ants with committing "burglary" or " arson." (2) A statute may be one of a system of statutes, from which, as a whole, a description of the offence must be picked out. Thus, a statute makes it indict- able to obtain negotiable paper by false pretences. But what are "false pre- tences?" To learn this we have to go to another statute, and this statute, it may be, refers to another statute, giving the definition of terms. No one of these statutes gives an adequate description of the offence, nor can such description be taken from them in a body. It is inferred from them, not extracted from them. (3) A statute on creating a new offence describes it by a popular name. It is made indictable, for instance, to obtain goods by "falsely personating" another. But no one would maintain that it is enough to charge the defendant with "falsely personating another." So far from this being the case, the indictment would not be good unless it stated the kind of personation, and the pei-son on whom the personation took effect. An Act of Congress, to take another illustration, makes it indictable to " make a revolt," but under this act it has been held necessary to specify what the revolt is. U. S. v. Almeida, Infra, 1061. " Fraud" in elec- tions, in a Pennsylvania statute, is made indictable ; but the indictment must set out what the fraud is. Com. v. Miller, 2 Pars. 197. (4) The terms of a statute may be more broad than its intent, in which case the indictment must so differentiate the offence (though this may bring it be- low the statutory description) as may effectuate the intention of the legislature. U. S. V. Pond, 2 Curtis C. C. 2G8 ; Com. v. Slack, 19 Pick. 304; Com. v. Col- lins, 2 Cush. 556. (5) An offence, when against an individual, must be specified as committed on such an individual, when known, tliough no such condition is expressed in the statute ; though it is otherwise with nuisances, and offences against the public. Com V. Ashley, 2 Gray, 357 ; Wh. Cr. L. 8th ed. §§ 1410 ct soj. (6) An indictment, when professing to recite a statute, is bad if the statute is not set forth correctly. AVh. Cr. PL & Pr. § 222. It is otherwise when the statute is counted on (or appealed to by the conclusion against the form of the statute, etc.), in which case, as is hereafter noticed, terms convertible with those in the statute may be used. Wh. Cr. Ev. §§ 91 et seq.; Com. v. Unknown, 6 Gray, 489 ; State v. Petty, Harp. 59 ; Butler v. State, 3 McCord, 383 ; Hall v. State, 3 Kelly, ] 8. (7) Where a general word is used, and afterwards more special terms, dtifining an offence, an indictment charging the offence must use the most special terms ; and if the general word is used, though it would embrace the special term, it is inade(|uate. State v. Plunkett, 2 Stew. 11 ; State v. Ilailbrd, 7 Port. 101 ; Arch- bold, C. P. 93. (8) An indictment on a private statute must set out the statute at full. State V. Cobb, 1 Dev. & Bat. 115 ; Goshen v. Sears, 7 Conn. 92 ; 1 Sid. 356 ; 2 Hale, 172; 2 Hawk. c. 25, s. 103; Bac. Ab. Indict, p. 2. It is otherwise with a public statute. Wh. Cr. PI. & Pr. § 224. (9) It is not necessary to indicate the particular section, or even the particular statute, ujion which the case rests. Com. v. Griflin, 21 Pick. 523, 5'25 ; Coin. v. Wood, 11 Gray, 85; Com. v. Tlioinpson, 108 Mass. 461. (10) The indictment must show what offence has been committed ami what 27 (2) GENERAL FRAME OF INDICTMENT. penalty incuiTod by positive averment. It is not sufiieient that they appear by inference. AVh. Cr. PI. & Pr. § 225. (11) Wliere a statute creates an offence, which, from its nature, requires the parti(.'ii)ation of more than one person to constitute it, a sin<>;]c individual cannot be charged with its commission unless in connection with persons unknown. Wh. Cr. PL & Pr. § 227. (12) Though the language of the statute be disjunctive, e. g. burned or caused to be burned, and the indictment chai'ge the offence in the conjunctive, e. (J. burned and caused to be burned, the allegation, as has been noticed, is suf- ficient. Wh. Cr. PI. & Pr. § 228. And it is held that when the words of the statute are synonymous, it may not be error to charge them alternatively. (13) Whenever a statute attaches to an offence certain technical predicates, these predicates must be used in the indictment. Thus in an indictment on the statute which makes it high treason to clip, round, or file any of the coin of the realm, "for wicked lucre or gain sake," it was held necessary to charge the offence to have been committed for the sake of wicked lucre or gain. 1 Hale, 220. For other illustrations see Wh. Cr. PI. & Pr. § 235. (14) A statute may include cumulative terms of aggravation, for which sub- stitutes may be found without departing from the sense of the statutory definition ; or, as in the case of the Pennsylvania and cognate statutes dividing murder into two degi-ees, the terms used to indicate the difjerentiu of the offence may be regarded as so far ecjuivalents of the common law description that the common law description may be held to be proper, and the introduction of the statutory terms unnecessary. Or, another word may be held to be so entirely convertible with one in the statute that it may be substituted without variance. In such case a deviation from the statutory terms may l>e sustained. U. S. v. Nunnemacher, 7 Biss. 129; Dewee's case, Chase's Dec. 531 ; Tully v. People, G7 N. Y. 15; State V. Shaw, 35 Iowa, 575 ; INIcCutcheon i'. State, 69 111. 601 ; State v. Welch, 37 Wis. 196; State v. Lawrence, 81 N. C. 521 ; State v. Thorne, 81 N. C. 558; Roberts v. State, 55 INIiss. 414; State v. Watson, 65 Mo. 115. Thus, if the word ^^ knoicinf/h/' he m the statute and the word ^'■advisedly" be substi- tuted for it in the indictment (R. v. Fuller, 1 B. & P. 180) ; or the word " wil- fullij" be in the statute and '•'■maliciously" in the indictment, the words ^'■advisedly" and ^^ nialiciously," not being in the statutes respectively, the indictment would be sufficient. In further illustration of this view it may be mentioned that "excite, move, and procure" are held convertible with "com- mand, hire, and counsel" as used in the statute (R. v. Grevil, 1 And. 194); and "without lawful authority and excuse" with "without hnvful excuse." R. r. Harvey, L. R. 1 C. C. 284. It is not essential, on an indictment on the Slavetrade Act of 20th of April, 1818, c. 86, §§ 2 and 3, to aver that the de- fendant knowingly committed the offence. U. S. v. Smith, 2 Mason, 143. (15) When a statute uses a nomen generalissimum as such (e. (/. cattle), then a particular species can be proved ; but when the statute enumerates certain species, leaving out others, then the latter cannot be proved under the nomen (jeneralissimum, unless it appears to have been the intention of the legislature to use it as such. R. v. Welland, R. & R. 494 ; R. v. Chard, R. & R. 488. See States. Abbott, 20 Vt. 537; Taylor w. State, 6 Humph. 285; State v. Plunket, 2 Stew. 11 ; State v. Godet, 7 Iivd. 210 ; Shubrick v. State, 2 S. C. 21 ; though see State v. McLain, 2 Brev. 443. (16) When "provisos" and "exceptions" are not by the statute incorporated in the definition of the offence, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the statutory provisos. For authorities see Wh. Cr. PI. & Pr. § 238. Nor is it necessary to allege that he is not Avithin the benefit of the provisos, though the purview should expressly notice them ; as by saying that none shall do the act i)rohibited, except in tiie cases thereinafter excepted. Wh. Cr. PI. & Pr. § 238. Extenua- tion which comes in l)y way of subse(]uent proviso or excejition need not be pleaded by the prosecution Ibid. 28 STATUTORY OFFENCES — CONCLUSIONS. (2) (17) "Where a proviso adds a qualification to the enactment, so as to bring a case within it, wliich, but for the proviso, would be witliout the statute, the indictment must show the case to be within the proviso. Ibid. § 239. (18) Where a statute forbids the doing of a particular act, without the existence of either one of two conditions, the indictment must negative the existence of both these conditions before it can be supported. Ibid. (19) Where exceptions are stated in the enacting clause (under which term is to be understood all parts of the statute which define the ofience), unless they be mere matters of extenuation or defence, it will be necessary to negative them, in order that the description of the crime may in all respects correspond with the statute. 2 Hale. 170; 1 Burr. 148; Fost. 430; 1 East Rep. G4G, in notes ; 1 T. R. 144; 1 Ley, 26; Com. Dig. Action, Statute; 1 Chitty on Plead. 357; State V. Munger, 15 Vt. 290; State v. Godfrey, 24 JNIe. 232; though see State V. Price, 12 Gill & J. 2G0 ; Elkins v. State, 13 Ga. 435; Metzker y. People, 14 III. 101. For illustrations see Wh. Or. PI. & Pr. § 240. (20) As a rule mere excusatorv defence is not to be negatived in the indict- ment. See 1 Benn. & Heard's Lead. Cas. 250 ; State v. Abbey, 29 Vt. 60 ; Com. V. Hart, 11 Cush. 130; Com. v. Jennings, 121 Mass. 47; State v. O'Donnell, 10 R. I. 472 ; Hill i\ State, 53 Ga. 472 ; Nealesu. State, 10 Mo. 498 ; Surratt v. State, 45 Miss. 601 ; Wh. Cr. L. 8th ed. § 1713. (/■.) The constitutions of most of the States contain a provision that all indict- ments shall conclude against their peace and dignity respectively, and when so the conclusion must be thus given in the indictment. See for forms. Inf. chap, iii. ; and see Lemons v. State, 4 W. Va. 755 ; Rice v. State, 3 Heisk. 215 ; Holden v. State, 1 Tex. Ap. 225. But informations are not bound by the limi- tation. Nicholas v. State, 35 AVis. 308. Thus in Pennsylvania, it is provided that all prosecutions shall be carried on in the name and by the authority of the Commonwealth of Pennsylvania, and conclude "against the peace and dignity of the same." Constit. art. v. § 23. And the proper conclusion of an indictment in Pennsylvania, said the Supreme Court, is "against the peace and dignity of the Commonwealth of Pennsylvania.'' Com. v. Rogers, 5 S. & R. 463. In New Hampshire, the Constitution retjuires all indictments to terminate " ao;ainst the peace and dignity of the State;" and it has been held, that it is sufficiently complied with by an indictment concluding " against the peace and dignity of our said State." State v. Kean, 10 N. II. "347." In South Carolina, an indict- ment stating an offence against the State, and concluding with the words " against the peace and dignity of the same," is good within the terms of the Constitution of 1790. State v. Washington, 1 Bay, 120. Where an indictment commenced "South Carolina," and not the "State of South Carolina," and concluded "against the peace and dignity of the said State," and not against the peace and dignity of the same, the court held the termination good. State v. Anthony, 1 McCord, 285. In the same State an indictment was held good, though it con- cluded "against the peace and dignity of this State," instead of concluding " against the peace and dignity of the same State." State o. Yancey, 1 Con. R. 237. But the conclusion must be against the peace and dignity of the State. State t'. Strickland, 10 S. C. 19. Whenever required by constitution or statute, the omission of the conclusion "against the peace," etc., will be held fatal. Com. V. Carney, 4 Grat. 546 ; Thompson v. Com. 20 Grat. 724 ; Lemons v. State, 4 ^Y. Va. 755 ; State v. Allen, 8 W. Va. 680 ; State v. McCoy, 29 La. An. 593 ; State v. Lopez, 19 Mo. 254 ; State v. Reaky, 1 Mo. Ap. 3 ; State v. Durst, 7 Tex. 74. By the Constitution of Arkansas, indictments must conclude "against the peace and dignity of the State of Arkansas" (Buzzard «. State, 20_ Ark. 106), but the interpolation of the words, "people of the," will not vitiate. " The form adopted by the Constitution," it was said, " is merely declaratory, and in affirmance of an old principle, not the creation of a new one." Andt'rson V. State, 5 Pike, 445. And if there be several counts in an indictment, eaclionc must so conclude, or the court will (piash the count in which the propiu- conclu- sion is omitted. State v. Cadle, 19 Ark. 613. In Mississippi, an indictment 29 (2) GENERAL FRAME OF INDICTMENT. commoncing with the words, "The State of Mississippi," and coneluding, "against the peace and dignity of the same," is snflicient. State v. Johnson, 1 Walk. 392. In Illinois, an indictment concluding " against the peace and dig- nity of the people of the State of Illinois," is good. Zarresseller v. People, 17 111. 101. An indictment in Kentucky, which states in the commencement cor- rectly the name of the commonwealth, by the authority of which it proceeds, may conclude against the peace and dignity of the commonwealth, without stat- ing the name, nor is it necessary even to aver " the authority," of the common- wealth. Com. I'. Young. 7 B. ]Mon. 1 ; Allen v. Com., 2 Bibb, 210. The Con- stitution of Iowa refpiires proceedings to be conducted in the name of the " State of Iowa;" and under it, it is held that an indictment in the name of the " State of Iowa" is good. Harriman v. State, 2 Greene (Iowa), 270. In the United States courts, a conclusion "contrary to the true intent and mean- ing of the act of congress, in such case made and provided," has been held suiR- cient. U. S. i'. La Costa, 2 Mason, 129 ; U. S. v. Smith, 2 Mason, 143. But see U. S. V. Crittenden, 1 Hcmpst. 61. But an indictment charging A. with having committed an offence, made such by a statute, "in contempt of the laws of the United States of America," is bad. U. S. v. Andrews, 2 Paine C. C. 451. Where a statute creates an offence, or declares a common law offence, when committed under particular circumstances, not necessarily in the original offence, punishable in a different manner from what it would have been without such circumstances ; or, where the statute changes the nature of the common law offence to one of a higher degree, as where what was originally a misdemeanor is made a felony, the indictment should conform to the statute creating or cliang- ing the nature of the offence, and should conclude against the form of the statute. Under a statute revising and absorbing the common law, the conclusion must be statutory. Wh. Cr. PI. & Pr. § 280, where authorities are given. But it is otherwise where the statute is only declaratory of what was a previous offence at common law, without adding to or altering the punishment. And where a statute only inflicts a punishment on that which was an offence before, judgment may be given for the punishment prescribed therein, though the in- dictment does not conclude contra fnrmam stafuti, etc. Ibid. § 281. The proper office of the conclusion, contra formam statiiti, is to show the court the action is founded on the statute, and is not an action at common law. Grain v. State, 2 Yerg. 390. One count concluding '^contra formam,^' etc., does not cure another without the proper conclusion. State i\ Soule, 20 Me. 19. But such a conclusion of the final count has been held in Alal)ama to validate prior counts defective in this respect. McGuire v. State, 1 Ala. Sel. Ca. 69 ; 37 Ala. 161. Where the offence is governed or limited by two statutes, there have been various distinctions taken respecting the conclusion against the form of the statutes in the plural or the statute in the singular. The rule given by the older writers is, that where an offence is prohibited by several independent statutes, it was necessary to conclude in the plural ; but now the better opinion seems to be, that a conclusion in the singular will suffice. 1 Hale, 173; Sid. 348; Owen, 135; 2 Leach, 827; 1 Dyer, 347 a; 4 Co. 48; 2 Hawk. c. 25, s. 117; R. v. Pim, K. & Pt. 425 ; though see R. v. Adams, C. & M. 299; U. S. v. Trout, 4 Biss. 105 ; Butman's case, 8 Greenl. 113 ; Kane v. People, 9 Wend. 203 ; Townh-y n. State, 3 Harr. N. J. 311; State v. Jones, 4 Halst. 357; State v. Dayton, 3 Zabr. 49 ; Bennett v. State, 3 Ind. 167 ; State v. Bobbins, 1 Strobh. 355 ; State V. Bell, 3 Ired. 506. The practice is to conclude in the singular in all cases, though in Maryland (State r. Cassel, 2 Harr. & Gill, 407 ; see also State v. Pool, 2 Dev. 202) it has been held that Avhen an offence is prohibited by one act of assembly, and the punishment prescribed and affixed by another, the conclusion should be against the acts of assembly. Though tliere is but one statute prohibiting an offence, it is not fatal for the indictment to conclude contrary to the "statutes." In a common law indictment, the words contra formam statuti mav be rejected 30 JOINDER OF OFFENCES. (2) as surplusage. And wliere an offence, both by statute and common law, is badly laid under the statute, the judgment may be given at common law. State v. Burt, 26 Vt. 373; State v. Gove, 3-4 N. H. 510; State v. Buckman, 8 N. H. 203; State V. Phelps, 11 Vt. 117 ; Com. v. Hoxey, 16 Mass. 385 ; Knowles v. State, 3 Dav, 103 ; Southworth v. State, 5 Conn. ^25 ; Com. v. Gregory, 2 Dana, 417 ; Resp'. V. Newell, 3 Yeates, 407; Penn. v. Bell, Addison, 171 ; Haslip v. State, 4 Havw. 273; 2 Hale, 190; Alleyn, 43; 1 Salk. 212, 213; 5 T. R. 162; 2 Leach, 584; 2 Salk. 460; 1 Ld. Raym. 1163; 1 Saund. 135, n. 3 ; 2 Hawk. c. 25, s. 115; Bac. Ab. Indict. H. 2; Burn, J., ix. (/) Offences, though differing from each other, and varying in the punishments authorized to be inflicted for tlu'ir perpetration, may be included in the same in- dictment, and the accused tried upon the several charges at the same time, pro- vided the offences be of the same general character, and provided the mode of trial is the same. R. v. Fussell, 3 Cox C. C. 291 ; U. S. v. O' Callahan, 6 McLean, 596; Charlton v. Com. 5 Met. 532; Josslyn v. Com. 6 Met. 236; Com. V. Costello, 120 Mass. 358; Com. v. Brown, 121 Mass. 69 (in Massachu- setts, the law is not changed by the stat. of 1861 ; Com v. Costello, siqira) ; People r. Rynders, 12 Wend. 425; Edge v. Com. 7 Barr, 275; Mills u Com. 13 Penn. St. 631; Hoskins v State, 11 Ga. 92; Engleman v. State, 2 Carter (Ind.), 91 ; Johnson v. State, 29 Ala. 62 ; State v. Kibby, 7 Mo. 317 ; Baker v. State, 4 Pike, 56 ; Orr v. State, 18 Ark. 540. See, however, contra, when punishments differ in character, Norvell i\ State, 50 Ala. 174. The U. S. Revised Stats. § 1024, provides that charges which may be joined in one indictment shall be joined, or may be consolidated. Li misdemeanors, the joinder of several ofi'ences will not vitiate the prosecution in any stage. Young V R., 3 T. R. 105 ; R. v. Jones, 2 Camp. 132 ; R. u. Benfield, 2 Burr. 984; R. V. Kingston, 2 East, 468; U. S. v. Peterson, 1 W. & M. 305; U. S. V. Porter, 2 Cranch. C. C. 60 ; Peoples. Costello, 1 Denio, 83 ; Harman v. Com., 12 S. & R. 69; Com. v. Gillespie, 7 S. & R. 476; WeinzorpHin v. State, 7 Blackf. 186; State r. Gummer, 22 Wis. 441; Quinn v. State, 49 Ala. 353; State V. Randle, 41 Tex. 292 ; Wh. Cr. PL & Pr. § 293. See Wh. Cr. L. 8th ed. § 978. In R. v. Broughton, 1 Trem. P. C. Ill, the indictment charged no less than twenty distinct acts of extortion. That in R. v. Sillern, 2 H. & C. 431, hereafter noticed, contained ninety-five counts. The indictment against ]\Iayor Hall, tried in New York, October, 1872, contained four counts for each of lil'ty-five ditlerent acts, containing two hundred and twenty counts in all. In felonies cognate offences may be thus joined, with a right on part of the de- fendant of requiring the prosecutor to elect. Wh. Cr." PL & Pr. § 290. A misdemeanor may in like manner and Avith the same limitations be joined with a felony. lb. § 289. After a general verdict of guilty, it is no objection to an indictment, on motion in arrest, that ofi'ences of different grades and requiring difl'erent punishments are charged in the different counts. R. v. Ferguson, 6 Cox C. C. 454 ; U. S. v. Stetson, 3 ^\\ & M. 164; State v. Hood, 51 Me. 363; Carlton v. Com. 5 Met. 632 ; Kane v. People, 8 Wend. 203 ; Com. v. Birdsall, 69 Penn. St. 482 ; Stone V. State, 1 Spencer, 404; Moody?'. State, 1 AV. Va. 337; State v. Speight, 69 N. C. 72; State v. Reel, 80 N. C. 442; Covey r. State, 4 Port. 186; ^\'ll. Cr. PL & Pr. §§ 737-40, 771, 910. There is also high authority, to tlie effect that' when there is a verdict of guilty on each of a series of counts, there ma}' be a spe- cific sentence imposed on each (Ibid. §§ 908-10) ; thougli it is otherwise in respect to counts which are defective. Ibid. § 771 ; Adams v. State, 52 Ga. 565. Every cautious pleader will insert as many counts as Avill be necessary to pro- vide for every possible contingency in the evidence; and this the hiw i)ermits. Thus lie may vary the ownership of articles stolen, in larceny (State v. Nelson, 29 jNIe. 329; Com. v. Dobbin, 2 Parsons, 380); of houses burned, in arson (II. I'. Trueman, 8 C. & P. 727; Newman i\ State, 14 Wis. 393); or the fatal in- strument and other incidents, in iioniicide. See Wh. Cr. L. Stli ed. § 540 ; Hunter v. State, 40 N, J, L. 495. 31 (2) GENERAL FRAME OF INDICTMENT. The reason for tliis is thus excellently stated by Chief Justice Shaw : — "To a person unskilled and unpractised in legal proceedings, it may seem strange that several modes of death, inconsistent with each other, should be stated in the same document ; but it is often necessary, and the reason for it, when explained, will be obvious. The indictment is but the charge or accusa- tion made by the gran^incipal) the felony and mur- der aforesaid, in manner and form aforesaid, to do and commit ; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. (J) (104) Against an accessary for harboring a principal felon in murder. {Frame the indictment^ against the principal felon ^ according to the facts in the case, and in the usual form ; then go on) : And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B., late of in the county of laborer, well knowing the said C. D. to have done, committed, and perpetrated the felony and murder in manner and form aforesaid, afterwards, to wit, on the day of in the year of our Lord , with force and arms, at aforesaid, in the county aforesaid, was acces- sary thereto, and him the said C. D. did then and there felo- niously receive, harbor, comfort, conceal, and maintain, etG.{k) {Conclude as above.) (105) Against an accessary to a burglary, after the fact. {Draw the indictment against the principal according to the pre- cedents in burglary {see " Burglary, ^^ post), and then proceed) : And the jurors aforesaid, upon their oath aforesaid, do further pre- sent, that A. B., of in the county of laborer, afterwards, to wit, on at well knowing the said C. D, to have done and committed the felony and burglary aforesaid, in manner and form aforesaid, him the said C. D. did then and there knowingly harbor, conceal, maintain, and assist. (^) {Conclude as in book 1, chap. 3.) (j) This was the indictment, as we arc informed by Mr. Davis, used against the accessaries before the fact, in Com. v. Knapp, 9 Pick. 496, as jjrincipal, " in the horrid and most diabolical murder of JoscjjIi White ; upon wliich J.J. Knapj0 was tried, convicted, and executed. Tlie words used in tlie English precedents arc 'feloniously and maliciously counsel him,' etc., not using the allegation in the following precedent, ' feloniously, wiliiilly, and of their malice aforethought.' This indictment was drawn by the attorney-general of Massachusetts." Davis's Precedents, 41. (^-) 2 Stark. C. P. 456. (0 Cro. C. P. 125. 61 % (107) ACCESSARIES. (106) Against principal and accessaries before ike fact, in burglary. {Draw the indictment against the principal according to the pre- cedents in burglary {see " Burglary, ^^ post), and then proceed) : And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B., of in the County of laborer, before the com- mitting of the fehony and burglary aforesaid, in manner afore- said, to wit, on the day of in the year of our Lord one thousand eight hundred and at aforesaid, in the county aforesaid, was accessary thereto before the fact, and did felo- niously and maliciously incite, move, counsel, hire, and procure, aid, abet, and command the said 0. D. to do and commit the said felony and burglary, in manner and form aforesaid. (m) {Conclude as in book 1, chap. 3.) (107) Accessary before the fact to suicide. First count against sui- cide as piincipal in the first degree, and against party aiding him as accessary before thefact.{n) The jurors, etc., upon their oaths present, that C. D., of laborer, on the day of now^ last past, at aforesaid, in the county of aforesaid, in and upon himself did make an assault ; and that he the said C. D., with a rope, about the neck of himself, the said C. D., then and there feloniously, wilfully, and of his malice aforethouglit did put, fasten, and bind; and that he the said C. D., with the said rope, about the neck of him the said C. D., then as aforesaid put, fastened, and bound, himself the said C. D. then and there feloniously, wilfully, and of his malice aforethought did choke and strangle ; of which said choking and strangling the said C. D. then and there instantly died. And so the inquest aforesaid, on their oath aforesaid, do say, that the said C. D., in manner and form aforesaid, himself, the said C. D., feloniously, wilfully, and of his malice aforethought did kill and murder, against the peace of said commonwealth, and contrary to the form of the statute in such case made and •provided. And that one E. F., late of said laborer, before the said self-murder, by the aforesaid C. D. in manner and form (to) 3 Ch. C. L. 1101 ; Cro. C. P. 124. (n) On tliis topic, sec Wh. C. L. 8th cd. § 210. Persons abetting suicide are principals in murder. Ibid, 62 ACCESSARIES. (108) aforesaid done and committed, that is to say, on the day and year aforesaid, him the aforesaid C. D., at aforesaid, in the County of aforesaid, to do and commit the felony and mur- der of himself aforesaid, in manner and form aforesaid, mali- ciously, feloniously, voluntarily, and of his malice aforethought did stir up, move, ahet, counsel, and procure, against the peace of the said commonwealth, and contrary to the form of the stat- ute in such case made and provided. (108) Second count against defendant for murdering suicide. And the jurors aforesaid, on their oath aforesaid, do further present, that the said E. F., on the day and year aforesaid, at aforesaid, in the county aforesaid, in and upon the said C. D. did make an assault; and that he, the said E. F.,a rope about the neck of the said C. D. then and there feloniously and of his malice aforethought did put, fasten, and bind ; and that he, the said E. F., with the said rope about the neck of him the said C. D. then as aforesaid put, fastened, and bound, him the said C. D. then and there feloniously, wilfully, and of his malice afore- thought did choke and strangle; of which choking and stran- gling he the said C. D. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said E. F., in manner and form aforesaid, him the said C. D. feloniously, wilfully, and of his malice aforethought, did kill and murder; against the peace of the said commonwealth, and contrary to the form of the statute in such case made and pro- vided. (o) [a) This is in general construction the same with the indictment in Com. v. Bowen, 13 Mass. 357. The deceased, a convict in the Northampton prison, being under sentence of death, the defendant, Avho was in an adjoining ajjart- ment, advised him the day before the intended execution to make away with himself, and thereby to elude the penalties of the law. The advice was taken, and, the experiment being successful, the defendant was indicted in the first count, as a principal in the second degree in the homicide, and in the second count, as its sole cause. The jury returned a verdict of not guilty, but in the charge of the chief justice no doubt is exjjressed that botli the counts were proper. The law was declared to be, that if the persuasions of the defendaa^ were the cause of the death of the deceased, the ibrmer was as much responsible for it as if he had himself struck the blow. See R. r. Dyson, R. & R. 523 ; R. V. Russell, 1 Moody C. C. 35G ; R. v. Allison, 8 C. & F. 418; R. v. Fretwell, 9 Cox C. C. 152 ; L. & C. 161 ; Com. v. Dennis, 105 Mass. 1G2 ; Com. v. Mink, 123 Mass. 422; Blackburn v. State, 23 Oh. St. 1G5. 63 (109) ACCESSARIES. (109) Against a defendant in murder who is an accessary before the fact in one county to a murder committed in another.{'p) That Robert Carliel, late, etc., and James Irweng, late, etc., as, etc., at, etc., not having the fear of God before their eyes but being moved and seduced by the instigation of the devil with force and arms, at aforesaid, in the county aforesaid, in and upon one, John Turner, in the peace of God and our said lord the king, then and there being, feloniously and of their malice aforethought, did make an assault, and that the afore- said Robert Carliel, with a certain gun, called a pistol, of the value of five shillings, then and there charged with gunpowder and one leaden bullet, which gun the said Robert Carliel, in his right hand, then and there had and held in and upon the afore- said John Turner, then and there feloniously, voluntarily, and of his malice aforethought, did shoot off and discharge, and the aforesaid Robert Carliel, with the leaden bullet aforesaid, from the gun aforesaid, then and there sent out, the aforesaid John Turner, in and upon the left part of the breast of him the said John Turner, then and there feloniously struck, giving to the said John Turner then and there, with a leaden bullet as afore- said, near the left pap of him the said John Turner, one mortal wound of the breadth of half an inch and depth of five inches, of which mortal wound the aforesaid John Turner, at London aforesaid, in the parish and ward aforesaid, instantly died ; and that James Irweng feloniously, wilfully, and of his malice aforethought, then and there was present, aiding, assisting, abetting, comforting, and maintaining the aforesaid Robert Carliel to do and commit the felony and murder aforesaid, in form aforesaid ; and so the aforesaid Robert Carliel and James Irweng, him the aforesaid John Turner, at London aforesaid, (p) This, we are informed by Mr. Starkie, was the indictment used against Lord Sanchar, upon which he was convicted and executed. A full account of the proceedings upon that occasion appears in 9 Co. 117. It is observable, that though the indictment is founded upon the stat. 2 & 3 E. VI. c. 24, it does not Conclude against the form of the statute, nor does this appear to be necessary ; for though, before the statute, an accessary in one county to a murder in another, could not have been indicted in either, that was for want of tlie authority in the jurors to inquire, and the statute merely remedies the defect without making any alteration either in the nature of the otFence or in the measure of punishment, which remained at common law. It was deemed necessary, says Mr. Starkie, expressly to allege the perpetration of the murder in the true county. ^64 ACCESSARIES. (HI) in the parish and ward aforesaid, in manner and form afore- said, feloniously, voluntarily, and of their aforethou2;ht malice, killed and murdered ; against the peace of our lord the now king, his crown and dignity ; and that one Robert Creighton, late of the parish of St. Margaret, in Westminster, in the County of Middlesex, Esq., not having the fear of God before his eyes, but being seduced by the instigation of the devil, be- fore the felony and murder aforesaid, by the aforesaid Robert Carliel and James Irweng, in manner and form aforesaid done and committed, that is to say, on the tenth day of May, in the tenth year of the reign of our lord James, by the grace of God, etc., the aforesaid Robert Carliel, at the aforesaid parish of St. Margaret, in Westminster, in the county of Middlesex afore- said,(5') to do and commit the felony and murder aforesaid, in manner and form aforesaid, maliciously, feloniously, voluntarily, and of his aforethought malice, did stir up, move, abet, counsel, and procure, against the peace of our said lord the king that now is, his crown and dignity. (110) [For other forms of indictments against accessaries in lionii- cide, see infra^ book 3, chap. 1.] (Ill) Larceny. Principal and accessary before the fact. That A. B., of in the county of laborer, on the day of in the year of our Lord one thousand eight hundred and at , one silver cup, of the value of ten dollars, of the goods and chattels of one C. D., then and there in the pos- session of the said C. D. being found, feloniously did steal, take, and carry away, against, etc. And the jurors aforesaid, upon their oath aforesaid, do further present, that E. F., late of in the county of lal)orer, be- fore the committing of the felony and larceny aforesaid, to wit, {q) By Stat. 4 & 5 Ph. & M. c. 4, all persons that shall maliciously command, hire, or counsel any person to commit petit treason, wilful murder, etc., every such offender being attainted or who shall stand mute, etc., or challenge peremp- torily above twenty, etc., shall be excluded from tlie benefit of clergy. Though it is proper to introduce the words of the statute into the indictment, yet an in- dictment has been holden sufficient which wholly drops the words of the statute. Starkie, C. P. 421. VOL. I.— 5 65 (118) ACCESSARIES. on the day of in the year last aforesaid, at afore- said, in the county aforesaid, did knowingly and feloniously incite, move, procure, aid, abet, counsel, hire, and command the said A. B. to do and commit the said felony and larceny, in manner and form aforesaid, against, etc. (r) (112) Against accessary for receiving stolen goods. (State the offence against the princijKil felon as above, and then pro- ceed as follows): And the jurors aforesaid, upon their oath aforesaid, do further present, that A. B., of in the county of laborer, after- wards, to wit, on the day of now last past, at B. afore- said, in the county aforesaid, the goods and chattels aforesaid, to wit, one pair of shoes of the value of two dollars {here state all the articles found upon the accessary, their value, etc.), so as aforesaid feloniously stolen, taken, and carried away, by the said A. B., in manner aforesaid, feloniously did receive and have, and did then and there feloniously aid in concealing the same; he the said C. D. then and there well knowing the same goods and chattels to have been feloniously stolen, taken, and carried away as aforesaid, against, etc.(5) (113) Against accessary for receiving the principal felon. [State the offence against the principal felon as in the next preced- ing precedent, and. then proceed as follows): And the jurors aforesaid, upon their oath aforesaid, do further present, that C. D., of in the county of yeoman, well knowing the said A. B. to have done and committed the felony and larceny aforesaid, in manner and form aforesaid, afterwards, to wit, on the day of in the year of our Lord one thou- sand eight hundred and at B. aforesaid, in the county afore- said, him the said A. B. did then and there knowingly and (r) 2 Stark. C. P. ; Cro. C. C. 124 ; Davis's Prec. 36. (.s) 2 Stark. C. P. 457. This form is given by Mr. Davis, as good under the IMassaohusetts statute. Precedents, 38. Wlien the prineipal lias been convicted in one county, and the stolen goods received in another, the form will be the same as in this preci'dent, the conviction of the princi])al being alleged conforma- bly to the record in the county where it was had. For precedents for the statu- tory offence of receiving stolen goods, see iujra, 450 et se({. i56 ACCESSARIES. (113) feloniously receive, harbor, conceal, and maintain, in the larceny and felony aforesaid, against, etc.(/) [ The only variation between indictments against accessaries to arson, mayhem, robbery, and rape, and the form given in the text, is that after the ivord felony, the phrase, '■'- and arson,'' ^^ and mayhem," " and robbery," " and rape," must be inserted as the case may require. For accessaries after the fact to larceny, see infra, 450 et seq.l [For indictments against accessaries before the fact with unknown principals in abortion, see infra, 208, 210c.] ' (f) Davis's Precedents, 367; 2 Stark. C. P. 456 ; Cro. C. C. 124. 67 BOOK III. OFFElSrCES AGAIKST THE PERS0:N" CHAPTER I. HOMICIDE, (a) (114) General form of indictment. (115) Mm-der. By shooting with a pistol. (116) Murder. By cutting the throat. (117) Murder. Against principal in the first and in the second degree, for shooting with a pistol. (117a) Murder by pistol-shot in Massachusetts. (1176) Murder by pistol-shot under N. Y. statute, with counts varying in- strument. (117c) Murder by shot-gun under Indiana statute. (117d) Murder by shooting in Iowa. (117^) Information in Kansas for murder by shooting. (117/) Murder by shooting under Nevada statute. (118) Against principal in the first and principal in the second degree. Hanging. (119) Second count. Against same. Beating and hanging. (120) Mui'der. Striking with a poker. (121) Murder. By riding over with a horse. (122) Murder. By drowning. (123) Murder. By strangling. (124) Second count. By strangling and stabbing with unknown per- sons. (125) Murder. By burning a house where the deceased was at the time. (126) Second count. Averring a preconceived intention to kill. (127) Murder. First count, by choking. Against two — one as principal in the first degree, and the other in the second degree. (128) Second count, by choking and beating. Against two — one as principal in the first degree, the other in second degTce. (a) See in full Wh. Cr. L. 8th ed. §§ 303 et seq. 68 HOMICIDE. (129) Murder. By poisoning with arsenic. (130) Murder by poisoning. First count, with arsenic in chicken soup. (131) Second count. Against one defendant as principal in the first, and the other as principal in the second degree. (132) Third count. Against one as principal and the other as acces- sary before the fact. (133) By placing poison so as to be mistaken for medicine. (134) Murder of a child by poison. (135) By mixing white arsenic with wine, and sending it to deceased, etc. (136) Murder by poisoning. First count, mixing white arsenic in chocolate. (137) Second count. Mixing arsenic in tea. (138) Murder by giving to the deceased poison, and thereby aiding her in suicide. (138a) Murder by administering cantharides. (139) Murder in the first degree in Ohio. By obstructing a railroad track. (140) Murder in the first degree in Ohio. By sending to the deceased a box containing an iron tube, gunpowder, bullets, etc., artfully ar- ranged so as to explode on attempting to open it. (141) Murder in the first degree in Ohio. By a father, chaining and con- fining his infant daughter several nights during cold weather with- out clothing or fire. (142) Second count. Not alleging a chaining. (142a) By stabbing, under Ohio statute. (143) By forcing a sick person into the street. (144) Murder of an infant by suffocation. (145) Murder by stamping, beating, and kicking. (146) Murder by beating with fists and kicking on the ground, no mortal wound being discovered. (147) For stabbing, casting into the sea, and drowning the deceased on the high seas, etc. (148) Knocking to the gi-ound, and beating, kicking, and wounding. (149) Murder by striking with stones. (150) Murder by casting a stone. (151) Murder by striking with a stone. (152) By striking with an axe on the neck. (153) By striking with a knife on the hip, the death occurring In another State. (155) Murder by stabbing with a knife. (156) Murder. Against J. T. for shooting the deceased, and against A. S. for aiding and abetting. (156a) Murder In producing abortion. (157) Murder of a bastard child. (157a) Same under Maine statute. (158) Throwing a bastard child in a privy. (159) Smothering a bastard child in a linen cloth. (160) Murder, in Pennsylvania, of a bastard child by strangling. (161) Murder. By starving apprentice. 69 OFFENCES AGAINST THE PERSON. (162) Mansliuighter by neglect. First count, that the deceased was the apprentice of the prisoner, and died from neglect in prisoner to supply him -with food, etc. (1C3) Second count, charging killing by overwork and beating. (163a) Homicide of wife by neglect to provide necessaries. (164) Manslaughter. Against a woman for exposing her infant child so as to produce death. (165) Manslaughter. By forcing an aged woman out of her house in the night, tarring, feathering, beating, and whipping her. (166) Against the keeper of an asylum for pauper children, for not supply- ing one of them with proper food and lodging, whereby the child died. (167) Manslaughter, by striking with stone. (168) Manslaughter. By giving to the deceased large quantities of spirit- uous liquors, of which he died. (169) Against driver of a cart for driving over deceased. (170) Manslaughter. Against a husband for neglecting to provide shelter for his wife. (171) Murder, in a duel fought without the State. Rev. Sts. of Mass. ch. 125, § 3. (172) Manslaughter in second degree against caj^tain and engineer of a steamboat, under New York Eev. Statute, p. 531, § 46. (173) Against the engineer of a steamboat for so negligently managing the engine that the boiler burst and thereby caused the death of a passenger. (174) Against agent of company for neglecting to give a j^i'oper signal to denote the obstruction of a line of railway, whereby a collision took place and a passenger was killed. (175) Against the driver and stoker of a railway engine, for negligently driving against another engine, whereby the deceased met liis death. (176) Involuntary manslaughter in Pennsylvania, by striking an infant with a dray. (177) Murder on the high seas. General form as used in the United States courts. (177a) Murder by shooting on high seas. (178) Murder on the high seas, by striking with a handspike. Adapted to United States courts. (179) Striking with a glass bottle, on the forehead, on board an American vessel in a foreign jurisdiction. Adapted to United States courts. (180) Against a mother for drowning her child, by throwing it from a steam- boat on Long Island Sound. Second count. Omitting averment of relationship, and charg- ing the sex to be unknown. (181) Murder on the high seas, with a hatchet. (182) Manslaughter on the high seas. Second count. Same on a lon^-boat belonging to J. P. Y., etc, 70 HOMICIDE — GENERAL REQUISITES OF INDICTMENT. (H^) (183) Misdemeanor in concealino; death of bastard child by casting it in a well, under the Pennsylvania statute. (184) Same, where means of concealment are not stated. (185) Endeavor to conceal the birth of a dead child under the English statute. (114) General Form of Indictmerit. That A. B.,(6) late of the parish of C, in the count}^ of P., laborer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil,(c) on, etc., with force and arms,((:/) at the parish afore8aid,(e) in and upon one E. F.,(/j in the peace of God and of the said commonwealth then and there being,(^) feloniously, wilfully, and of his malice aforethought,(A) did make an assault ;(z) and that he the said A. B., with a certain knife(J) of the value of sixpence,(Z:) which he the said A. B. in his right hand then and there had and held,(/) him,(m) the said E. F., in and upon the left side of the breast of him the said E. F.,(?;) then and there(o) feloniouslj^fp) wilfully, and of his malice aforethought,(9') did strike,(r) giving to the said E. F., then and there, with the knife aforesaid, (s) by the stroke aforesaid, in manner aforesaid, in and upon the said left side of the breast of him(^) the said E. F., one mortal wound of the breadth of three inches, and of the depth of six inches ;(;<) of which said mortal wound the said E. F., from the said third day of August, in the year aforesaid, until the fifteenth day of the same month of August, in the year aforesaid, at the parish aforesaid, did languish, and languishing did live ;(y) on which said fifteenth day of August, in the year aforesaid, the said E. F., at the parish aforesaid, in the county aforesaid,(i/;) of the wound aforesaid, died ;(2r)and so the jurors aforesaid, upon their oath aforesaid, do say that the said A. B., him the said E.F.,(y) in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought,(^) did kill and murder.(a) {Conclude as in book 1, chap. 3.(6) (h) As the distinction between principal in the first and principal in second degree is only artificial, a principal in the second degree may be convicted though indicted as a principal in the first degree, and vice versa. Supra, notes to 97 et seq. ; Wh. Cr. L. 8th ed. § 521 ; AVh. Cr. Ev. § 102. An agent's act, when such agent is the instrument of the principal's purpose, may be laid as the principal's act. Wh. Cr. L. 8th ed. § 522. An averment, however, that the defendant was principal, cannot be supported 71 (114) OFFENCES AGAINST THE PERSON. at common law, by pj'oof that he was accessary before the fact. R. v. Scares, 11. & Ft. 25; 11. r'. Fallon, 9 Cox C. C. 242; State v. Wyckoti; 2 Vroom, G5 ; Hughes V. State, 12 Ala. 458; Josephine c. State, 39 Miss. G13. But under recent statutes, accessaries before the fact may be charged as principals. Wh. Cr. L. 8th ed. § 522; see cases cited, supra, to 97. (r) These words are unnecessary. If included they are rejected as surplusage ; if excluded the want of them is not the subject of exception. It is not necessary to aver the defendant to be of sound mind. Fahnestock v. State, 23 Ind. 231. (f/) "Force and arms." The use of these words is unnecessary; and In one instance, the omission of them in an indictment for murder has been expressly sanctioned. Terr. v. M'Farlan, 1 Mart. 16, and cases cited, supra, in notes to book 1, chap. 2. (e) This averment must be so made as to bring the facts within the jurisdic- tion. See authorities cited in Wh. Cr. L. 8th ed. § 512. The conflict in cases where the blow is struck in one State and the death is in another is discussed in AYh. Cr. L. 8th ed. §§ 289-292. Where the indictment charged that the defendant, late of B. County, "at the county aforesaid," etc., it was held that this was sufficient to point out the place where the offence was committed. State v. Lamon, 3 Hawkes, 175. (/) In what way the name of the party injured must be set forth, has been already discussed. Notes to book 1, ch. 2 ; Wh. Cr. PL & Pr. § 96. When an officer is killed in execution of his office, his special official station need not be stated. R. v. Mackally, 9 Co. R. 68 ; Boyd v. State, 17 Ga. 194 ; Wright v. State, 18 Ga. 383. But when the case rests on a peculiar relationship, e. g., on the duty to supply necessaries to an infant, this relationship must be stated. R. v. Waters, 2 C. & K. 862 ; R. v. Goodwin, 1 Russ. C. & M. 5G3. [(/) These words do not need proof, and may be omitted without prejudice. Arch. C. P. 10th ed. 407; Com. v. Murphy, 11 Cush. 492. As to meaning of words, see Wh. C. L. 8th ed. § 310. (/*) These words have always been held necessary (AVh. Cr. L. 8th ed. § 518) ; If the qualiiicatlon of " malice aforethought" be omitted, the otlencc drops to man- slaughter. In Arkansas, however. It would seem a conviction of murder can rest on an Indictment where malice aforethought is not charged (Anderson v. State, 5 Pike, 445) ; and in Iowa It is said to be enough to aver " feloniously. Intention- ally, wilfully, maliciously, and deliberately." State v. Neeley, 20 Iowa, 108. In Ohio, It is better to aver an Intent to kill or nnirdcr, and certainly to repeat the Avords of the statute, requiring that the act be done " purposely and of delibe- rate malice." See post, 139. As to scienter In poisoning, see infra, 130. The question of variance in cases where the Intent Is to kill A., but the blow falls on B., is discussed In Wh. Cr. L. 8th ed. ^ 514. How far the statutory terms as to Intent must be followed. Is discussed In Wh. Cr. L. 8th ed. § 393. See, also, last notes to this form. (t) As to this allegation, see Wh. C. L. 8th ed. § 518. The "assault" is omitted In indictments for negligent homicides without violence. R. v. Plummer, 1 C. & K. 600 ; R. V. Hughes, 7 Cox C. C. 301 ; R. i: Friend, R. & R. 20. Bat the assault may. In any view, be rejected as surplusage. R. v. Ellis, 2 C. & R. 470. ( /) The common law rule in pleading the Instrument of death Is, that where the instrument laid and the instrument proved are of the same nature and charac- ter, there is no variance ; where they are of opposite nature and character, the contrary. Wh. Cr. L. 8th ed. § 519, and cases there cited. Thus evidence of a dagger will support the averment of a knife, but evidence of a knife will not support the averment of a pistol. An illustration of this distinction Is found In Com. V. Haines, 6 Pa. L. J. 232; Wh. Cr. Ev. § 91. The defendant was charged with having erected a stuffed Paddj/ with intent to libel the Catholic Irish ; and he endeavored to defend himself bv proof that the device was a stulied 72- HOMICIDE — GENERAL REQUISITES OF INDICTMENT. (114) ShelaJi, and the object was to annoy the Protestant Irish. The instructions of the court were invoked as to whether there was a variance ; and Gibson, J., said that if there was a mere averment of a Paddy, and evidence of a Shelah, the object and cliaracter of tlie figures being simihir, there was no variance ; but that if, on the contrary, they were devices of an antagonistic character, the indictment could not be supported. Where the method of operation is the same though the instrument is diflerent, no variance exists ; where the former is not the case, the rule is otherwise. The same reasoning applies to indictments for homicide. Wh. Cr. Ev. §§ 92-8. Where the species of death would be different, as if the indictment allege a stabbing or shooting, and the evidence prove a poisoning or starving, the variance is fatal (R. v. Briggs, 1 Mood. C. C. 318) : and the same if the indictment state a poisoning, and tlie evidence prove a starving. Thus where an indictment stated that the defendant assaulted the deceased, and struck and beat him upon the head, and thereby gave him divers moi'tal blows and bruises, of which he died, and it appeared in evidence that the death was by the deceased falling on the ground, in consequence of a blow on the head received from the defendant ; it was holden that the cause of the death was not properly stated. R. v. Thompson, 1 Mood. C. C. 139 ; Wh. Cr. Ev. § 91. But if it be proved that the deceased was killed by any other instrument, as with a dagger, sword, staff, bill, or the like, capable of producing the same kind of death as the instrument stated in the in- dictment, the variance will not be material. R. v. Mackall}', 9 Co. 67 a ; Gilb. Ev. 231 ; R. v. Briggs, 1 Mood. C. C. 318, and cases cited in Wh. C. L. 8th ed. § 519. So if the indictment allege a death by one kind of poison, proof of a death by another kind of poison will support the indictment. lb. ; and see 2 Hale, 115, 185 ; 2 HaAvk. c. 23, s. 84. An indictment having charged that the prisoner, with both her hands about the neck of the deceased, the neck and throat of the deceased did squeeze and press, and by such squeezing, etc., did suffocate and strangle the deceased ; and the evidence being that the prisoner suffocated the deceased by placing one hand on his mouth and the other on the back of his head ; Patteson, J ., held that it was sufficient if the death was caused by suffocation, and that the evidence supported the indictment. R. v. Culpin, 5 C. & P. 121. And in another case the offence being charged to have been committed with a certain sharji instrument, and the evidence was that the wound was partly torn and partly cut, and was done with an instrument not sharp, Parke, B., held the indictment proved, and said the degree of sharpness was immaterial. R. v. Grounsell, 7 C. & P. 788. And where an indictment for the murder of a bastard child stated that the defendant forced and thrust moss and dirt into its throat, mouth, and nose, and that by forcing and thrusting the moss and dirt into the throat, mouth, and nose of the child, the child was choked, etc., and it appeared that the child was not immediately suffocated by the moss and dirt, but that the moss and dirt caused an injury and inffammation in the throat, which closed the passage to the lungs and stomach, of which the child died ; it was declared that the evidence supported the indictment, and that it was sufficient to state the proximate cause of the death, without stating the intermediate process resulting from that proxi- mate cause. R. v. Tye, R. & R. 345. Where the prisoner was indicted for cutting the throat of the deceased, and a surgeon proved that what was techni- cally called the throat was not cut, as the wound did not extend so far round the neck, Patteson, J., held that the indictment must be understood to mean what is commonly called the throat. R. v. Edward, 6 C. & P. 401. Where the indict- ment alleged that the defendant suffocated the deceased by placing her hand on the mouth of the deceased, and the jury Ibund that the death was caused by suf- focation, but could not say how it was occasioned, Denman, C. J., held the in- dictment proved. R. v. Waters, 7 C. & P. 250. But under an indictment for shooting with a pistol loaded with gunpowder and a leaden bullet, it appeared that there was no bullet in the room where the act was done, and no bullet in the wound ; and it was proved that the wound might have been occasioned by the wadding of the pistol, Bolland, B., Park and Parke, J., held the indictment not proved. R. v. Hughes, 5 C. & P. 120. " Shooting" is not sustained by proof 73 (114) OFFENCES AGAINST THE PERSON. of striking -with a gun. Giiedel v. People, 43 111. 226. The same principle was applied where an indictment charged that the defendant struck the deceased with a brick, and it appeared that he knocked the deceased down with his fist, and that the deceased fell upon a brick which caused his death. R. v. Kelly, 1 Mood. C. C. 113. See to same effect, State i'. Jenkins, 14 Rich. (S. C.) 215. In New York a far more liberal rule has been announced, it having been sub- stantially held that the use of a pistol might be proved under an indictment charging the weapon to have been a knife. People v. Colt, 3 Hill, 432. See generally Wh. C. L. 8th ed. § 519. In most States, it is now by statute unnecessary to state the instrument of death. These statutes, however, do not apply to cases of death caused by neg- lect, or by fright induced by the defendant's misconduct, without any particu- lar physical instrument of injury being used. In such cases, as well as at common law, the indictment must set forth the special facts. See R. v. Pitts, 1 C. & M. 284 ; R. V. Waters, 6 C. & P. 328 ; State v. Morrissey, 70 Me. 401, and cases detailed in Wh. Cr. L. 8th ed. § 519 et seq. ; infra, 156rt. It is enough to aver, under any circumstances, that the assault was made "by some means, instruments, and weajjons, to the jurors unknown." Wh. C. Ev, § 93 ; State v. Wood, 53 N. H. 484; State v. Burke, 54 N. H. 92; Com. r. Webster, 5 Cush. 295 ; State t'. Williams, 7 Jones N. C. 446 ; People v. Cronin, 34 Cal. 191 ; People v. Martin, 47 Cal. 96. See also Com. v. Martin, 125 Mass. 394. (k) The allegation of value is now immaterial, and need not be proved. In England, where deodands are still recognized, it may be necessary to introduce it ; though the same object does not exist in this country. In the edition of Hale's Pleas of the Crown, by Messrs. Stokes and Ingersoll, i. 424, will be found an interesting and curious exposition of the law of deodands. (/) Though the hand in which the instrument was held is set out in the old forms, it is clearly not necessary to prove it. Arch. C. P. 10th ed. 407 ; Wh. C. L. 8th ed. § 52*8 ; Com. v. Costley, 118 Mass. 1 ; Coates u. State, 72 111. 308. (m) The "him" which is here inserted is not usually introduced; and in several cases counts have been sustained without it, where the express exception was taken. Com. v. White, 6 Biun. 183. The insertion, however, adds to per- spicuity. (n) The old practice was to state in what part of the body the deceased was wounded ; and, therefore, if it be said that the wound was on the arm, hand, or side, without saying whether the right or the left, it is bad. 2 Hale, 185 ; con- tra, Whelchell v. State, 23 Ind. 89. If, however, the wound be stated to be on the left side, and j^roved to be on the right, or alleged to be on one part of the body, and proved to be on another, the variance is immaterial. 2 Hale, 186. " Upon the body" is now a sufficient averment. Sanchez r. People, 8 E. P. Smith, 147 ; Whelchell v. State, 23 Ind. 89 ; Thompson v. State, 36 Tex. 326. See, for other cases, Wh. C. L. 8th ed. § 532. (o) The time need not be formally repeated ; "then and there" carries the averment back to the original date. Stout v. Com., 11 S. & R. 177. Even if the " then and there" be omitted, it would seem that the court Avill still give judg- ment on the indictment if the grammatical construction be such as to apply the time at the outset to the subsecjuent allegations. State v. Cherry, 3 ]\Iurph. 7. But where tAvo distinct periods have been aveiTcd, the statement "then and there" is not enough ; one particular time should be averred. Storrs v. State, 3 Miss. 45. See sxpra, note on time to book 1, ch. 2. (p) See, as to the repetition of "feloniously," AVh. Cr. PI. & Pr. § 260. (f/) The repetition of this phrase in this place has been held to be unnecessary in Korth Carolina (State v. Owen, 1 ]\Iurph. 452), though it is safer to intro- duce it. Resp. V. Honeyman, 2 Dall. 228. (?■) Wherever death is caused by physical violence, it is proper that the in- dictment should allege that the defendant struck the deceased. See 5 Co. 122 a ; 2 Hale, 184; 2 Hawk. c. 53, s. 82; Wh. C. L. 8th ed. §530; Edmondson V. State, 41 Tex. 496 ; and this must also be proved, though in Virginia it has 74 HOMICIDE — GENERAL REQUISITES OF INDICTMENT. (114) been ruled that where the instrument was a dagger, "stab, stick, and thrust," would be held equivalent to strike. Gibson ?'. Com., 2 Va. Cases, 111. It is not necessary, however, to prove that he struck him with the particular instni- ment mentioned in the indictment ; and therefore, although the indictment allege that the defendant did strike and thrust, proof of a striking which produced con- tused wounds only would maintain the indictment. Arch. C. P. 10th ed. 486. " Firinsi" is a variance from "shooting;" Shepherd v. State, 54 Ind. 25; and so, as we have seen, is "striking;" Guedel v. People, 43 111. 226. Where "strike" is not the appropriate term, the mode of injury must be speciallv de- scribed. R. V. AVebb, 2 Lew. 196 ; 1 M. & Rob. 405 ; ,R. v. Tye, R. & R.'345. Where the indictment charges that A. struck, etc., and B. abetted, it is no variance, if it appear that B. struck and A. abetted. State v. Cockman, 1 Wins. (N. C.) No. 2, 95. Supra, notes to book 1, chap. 3. (s) The indictment must distinctly state that the blow was struck by the instru- ment alleged. An indictment, however, charging "that A. B. with a certain stick, etc., in and upon the head and face of C. D. then and there did strike and beat, giving to the said C. D. then and there, with the stick aforesaid, in and upon the head and face of the said C. D., several mortal wounds, of which said several mortal wounds the said C. D. instantly died," is good ; for there is in the first clause a direct allegation of a stroke, and the particle c/iring, and the words the7i and there, conne(!t the allegation with the mortal wound in the second clause. Gibson v. Com., 2 Va. Cases, 111. Where the allegation was, " that the prisoner in and upon M. F., etc., feloniously, etc., did make an assault with a certain gun, called a rifle gun, etc., then and there charged with gunpowder and two leaden bullets, which said gun he, etc., had and held, at and against the said M. ¥., then, etc., feloniously, etc., did shoot ofi"and discharge, and that the said M. F., with the leaden bullets aforesaid, by means of shooting off and discharging the said gun, so loaded, to, at, and against the said M. F., as aforesaid, did, etc., feloniously, etc., strike, penetrate, and wound the said JNI. F., in and upon the left side of^ the said M. F., etc., giving to her the said M. F., etc., with the leaden bullets aforesaid, by means of shooting off and discharging the said gun, so loaded, to, at, and against the said M. F., and by such stricken, etc., the said M. F., as aforesaid, one mortal wound in and upon the left side of the said M. F.," etc. ; on a motion to ai-rest the judgment, on the ground that there was no sufficient averment that the gun was shot off, or that the contents were discharged, it was said that the inference seemed to be one of absolute certainty, that the contents of the gun were shot off and discharged, for there was notiiing else to which the words "did shoot off and discharge" with a gun charged Avith gun- powder and leaden bullets, could be applied. State v. Freeman, 1 Sj^ears, 57. (<) The insertion of the pronoun "him" at this place, though not usual, tends to help the grammatical construction. (w) The wound must be alleged to have been " mortal," and death therefrom must be distinctly averred. Wh. C. L. 8th ed. § 536. As to causal relation see ibid. As to special meaning of the term "wound," see Wh. Cr. L. 8th ed. § 533. Whatever once may have been thought, it is now settled that it is not necessary to state, in an indictment for murder, the length, breadth, or depth of the wound. R. v. Mosely, 1 Mood. C. C. 97; Com. v. AVoodward, 102 Mass. 155; West V. State, 48 Ind. 483. And of a "bruise" no dimensions need be given. Turner's Case, 1 Lew. 177 ; State v. Owen, 1 Murph. 452. And so as to incised wounds. State t'. Conley, 39 Me. 78; Com. ii. Chapman, 11 Cush. 422; Dil- lon V. State, 9 Ind. 122; Lazier v. Com., 10 Grat. 708; Smith v. State, 43 Tex. 643. But some kind of wound, in cases of this class, must be averred. It is not enough, for instance, to aver that the death of an infant was caused by "ravishing." R. v. Lad, 1 Leach, 38; 1 C. & M. 345. (r) The allegation of languishing, though it ma}- be proper in the cases where there actually is an intermission between the blow and the death, maybe rejected as sm-jjlusage in all others. Penn. v. Bell, Add. 171, 175; State v. Conley, 39. Me. 78. 75 (lU) OFFENCES AGAINST THE PERSON. {w) See 3 Ch. C. L. 735 ; Bae. Abr. Tit. Indict, s. 4. Th.at this is necessary at common law, see Wh. C. L. 8th ed. § 358. (x) The dates here stated in the indictment need not be proved as laid, though an indictment upon which it does not appear that the death happened within a year and a day after the wound was given, is fatally defective ; because when the death does not ensue within a year and a day after the wound is intlicted, the law presumes that it proceeded from some other cause. State v. Orrell, 1 Dev. 139 ; People V. Aro, 6 Cal. 207 ; Edmonson v. State, 41 Tex. 496. All that is necessary to be proved, in order to support this part of the indictment, is, that the deceased died of the wound or wounds given him by the defendant, within a year and a day after he received them ; as otherwise the case is not made out. 1 Hawk. c. 23, s. 90. Where it appeared that the man's death was caused by improper applications to the wound, and not by the wound itself, the defend- ant is not responsible ; though if a man be wounded, and the wound turn to a gangrene or fever for want of proper ap])lications, or from neglect, and the man die of the gangrene or fever ; or if it become fatal from the refusal of the party to undergo a surgical operation (R. v. Holland, 2 M. & Rob. 351 j, this is homicide, and murder or not, according to the circumstances under which the wound was given. 1 Hale, 421. An indictment against two defendants, which states the death to be the result of two different injuries inflicted by each of the defendants separately, on different days, is bad. R. i\ Devett, 8 C. & P. 639. The date of death must be distinctly averred. State v. Conley, 39 Me. 78 ; Les- ter V. State, 9 Mo. 658; State v. Mayfield, 66 Mo. 125; Wh. C. L. 8th ed. §§ 536-7. "Immediately" will not suffice. State v. Testerman, 68 Mo. 408; AVh. Cr. Pi! & Pr. § 132; nor "instantly" without "then and there." R. v. Brownlow, 11 A. & E. 119 ; State v. Lakey, 65 Mo. 217 ; State v. Steeley, 65 JVlo. 218. But the averment "killed" on a certain day involves death on that day. State v. Ryan, 13 IVIinn. 371. The term "then and there" has been considered in the notes to book 1, ch. 2. Variance as to these dates is not fatal. AVh. Cr. PI. & Pr. § 139 ; State v. Haney, 67 X. C. 467. (?/) In Michigan, the omission of this averment was held not fatal, after convic- tion of manslaughter. Evans v. People, 12 Mich. 27. (z) This repetition is necessary. State v. Heas, 10 La. R. 195. (a) The second count of indictment for murder charged J. O. B. that he, " on the 27th of May, feloniously, and of his malice aforethought, struck the deceased with a stick, of which said mortal wound the deceased died on the 29th of May ; that T. R., D. D., etc., on the day and year first aforesaid, at the parish afore- said, feloniously, and of their malice aforethought, Avere present aiding and abet- ting the said J. 0. B. the felony last aforesaid to do and commit ;" and concluding, " the jurors, etc., say that the said J. O. B., T. R., D. D., etc., him the deceased, in manner and form last aforesaid, feloniously, and of their malice aforethought, did kill and murder." The third count charged T. R. that he, "on the 27th day of May, a certain stone feloniously, and of his malice aforethought, cast and threw, and which said stone, so cast and thrown, struck deceased, of which mor- tal blow the deceased died on the 29th of May; and that J. O. B., D. D., etc., were present, aiding and abetting," etc., as in the first count. It was objected, 1st, that the indictment was inconsistent, in charging the principals in the second degree with committing the felony at the time of the stroke, whereas it was no felony till the time of the death ; and, 2d, that the general verdict of guilty left it uncertain which was the cause of death, the stick or the stone, and that there- fore no judgment could be entered on either. It was held, 1st, that the form of the indictment was good ; and, 2d, that the alleged generality was immaterial, the mode of death being substantially the same. R. v. O'Brian, 1 Den. C. C. 9. If several be charged as principals, one as principal perpetrator, and the others as present, aiding and abetting, it is not material which of them be charged as principal in the first degree, as having given the mortal blow, for the mortal injury done by any one of those present is, in legal consideration, the injury of each and G\ery one of them. Fost. 551 ; 1 East, P. C. 350 ; State v. Fley 76 HOMICIDE. (115) (115) 31vrdei\ By shooting with a pistoL{c) That A.. B., of, etc., yeoman, on with force and arms, at in the county aforesaid, in and upon the body of one C. D., in the peace of said commonwealtli then and there being, felo- niously, wilfully, and of his malice aforethought, did make an assault ; and that the said A. B., a certain pistol, of the value of two dollars, then and there charged with gunpowder and one leaden bullet, which said pistol, he the said A. B. in his right hand then and there had and held, then and there feloniously, wilfully, and of his malice aforethought did discharge and shoot off', to, against, and upon the said C. D. ; and that the said A. B. with the leaden bullet aforesaid, out of the pistol aforesaid, then and there, by force of the gunpowder aforesaid, by the said A. B. discharged and shot oft' as aforesaid, then and there felo- niously, wilfully, and of his malice aforethought, did strike, penetrate, and wound him the said C. D. in and upon the right side of the belly of him the said C. D., giving to him the said & Rochelle, 2 Brev. 338; State i?. Mair, 1 Coxe, 453. See notes to book 1, ch. 2, supra. Where the deceased was killed by a riotous attack, it is not necessary to aver such riot, but every participant is chargeable with. the guilty blow, though he may not have struck it himself. State v. Jenkins, 14 Rich. (S. C.) 215. See supra, note to forms 97, 114. If the actual perpetrator of a murder should escape by flight, or die, those present, abetting the commission of the crime, may be indicted as principals ; and though the indictment should state that the mortal injury was committed by him who is absent, or no more, yet if it be subseijuently alleged that those who are indicted were present at the perpetration of the crime, aud did kill and murder the deceased, by the mortal injury so done by the actual perpetrator, it will be sufficient. State v. Fley, 2 Brev. 338. (6) In New York, though a common law indictment for murder will bring the case within the statutory felony, yet there can be no conviction under it unless the offence comes up to the grade assigned by the statute to a felonious and in- tentional homicide. People v. Enoch, 18 Wend. 159. ■ In Pennsylvania. Com. v. White, 6 Binn. 183, and in North Carolina, State V. Dunckley, 3 Iredell, 117 (infra, 153), the statutory conclusion is unnecessary, and on an indictment concluding as at common law, the statutory punishment may be inflicted. The averments of malice in a common law indictment for murder will sustain a verdict of murder in the first degree in JNIaine, New Hampshire, Massachusetts, New York, Pennsylvania, Virginia, Indiana, Wisconsin, Arkan- sas, Texas, Nevada, Minnesota, and California. Wh. Cr. L. 8th ed. § 393. In Connecticut by statute special degree must be designated. State v. Smith, 38 Conn. 397. In Kansas the assault must be averred to be deliberate and pre- meditated. State V. Brown, 21 Kas. 38. As to Iowa, see State v. McNally, 32 Iowa, 81. As to Missouri, State v. Phillips, 24 Mo. 475. (c) 3 Chit. C. L. 170; Davis's Precedents, 170. See infra, 15G. 77 (116) OFFENCES AGAINST THE PERSON. C. D. tlien and there, with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said A. B., in and upon the right side of the belly of him the said C. D.,one mortal wound of the depth of four inches, and of the breadth of half an inch; of which said mortal wound, he the said C. D. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B., him, the said C. D., in the manner and by the means aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder. {Conclude as in book 1, chap. 3.) (116) Murder. By cutting the throat.{d) That A. B., of, etc., on at in the county aforesaid, with force and arms, in and upon one C. D. feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said A. B.,with a certain knife, made of iron and steel, which he the said A. B. in his right hand then and there had and held, the throat of him the said C. D. feloniously, wilfully, and of his malice aforethought, did strike aud cut ; and that the said A. B., with the knife aforesaid, by the striking and cutting afore- said, did then and there give to him the said C, D., in and upon the said throat of him the said C. D., one mortal wound, of the length of three inches, and of the depth of two inches ; of which said mortal wound the said C. D., from the said day of to the day of aforesaid, at aforesaid, in the county aforesaid, did suffer and languish, and languishing did live ; on which said daj' of aforesaid, in the 3^ear afore- said, at aforesaid, in the county aforesaid, he the said C. D., of the said mortal wound, died. And so the jurors afore- said, upon their oath aforesaid, do say, that the said A. B. him the said C. D., in manner and form aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did kill and murder. {Conclude as in chap. 3.) (f/) 3 Ch. C. L. 757; Davis's Precedents, 173. 78 HOMICIDE. (117) (117) Murder. Against principal in the first and principal in the second{e) degree, for shooting with a instol.{f) That T. P. K., late of the said county of Monroe, lal^orer, and D. C, late of said county of Monroe, laborer, not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the fifth daj^ of October, in the year of our Lord eighteen hundred and thirty-five, with force and arms, at the said county of Monroe, in and upon one P. S. . . . . in the peace of God and of the said State of Ala- bama, then and there being, feloniously, wilfull}'', and of their malice aforethought, did make an assault ; and that the said T. P. K., a certain pistol of the value of ten dollars, then and there loaded and charged with gunpowder and twenty leaden bullets, commonly called buckshot, which pistol he, the said T. P. K., in his right hand, then and there had and held, to, against, and upon the said P., then and there feloniously, wilfully, and of his malice aforethought, did shoot and discharge ; and that the said T. P. K., with the leaden bullets aforesaid, out of the pistol aforesaid, then and there, by force of the gunpowder, shot and sent forth, as aforesaid, the aforesaid P., in and upon the but- tocks of him the said P., a little above the rectum of him the said P., then and there, feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and wound, giving to the said P. then and there, with the leaden bullets aforesaid, com- monly called buckshot, as aforesaid, so as aforesaid shot, dis- charged, and sent forth out of the pistol aforesaid, by the said T. P. K., in and upon the said buttocks of him, the said P., a little above the rectum of him, the said P., one mortal wound of the depth of six inches, and of the breadth of half an inch, of which said mortal wound the said P., from the said fifth day of October, in the year of our Lord eighteen hundred and thirty- five, until the thirteenth of the same month of October, in the year last aforesaid, in the county aforesaid, did languish, and languishing did live ; on which said thirteenth day of October, (e) It should be observed that the party indicted as principal in the first degree can be convicted although it appear that he was only ])rincipal in the second degree; and so of tlie converse. State v. Cockman, 1 Wins. (N. C.) No. 2, 9.5. See supra, 97, and notes. (/) This form was sustained in State v. Coleman, 5 Port. ?>2. 79 (117a) OFFENCES AGAINST THE PERSON. in the year last aforesaid, the same P., at the county aforesaid, of the mortal wound aforesaid, died ; and that the aforesaid D. C, then and there, feloniously, wilfully, and of his malice afore- thought, was present, aiding, helping, abetting, and comforting, assisting and maintaining the said T. P. K., the felony and mur- der aforesaid, in manner and form aforesaid, to do and commit. And so the jurors aforesaid, upon their oaths aforesaid, do say, that the said T. P. K and the said D. C, the said P. then and there, in manner and form aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder. {Conclude as in book 1, chap. 3.) (117a) Murder. By pistol shot in Massachusetts. " The jurors for, etc., on their oath present, that J. H. C, etc., on, etc., at, etc., with force and arms in and upon one J. H., felo- niously, wilfully, and of his malice aforethought, did make an assault ; and that the said J. II. C, a certain pistol then and there charged with gunpowder and one leaden bullet, then and there feloniously, wilfully, and of his malice aforethought, did discharge and shoot off to, against, and upon the said J. H. ; and that the said J. II. C, with the leaden bullet aforesaid, out of the pistol aforesaid, then and there by the force of the gun- powder aforesaid, by the said J. H. C, discharged and shot off as aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and "wound the said J. II. in and upon the left side of the head of the said J. H. ; giving to the said J. H. then and there, with the leaden bullet aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said J. H. C, in and upon the left side of the head of the said J. H., one mortal wound of the depth of six inches and of the breadth of half an inch ; of which said mortal wound the said J. H. then and there instantly died. And so the jurors aforesaid, on their oath aforesaid, do say that the said J. H. C, her, the said J. H., in the manner and by the means aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder; against the peace," etc.(^) (g) Commonwealth v. Costly, ITS Mass. 1. 80 HOMICIDE. (117^) (1176) Murder. By 'pistol shot (under New York statute)^ with counts varying instruments of death. In the Court of Sessions of the county of Albany. Of Sep- tember term, in the year of our Lord one thousand eight him- dred and seventy-three. City and county of Albany, ss : The jurors for the people of the State of jSTew York, in and for the body of the city and county of Albany, being then and there sworn and charged upon their oath, present, that E. L., late of the first ward of the city of Albany, in the county of Albany aforesaid, on, etc., with force and arras, at the town of Water- vliet, in the county of Albany aforesaid, in and upon one J. D. W., then and there being, feloniously, wilfully, of malice afore- thought, and from a deliberate and premeditated design to effect the death of said J. D. W., did make an assault: and that the said E. L., a certain pistol, then and there charged and loaded with gunpowder and one leaden bullet, which he, the said E. L., then and there in his right hand had and held at and against the said J. D. W., then and there feloniously, wilfully, of his malice aforethought, and from a deliberate and premeditated design to effect the death of said J. D, W., did shoot ofi'and discharge; and that the said E. L., with the leaden bullet aforesaid, by means of shooting off and discharging the said pistol so loaded at and against the said J. D. W., did then and there feloniously, wilfully, of his malice aforethought, and from a deliberate and premeditated design to effect the death of the said J. D. W., strike, penetrate, and wound the said J. D. W. in and upon the front part of the head of the said J. D. W., giving to him, the said J. D. W., then and there, with the leaden bullet aforesaid, by means of shooting off and discharging the said pistol so loaded, at and against the said J. D. W., and by such striking, penetrating, and wounding the said J. D. W. as aforesaid, one mortal w^oun.d in and through the head of him the said J. D. W., of which said mortal wound the said J. D. W. did then and there soon after die. And the jurors aforesaid, upon their oath aforesaid, do say, that the said E. L., him, the said J. D.W., in the manner and by the means aforesaid, feloniously, wilfully, of his malice aforethought, and from a deliberate and premedi- tated design to effect the death of the said J. D. W., did kill VOL. I.— 6 81 (1176) OFFENCES AGAINST THE PERSON. and murder, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of I^ew York and their dignity. Second Count. — And the jurors aforesaid, upon their oath afore- said, do fartlier present, that E. L., late of the first ward of the city of Albany, in the county of Albany aforesaid, on, etc., with force and arms, at the town of Watervliet, in the county of Albany aforesaid, in and upon one J. D. VV. then and there being, feloniousl}^ wilfullj', and from a deliberate and premeditated design to effect the death of said J. D. W., did make an assault ; and that the said E. L. a certain pistol, then and there charged and loaded with gunpowder and one leaden bullet, which he the said E. L. then and there in his right hand had and held, at and against the said J D. W., then and there feloniously, wilfully, and from a premeditated and deliberate design to effect the death of said J. D. W., did shoot off and discharge; and that the said E. L., with the leaden bullet aforesaid, by means of shooting oft' and discharging the said pistol so loaded at and against the said J. D. W., did then and there feloniouslj', wilfully, and from a deliberate and premeditated design to ett'ect the death of the said J. D. W., strike, penetrate, and wound the said J. D. W. in and upon the front part of the head of the said J. D. W., giv- ing to him, the said J. D. W., then and there, with the leaden bullet aforesaid, by means of shooting off" and discharging the said pistol so loaded, at and against the said J. D. W., and by such striking, penetrating, and wounding the said J. D. W. as aforesaid, one mortal wound in and through the head of him, the said J. I). W., of which said mortal wound the said J. D. W. did then and there soon after die. And the jurors aforesaid, upon their oath aforesaid, do say that the said E. L., him the said J. D. W. in the manner and by the means aforesaid, felo- niously, wilfully, and from a deliberate and premeditated de- sign to eft'ect the death of the snid J. D W., did kill and murder, contrary to the form of the statute in such such case made and ])rovided, and against the peace of the people of the State of Kew York and their dignity. [Here follow fourteen similar counts alleging other wounds by other shots.] Seventeenth Count. — And the jurors aforesaid, uj)on their oath 82 HOMICIDE. (1-1"^) aforesaid, do further present that the said E. L., on, etc., at the town of Watervliet, in the coujity of Albany aforesaid, with force and arms, in and uj)on J. T). W., felonionsly, wilfully, of malice aforethought, and from a deliberate and premeditated design to effect the death of said J. D. W.,did make an assault, and that the said E. L., with a certain razor, which lie, the said E. L., in his right hand, then and there, had and held, the throat of him, the said J. D. W., feloniously, wilfully, of his malice afore- thought, and from a deliberate and premeditated design to effect the death of the said J. D. W., did strike and cut, and that the said E. L., with the razor aforesaid, by the striking and cutting aforesaid, did then and there give to him, the said J. D. W., in and upon the throat of him, the said J. D. W., one mortal wound of the length of three inches and of the depth of two inches, of which said mortal wound the said J. D. W. did suffer and languish at the town of Watervliet in the said county of Albany, and that soon thereafter the said J. D. W., at the said town of Watervliet in the said county of Albany, on the said fifth day of August, in the year of our Lord one thousand eight hundred and seventy-three, of the said mortal wound, did die. And so the jurors aforesaid, upon their oath aforesaid, do say that the said E. L., in manner and form aforesaid, then and tliere feloniously, wilfully, of his malice aforethought, and from a de- liberate and premeditated design to effect the death of the said J. D. W., did kill and murder, contrarj' to the form of the statute in such case made and provided, and against the peace of the people of the IState of New York and their dignity. Eighteenth Count. — And the jurors aforesaid, upon their oath aforesaid, do further present, that the said E. L., on, etc., at the town of Watervliet, in the county of Albany aforesaid, with force and arms in and upon said J. D. W., feloniously, wilfully, and from a premeditated design to efiect the death of the said J. D. W., did make an assault, and that the said E. L., with a certain razor, which he, the said E. L., in his right hand then and there had and held, the throat of him, the said J. D. "W., feloniously, wilfully, and from a deliberate and jtremedi- tated design to effect the death of the said J. 1). W., did strike and cut, and that the said E. L.,with the razor aforesaid, by the striking and cutting aforesaid, did then and there give to him »3 (117c) OFFENCES AGAINST THE PERSON. the said J. D. W., in and upon the throat of him, the said J. D. "W., one mortal wound of the length of three inches, and of the depth of two inches, of which said mortal wound the said J. D. "W. did sutler and languish at the town of Watervliet, in said county of Albany ; and that soon thereafter the said J. D. W., at the said town of Watervliet, in the said county of Albany, on the said fifth day of August, in the year of our Lord one thousand eight hundred and seventy-three, of the said mortal wound did die. And so the jurors aforesaid, upon their oath aforesaid, do say that the said E. L., him, the said J. D. W., in manner and form aforesaid, then and there feloniously, wilfully, and from a deliberate and premeditated design to effect the death of said J. D. W., did kill and murder, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. [Here follow four other similar counts, two alleging the wounds by a knife and two by some sharp instrument to the jurors un- known.](A) Nathaniel C. Moak, District Attorney. (117c) Murder by shot-gun under Indiana statute. The grand jurors for, etc., upon their oaths present, that L. V., on, etc., at, etc., did then and there unlawfully, feloniously, pur- posely, and with premeditated malice, kill and murder M. M., by then and there feloniously, purposely, and with premeditated malice, shooting and mortally wounding the body and person of said M. M., with a gun loaded with gunpowder and leaden balls, which he, the said L. V., then and there in his hands had and held ; and so the jurors aforesaid, on their oaths aforesaid, do charge and present, that, on the day aforesaid, in the manner and form aforesaid, the said L. V. did feloniously, purposely, and with premeditated malice, kill and murder the said M. M., con- trary, etc.(f) {117d) Murder by shooting in Iowa. The said G. S., on, etc., in, etc., in and upon the body of one (A) Under this indictment the defendiint, Lowenstein, was convicted and exe- cuted. See Pamphlet Report, 1874. (i) Veatch v. State, 56 Ind, 584. 84 HOMICIDE. (117e) "W. P., then and there being, wilfully, feloniously, deliberately, preraeditatedly by lying in wait, and of his malice aforethought, did commit an assault with a deadly weapon, being a pistol then and there held in the hands of the said G. S., and loaded and charged with powder and bullet, and then and there the said G. S. did, by lying in wait with the specific intent to kill and murder the said W. 1'., wilfully, feloniously, deliberately, pre- meditatedly, and of his malice aforethought, shoot off and dis- charge the contents of said deadly weapon, being the powder and bullet aforesaid, at, against, into, and through the head and body of the said W. P., thereby wilfully, feloniously, deliber- ately, premeditatedly, and of his malice aforethought, inflicting upon the head and body of the said W. P., a mortal wound, of which said mortal wound the said W. P. then and there did die.O') (117e) Infonnation in Kansas for murder by shooting. And now comes E. F. S., county attorney for M. County and State of K., and here in said district court, in the name, by the authority, and on behalf of the State of K., information gives: That one E. A. McC, late of said county of M., on, etc., at, etc., in and upon one L. IT., then and there being, did wilfully, felo- niously, deliberately, premeditatedly, and of his malice afore- thought, make an assault ; and that the said E. A. McC, a cer- tain revolving pistol, then and there charged with gunpowder and divers, to wit, three leaden bullets, which said revolving pistol, he the said E. A. McC. in his right hand then and there had and held, then and there wilfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, did discharge and shoot off, to, against, upon, and through the said L. H. ; and that the said E. A. McC, with the divers, to wit, three leaden bullets aforesaid, out of the revolving pistol aforesaid then and there by force of the gunpowder aforesaid, by the said E. A. McC discharged and shot off as aforesaid, then and there wilfully, feloniously, deliberately, premeditatedly, and of his (y) It was held by the Supreme Court: 1st. That this indictniont was suili- cient as charjjing murder in the first (h'fjree ; 2d. That tlie time of the death was suffieiently alleged, as being at the time and plaee when and where the assault was made ; 3d. That the indictment was sulReient as charging that deceased was a human being. State v. Stanley, 33 Iowa, 526. 85 (117/) OFFENCES AGAINST THE PERSON. malice aforetlidught, did strike, penetrate, and wonnd the said L. H., in, upon, and through the left side of the face of him the said L. H., and in, upon, and through the right side of the lower part of the breast of him the said L. H., and in, upon, and through the right side of the body of him the said L. H., there- by then and there giving to him the said L. H., in, upon, and through the left side of the face of him the said L. II., pene- trating through the face and head of him the said L. II., and in, upon, and through the right side of the lower part of the breast of him the said L. II., penetrating through the body of him the said L. IL, and in, upon, and through the right side of the body of him the said L. H., ]ienetrating through the body of him the said L. H., three mortal wounds, of which said three mortal wounds he the said L. H., then and there instantly died. Wherefore the said county attorney doth inform the Court here, that the said E. A. McC. him, the said L. H., in the manner and by the means aforesaid, wilfully, feloniously, deliberately, pre- meditatedly, and of his malice aforethought, did kill and mur- der, contrary, etc.(7i) (117/) Murder by shootivg under Nevada statute. The defendant R. II. C, above named, is accused by the grand jury of, etc., of the crime of murder committed as follows, to wit : That the said K. H. C, on, etc., or thereabouts, at, etc., in and upon one C. T. alias " M. C," unlawfully, feloniously, wil- fully, and of his mali('e aforethought, did make an assault; and that the said R. IL C, a certain pistol, then and there charged with gunpowder and divers leaden bullets, which said pistol he, the said li. II. C, in his hands then and there had and held, at and against the said C. T. alias " M. C," then and there unlawfully, feloniously, wilfully, and of his malice afore- thought, did shoot off and discharge; and that the said R. H. C, with the leaden bullets aforesaid, by means of shooting oft* and discharging the said pistol so loaded, to, at, and against the said C. T. alias " AI. C," as aforesaid, did then and there unlaw- fully, feloniously', wilfully, and of his malice aforethought, strike, penetrate, and wound the said C T. alias " M. C," giving him (k) Approved in State i'. McCord, 8 Kas. 232. 86 HOMICIDE. (1-18) the said C. T. alias " M. C," then and there with the leaden bullets aforesaid, by means of shooting oif and discharging the said pistol, to, at, and against the said C. T. alias " M. C," and by such striking, penetrating, and wounding the said C. T. alias " M. C." as aforesaid, one mortal wound in and upon the arms, side, ribs, lungs, and heart of him, the said C. T. alias '^M. C," of which said mortal wound the said C. T. alias " M. C." did then and there die. All of which is contrary to the form, ete.(0 (118) Against principal in the first and principal in the second degree. Hanging.{m) That J. J., late of, etc., yeoman, and P. M., late of, etc., yeo- man, not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on, etc., with force and arms, in the county aforesaid, in and upon one S. C, in the peace of God and the commonwealth then and there being, feloniously, wilfully, and of their malice aforethought, did make an assault ; and that he, the said J. J., a certaki rope of the value of five cents, on and about the neck of her the said IS. C, then and there feloniously, wilfully, and of his malice aforethought, did fix, tie, and fasten, and that the said J. J. with the rope aforesaid, so as aforesaid fastened on and about the neck of her the said S. C, her the said S. C. then and there feloniously, wilfully, and of his malice aforethought, did choke, sufi;bcate, and strangle, of which said choking, suflbcatiiig, and strangling, she the said S. C. then and there instantly died ; and that the said P. M., at the time of committing the felony and murder aforesaid by the said J. J. in mannerand form aforesaid, feloniously, wilfully, and of his mal- ice aforethought, was present, aiding, helping, and abetting, assisting, comforting, and maintaining the said J. J., the felony and murder aforesaid in manner and form aforesaid, to do, com- mit, and perpetrate. And so the inquest aforesaid, upon their oaths and affirmations aforesaid, do say, that the said J. J. and P. M., her the said S. C, then and there in manner and form (/) It was said in State v. Crozier, 1 2 Nev. 300, that this indictment was sufficient to sustain a verdict for murder in the first degree, without the use of the words deliberately and premeditatedly. (m) Drawn in 1807 by Mr. J. B. M'Kean, and sustained by the Supreme Court of Pennsylvania. 87 (119) OFFENCES AGAINST THE PERSON. aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder, contrary, etc. {Concludeas in book 1, cluqjter 3.) (119) Second count. Against same. Beating and hanging. And the inquest aforesaid, upon their oaths and affirmations aforesaid, do further present, that the said J. J. and P. M., not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on, etc., with force and arms in the county aforesaid, in and upon the said S. C, in the peace of God and the commonwealth then and there being, felo- niously, wilfully, and of their malice aforethought, did make an assault, and that he the said J. J. with a certain large stick of no value, which he the said J. J. in his right hand then and there had and held, her the said S. C. then and there feloniously, wilfully, and of his malice aforethought, divers times did strike and beat, giving to her the said S. C. then and there, by striking and beating of her the said S. 0. as aforesaid, with the stick aforesaid, in and upon the back part of the head of her the said S, C, one mortal bruise ; and that the said J. J. also a certain rope of the value of five cents, on and about the neck of her the said S. C, then and there feloniously and wilfully, and of his malice aforethought, did fix, tie, and fasten, and that the said J, J. with the rope last aforesaid, so as last aforesaid fixed, tied, and fastened on and about the neck of her the said S. C, then and there did violently squeeze, press, and bind her the said S. C. ; of which said striking and beating of her the said S. C, in and upon the back part of the head of her the said S. C. with the stick aforesaid, and also of the squeezing, pressing, and bind- ing of the neck of her the said S. C. with the rope as last afore- said, she the said S. C. then and there instantly died ; and that the said P. M., at the time of committing the felony and murder last aforesaid, by the said J. J. in manner and form last afore- said, feloniously, wilfully, and of his malice aforethought, was present aiding, helping, abetting, and assisting, comforting, and maintaining the said J. J., the felony and murder last aforesaid in manner and form last aforesaid to do, commit, and perpetrate. And so the inquest aforesaid, upon their oaths and affirma- tions aforesaid, do further say, that the said J. J. and P. M., her the said S. C. then and there in manner and form last aforesaid, 88 HOMICIDE. (121) feloniously and wilfully and of their malice aforethought did kill and murder, contrary, etc. {Conclude as in book 1, chapter 3.) (120) Murder. Striking with a poker.{n) That C. D., of said B., laborer, on the day of now last past, with force and arms, at B. aforesaid, in the county aforesaid, in and upon one E. F., feloniously, wilfully, and of his malice aforethou2;;ht, did make an assault ; and that he the said C, D. then and there with a certain iron poker, which he the said C. D. in both his hands then and there had and held, the said E. F., in and upon the back part of the head of him the said E. F., then and there feloniously, wilfully, and of his malice aforethought, did strike, giving unto him the said E. F. then and there, with the said iron poker, by the stroke aforesaid, in man- ner aforesaid, in and upon the back part of the head of him the said E, F., one mortal wound, of the length of three inches, and of the depth of one inch ; of which said mortal wound, he the said E. F., on the said day of at B. aforesaid, in the county aforesaid, did languish, and languishing did live; on which same day of aforesaid, at B. aforesaid, in the county aforesaid, he the said E. F., of the said mortal wound, died. And so the jurors aforesaid, upon their oath aforesaid, do say that the said C. D. him the said E. F., in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder. {Conclude as in book 1, chajjter 3.) (121) Murder. By riding over with a horse.{o) That C. D., of said B., laborer, on the day of now last past, with force and arms, at B. aforesaid, in the county aforesaid, in and upon one E. F., feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said C. D., then and there riding upon a horse, the said horse in and upon the said E. F. then and there feloniously, wilfully, and of his malice aforethought, did ride and force, and him the said E. F., with the horse aforesaid, then and there, by such riding and forcing as aforesaid, did throw to the ground ; by means whereof the said horse, with his hinder feet, him the said E. F., so thrown (n) 3 Chit. C. L. 761; Davis's Precedents, 175. (o) 3 Chit. C. L. 765 ; 2 Stark. C. P. 380 ; Davis's Precedents, 177. 89 (123) OFFENCES AGAINST THE PERSON. to and upon the ground as aforesaid, in and upon the back part of the head of hitu the said E. F., did then and there strike and kick, thereby then and there giving to hira the said E. F. in and upon the back part of the head of him tiie said E. F.,one mortal fracture and contusion, of the breadth of two inches, and of the depth of one inch ; of which said mortal fracture and contusion, the said E. F. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. him the said E. F., in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder. {Conclude as in book 1, chapter 3.) (122) Harder. By drowning. That C. D., of said B., laborer, on the day of now last past, with force and arms, at B. aforesaid, in the county aforesaid, in and upon one E. F., feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said C. D. then and there feloniously, wilfully, and of his malice afore- thought, did take the said E. F. into both the hands of him the said C. D., and did then and there feloniously, wilfully, and of his malice aforethought, cast, throw, and push the said E. F. into a certain pond there situate, wherein there was a great quantity of water; by means of which said casting, throwing, and pushing of the said E. F. into the pond aforesaid, by the said C. D. in form aforesaid, he the said E. F., in the pond aforesaid, with the water aforesaid, was then and there choked, suffocated, and drowned ; of which said choking, suffocation, and drowning, he the said E. F. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D., in manner and form aforesaid, him the said E, F. feloniously, wilfully, and of his malice aforethought, did kill and murder.(^) {Conclude as in book 1, chapter 3.) (123) 3Iurder. By strangling. [q) That E. W. K., late, etc., not having the fear, etc., but being moved, etc., on, etc., in and upon one J. D., in the peace, etc., {v) 3 Chit. C. L. 768; Davis's Precedents, 181. \q) This indictment, with a little qualification in the first count, is the same with that sanctioned by the Supreme Court of North Carolina in State v. Ha- ney, 2 Dev. 432. "It is lastly urged," said the court, "that upon a critical 90 HOMICIDE. (124) feloniously, wilfully, and of his malice aforethought, did make an assault, and that the said E. W. K. a certain rope about the neck of the said J. D. then and there feloniously and wilfully, and of his malice aforethought, did fix, tie, and fasten, and that the said E. W. K. with the rope aforesaid, {him) the said J. D. then and there feloniously and wilfully, and of his malice afore- thought, did drag, pull, choke, strangle, and dislocate the neck; of which said dras-frins^, iJullino- chokiuii:, strano-lino; and disloca- tion of the neck, he the said J. D. then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said E. W. K., in, etc., the said J. D, in manner and form aforesaid, feloniously and wilfullj', and of his malice afore- thought, did kill and murder. {Conclude as in hook 1, chapter 3.) (124) Second count. By strangling and stabbing with unknown persons. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said E. W. K. with divers other persons, etc., afterwards, to wit, etc., not having the fear, etc., in and upon the said J. D. in the peace, etc., feloniously, wilfully, and of their malice aforetljought, did make an assault, and that the said E. W. K. a certain rope about the neck of the said J. D. then and there feloniously, wilfully, and of his malice aforethought, did fix, tie, and fasten ; and that the said E. W. K. by means of said rope, him the said J. D. then and there feloniously, wilfully, and of his malice aforethought, did drag, pull, choke, and strangle; construction of the indictraent, it does not more appear, that Kimbroiigh drapijed, pulled, and choked Davis, than that Davis dragged, pulled, and choked Kim- brough. However this may be upon the first count, I think no such objection as this appears on the second. In that count it is charged that Kimbrough made an assault upon Davis, and that Kimbrough placed a rope around Davis's neck, and that the same Kimbrough, by means of said rope, the said John Davis did choke and strangle ; and the said Kimbrough, with a dagger, which he then in his hand held, the said John Davis, in and u])on the belly of the said John Davis, did thrust and penetrate, giving to him the said John Davis, with the said dagger, in and upon the belly of him the said John Davis, a mortal wound, of which the said -John Davis died on the next day ; Avith a conclusion, that he the said Kimbrough, the said John Davis did kill and murder Human ingenuity can- not make out of this, that it stands indifferent, whether Kimbrough or DaA'is was the actor in all and every act necessary to constitute murder, or which was the agent and which the sufferer, not only in the close of the drama, but in each and every act which led to the catastrophe." The difficulty raised as to the first count is obviated by the Insertion of " him" in the seventh line. See infra, 128, 160, for similar forms. 91 (125) OFFENCES AGAINST THE PERSON. and that the said E. W. K. with a certain drawn dagger, being part of a walking cane, etc., which he the said B. W. K. in his right hand then and there had and held, him the said J. D. in and upon the forepart of the belly and divers other parts of the body of the said J. D. then and there, feloniously, wilfully, and of his "malice aforethought, did strike, thrust, and penetrate, giving to the said J. D. then and there, with the dagger afore- said, in and upon the aforesaid forepart of the belly and divers other parts of the body. of the said J. D., several mortal wounds of the breadth of one inch, and of the depth of six inches: as well of which pulling, dragging, choking, and strangling, as also of the striking, thrusting, and penetrating, etc., he the said J. D. from, etc., until, etc., did languish, etc., on which, etc., the said J. D. in, etc., of the pulling, dragging, choking, and stran- gling, as well as of the mortal wounds inflicted as aforesaid, died ; and that divers other [)ersons, etc. And so tli,e jurors, etc., do further say, that the said E. 'W. K. and divers other persons, the said J. D. then and there in manner and form last aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder. {Conclude as in hook 1, chapter 3.) (125) Harder. By burning a house where the deceased was at the time.{s) That S. C, late, etc., not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the fifth day of April, one thousand eight hundred and thirty, with force and arms, etc., at the township aforesaid, in the county aforesaid, and within the jurisdiction of this court, did wilfully and maliciously burn a certain dwelling-house of one E,. S., there situate, and that one J. H., of the township and county aforesaid, within the jurisdiction aforesaid, in the said dwelling-house then and there being, before, at, and during the said burning, and was then and there, by reason and means of the said burning po committed and done by the said S. C, in manner aforesaid, mortally burned and killed ; and so the jurors aforesaid, upon their oaths aforesaid, do say, that the said S. C, him the said J. II., in manner and form aforesaid, feloniously (s) State V. Cooper, 1 Green, 362. See infra, 1154, for the subsequent action of the court on this indictment. 92 HOMICIDE. (127) and wilfully, and of his malice aforethought, did kill and murder. (Conclude as in book 1, chapter 3.) (126) Second count. Averring a 'preconceived intentioyi to kill. And the jurors aforesaid, upon their oaths aforesaid, do further present, that the said S. C, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, and of his malice aforethought contriving and intending one J. H., there being in a certain dwelling-house of one R. S., situate in the township and county aforesaid, feloniously, wil- fully, and of his malice aforethought, to burn, kill, and murder, on the same day and year aforesaid, with force and arms, at the township aforesaid, in the county and within the jurisdiction aforesaid, did wilfully and maliciously set fire to and burn the said dwelling-house, the said J. H. then and there, before, at, and during the said burning, being in the said dwelling-house, he the said S. C, then and there well knowing the said J. 11. to be in the said dwelling-house, and that he the said S. C, in so set- ting fire to and burning the said dwelling-house as aforesaid, then and there feloniously, wilfully, and of his malice afore- thought, did mortally burn the body of the said J. H. ; by means of which said mortally burning of the body of the said J. IL, as aforesaid, he, the said J. H., on the day and year aforesaid, at the township aforesaid, in the county and within the jurisdiction aforesaid, did die ; and so the jurors aforesaid, upon their oaths aforesaid, do say that the said S. C, the said J. H., in manner and form aforesaid, feloniously, wilfully, and of his malice afore- thought, did kill and murder, against, etc. {Conclude as in book 1, chapter 3.) (127) Murder. First count.,bychokiyig. Against two — one as prin- cipal in the first degree^ and the other in the second degree. That J. W., late of the county aforesaid, yeoman, and H. ^N"., late of the county aforesaid, widow, not having the fear of God before their eyes, but being moved and seduced by the instiga- tion of the devil, on the tenth day of April, in the year one thousand eight hundred and twenty-five, at the county aforesaid, and within the jurisdiction of this court, with force and arms, in and upon one G. II. W., iu the peace of God and of the com- 93 (128) OFFENCES AGAINST THE PERSON. monwealth then and there being, feloniously, wilfully, and of their malice aforethought, did make an assault, and that he the said J. W., a certain muslin handkerchief of the value of twelve cents, about the neck of him the said G. H. W., then and there feloniously, wilfully, and of his malice aforethought, did fix, tie, and fasten, and that the said J. W., with the muslin handker- chief aforesaid, him the said G. H. W., then and there feloni- ously, wilfully, and of his malice aforethought, did choke, suffo- cate, and strangle; of which said choking, suifocating, and strano-lino", he the said G. H. W. then and there instantly died. And that she the said H. N., at the time of the committing of the felony and murder aforesaid, in manner and form aforesaid, feloniously, wilfully, and other malice aforethought, was present aiding, abetting, and counselling the said J. W., the felony and murder aforesaid to do and commit ; and so the inquest afore- said, upon their oaths and affirmation aforesaid, do say, that the said J. W.and the said H. IST., the said G. 11. W., in manner and form aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder, contrary, etc. {Conclude as in book 1, chapter 3.) (128) Secoyid county by choking and beating. Against two — one as principal in first degree^ the other in second degree. And the inquest aforesaid, upon their oaths and affirmations aforesaid, do further present, that the said J. W., and the said H. N., not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the said tenth day of April, in the year one thousand eight hundred and twenty-five, at the county aforesaid, and within the jurisdiction of this court, with force and arms, in and upon the said G. H. W., in the peace of God and of the commonwealth then and there being, feloniously, wilfully, and of their malice afore- thought, did make an assault ; and that he, the said J. W., a certain muslin handkerchief of the value of twelve cents, about the neck of him the said G. H. W., then and there feloniously, wilfully, and of his malice aforethought, did fix, tie, and fasten, and that the said J. W. with the muslin handkerchief aforesaid, the neck of him the said G. IL W., then and there feloniously, wilfully, and of his malice aforethought, did violently squeeze 94 HOMICIDE. (129) and press ; and that the said J. W., Avith a certain large stick of the value of one cent, which he the said J. W., then and therein his right hand had and held, him the said G. H.W.,inand upon the right side of the head of him the said G. H. W., then and there feloniously, wilfully, and of his malice aforethought, did strike and beat, then and there giving to the said G. II. W., by then and there so striking and beating him the said G. II. W. with the stick aforesaid in and upon the right side of the head of the said G. II. W., one mortal bruise of the length of two inches, and of the breadth of one inch ; of which said vio- lent squeezing and pressing of the neck of him the said G. II. W., as well as of the said strikino; and beating; of him the said G. H. W., in and Ujjon the right side of the head of him the said G. H. W., with the stick aforesaid, he the said G. II. W. then and there instantly died; and that she the said II. N., at the time of the committing of the felony and murder last afore- said, in manner and form aforesaid, feloniously, wilfully, and of her malice aforethought, was present aiding, abetting, and coun- selling the said J. W. the felony and murder last aforesaid to do and commit; and so the inquest aforesaid, upon their oaths and affirmations aforesaid, do say, that the said J. W. and the said H. N., the said G. I]. W., in manner and form last afore- said, feloniously, wilfully, and of their malice aforethought, did kill and murder, contrary, etc. {Conclude as in book 1, chapter 3.) (129) Murder. By poisoning with arsenic.{t) That R. S., late, etc., laborer, and A. S., etc., not having the fear of God before their eyes, but being moved and seduced by the instigations of the devil, wickedly contriving and intending one E. S. with poison, wilfully, feloniously, and of their malice aforethought to kill and murder, on, etc., with force and arms, at the parish aforesaid, in the county aforesaid, feloniously, wil- fully, and of their malice aforethought, a large quantity of a (0 R. V. Sandys, 1 C. & M. 345. A verdict of guilty was supported on this form, it beinjj held that the allegation "and of the said mortal sickness died," was good witliout stating that the deceased died of the poisoning. When one kind of poisoning is averred and another proved, the variance is not fatal. 2 Hale P. C. 485 ; E. V. Tye, R. & R. 345; R. v. Culkin, 5 C. & P. 121 ; R. v. Waters, 7 C. & P. 250; R. v. Groundsell, Ibid. 7^8; R. v. Martin, 5 C. & P. 128. See R. V. Clark, 2 B. & B. 473; Carter u. State, 2 Carter, Ind. 617; State v. Vawter, 7 Blackf. 592. 95 (129a) OFFENCES AGAINST THE PERSON. certain deadly poison called white arsenic, did give and admin- ister unto the said E. S. with intent that she should take and swallow down the same into her body (they then and there well knowing the said white arsenic to be a deadly poison), and the said white arsenic so given and administered unto her by the said R. S. and A. S., the said E. S. did then and there take and swallow down into her body ; by reason and by means of which said taking; and swallowing down the said white arsenic into her body as aforesaid, the said E. S. became and was mortally sick and distempered in her body, of which said mortal sickness and distemper the said E. S. from, etc., until, etc., at the parish aforesaid, in the county aforesaid, did languish and languishing did live, on which said, etc., at, etc., the said E, S. of the said mortal sickness died; and so the jurors aforesaid, upon their oath aforesaid, do say that the said R.. S. and A. S., the said E. S. in manner and form aforesaid, feloniously, wilfully, and of their malice aforethought did kill and murder, etc. (129rt) Another form. That A. C. L., late of said county, yeoman, not having the fear of God before his eyes, but being moved and seduced by the instigations of the devil, and of his malice aforethought, wickedly contriving and intending a certain M. L. with poison, wilfully, feloniously, and of his malice aforethought, to kill and murder, on the thirty-first day of May, in the year of our Lord one thousand eight hundred and seventy-six, with force and arms, at the county aforesaid, and within the jurisdiction of this court, did knowingly, wilfully and feloniously, and of his malice aforethought, put, mix, and mingle certain deadly poison — to wit, white arsenic — in certain coffee which at the time aforesaid had been prepared for the use of the said M. L., he, the said A. C. L., then and there, well knowing that the said coffee with which he, the said A. C. L., did so mix and mingle the deadly poison aforesaid, was then and there prepared for the use of the said M. L. with the intent to be then and there administered to him for bis drinking the same, and the said coffee with which the said poison was so mixed, as aforesaid, afterwards, to wit, on the said Slst day of May, in the year last aforesaid, was delivered to the said M. L. to be then and there drank by him, 96 HOMICIDE. (130) and the said M. L. not knowing the said poison to have been mixed with the said coffee, did afterwards, to wit, on the Slst day of May, in the year last aforesaid, at the county aforesaid, there drink and swallow down into his body a large quantity of said poison, so mixed as aforesaid with the said coffee, and the said M. L. of the poison aforesaid, and by the operation thereof, on the said 31st day of May, in the year last aforesaid, in the county aforesaid, became sick and greatly distempered in his bod}', of which said sickness and distemper of body, occasioned by the taking, drinking and swallowing down in the body of the said M. L. of the poison aforesaid, so mixed and mingled in the said coffee as aforesaid, he, the said M. L., from the said 31st day of May, in the year last aforesaid, on which he had so drunk and swallowed down the same as aforesaid, until the 1st day of June, in the year last aforesaid, in the county aforesaid, did languish, and languishing did live, on which said 1st day of June, in the year last aforesaid, at the county aforesaid, he, the said M. L., of the poison aforesaid, so taken, drank, and swallowed down as aforesaid, and of the said sickness and distemper thereby occasioned, did die. And so the inquest aforesaid, upon their oaths and affirmations respectively, as aforesaid, do say, that the said A. C. L., him, the said M. L., in the manner and by the means aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did kill and murder, contrary to the form of the act of the general assembly in such case made and pro- vided, and against the peace and dignity of the Commonwealth of Pennsylvania. (Signed) John C. Merrill, District Attorney.(M) (130) Murder by 2^oisoning. First count, with arsenic in chicken so2ip.{v) That L. C, late of the county aforesaid, widow, otherwise called L. E. M., late of the county aforesaid, widow, and L. A. M., late of the county aforesaid, yeoman, otherwise called C. A., (m) This was the indictment in Com. v. Laros, 84 Penn. St. 200. See Wh. Cr. L. 8th ed. §§ 59, 61, 65, 121, 392. (v) Com. V. Mina, Court of O. & T. of Bucks County, 1831 (pamph.). The defendant Mina was convicted and executed. VOL. I. — 7 97 (130) OFFENCES AGAINST THE PERSON. not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, and of their malice aforethought contriving and intending a certain W. C. to de- prive of his life, and him the said W. C, feloniously to kill and murder, on, etc. (date), with force and arms at the county afore- said, and within the jurisdiction of this court, did knowingly, wilfully, feloniously, and of their malice aforethought, mix and mingle certain deadly poison, called arsenic, in certain chicken soup, which had been, at divers days and times, during the time aforesaid, prepared for the use of the said W. C, to be drunk by him the said W. C. (they the said L. C. and the said L. M , then and there well knowing that the said chicken soup with which they, the said L. C. and the said L. M., did so mix and mingle the said deadly poison as aforesaid, was then and there prepared for the use of the said W. C, with intent to be then and there administered to him for his drinking the same),(MJ) and the said chicken soup with which the said deadly poison was so mixed as aforesaid, afterwards, to wit, on, etc., at the count}^ and within the jurisdiction aforesaid, was deliv- ered to the said W. C, to be then and there drunk by him the said W. C, and he the said W. C. (not knowing the said poison to have been mixed with the said chicken soup) did afterwards, to wit, on, etc., there drink and swallow down into his body several quantities of the said deadly poison so mixed as afore- said with the said chicken soup, and the said "VV. C. of the poison aforesaid and by the operation thereof then and there be- came sick and greatly distempered in his body, of which said sick- ness and distemper of body, occasioned by the said drinking, tak- ing, and swallowing down into the body of the said W. C, of the deadly poison aforesaid, so mixed and mingled in the said chicken soup as aforesaid, he the said W. C. from the said several days and times on which he has so taken, drunk, and swallowed down the same as aforesaid, until the said twenty-third day of June, in the year last aforesaid, at the county aforesaid, and within the jurisdiction aforesaid, did languish, and lan- (?()) The allegation of scienter would be bettor given as follows : "he the said (defendant) well knowing the said arsenic to be a deadly poison." See form 133. That a scienter may be inferred from other allegations, see Com. v. Her- sey, 2 Allen, 173; Com. v. Earlc, 1 Wiiart. K,. 525. That a scienter in some shape is in such cases essential, see State v. Yarborough, 77 N. C. 524 ; Fairlee V. People, 11 111. 1. 98 HOMICIDE. (1^31) guishing did live, on which said twentj'-third day of June, in the year last aforesaid, at the county and within the jurisdiction aforesaid, he, the said W. C, of the poison aforesaid, so taken, drunk, and swallowed down as aforesaid, and of the said sick- ness and distemper occasioned thereby, did die.(a:) And so the inquest aforesaid, upon their oaths and solemn affirmations aforesaid, do say, that the said L. C, and the said L. M., him, the said W. C, then and there in the manner and by the means aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder. {Conclude as in hook 1, chapter 3.) (131) Second count. Against one defendant as 'princiyal in the first and the other as 'principal in the second d.egree. And the inquest aforesaid, inquiring as aforesaid, upon their oaths and solemn affirmations aforesaid, do further present, that the said L. C, otherwise called L. M., not having the fear of God before her eyes, but being moved and seduced by the insti- gation of the devil, and of her malice aforethought, wickedly contriving and intending the said W. C. to deprive of his life, and the said W. C. feloniously to kill and murder, on, etc. (date), with force and arms at the county aforesaid, and within the jurisdiction of this court, did feloniousl3', wilfully, and of her malice aforethought, mix and mingle certain deadly poison, called arsenic, in certain chicken soup, which had been at divers days and times, during the time aforesaid, prepared for the use of the said W. C.,to be drunk by him, the said AV. C. (she, the said L. C, then and there well knowing that the said chicken soup with which she, the said L. C, did so mix and mingle the said deadly poison as aforesaid, was then and there prepared for the use of the said W. C, with intent to be then and there adminis- tered to him for his drinking the same), and the said chicken soup with which the said deadly poison was so mixed as afore- said, afterwards, to wit, on, etc, one thousand eight hundred and thirty-one, and on the said other days and times last men- tioned, at the county and within the jurisdiction aforesaid, was delivered to the said W. C, to be then and there drunk by him, the said W. C, and he the said W. C. (not knowing the said (x) As to causal relation in cases of poisoning, see Wh. Cr. L. 8th ed. § 53G, and notes. 99 (133) OFFENCES AGAINST THE PERSON. poison to Lave been mixed with the said chicken soup) did after- wards, to wit, on, etc., there drink and swallow down into his bod}- several quantities of the said deadly poison so mixed as aforesaid with the said chicken soup, and the said "VV. C, of the poison aforesaid, and by the operation thereof, then and there became sick and greatly distempered in his body, of which said sickness and distemper of body, occasioned by the said drink- ing, taking, and swallowing down into the body of the said W. C. of the deadly poison aforesaid, so mixed and mingled in the said chicken soup as aforesaid, he, the said W. C.,from the said several days and times, on which he had so taken, drunk, and swallowed down the said deadly poison as aforesaid, until the said twenty-third day of June, in the year last aforesaid, at the county aforesaid, and within the jurisdiction aforesaid, did lan- guish, and languishing did live ; on which said twenty-third day of June, in the year last aforesaid, at the county aforesaid, and within the jurisdiction aforesaid, he the said W. C, of the poison aforesaid so taken, drunk, and swallowed down as afore- said, and of the said sickness and distemper occasioned thereby, did die. And that the said L. M., then and there feloniously, wilfully, and of his malice aforethought, was present, aiding and abetting the said L. C, the felony and murder aforesaid, in manner and form last aforesaid, to do and commit. And 80 the inquest aforesaid, upon their oaths and solemn affirma- tions aforesaid, do say, that the said L. C. and the said L. M., him the said W. C. then and there, in the manner and form last aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder. {Conclude as in book 1, chapter 3.) (182) Third count. Against one as 'principal and the other as accessary before the fact. (Omitted in this edition.) (138) By placing jmson so as to be mistaken for medicine.{y) That C. D., of said B., laborer, feloniously, and of his malice aforethought, devising and intending one E. F. to poison, kill, and murder, on the day of now last past, with force and (?/) Cro. C. A. 297-9 ; 2 Stark. C. P. 369 ; Chit. C. L. 774 ; Davis's Free. 183. 100 HOMICIDE. (133) arms, at B. aforesaid, in the county aforesaid, a certain quantity of arsenic, to wit, two drachms of arsenic, being a deadly poi- son, feloniously, wilfully, and of his malice aforethought, did put, infuse, mix, and mingle in and together with water, he the said C D. then and there well knowing the said arsenic to be a deadly poison ; and that the said 0. D. the said arsenic, so as aforesaid put, infused in, and mixed and mingled in and to- gether with water, into a certain glass phial, did put and pour ; and the said glass phial, with the said arsenic put, infused in, and mixed and mingled in and together with the water as afore- said contained therein, then and there, to wit, on the day of in the year aforesaid, with force and arms, at B. afore- said, feloniously, wilfully, and of his malice aforethought, in the lodging room of the said E. F. did put and place, in the place and stead of a certain salutary medicine then lately before pre- scribed and made up for the said E. F., and to be taken by him the said E. F., he the said C. D. then and there feloniously, wil- fully, and of his malice aforethought, intending that the said E. F. should drink and swallow down into his body the said arsenic, put, infused, mixed, and mingled in and together with water as aforesaid, contained in the said glass phial, by mistak- ing the same as and for the said salutary medicine, so prescribed and made up for the said E. F., and to be by him the said E. F. taken as aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said E. F., not knowing the said arsenic, put, infused in, and mixed together with water as aforesaid, contained in the said glass phial, so put and placed by the said C. D., in the lodging room of the said E. F., in the place and stead of the said salutary medicine, then lately be- fore prescribed and made up for the said E. F., to be taken by him the said E. F., in manner aforesaid, to be a deadly poison, but believing the same to be the true and real medicine, then lately before prescribed and made up for, and to be taken by him the said E. F., afterwards, to wit, on the same day of in the year aforesaid, at B. aforesaid, the said arsenic, so as aforesaid put, infused in, and mixed together with water, by the said C. D. as aforesaid, contained in the said glass phial, so put and placed by the said C. D., in the lodging room of him the said E. F., in the place and stead of the said medicine, then 101 (134) OFFENCES AGAINST THE PERSON. lately before prescribed and made up for the said E. F., he the said E. F. did take, drink, and swallow down into his body : by means of which said taking, drinking, and swallowing down into the body of him the said E. F. of the said arsenic, so as aforesaid put, infused in, and mixed together with water by the said C. D. as aforesaid, he the said E. F. then and there became sick and distempered in his body ; of which sickness and dis- temper of body, occasioned by the said taking, drinking, and swallowing down into the body of him the said E. F., of the said arsenic, so as aforesaid put, infused in, and mixed to- gether with water by the said C. J), as aforesaid, he the said E. F., on the said day of in the year aforesaid, at B. afore- said, in the county aforesaid, died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. him the said E. F., in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did poison, kill, and murder. {Conclude as in book 1, chapter 3.) (184) Murder of a child by poison.{z) That C. M., etc., contriving and intending to kill and murder one G. Al, etc., on the thirty-tirst day of March, in the third year of the reign of her present majesty, upon the said G. M., felo- niously, etc., did make an assault, and that the said C. M., a large quantity, to wit, half an ounce weight of a certain deadly poison called laudanum, feloniously, etc., did give and adminis- ter unto the said G. M. with intent that he should take and swallow the same down into his body (she the said C. M. then and there well knowing the said laudanum to be a deadly poi- son), and the said G. M. the said laudanum, so given and ad- ministered unto him by the said C. M. as aforesaid, did take and swallow down into his body ; by reason and by means of which said taking and swallowiny; down the said laudanum into his body, as aforesaid, the said G. M. became and was mor- tally sick and distempered in his body, of which said mortal {z) R. V. Michael, 9 C. & P. 356 ; 2 Mood. C. C. 120. The prisoner pur- chased a bottle of laudanum, and directed the person who had charge ofthecliild to fjive it a teaspoonful every night. The person did not do so, but another child got hold of tlie poison, and gave it to the deceased, who died of it. A con- viction was sustained by the judges. AVh. Cr. L. 8th ed. §§ 135, 160, 207, 246, 345, 522. 102 HOMICIDE. (13o) sickness and distemper the said G-. M., from, etc., till, etc., did languish, and etc., died. {Conclude as in book 1, chapter Z.) (135) By mixing white arsenic with wine and sending it to deceased^ etc.{a) That A. E., late of, etc., of his malice aforethought, contriving and intending one C. D., witli poison, feloniously to kill and murder, on with force and arms, at a large quantity of white arsenic, being a deadly poison, with a certain quantity of wine, feloniously, wilfully, and of his malice aforethought, did mix and mingle : he the said A. B. then and there well knowing the said white arsenic to be a deadly poison ; and that the said A. B. afterwards, to wit, on the day of at aforesaid, the poison aforesaid, so as aforesaid mixed and mingled with the wine aforesaid, feloniously, wilfully, and of his malice afore- thought, did send to her the said C. D. to take, drink, and swal- low down; and that the said C. D., not knowing the poison aforesaid in the wine aforesaid to have been mixed and mingled as aforesaid, afterwards, to wit, on at aforesaid, the said poison, so as aforesaid mixed and mingled, by the per- suasion and procurement of the said A. B., did take, drink, and swallow down ; and thereupon the said C. D., by the poison aforesaid, so mixed and mingled as aforesaid by the said A. B., and so taken, drank, and swallowed down as aforesaid, be- came then and there sick and distempered in her body, and the said C. D. of the poison aforesaid, and of the sickness and dis- temper occasioned thereby, from the said day of until the day of at aforesaid, in the county aforesaid, did lan- guish, and languishing did live ; on which said day of she the said C. D., at aforesaid, in the county aforesaid, of the poison aforesaid, and of the sickness and distemper thereby occasioned as aforesaid, died. And so the jurors aforesaid, u|>on their oath aforesaid, do say, that the said A. B. her the said C. D., in manner and form and by the means aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did kill and murder. {Conclude as in hook 1, chapter 3.) (a) 3 Chit. C. L. 77G ; Davis's Precedents, 185. 103 (136) OFFENCES AGAINST THE PERSON. (136) 3fiirder bj/ poisoning. First county mixing white arsenic in chocolate. {b) That J. E., late of Lycoming County aforesaid, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigations of the devil, and of his malice afore- thought, wickedly contriving and intending a certain C. E. with poison, wilfully, feloniously, and of his malice aforethought, to kill and murder, on, etc., with force and arms, at Lycoming County aforesaid, did knowingly, wilfully, and feloniously and of his malice aforethought, put, mix, and mingle certain deadly poison, to wit, white arsenic, in certain chocolate which had been at divers days and times during the time aforesaid, pre- pared for the use of the said C. E., to be drunk by her the said C. E. ; he the said J. E. then and there w^ell knowing that the said chocolate, with which he the said J. E. did so mix and min- gle the deadly poison as aforesaid, was then and there prepared for the use of the said C. E., with intent to be then and there administered to her for her drinking the same; and the said chocolate with which the said poison was so mixed as afore- said, afterwards, to wit, on the said fourteenth da}'' of October, in the year last aforesaid, and on the said other days and times, at L. aforesaid, was delivered (by the said J. E.) to the said C. E., to be then and there drunk by her; and the said C. E., not knowing the said poison to have been mixed with the said chocolate, did afterwards, to wit, on, etc., there drink and swallow down into her body, several quantities of the said poison so mixed as aforesaid with the said chocolate ; and the said C. E., of the poison aforesaid, and by the operation thereof, on, etc., at Lycoming County aforesaid, became sick and greatly dis- tenipered in her body ; of which said sickness and distemper of body, occasioned by the drinking, taking, and swallowing down into the body of the said C. E, of the poison aforesaid, so mixed and mingled in the said chocolate as aft)resaid, she the said C. E., from the said several days and times on which she had so (J) Com. V. Earle, 1 Whart. 525. Under this indictment the prisoner was executed. The omission of a direct averment of the scienter was held by the supreme court not to be ground for a special allocatur. At the same time it is more prudent that such averment should be speciliedly made. See notes to forms 97, 130. 104 HOMICIDE. (137) drunk and swallowed down the same as aforesaid, until the six- teenth day of October, in the year last aforesaid, at Lycoming County aforesaid, did languish, and languishing did live ; on which said sixteenth day of October, in the year last aforesaid, at Lycoming County aforesaid, she the said C. E., of the poison aforesaid, so taken, drunk, and swallowed down as aforesaid, and of the said sickness and distemper thereby occasioned, did die. And so the inquest aforesaid, upon their oaths and affirma- tions respectively as aforesaid, do say, that the said J. E., her the said C. E., in the manner and by the means aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did kill and murder. {Conclude as in hook 1, chapter 3.) (137) Second count. Mixing arsenic in tea. And that the said J. E., on, etc., at, etc., with force and arms, did knowingl}', wnlfully, feloniously, and of his malice afore- thought, place, mix, and mingle certain deadly poison, to wit, white arsenic, in certain tea which had been at divers days and times during the time aforesaid prepared for the use of the said C. E., to be drunk by her the said C. E. ; he the said J. E. then and there well knowing that the said tea, with which the said poison was mixed as aforesaid, was then and there prepared for the use of the said C. E., with intent to be then and there administered to her for her drinking the same. And the said tea with which the said poison was so mixed as aforesaid, after- wards, to wit, on, etc., at, etc., was delivered to the said C. E., to be then and there drunk by her; and the said C. E., not knowing the said poison to have been mixed with the said tea, afterwards, to wit, on the said fourteenth day of October, in the year last aforesaid, and on the said divers other days and times, there did drink and swallow down into her body several quantities of the said poison so mixed as aforesaid with the said tea; and the said C E., of the poison aforesaid, and by the operation thereof, on the said fourteenth day of October, in the year last aforesaid, at Lycoming County aforesaid, became sick and greatly distempered in her body ; of which said sickness and distemper, occasioned by the drinking, taking, and swallow- ing down into the body of the said C. E. of the poison aforesaid, 105 (138a) OFFENCES AGAINST THE PERSON. SO mixed and mingled in the said tea as aforesaid, she the said C E., from tlie said several days and times on which she had so drunk and swallowed down the same as aforesaid, until the said sixteenth day of October, in the year last aforesaid, at Lycoming County aforesaid, did languish, and languishing did live; on vehich said sixteenth day of October, in the year last aforesaid, at Lycoming County aforesaid, she the said C. E., of the poison aforesaid, so taken, drunk, and swallowed down as aforesaid, and of the sickness and distemper thereby occasioned, did die. And so the inquest aforesaid, upon their oaths and affirmations respectively as aforesaid, do say, that the said J. E., her the said C. E., in the manner and by the means last aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did kill and murder, contrar}^, etc. {Conclude as in hook 1, chapter 3.) (138) Murder hy giving to the deceased poison, and thereby aiding her in suicide.{c) That B. A., on, etc., at, etc., upon E. C, " feloniously, wilfully, and of his malice aforethought, did make an assault, and felo- niously, wiU'ull}", and of his malice aforethought, did give and administer to her two ounces weight of a deadly poison called laudanum, with intent that she should take and swallow the same down into her body (he knownng the same to be a deadly poison) ; and that the said E. C. the said laudanum so administered did take and swallow down into her body, and by reason thereof became mortally sick and distempered in her body, and of such mortal sickness and distemper then and there died." {Conclude as in book 1, chapter 3.) (138rt) 31urdcr by administering cantharides ivith intent to ravish, under Indiana statute. Second count. The grand jurors aforesaid, for the county aforesaid, upon their oatlis aforesaid, do further charge and present, that M. B. and W. Y., at, etc., on, etc., unlawfully, purposelj', feloniously, (c) This was approved in R. v. Alison, 8 C. & P. 418. As has ah-eady been observed (s'qrrd, notes to forms 97, 107), a party who is present aiding in the commission of a suicide becomes a principal in the offence, and may be indicted for the murder of the deceased, though tlie courts differ as to whether there can be accessaries before the fact to suicide at common law. Wn. Cr. L. 8th ed. §§ 428 et seq. 106 HOMICIDE. (138a) and with premeditated malice, did kill and murder one S. I., a woman over the age of fourteen years, in an unlawful attempt, forcibly, feloniously, and against her will, to then and there ravish and have unlawful carnal knowledge of her, the said S. I, (the said M. B. and W. Y., and each of them, then and there having tlie present ability to ravish and carnally know her the said S. I.), by then and there purposely, wilfully, feloniously, unlawfully, and with premeditated malice, administering and causing to be administered unto the said S. I., a large quantity of a certain deadly poison, commonly known as and called cantharides, which said cantharides the said M. B. and W. Y., and each of them, had unlawfully, feloniously, and with pre- meditated malice, mixed and mingled with certain wine, unlaw- fully, purposely, wilfull}^ feloniously, and with premeditated malice, to be then and there, and at the county aforesaid, taken, drank, and swallowed down into the body of the said S. T. ; they, the said M. B. and W. Y., and each of them, then and there intending and believing that the properties of the said cantharides aforesaid were such that, when drank down into the throat and body of the said S. I., it would create and greatly excite and increase her sexual passions, and create and excite in her a desire, wliich she could not control, to have sexual carnal intercourse with men, and they, the said M. B. and W. Y,, and each of them, then and there and at the time and place aforesaid, believing such administration of said cantharides would, and thereby purposing and unlawfully intending that it should so excite and increase the sexual passions and desires for sexual intercourse with men in her, the said S. I., that she the said S. L, by the means and operations of the said cantharides upon her system, would so greatly desire to have sexual carnal intercourse with men, that she could not control her will, and resist the same, and that, by the unlawful means and operations of said cantharides aforesaid, so taken and swallowed down into her system, her the said S. I.'s will to resist having sexual intercourse with them would be then and there and thereby broken down and overcome, and they, the said M. B. and W. Y., and each of them, then and there and thereby be enabled to have unlawful sexual carnal intercourse with her, the said S. L, forcibly and against her will ; and she, the said S. I., not know- 107 (139) OFFENCES AGAINST THE PERSON. ing the said poison aforesaid bad been mingled and mixed witb said wine aforesaid, did take, drink, and swallow down into ber body, then and there and at the time and place afore- said, several large quantities of said poison aforesaid, the said M. B. and W. Y., and each of them, then and there well know- ing that the said cantbarides aforesaid, so mixed and mingled in said wine by them as aforesaid, was a deadly poison, and they, the said M. B. and W. Y., and each of them, then and there knowing the said cantbarides to be a deadly poison, administered and caused the same to be administered, then and there unto the said S. L, a woman over the age of fourteen years, witb the unlawful intent, then and there, at the time and place aforesaid, and by the means and operations of the poison as aforesaid, ber, the said S. I., to unlawfully ravish and carnally know by force and against her will, the said M. B. and W. Y., and each of them, then and there having the present ability to unlawfully ravish and carnally know ber, the said S. I., against ber will, under and by the means and operations of the poison aforesaid, upon the system of the said S. T. aforesaid. And the grand jurors aforesaid, upon their oaths aforesaid, charge and present, that the said M. B. and W. Y., her, the said S. L, then and there and thereby, at the time, in the manner, and b\'' the means aforesaid, and at the place aforesaid, feloniously, wilfully, unlawfully, and of premeditated malice, did kill and murder, etc., contrary, etc.{d) (139) Murder in the first degree in Ohio. By obstructing a railroad track. {e) That A, B., on, etc., unlawfully, wilfully, purposely, and of bis deliberate and premeditated malice,(/) in and upon the track (d) It was held that this indictment was sufficient as charging a murder by the administering of poison, but not of a murder in an attempt to commit a rape ; the allegations in respect to the attempted rape being treated as mere surplusage. It was held, also, that the indictment sufliciently shows that the woman died of the poison administered to her, and that a purpose to kill the woman, on the part of the defendant, was sufficiently alleged. Bechtelheimer v. State, 54 Ind. 128. Wh. Cr. L. 8th ed. § 610. For administering chloroform see infra^ 10.56 c. (e) This was sustained in Ohio in State v. Brooks, 9 West. L. J. 109 ; War- ren's C. L. 13. (/) Mr. Warren advises to aver, at this point, a purpose and intention to kill, or to inflict a mortal wound. Fonts v. State, 8 Ohio, 98 ; Kain n. State, 8 ib. 306 ; Hagan v. State, 10 Ohio St. R. 459; Loeifner v. State, 10 Ohio St. R. 599. 108 HOMICIDE. (139) of a certain railroad, theu and there being in operation, and known as and called the Cleveland and Pittsburg Railroad, a certain obstruction, called and being a plank of wood, of great length, breadth, and thickness, to wit, eight feet long, one foot wide, and three inches thick, then and there did put and place, by means of which said obstruction then and there so placed and put in and upon the said Cleveland and Pittsburg Railroad by the said A. B., as aforesaid, and by means of the force and velocity of a certain locomotive engine, called the Crab, then and there passing along and upon the track of the said Cleve- land and Pittsburg Railroad, and running against and upon the said obstruction, so put and placed by the said A. B., as aforesaid, one M. N., then and there being and passing along the said railroad upon the locomotive aforesaid, he the said A. B., with great force and violence, thereby unlawfully, wilfully, purposely, and of his deliberate and premeditated malice,(5') did then and there precipitate, cast, and throw from the said loco- motive, so passing as aforesaid, to and upon the rails, ties, and other substances composing the track of said railroad, thereby then and there giving to the said M. N. one mortal concussion and jar, of which said mortal concussion and jar the said M. !N^. then and there instantly died; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B., him the said M. N., in manner and form aforesaid, feloniously, unlawfully, wilfully, purposely, and of his deliberate and premeditated malice, did kill and murder. {Conclude as in book 1, chapter 3.) Second count. That the said A. B., late of the county aforesaid, on, etc., at, etc., unlawfully, purposely, wilfully, and of his deliberate and premeditated malice, in and upon the' track of a certain rail- road then and there being in operation, and known as and called the Cleveland and Pittsburg Railroad, a certain obstruc- tion then and there called and being a plank of wood, of great length, breadth, and thickness, to wit, eight feet long, one foot wide, and three inches thick, then and there did put and place, ((/) This averment is necessary under the Ohio statute. It would be safer to add, '"and with purpose and intent to kill and destroy," etc. 109 (140) OFFENCES AGAINST THE PERSON. bj means of which obstruction, then and there put and placed by the said A. B., in and upon the Cleveland and Pittsburg Railroad, and by means of the force and velocity of a certain locomotive engine called the Crab, then and there passing along said railroad, and running against and upon the said obstruction so placed by the said A. B. as aforesaid, one M. IST., then and there being, and passing along said railroad, upon the locomotive aforesaid, he tlie said A. B,, with great force and violence, did thereby, then and there, unlawfully, wilfully, purposely, and of his deliberate and premeditated malice, precipitate, cast, and throw from the said locomotive, to and upon the track of the railroad aforesaid, and with the said locomotive, the body of the said M. N. did run over and crush, thereby giving to the said M. N., in and upon the body of him the said M. N., one mortal crush and contusion, of which said mortal crush and contusion the said M. N. then and there instantly died; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B., him the said M. IS^., in the manner and form aforesaid, unlaw- fully, wilfully, purposely, and of his deliberate and premeditated malice, did kill and murder. [Condade as in book 1, chapter '6.) (140) Murder in the first degree in Ohio, by sending to the deceased a box cordaining an iron tube, gunpowder, bullets, etc., art- fully arranged so as to explode on attempting to open it.{h) That A. B., contriving one M. N. to deprive of his life, and him, the said M. Is., purposely and of deliberate and premedi- tated malice to kill and murder, on, etc., with force and arms, at, etc., a certain wooden box, then and there containing an iron tube closed at both ends, and loaded and charged with gun- powder and ten leaden bullets and ten leaden slugs (which said box and its contents were then and there so constructed and arranged that, whenever any person should attempt to open the said box, the iron tube aforesaid, loaded and charged as afore- said, would thereby instantly be exploded, and as well the said box as the said tube be broken into pieces, and the frag- ments of the said tube, together with the bullets and slugs aforesaid, be driven and shot forth), did, purposely and of delib- Qi) This indictment is given by ]Mr. AVarren as having been sustained in Ohio. Warren's C. L. 16. 110 HOMICIDE. (140) erate and premeditated malice, send and cause to be delivered to the said M. N., in the city and county aforesaid, with intent that he, the said M. !N^., should receive the said box, and should attempt to open the same, he the said A. B,, tlien and there well knowing that the said tube, loaded and charged as afore- said with gunpowder, bullets, and slugs, would be exploded whenever any person should attempt to open the said box, and that the explosion thereof would kill every such person; and the said M. ]Sr., not knowing the said box and its contents to have been so constructed and arranged as aforesaid, nor that the said box contained tlie said tube loaded and charged as aforesaid, or any other deadly or hurtful instrument or substance whatso- ever, afterwards, on the day and year aforesaid, at the city and county aforesaid, by the procurement of the said A. B., did receive the said box, and did then and there attempt to open the same, and instantly, upon the said attempt of him, the said M. N., to open the said box, on the day and year aforesaid, at the city and county aforesaid, the iron tube aforesaid, contained within the said box, closed at both ends, and loaded and charged with gunpowder, bullets, and slugs, as aforesaid, was exploded, and thereby as well the said tube as the said box was then and there broken into pieces, and the fragments of the said tube, together with the bullets and slugs aforesaid, were then and there driven and shot forth ; by means whereof and by force of the explosion of the gunpowder contained within the said tube, eight of the said bullets, and eight of the said slugs, driven and shot forth as aforesaid, did then and there strike and penetrate the inside of the right thigh of the said M. K, immediately below the groin, then and there giving to him the said M. IsT., in and upon the inside of the right thigh of him the said M. N., immediately below the groin, six- teen mortal wounds, each of the depth of five inches and of the breadth of one inch ; and, also, by means whereof, and by force of the explosion of the gunpowder aforesaid, one fragment of the said iron tube, driven and shot forth as aforesaid, did then and there strike and mortally lacerate the abdomen and bowels of him the said M. N., for the space of six inches in length and breadth, and four inches in depth ; of which said mortal wounds and contusion and laceration, he, the said M. N., from the said 111 (140) OFFENCES AGAINST THE PERSON. twenty-sixth day of June, in the year aforesaid, until the twenty-seventh day of June in the same year, at the city and county aforesaid, languished, and languishing did live; on which twenty-seventh day of June, in the year aforesaid, at the city and county aforesaid, he, the said M. N., of the mortal wounds and laceration aforesaid, died: And so the jurors aforesaid, on their oaths aforesaid, do say, that the said A. B., him, the said M. 'N.^ in manner and form aforesaid, at the city and county aforesaid, purposely, and of deliberate and premeditated malice, did kill and murder. (Conclude as in book 1, chapter 3.) Second count. That the said A. B., contriving one M. ]^. to deprive of his life, and him the said M. !N". purposely, and of deliberate and premeditated malice, to kill and murder, on, etc., with force and arms, at, etc., a certain wooden box, then and there containing an iron tube closed at both ends, and loaded and charged with gunpowder and ten leaden bullets and ten leaden slugs, and which said box, between said iron tube, so contained and loaded and charged as aforesaid within said box, and the sides of the said box, was then and there also loaded and charged with gun- powder and twenty leaden bullets and twenty leaden slugs (which said box and its contents were then and there so constructed and arranged that, whenever any person should attempt to open the same, the iron tube aforesaid, loaded and charged as aforesaid, as well as the gunpowder aforesaid, so placed as aforesaid between the said iron tube and the sides of the said box would thereby instantly be exploded, and as well the said box as the said tube be broken into pieces, and the fragments of the said tube, together with the bullets and slugs aforesaid, as well those within the said tube as those between the said tube and the sides of the said box, be driven and shot forth), did pur- posely and of deliberate and premeditated malice send and cause to be delivered to the said M. N., in the city and county afore- said, with intent that he, the said M. N., should receive the said box and should attempt to open the same; he, the said A. B., then and there well knowing that the said tube, loaded and charged as aforesaid, with gunpowder, bullets, and slugs, as well as the gunpowder aforesaid, so placed as aforesaid between 112 HOMICIDE. (1^) the said iron tube and the sides of the said box, would be ex- ploded whenever any person should attempt to open the said box, and that the explosion thereof, to wit, the iron tube, and the gunpowder between the said iron tube and the sides of the said box, would kill every such person; and the said M. X., not knowing the said box and its contents to have been so con- structed and arranged as aforesaid, nor that the said box con- tained the said tube, loaded and charged as aforesaid, nor that the said box contained the gunpowder, leaden bullets, and leaden slugs aforesaid, placed as aforesaid between the said iron tube and the sides of the said box, or any other deadly or hurtful instrument or substance whatsoever, afterwards, on the day and year aforesaid, at the city and county aforesaid, by the pro- curement of the said A. B., did receive the said box, and did then and there attempt to open the same; and instantly upon the said attempt of him the said M. N., to open the said box, on the day and year aforesaid, at the city and county aforesaid, the iron tube aforesaid, contained within the said box, closed at both ends, and loaded and charged with gunpowder, bullets, and slugs, as aforesaid, and the gunpowder aforesaid, so con- tained as aforesaid between the said iron tube and the sides of the said box, were thereby exploded, and thereby as well the said tube as the said box was then and there broken into pieces, and the fragments of the said tube, together with the bullets and slugs aforesaid, as well those within the said tube as those contained as aforesaid between the said tube and the sides of the said box, were then and there driven and shot forth ; by means whereof, and by force of the exiilosion of the gunpowder contained within said tube, and by force of the explosion of the gunpowder contained as aforesaid, between said tube and the sides of the said box, eight of the said bullets and eight of the said slugs, contained as aforesaid within said tube, and between said tube and the sides of the said box, driven and shot forth as aforesaid, did then and there strike and penetrate the inside of the right thigh of the said M. N., immediately below the groin, then and there giving to him, the said M. ^N"., in and upon the inside of the right thigh of him the said M. N., imme- diately below the groin, sixteen mortal wounds, each of the depth of five inches, and of the breadth of one inch, and, also, by means VOL. I.— 8 113 (141) OFFENCES AGAINST THE PERSON. whereof, and by force of the explosion of the gunpowder afore- said, one fragment of the said iron tube, driven and shot forth as aforesaid, did then and there strike, and mortally wound and lacerate the abdomen and bowels of him the said M. N., for the space of six inches in length and breadth and four inches in depth ; of which said mortal wounds and laceration, he the said M. N., from the said twenty-sixth day of June, in the year aforesaid, until the twenty-seventh day of June, in the same year, at the city and county aforesaid, languished, and languish- ing did live; on which said twenty-seventh day of June, in the year aforesaid, at the city and county aforesaid, he the said M. N., of the mortal wounds and laceration aforesaid, died: And so the jurors aforesaid, upon their oaths aforesaid, do say, that the said A. B., him the said M. IST., in manner and form aforesaid, at the city and county aforesaid, purposely, and of deliberate and premeditated malice, did kill and murder. {Conclude as in hook 1, chapter 3.) (141) Murder in the Jirst degree in Ohio — hy a father^ chaining and coyrfining his infant daughter several nights during cold weather without clothing orjire.{i) That A. B. feloniously, unlawfully, purposely, maliciously, and of his deliberate and premeditated malice, contriving and intending one M. E". (she the said M. IT. then and there being the infant daughter of him the said A. B.) to kill and murder, on, etc., and on divers other days and times between, etc., with force and arms, at the county of iShelby aforesaid, in and upon the said M. N., his infant daughter as aforesaid, in the peace of the State of Ohio then and there being, unlawfully, feloniously, purposely ,(J) and of his deliberate and premeditated malice, did make divers assaults; and that the said A. B. did then and there bind and fasten a certain iron chain around the neck of (i) Mr. Warren gives the above as having been sustained in Ohio. Warren's C. L. 23. (/) It is essential that the intent and purpose to kill should be specifically averred in the descrijjtion of this crime ; and the failure to do this is not cured by an averment of purpose as to the assault, or in the general conclusion. Fonts V. State, 8 Ohio St. R. 98. Wh. Cr. L. 8th ed. § 543. It is enough, however, to allege that the accused '■'purposely, and of deliber- ate and premeditated malice, assaulted, cut, and stabbed" the deceased, "there- bv then and there pvrpnsely, and of deliberate and premeditated malice, giving" to the said deceased, " a mortal wound," etc., Loeffner v. State, 10 Ohio St. R. 599. 114 HOMICIDE. (1-41) her the said M. N., and with and by means of said chain, her the said M. E",, then and there, in a certain room, in the dwell- ing-house of him the said A. B. there situate, feloniously, unlaw- fully, purposely, maliciously, and of his deliberate and premed- itated malice, did chain, confine, and imprison ; and that the said A. B., during the night season of each day, from the said, etc., until the said, etc., with force and arms, at the county of Shelby aforesaid, did feloniously, unlawfully, purposely, mali- ciously, and of his deliberate and premeditated malice, with the chain aforesaid, confine and imprison her the said M. 'N., in his room aforesaid, without fire and without clothing, or other means of protection from the cold, and that during all the said time the weather was cold, inclement, freezing weather; and that the said A. B., from the said, etc, until the said, etc., with force and arms, at the county of Shelby aforesaid, feloniously, unlawfully, purposely, maliciously, and of his deliberate and premeditated malice, did neglect, omit, and refuse to give, provide, and furnish, and to permit and suffer to be given, pro- vided, and furnished to her, the said M. N"., his infant daughter as aforesaid, so chained, imprisoned, and confined as aforesaid, snfloicient clothing, fire, or other means of warmth and comfort, necessary to preserve and protect her, the said M. N., from freezing and perishing with the said cold; by means of which said imprisonment and confinement, and also of such neglecting and refusing to give, provide, and furnish, and to permit and sufiier to be given, provided, and furnished, to her the said M. N., such clothing, fire, or other means of warmth and comfort as were sufficient and necessary for the preservation and protec- tion of her, the said M. N., from freezing and perishing with and of the cold, she, the said M. l!^., then and there became and was sick, chilled, and frozen; and from the said, etc., until the said, etc., at the county of Shelby aforesaid, of the said expo- sure to cold, chilling, freezing, and confinement, she, the said M. N., died; and so the grand jurors aforesaid, upon their oaths aforesaid, do say, that the said A. B., her, the said M. N., in manner and form aforesaid, at the county aforesaid, feloniously, unlawfully, purposely, and of his deliberate and premeditated malice (and with intent and purpose to kill and murder), did kill and murder. {Conclude as in book 1, chapter 3.) 115 (142) OFFENCES AGAINST THE PERSON. (142) Second county not alleging a chaining. That the said A. B., feloniously, unlawfully, purposely, and of his deliberate and premeditated malice, contriving and in- tending the said M. N. (she the said M. N., then and there beins: the infant dausrhter of him the said A. B.) to kill and murder, on, etc., and on divers other days and times between that day and, etc., with force and arms, at the county of Shelby aforesaid, in and upon the body of the said M. l!^., in the peace of the State of Ohio then and there being, unlawfully, feloniously, purposely, and of his deliberate and premeditated malice, did make divers assaults ; and the said A. B., on the said, etc., and from said last named day until, etc., with force and arms, at the county aforesaid, her, the said M. N., in a certain room of the dwelling-house of the said A. B., there sit- uate, unlawfully, feloniously, purposely, and of his deliberate and premeditated malice, did confine and imprison, and from the said, etc., until, etc., with force and arms, at the county aforesaid, the said A. B. did feloniously, unlawfully, purposely, maliciously, and of his deliberate and premeditated malice, neglect, omit, and refuse to give and administer, and to permit to be given and administered to the said M. N., sufficient meat and drink necessary for the proper and healthful sustenance, sup- port, and maintenance of the body of her the said M. JST. ; and that the said A. B., on the said, etc., and from the said last named day until, etc., with force and arms, at the county afore- said, feloniously, unlawfully, purposely, and of his deliberate and premeditated malice, did neglect and refuse to provide, furnish, and administer, and to sutler and permit to be provided, furnished, and administered, to her the said M. N., fire, wear- ing apparel, bed and bedding, or other means of warmth, pro- tection, and comfort, suflicient and necessary to protect and preserve her, the said M. N., from becoming sick and chilled ; she, the said M. IST., then and there being so confined and im- prisoned by the said A. B., as aforesaid, and the weather being then and there cold and inclement; by means of w^hich said confinement and imprisonment, and also of such neglecting and refusing to give, furnish, provide, and administer, and to suffer and to permit to be given, provided, and administered, to 116 HOMICIDE. (142a) her, the said M. 'N., such meat and drink as were sufficient and necessary for the health and proper support, sustenance, and maintenance of the hody of her, the said M. N"., and also by means of such neglecting and refusing to furnish, provide, and administer, and to suffer and permit to be furnished, provided, and administered to her, the said M. N., such fire, wearing apparel, bed and bedding, or other means of protection, warmth, and comfort, sufficient and necessary to protect her, the said M. !N"., from becoming sick and chilled, she, the said M. N., from the said, etc., until the said, etc., at the county of Shelby afore- said, did languish, and languishing did live; on which said, etc., she, the said M. N., at the county aforesaid, of the said imprisonment, deprivation of meat and drink, fire, clothing, bed and bedding, or the means of warmth and comfort, died; and so the grand jurors aforesaid do say, that the said A. B., in manner and form aforesaid, feloniously, unlawfully, pur- posely, maliciously, and of his deliberate and premeditated malice aforethought, her, the said M. N., did kill and murder. {Conclude as in book 1, chapter 3.) (142«) By slabbing, under Ohio statnte.{k) That J. L., on, etc., at, etc., with force and arms, in and upon one N. H., in the peace of God and the laws of this State then and there being, purposely, and of deliberate and premeditated malice, did make an assault; and that the said J. L., with a cer- tain knife which he the said J. L. in his right hand then and there held, then and there him, the said N. H., in and upon, etc. {describing spot), of him the said K. H., then and there pur- posely and of deliberate and premeditated malice, did strike, cut, and stab, thereby then and there, with the knife aforesaid giving to him the said 1^. H., in and upon {stating spot) of him, the said 'N. H., purposely and of deliberate and premeditated malice, one mortal wound, of the length of four inches, and of the depth of six inches; of which said mortal wound, so as aforesaid purposely and of deliberate and premeditated malice given, by the said J. L. to the said IsT. H., he the said K II., on the day aforesaid, and in the year aforesaid, and at the county {k) This was sustained in LoefFner v. State, 10 Ohio St. 598. 117 (144) OFFENCES AGAINST THE PERSON. aforesaid, instantly died. And so the jurors aforesaid, upon their oaths and affirmations aforesaid, do say, that he the said J. L., him the said IS". H., in manner and by the means afore- said, on the day and in the year aforesaid, and at the county aforesaid, purposely and of deliberate and premeditated malice, did kill and murder. {Conclude as in book 1, chapter 3.) (143) By forcing a sick person into the streets.(l) That A. B., of, etc., intending one C. D. feloniously, wilfully, and of his malice aforethought, to kill and murder, on at with force and arms, at an unseasonable hour in the night, to wit, about the hour of eleven in the night of the same day, in and upon the said C. D., he the said C. D. then and there being in extreme sickness and weakness of body, occa- sioned by fever, and then and there confined to his bed in the dwelling-house of him the said A. B., there situate, feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said A. B. him the said C. D., from out of the said bed, and also out of the said dwelling-house, into the pub- lic and open street there, did then and there feloniously, wil- fully, and of his malice aforethought, remove, force, and drive, and there abandon and leave; he the said A. B. then and there w^ell knowing the said C. D. to be then in extreme sickness and weakness of body, occasioned by the fever aforesaid ; by means whereof, he the said C. B., through the cold and the inclemency of the weather, and for want of due care and other necessaries requisite for a person in such sickness and weakness as afore- said, then and there died; and so the jurors aforesaid, upon their oaths aforesaid, do say, that the said A. B., him the said C. D., in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder. {Conclude as in book 1, chapter 3.) (144) Murder of an infant by suffocation.{m) That on the twenty-sixth day of June, etc., M. H., etc. {set- ting forth addition^ birth of child ^ etc., and proceeding): on the said (/) 3 Chit. C. L. 771; Davis's Precedents, 189. (m) R,. V. Huggins, 3 C. & P. 414. Three exceptions were taken to this inquisition : 1st. That the time was imperfectly stated; 2d. That there was no 118 HOMICIDE. (l^S) child "did make an assault; and that the said M. H., her the said new-born child, with both her hands, in a certain piece of flannel of no value, then and there feloniously, wilfully, and of her malice aforethought, did wrap up and fold, by means of which said wrapping up and folding the said new-born female bastard child in the piece of flannel aforesaid, she the said new- born female child was then and there suftbcated and smothered; of which said suflbcation and smothering she the said new-born female child, then and there instantly died; and so the jurors aforesaid," etc. (145) llurder by stamping^ heating^ and Mching. That T. V. Jr., late of the said county, yeoman, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on, etc., at, etc., in and upon one N. R., in the peace of God and the commonwealth, then and there being, feloniously, wilfully, and of his malice afore- thought, did make an assault ; and that the said T. Y. Jr., then and there with both his hands, the said ^. R., in and upon the head, neck, and breast of him the said ^N". R., feloniously, wilfully, and of his malice aforethought, did strike and beat; and that the said T. V. Jr., then and there, with both his hands and feet, the said N. R., so and upon the ground, feloniously, wilfully, and of his malice aforethought, did knock, cast, and throw; and the said IS". R., so on the ground lying and being, he the said T. V. Jr., with both his hands, knees, and feet, in and upon the head, neck, breast, stomach, back, and sides of him the said N. R., did then and there feloniously, wilfully, and of his malice aforethought, strike, beat, press, and kick; and that the said T. V. Jr., then and there the said if. R., by and upon the neck and throat of him the said N". R., with both the hands of him the said T. V. Jr., did feloniously, wilfully, and of his malice aforethought, grasp and seize, thereby choking and strangling the said N. R., and by the said striking, beating, casting, throwing, pressing, and kicking, giving to the said JST. imputation to the prisoner of any act sufficient to cause death ; and 3d. That there was a variance in the name of one of the grand jury. Vaufrhan, B., quashed the inquisition on the latter ground, hokling that tlic indictment was itself good. 119 (146) OFFENCES AGAINST THE PERSON. R. several mortal bruises; of which said several mortal bruises, choking, and strangling, the said N. R. then and there in- stantly died. And so the inquest aforesaid, on their oaths and affirmations aforesaid, do say, that the said T. V. Jr.. the day and year afore- said, at Chester County aforesaid, in manner and form afore- said, the said N. R.. feloniously, wilfully, and of his malice aforethought, did kill and murder, contrary, etc. {Conclude as in book 1, chapter 3.) (146) Uurder by bccding tvitli fists and McJcing on the ground, no mortal wound being discovered. [n) That W. W., late of, etc., on, etc., at, etc., with force and arms, at aforesaid, etc., in and upon one E. D., in the peace of God and the said commonwealth, then and there being, feloniousl}^ wilfully, and of his malice aforethought, did make an assault; and that the said W. W. then and there feloniously, wilfully, and of his malice aforethought, did strike, beat, and kick the said E. D. with his hands and feet, in and upon the head, breast, back, belly, sides, and other parts of the body of him the said E. D., and did then and there feloniously, wil- fully, and of his malice aforethought, cast and throw the said E. D. down unto and upon the ground with great force and violence there, giving unto the said E. D. then and there,. as well by the beating, striking, and kicking of him the said E. D., in manner and form aforesaid, as by the casting and throw- ing of him the said E. D. down as aforesaid, several mortal strokes, wounds, and bruises in and upon the head, breast, back, belly, sides, and other parts of the body of him the said E. D., of which said mortal strokes, wounds, and bruises he the said E. D., from, etc., until, etc., at, etc., did languish, and languishing did live; on which said day of in the year afore- said, the said E. D.,at, etc., of the several mortal strokes, wounds, and bruises aforesaid, died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said W. W. him the said E. D., in the manner and by the means aforesaid, feloniously, willfully, and of his malice aforethought, did kill and murder. {Conclude as in book 1, cliapter 3.) (72) Stark. C. P. 419. 120 HOMICIDE. (147) (147) For stabbing, casting into the sea, and drowning the deceased on the high sea, etc.{o) The jurors, etc., upon their oath present, that A. B. {and others, naming them), being citizens of the United States, on upon the high sea, out of the jurisdiction of any particu- lar state, in and on board a certain schooner, the name of which is to the jurors aforesaid unknown, in and upon one C. D.,a mar- iner in and on board said vessel, piratically and feloniously did make an assault, and that he the said A. B., with a certain steel da^o-er, which he the said A. B. in his hand then and there had and held, the said C. D., in and upon the breast of him the said C. D., upon the high sea, and on board the schooner aforesaid, and out of the jurisdiction of any particular state, piratically and feloniously did strike and thrust, giving to the said C. D., in and upon the breast of him the said C. D., upon the high sea aforesaid, in and on board the said schooner, and out of the jurisdiction of any particular state, piratically and feloniously, in and upon the breast of him the said C. D., several grievous, dangerous, and mortal wounds; and did then and there, in and on board the schooner aforesaid, upon the high sea, and out of the jurisdiction of any particular state, piratically and felo- niously, him the said C. D. cast and throw from out of the said schooner into the sea, and plunge, sink, and drown him in the sea aforesaid; of which said mortal wounds, casting, throwing, plunging, sinking, and drowning, the said C. D., in and upon the high sea aforesaid, out of the jurisdiction of any particular state, then and there instantly died. And the jurors aforesaid, upon their oath aforesaid, do say, that, by reason of the casting and throwing the said C. D. in the sea as aforesaid, they cannot describe the said mortal wounds. And so the jurors aforesaid, upon their oath* aforesaid, do say, that the said A. B. {and others) him the said C. D., then and there, upon the high sea aforesaid, out of the jurisdiction of any particular state, in manner and form aforesaid, piratically and feloniously did kill and murder, against, etc. {Conclude as in book 1, cJuipter 3.) (o) Davis's Tree. 228. This was the form in U. S. v. Hohnes, 5 Wheat. 412. 121 (148) OFFENCES AGAINST THE PERSON. (148) Knocking to the grouncU and beating, kicking, and wounding.{p) That R. M., late of the parish of Wakefield, in the county of York, laborer, and B. M., late of the same place, laborer, not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on, etc., with force and arms, at the parish aforesaid, in the county aforesaid, in and upon one J, D., in the peace of God and our said lord the king, then and there being, feloniously, wilfully, and of their malice aforethought, did make an assault; and that they, the said R. M. and B. M., then and there feloniously, wilfully, and of their malice aforethought, did with great force and violence pull, push, cast, and throw the said J. D. down unto and upon the ground there, and that the said R. M. and B. M., with both the hands and feet of them the said R. M. and B. M., then and there, and whilst the said J. D. was so lying and being upon the ground, him the said J. D., in and upon the head, stomach, breast, belly, back, and sides of him the said J. D., then and there feloniously, wilfully, and of their malice aforethought, divers times with great force and violence did strike, beat, and kick, and that the said R. M. and B. M., with both the hands, feet, and knees of them, the said R. M. and B. M., and each of them, then and there, and whilst the said J. D. was so lying and being upon the ground as aforesaid, him the said J. D., in and upon the belly, head, stomach, and sides of him the said J. D., then and there feloniously, wilfully, and of their malice afore- thought, did with great force and violence strike, push, press, and squeeze, giving to the said J. D., then and there, as well by the pulling, pushing, casting, and throwing of him the said J. D. down unto and upon the ground as aforesaid, and by the striking, beating, and kicking of him the said J. D., whilst he was so lying and being upon the ground as aforesaid, in and upon the head, stomach, breast, belly, back, and sides of him the said J. D. as aforesaid, as also by the striking, pushing, pressing, and squeezing of him the said J. D,, whilst he the (p) R. V. Mosley, 1 Mood. C. C. 98. This form was sustained by the twelve jiulgos, it being held that it is not necessary to set forth the length, depth, or breadth of the wound. 122 HOMICIDE. (149) said J. D. was so lying and being upon the ground as aforesaid, in and upon the belly, breast, stomach, and sides of him the said J. D., with the hands, knees, and feet of them, the said R. M. and B. M., in manner aforesaid, several mortal bruises, lacerations, and wounds in and upon the belly, breast, stomach, and sides of him the said J. D. ; of which said several mortal bruises, lacerations, and wounds the said J, D., from the said, etc., until, etc., in the parish aforesaid, in the county aforesaid, did languish, and. languishing did live; on which, etc., the said J. D., at the parish aforesaid, in the county aforesaid, of the said several mortal bruises, lacerations, and wounds, died; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said R. M. and B. M. him the said J. D. in manner and form and by the means aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder. {Conclude as ill booh 1, chapte)' 3.) (149) Murder by striking with stone.s.{q^ That J. D., late of, etc., laborer, J. P., late of, etc., laborer, and C. T., late of, etc., laborer, not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the sixteenth July, 4 Geo. IV., with force and arms, at, etc., in and upon one W. W., in the peace, etc., then and there being, feloniously, wilfully, and of their malice afore- thought, did make an assault ; and that the said J. D., J. P., and C. T., with certain stones of no value, which they the said J. D., J. P., and C. T. in their right hands then and there had and held, in and upon the back part of the head of him the said W. W. then and there feloniously, wilfully, and of their malice aforethought, did cast and throw, and that the said J. B., J. P., and C. T., with the stones aforesaid, so as aforesaid cast and thrown, the aforesaid W. W., in and upon the back part of the head of him the said W. W., then and there feloniously, wil- fully, and of their malice aforethought, did strike, penetrate, and wound, then and there giving to the said W. W., by the {([) R. V. Dale, 9 Moore, 19. An arrest of judgment was asked, first, because the number of stones was uncertain ; and, secondly, because it was not stated in which hand of the several defendants they were held. The twelve judges, however, held the indictment good, and the prisoner was executed. See supra, notes to form 117. 123 (150) OFFENCES AGAINST THE PERSON. casting and throwing of the stones aforesaid, in and upon the back part of the head of him the said W. W., one mortal wound, bruise, fracture, and contusion, of the breadth of one inch, and of the depth of half an inch, of which said mortal wound, bruise, fracture, and contusion he the said W. W., theu and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. D., J. P., and C. T. him the said W. W., in the manner and by the means aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder, against the peace, etc.(r) (150) Murder by casting a stone. {s) That A. B., late of the said yeoman, on the day of in the year of our Lord one thousand, etc., with force and arms, at aforesaid, in the county aforesaid, in and upon one M., in the peace of God and of the said common- wealth, then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault, and that the said A. B., a certain stone of no value, which he the said A. B. in his right hand then and there had and held, in and upon the right (r) On the verdict of guilty being recorded, Mr. D. F. Jones moved in arrest of judgment, that the indictment was defective in form on the following grounds : First, that after the words "certain stones" there should have been a videlicet mentioning the number of stones. Secondly, that it was not expressed in what hand they were held by each of the defendants. And, lastly, that the mode of causing the death was not properly stated. Judgment was accordingly respited, and the above points reserved for the consideration of the twelve judges, and were now argued for the prisoner. Dale, by Mr. D. F. Jones, who cited as to the first. The King v. Beech, 1 Leach C. C. 3d ed. 159 ; Hale's P. C. vol. ii. pp. 182, 185. Secondly, Hale's P. C. vol. ii. p. 185 ; Cuppledick's case, 44 Eliz. K. B. ; Ld. Sanchar's case, 9 Rep. 119. [Ld. Chief Justice Abbott. It is very possible that ten stones may produce one mortal wound.] [Mr. Justice Bayley. If a man give two blows they may only produce one wound ; and it cannot be for a moment supposed that it would be necessary to allege the number of shots in a gun, and they receive an impetus from the gun as stones thrown by the hand.] Thirdly, a case before Mr. Justice Chambre, at the Spring Assizes at York, 1806. [^Ir. Justice Holroyd. The verbs cast and throw may be used either in an active or neuter sense, as to throw at backgammon, or with dice, or to cast or throw with a net into the sea ; and the latter part of this indictment shows that they had been used in the latter sense.] Mr. J. Park was to have argued on the part of the crown; but the judges "were unanimously of opinion that the conviction was right. The convict was afterwards executed. (.<() Stark. C. P. 424. See R. v. Dale, 1 Mood. C. C. 5. 124 HOMICIDE. (151) side of the head, near the right temple of her the said M., then and there feloniously, wilfully, and of his malice aforethought, did cast and throw ; and that the said A. B., with the stone aforesaid, so as aforesaid cast and thrown, the aforesaid M,, in and upon the right side of the head, near the right temple of her the said M., then and there feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and wound ; giving to the said M., by the casting and throwing of the stone afore- said, in and upon the right side of the head near the right temple of her the said M., one mortal wound, of the length of one inch, and of the depth of one inch, of which said mortal wound she the said M., from the said day of in the year aforesaid, until the day of in the same year, at aforesaid, at the county aforesaid, did languish, and languishing did live ; on which said day of in the year aforesaid, the said M., at aforesaid, in the county afore- said, of the said mortal wound died. And so the jurors afore- said, upon their oath {o7' oaths and affirmations) aforesaid, do say, that the said A. B., her the said M., in the manner and by the means aforesaid, feloniously, wilfully, and of his malice afore- thought, did kill and murder. {Conclude as in book 1, chapter 3.) (151) 31urder by striking loith a stone.{t) That E. W., not having the fear of God before his eyes, etc., on the twenty-third day of July, one thousand eight hundred and twelve, with force and arms, at, etc., in and upon one S. S., in the peace of God, etc., then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said E. W. (with) a certain stone of no value, which he the said E. W. in his right hand then and there had and held, in and upon the right side of the head near the right temple of him the said S. S., then and there feloniously, wilfully, and of his malice aforethought, did cast and throw; (0 White V. Com., 6 Binn. 179. The first objection to this count arising from the interpolation of tlie word " witli" in the sixth line, was treated by the court as arisinjf from a clerical error, and as not so far affecting the sense of the averment as to vitiate it. It is not necessary, it was also said, to distinguish between the two degrees in an indictment for homicide. So far as the indict- ment was concerned, the judgment of the court below on a verdict of murder in the first degree was sustained. 125 (152) OFFENCES AGAINST THE PERSON. and that lie the said E. W., with the stone aforesaid, so as aforesaid cast and thrown, the aforesaid S. S., in and upon the right side of the head near the right temple of him the said S. S., then and there feloniously, wilfully, and of his malice afore- thought, did strike, penetrate, and wound, giving to the said S. S., by the casting and throwing of the stone aforesaid, in and ujjon the right side of the head, etc., one mortal wound, of the length of two inches, and of the depth of one inch, of which said mortal wound the said S. S. then and there instantly died ; and so the jurors aforesaid, upon their oaths, etc., say, that the said E. "VV., him the said S. S., in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder. {Conclude as in book 1, chapter 3.) (152) By striking with an axe on the neck.{u) That J. M., late of said county, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on, etc., with force and arms, at, to wit, in the county of Jackson aforesaid, in and upon one S. TV., in the peace of God and the State, then and there being, feloniously, wilfully, unlawfully, and of his malice afore- thought, did make an assault; and the said J. M. with a cer- tain axe made of iron and steel, of the value of one dollar, which he the said J. M. in both his hands then and there held, the said S. W., in and upon the right side of the neck of him the said S. W., between the head and shoulder of him the said S. "VV., then and there unlawfully and of his malice afore- thought, did strike, thrust, and penetrate, giving to the said S. W., then and there, with the said axe aforesaid, in and upon the right side of the neck of him the said S. W., between the head and shoulder of him the said S. W., one mortal wound, of the length of ten inches, and of the depth of four inches, of which said mortal wound the said S. W., in the county of Jackson aforesaid, on the day aforesaid, and the year aforesaid, did in- stantly die; and so the jurors aforesaid, upon their oath afore- said, do say, that the said J. M., the said S. \V., in manner and (m) This form was sustained in Mitchell v. State, 8 Yerg. 515. 126 HOMICIDE. (1"35) form aforesaid, unlawfully, and of his malice aforethought, did kill and murder. {Conclude as in book 1, cha'pter 3.) (153) By striking with a knife on the hip^ the death occurring in another state.(v) That W. D., late of the said county of Stokes, laborer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on, etc., with force and arms, in the county aforesaid, in and upon one A. H., in the peace of God and the state, then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault, and that the said W. D., w^ith a certain knife of the value of sixpence, which he the said W. D. in his right hand then and there had and held, the said A. II., in and upon the right hip and the left side of the back near the back-I)one of him the said A. H., then and there, feloniously, wnlfully, and of his malice aforethought, did strike and thrust, giving to the said A. H., then and there with the knife aforesaid, in and upon the said right hip and the left side of the back near the back-bone of the said A. H., several mortal wounds, each of the breadth of. three inches, and of the depth of six inches, of which said several mortal wounds the said A. H., from the said, etc., in the year aforesaid, until, etc., as well as in the county aforesaid, as in the county of Patrick, in the state of Virginia, did languish, and languishing did live; on which said twenty-ninth day of August, in the year aforesaid, the said A. II., in the said county of Patrick, in the state of Virginia, of the said several mortal w^ounds died; and so the jurors aforesaid, upon their oath afore- said, do say, that the said W. D., the said A. H., in manner and by the means aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder. {Conclude as in book 1, chap- ter 3.) (155) Murder by stabbing with a knife. {w) That A. B., late of the said county, yeoman, on the day (u) In this form, which was sustained in Xorth Carolina, State v. Dnnkley, 3 Iredell, 117, the statutory conclusion was omitted; and the same feature was sustained in Com v. White, 6 Binn. 183. See supra, concluding note to form 111. («') Stark. C. P. 424. See form for "Cutting Throat," supra, 116. 127 (156) OFFENCES AGAINST THE PERSON. of in the year of our Lord, etc., with force and arms, at aforesaid, in the county aforesaid, in and upon one J. M., in the peace of God and of the said state, then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault, and that he the said A. B., with a certain knife of the value of sixpence, which he the said A. B.,in his right hand then and there had and held, the said J. M., in and upon the left side of the belly, between the short ribs of him the said J. M., then and there feloniously, wilfully, and of his malice aforethought, did strike and thrust, giving to the said J. M., then and there, with the knife aforesaid, in and upon the afore- said left side of the belly, between the short ribs of him the said J. M., one mortal wound, of the breadth of three inches, and of the depth of six inches, of which said mortal wound the said J. M., from the said day of in the year afore- said, until the day of in the same year, at aforesaid, in the county aforesaid, did languish, and languishing did live; on which said day of in the year aforesaid, the said J. M., at aforesaid, in the county aforesaid, of the said mortal wound died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B., him the said J. M., in the manner and by the means aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder. {Conclude as in hook 1, chapter 3.) (156) Murder. Against J. T.for shooting the deceased^ and against A. S. for aiding and abetting. {x) That J. T., late, etc., and A. S., late, etc., on the day of in the year, etc., with force and arms, at aforesaid, in the county aforesaid, in and upon one S. G., in the peace of God, and of our said lord the king, then and there being, felo- niously, wilfully, and of their malice aforethought, did make an assault; and that the said J. T., a certain gun called a car- bine, of the value of ten pounds, then and there charged with gunpowder and a leaden bullet, which said gun he the said J. T., (x) Stark. C. P. 423; R. v. Taylor and Shaw, Leach, 398. A. S. was found fniiltv and J. T. acquitted ; and a majority of tlie judges were of ojjinion that the conviction of A. S. was good, but the prisoner afterwards received a free pardon. See Stark. C. P. 88, 89. See for other forms for "Shooting," supra, 115, 117. 128 HOMICIDE. (156a) in both his hands then and there had and held, at and against the said S. G., then and there feloniously, wilfully, and of his malice aforethought, did shoot ofi' and discharge ; and that the said J. T., with the leaden bullet aforesaid, by means of slioot ing off and discharging the said gun so loaded, to, at, and against the said S. Gr. as aforesaid, did then and there feloni- ously, wilfully, and of his malice aforethought, strike, penetrate, and wound the said S. G., in and upon the right side of the head of him the said S. G., near his right temple, giving to him the said S. G., then and there, with the leaden bullet aforesaid, by means of shooting otf and discharging the said gun so loaded, to, at, and against the said S. G., and by such striking, pene- trating, and wounding the said S. G., as aforesaid, one mortal wound in and through the head of him the said S. G., of which said mortal wound the said S. G. did tljen and there instantly die; and that the said A. S., then and there feloniously, wilfully, and of his malice aforethought, was present aiding, helping, abetting, comforting, assisting, and maintaining the said J. T. the felony and murder aforesaid, in manner and form aforesaid, to do and commit, etc. etc. {Conclude as in book 1, chapter 3.) (156a) Murder in ■producing abortion. That "W. H. B., etc., "did unlawfully, feloniously, and wil- fully use a certain instrument called a gum-bougie, by then and there forcing, thrusting, and inserting the said instrument, called a gum-bougie, into the womb and private parts of one M. ]Sr., then and there being a woman pregnant with child, and in the peace of the people, with intent then and there to produce the miscarriage of the said M. N., and did thereby, unlawfully, feloniously, and wilfully, with malice aforethought, cause the miscarriage of said M. N., it not being then and there neces- sary to cause such miscarriage for the preservation of the life of said M. N. (the said W. H. B. then and there well knowing that the use of said instrument as aforesaid, at the time afore- said, in the manner aforesaid, would produce such miscarriage); by reason whereof the said M. N., from the said sixth day of May, in tlie year aforesaid, until, etc., did languish, and languish- ing did live; on which, etc., in the year aforesaid, at the county aforesaid, the said M. K. died." VOL. I.— 9 129 (157) OFFENCES AGAINST THE PERSON. In the fifth count it was charged, that the said W. H. B. " did then and there, unlawfully and feloniously, and of his malice aforethought, administer to one M. N., then and there being a woman pregnant with child, in the peace of the people then and there being, a certain noxious and abortifacient drug, the name of which said noxious and abortifacient drug is to the grand jurors unknown, with intent then and there to produce the mis- carriage of the said M. N., it not being then and there necessary to administer said noxious and abortifacient drug, the name of which is to the grand jurors unknown, for the preservation of the life of the said M. ^.'\y) (157) Murder of a bastard child.{z) That A. B., late of, etc., spinster, on, etc., being big with a male child, on, etc., at, etc., by the providence of God, did bring forth the said child alive,(«) of the body of her the said A. B., alone(6) and in secret ; which said male child, so being born alive, by the laws of this realm, was a bastard ; and that the said A. B. afterwards, to wit, on, etc., as soon as the said male bastard child was born, with force and arms, at, etc., in and upon the said child, feloniously, wilfully, and of her malice aforethought, did make an assault ; and that she the said A. B., with both her liands about the neck of him the said child, then and there fixed, him the said child, then and there feloniously, wilfully, and of her malice aforethought, did choke and strangle, of which said choking and strangling, the said child then and there instantly died ; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B., him the said male bastard (y) On the above counts, It was held in Illinois, that the exception in the statute, providing that "unless the same were done as necessary for the preser- vation of the mother's life," was sufficiently negatived. Beasley v. People, 89 111. 571. (z) Stark. C. P. 405. As to concealing bastard child, see infra, 183-4, 5. (a) If upon view of the child, it be testified by one witness, by apparent probabilities, that the child was not come to its debitum partus temptts, as if it have no hair or nails, or other circumstances ; " this" (says Lord Hale) " I have always taken to be a proof by one witness, that the child was born dead, so as to leave it nevertheless to the jury, as upon a common law evidence, whether she were guilty of the death or not." Stark. C. P. 406. According to Mr. Starkie (w< Slip.), the sex is material. (i) These words do not appear to be necessary. lb. 130 HOMICIDE. (157a) child, ill form aforesaid, feloniously, wilfully, and of her malice aforethought, did kill and murder, against the peace, etc. (157a) Same under Maine statute. " That S. M. of P., single woman, on, etc., at, etc., being preg- nant with a male child, did then and there bring forth the said male child alive of the body of her the said S. M., alone and in secret, which said male child being so born alive was by the laws of said state a bastard, and that afterwards, to wit, on, etc., she the said S. M., with force and arms, at, etc., in and upon the said male child, in the peace of said state then and there being, feloniously, wilfully, and of her malice afore- thought, did make an assault, and the said male child, she the said S. M., did then and there feloniously, wilfully, and of her malice aforethought, kill and murder, against the peace," etc. Second count. " And the jurors aforesaid, upon their oaths aforesaid, do further present, that said S. M., otherwise known by the name of S. W., single woman, on, etc., at, etc., with force and arms, in and upon an infant child by name to said jurors unknown, in the peace of said state, then and there being, feloniously, wilfully, and of her malice aforethought, did make an assault, and the said infant child then and there feloniously, wilfully, and of her malice aforethought, did kill and murder, against the peace," etc.(c) (c) State u. Morrissey, 70 Me. 401. Peters, J. "The first count is the copy of a form provided by an English statute (St. 14 and 15 Vict. c. 100, § 4), adopted by our legislature (Laws 18G5, c. 329), approved and sustained by this court (State v. Verrill, 54 Me. 408), with this difference, that in the statutory form the allegation does not appear, as it does in this indictment, that the prisoner 'made an assault upon the deceased.' The wisdom of the statute we have no doubt of. There was no part of criminal pleading so difficult as to safely and correctly describe in an indictment the means "and manner by which a murder was conmiitted. The declaration of Sir iMatthew Hale seemed to be justified when (2 Pleas C. 193) he said, that 'overgrown curiosity and nicety has become the disease of the law, and more oUcnders escape by the over-easy ear given to exceptions in indictments than by their own innocence.' Under this general mode of alleging the crime, a court can order such specification of details and particulars as may be proper, and allow amend- ment or alteration thereof without imposing hazards upon the state or inflicting injury upon the prisoner. "It is contended that, inasmuch as an assault is alleged in this indictment, not in accordance with the statutory form, but additional thereto, the particular means by which the assault was committed must be set out. It is claimed that 131 (158) OFFENCES AGAINST THE PERSON. (158) Throwing a bastard child in a jprivy.{d) That C. D., late of said B., single woman, on the day of now last past, being pregnant with a female child, after- wards, to wit, on the same day of in the year afore- said, at B, aforesaid, the said female child, alone and in secret from her body did bring forth alive, which said female child, 80 born alive, was, by the laws of this commonwealth, a bastard ; and that the said C. D., afterwards, to wit, on the same day of in the year aforesaid, with force and arms, at B. aforesaid, in the county^ aforesaid, in and upon the said female bastard child, feloniously, wilfully, and of her malice afore- thought, did make an assault; and that the said C. D., with both her hands, the said female bastard child, into a certain privy there situate, wherein was a great quantity of human excrements and other filth, then and there feloniously, wilfully, and of her malice aforethought, did cast and throw; by reason of which said casting and throwing of the said female bastard child into the said privy, by her the said C. D., in manner as in State v. Verrill this point was not presented. If the indictment be good without such unnecessary allegation, it must be as good with it. The pleader adding words to what was complete before, only recjuires him to prove all that he has alleged. He is required to prove the murder to have been committed by force. But it does not follow because he has alleged more than is needful, that he is in a dilemma of not having alleged enough. He is not required to spread out his general averment of assault into particulars. State v. Noble, 15 Maine, 476; State v. Smith, 32 Maine, 369. " We think the second count sufficient. We have seen no precedent of indict- ment that omits an allegation of the sex of the infant child, nor has any case come to our notice which decides that the allegation is necessary. Mr. Wharton in his Criminal Precedents remarks that the averment is necessary. Bat why necessary ? The law requires a person to be described by his name. We take it that if an infant has a name, there would be no more occasion for averring the sex than in any other case. But it is laid down as a rule that, the name being unknown, it is sufficient to aver tlie name of the killed or injured person to be unknown. The law requires that an indictment shall be so certain as to the party against whom the offence was committed, as to enable the prisoner to un- derstand who the party is, and upon what charge he is called upon to answer, as to prevent the prisoner from being put in jeopardy a second time for the same offence, and as will autliorize the court to give the appropriate judgment on con- viction. What would it practically add in these respects to the rights and safety of the accused in this case to have the sex alleged V In a criminal proceeding, the allegation of name is enough, though there may be more than one person of the same name in the same place. State v. Grant, 22 Maine, 171. It is enough to allege the name to be unknown, although the grand jury might have ascer- tained what the name was. Com. v. Stoddard, 9 Allen, 280." (f/) 3 Chit. C. L. 767. This form, and that which follows it, are given by Mr. Davis as conforming to the Massachusetts statute. 132 HOMICIDE. (1-^9) aforesaid, the said female bastard child, in the said privy, with the excrements and tilth aforesaid, was then and there choked and suffocated ; of which said choking and suffocation the said female bastard child then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. the said female bastard child, in manner and form afore- said, feloniously, wilfullj', and of her malice aforethought, did kill and murder. {Conclude as in hook 1, chapter 3.) (159) Smothering a bastard child in a linen cloth.{e) That C. D., of said B., single woman, on the day of now last past, at B. aforesaid, in the county aforesaid, being pregnant with a certain female child, afterwards, to wit, on the same day of in the year aforesaid, at B. aforesaid, the said female child, alone and secretly' from her body did bring forth alive, which said female cliild, so born alive, was, by the laws of this commonwealth, a bastard; and that the Baid C. D. afterwards, to wit, on the same day of in the year aforesaid, with force and arms, at B. aforesaid, in the county aforesaid, in and upon the said female bastard child, feloniously, wilfully, and of her malice aforethought, did make an assault; and that the said C. D., with both her hands, the said female bastard child, in a certain linen cloth, feloniously, wil- fully, and of her malice aforethought, did put, place, fold, and wrap up; by means of which said putting, placing, folding, and wrapping up of the said female bastard child, in the said linen cloth, by her the said C. D. as aforesaid, the said female bastard child was then and there choked, suffocated, and smothered; of which said choking, suffocation, and smothering, the said female bastard cliild then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D. the said female bastard child, in manner and form aforesaid, feloniously, wilfully, and of her malice aforethought, did kill and murder. {Conclude as in book 1, chap- ter 8.) (e) See Davis's Prec. 178. 133 (161) OFFENCES AGAINST THE PERSON. (160) Murder in Pennsylvania, of a bastard child hy strangling. {f) That U. S., of the county aforesaid, spinster, on, etc, being big with a female child, the same day and year, in the county aforesaid, by the providence of God did bring forth the said child alive of the body of her the said U., alone and in secret, which said female child, so being born alive, by the laws of this commonwealth was a bastard; and that the said U., not having the fear of God before her eyes, but being moved and seduced by the imstigation of the devil, afterwards, to wit, on, etc, as soon as the said female child was born, with force and arms, at the county aforesaid, in and upon the said child, in the peace of God and this commonwealth, then and there being, feloni- ously, wilfully, and of her malice aforethought, did make an assault; and that she the said U., with both her hands about the neck of her the said child, then and there feloniously, wil- full}^, and of her malice aforethought, did choke and strangle; of which said choking and strangling, the said child then and there instantly died. And so the inquest, etc, do say, that the said U. S., her the said female bastard child, in manner and form aforesaid, feloniously, wilfully, and of lier malice afore- thought, did kill and murder, contrary to the form of the act, etc, and against the peace and dignity, etc (161) Murder. By starving apprentice.(g) Middlesex, to wit: The jurors for our lady the queen, upon their oaths present, that J. S., late of the parish of B. in the county of M., carpenter, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, and of his malice aforethought, contriving and intending one J. N., then being an apprentice to him the said J. S., felo- ( /') This iiiflictment was sustained after a conviction in Pennsylvania, in 1807. See for other forms for strangling, supra, 123, 128. (g) Arch. C. P. 405. If the indictment be for refusing to supply the appren- tice Avith necessaries, it must state that the apprentice was of tender years, un- able to provide for himself. R. v. Friend, R. & R. 20 ; R. v. Marriot, 8 C. & P. 424. Where the indictment charges an imprisoning, that sufficiently shows the duty to supply food ; but if it do not, then it must allege a duty in the defendant to supply the deceased with food. R. v. Edwards, 8 C. & P. 611. See as to evidence, Arch. C. P. 406 et seq. It is necessary, also, to prove that J. N. was the apprentice of J. S., or at least acted as such. Arch. C. P. 513. 134 HOMICIDE. (162) niously to starve, kill, and murder, on the third day of August, in the ninth year of the reign of our sovereign lady Victoria, and on divers days and times between that day and the twenty- eighth day of the same month, in the same year, with force and arms, at the parish aforesaid, in the county aforesaid, in and upon the said J. ]S'.,his apprentice as aforesaid, in the peace of God and of our said lady the queen, then and there being, feloniously, wilfully, and of his malice aforethought, did make divers assaults; and that the said J. S., on the said third day of August, in the year last aforesaid, at the parish aforesaid, in the county aforesaid, him the said J. N., in a certain room in the dwelling-house of him the said J. S. there situate, feloni- ously, wilfully, and of his malice aforethought, did secretly confine and imprison, and that the said J. S., from the said third day of August, in the year last aforesaid, until the twenty- eighth day of the same month, in the same year, at the parish aforesaid, in the county aforesaid, feloniously, wilfully, and of his malice aforethought, did neglect, omit, and refuse to give and administer, and to permit and suifer to be given and administered to him the said J. N., sufficient meat and drink necessary for the sustenance, support, and maintenance of the body of him the suid J. K. ; by means of which said confinement and imprisonment, and also of such neglecting and refusing to give and administer, and to permit and sufter to be given and administered to the said J. N., such meat and drink as were sufficient and necessary for the sustenance, support, and main- tenance of the body of him the said J. K., he the said J. IST., from the said third day of August, in the year last aforesaid, until the twenty-eighth day of the same month, in the same year, at the parish aforesaid, in the county aforesaid did languish, etc. etc. (162) Manslaughter by neglect. First county that the deceased was the apprentice of prisoner^ and died from neglect of prisoner to supply him with food, etc.{h) That on the third day of February, one thousand eight hun- dred and forty-two, at, etc., one R. K. (the deceased) was then {]{) R. V. Crumpton, 1 C. & M. 597. See for same when death did not ensue, infra, 914, etc. 135 (163a) OFFENCES AGAINST THE PERSON. and tliere an apprentice to one J. C. (the prisoner), and as such apprentice was then under the care and control of rhe said J. C. ; and that it then and there became and was the duty of the said J. C, during the time aforesaid, to permit and sutler the said R. K. to take and have such proper exercise as was necessary and needful for the bodily health of the said R. K., so being such apprentice as aforesaid ; and it then and there became and was the duty of the said J. C. to find, provide, and supply the said R. K., being such apprentice as aforesaid, with proper and necessary nourishment, medicine, medical care, and attention ; and, etc. {concluding by averring in the usual form that the deceased being weak in body, the prisoner struck and beat him, and forced, obliged, and compelled him to work for an unreasonable time, and would not allow him to take proper exercise and re- creation, and neglected to supply him with proper nourishment and medicine, medical care and attention, by means whereof he died), etc. (163) Second count — charging killing by overwork and beating. (The second count stated that the prisoner, in and upon the deceased, so being such apprentice as aforesaid, and under the care and control of him the said J. C. as aforesaid, and so being sick and weak in body as aforesaid, in the peace of God and our said lady the queen, feloniously did make an assault; and that the deceased being so weak in body as aforesaid, the prisoner forced him to work for certain unreasonable and improper times, and beat him, b\' means whereof he died.) (163a) Homicide of wife caused by neglect to provide her with necessaries. The jurors for said state upon their oath present, that H. S., of B., in said county of Y., laborer, on, etc., at, etc., being then and there the husband of one L. A. S. his wife, and being then and there under the legal duty to provide for his said wife necessary clothing, shelter, and protection from the frost, cold, and inclemency of the weather, and then and there having the means to provide the same, and she, said L. A. S., being then and there weak, feeble, destitute, and infirm, and unable to go abroad, did then and there feloniously and wilfully neglect and 136 HOMICIDE. (164) refuse to provide necessary clothing, shelter, and protection from the frost, cold, and inclemency of the weather for his said wife, whereby her health was greatly injured; and he the said H. S., afterward, to wit, on the next succeeding day and on every day between the said, etc., day of, etc., and the, etc., day of, etc., then next ensuing, did there feloniously and wilfully continue to neglect and refuse to provide her, the said L. A. S., with neces- sary clothing, shelter, and protection from the frost, cold, and inclemenc}^ of the weather; the said H. S. being there on all said days and times her husband as aforesaid, and having the means to provide the same as aforesaid, and, under the legal duty to provide the same as aforesaid, and she, the said L. A. S., having no means to provide the same as aforesaid, and being weak, feeble, destitute, infirm, and unable to go abroad as aforesaid; by reason whereof the said L. A. S. there on all the days and times before mentioned, uiitil the, etc., day of, etc., in the year aforesaid, sickened and languished with a mortal sickness and feebleness of body so as aforesaid created and produced by the said H. S., until the, etc., day of, etc., now last past, on which said last mentioned day, at said, etc., she the said L. A. S., there of said mortal sickness and feebleness of body, died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said H. S., her, the said L. A. S., in manner and by the means aforesaid, feloniously did kill and slay, against the peace, etc.(z) (164) Manslaughter. Against a woman for exposing her infant child so as to produce death.{j) {Third count.) That A. W., of, etc., on, etc., in the year afore- said, with force and arms, at the parish aforesaid, in the county (?) It was held in Maine that the above indictment " is sufficient without other or more precise or formal allegations ol" evil or wrongful intent on the part of the defendant or of his knowledge of the effect wliich his negligence was producing." State V. Smith, 65 Me. 257. For neglect to give food to child, see infra, 263cr. [j) R. V. Walters, 1 C. & M. 165. The principle determined in this case was, that if a person do any act towards another, who is helpless, whicli must neces- sarily lead to the death of that other, the crime amounts to murder ; but if the circumstances are such that the person would not have been aware tl)at tlie result would be death, that would reduce the crime to manslaughter, ])rovi(led that the death was occasioned by an unlawful act, but not such an act as showed a mali- cious mind. It was said that if tlie defendant had left her child, a young infant, at a gentleman's door, a place where it was likely to be found and taken care of, and the child died, it would be manslaughter only ; but if tlie child wei-e left in a 137 (164) OFFENCES AGAINST THE PERSON. aforesaid, in and upon a certain female child then and there born of the body of the said A. "W., whose name is to the jurors afore- said unknown, feloniously, wilfully, and of her malice afore- thouo^ht, did make an assault. And the jurors aforesaid, upon their oath aforesaid, do further present, that it was the duty of the said A. W. then and there to provide proper and sufficient clothes, covering, and protection for the body of the said last men- tioned female child, the said last mentioned female child being then and there unable to provide for and take care of herself; and that the said A. W., then and tliere, contrary to her duty in that behalf, feloniously, wilfully, and of her malice aforethought, with both her hands, did put and place the said last mentioned female child in a certain common and public highway and open place there, and then and there did feloniously, wilfully, and of her malice aforethought, desert and leave the said last mentioned female child there exposed to the inclemency of the weather, without sufficient clothes, covering, shelter and protection for the body of the said last mentioned female child. By means of which said several premises in this count mentioned, the said last mentioned female child became and was mortally sick, weak, and disordered in her body ; of which said mortal sickness, weak- ness, and disorder aforesaid, the said last mentioned female child, on and from the said thirteenth day of A[)ril, in the year afore- said, until the fourteenth day of the same month, at the parish aforesaid, in the county aforesaid, did languish, and languishing did live, and then and there, to wit, on the said fourteenth day of April, in the year aforesaid, at the parish aforesaid, in the county aforesaid, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. W., the said last mentioned female child, in manner and form last aforesaid, feloniously, wilfully, and of her malice aforethought, did kill and murder, against the peace of our lady the queen, her crown and dignity. Fourth count. And the jurors aforesaid, upon their oath aforesaid, do fur- remote place, where it was not likely to be found, e. g., on a barren heath, and the death of the child ensued, it would be murder. The defendant was con- victed of manslaugliter. See Wh. Cr. L. 8th ed. §§ 156, 358, 359, 447. 188 HOMICIDE, (164 ther present, that the said A. W. afterwards, to wit, on the day and year first aforesaid, at the parish aforesaid, in the county aforesaid, being big with a certain female child, the same female child alone and secretly from her body did then and there bring forth alive. And the jurors aforesaid, upon their oath afore- said, do further present, that it then and there became and was the duty of the said A W., as the mother of the same child (to fasten, tie, and secure the navel-string of the body of the same child, and to provide and procure such clothing, covering, and shelter for the body of the same child as were then and there necessary and sufficient to protect and defend the same child from the cold and inclemency of the weather, and also to pro- cure for and give and administer to the same child such milk and food as was then and there necessary and sufficient for the support and maintenance of said cliild). And the jurors afore- said, upon their oath aforesaid, do further present, that the said A. W., not regarding her duty in that behalf, but being moved and seduced by the instigations of the devil, on the day and year first aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, in and upon the same child not named, in the peace of God and our said lady the queen, then and there being, feloniously, wilfully, and of her malice aforethought, did make an assault ; and that the said A. W. the same child into both her hands feloniously, wilfully, and of her malice afore- thought, did then and there take, and that the said A. W. the same child feloniously, wilfully, and of her malice aforethought, with both her hands, did then and there put atid place in a cer- tain road there situate, and the same child in the said road, then and there, feloniously, wilfully, and of her malice aforethought, did expose, leave, and abandon, naked and without any cloth- ing, covering, or shelter whatever to protect the body of the same child from the cold and inclemency of the weather.f And that the said A. W. did then and there feloniously, wil- fully, and of her malice aforethought, wholly neglect, omit, and refuse to tie, fasten, or in any way secure the navel-string of the body of the same child, and that the said A. W. did then and there feloniously, wilfully, and of her malice aforethought, wholly neglect, omit, and refuse to provide and procure any clothing, covering, or shelter whatsoever for the same child ; 159 (164) OFFENCES AGAINST THE PERSON. and that the said A. W. did then and there feloniously, wil- fully, and of her malice aforethought, wholly neglect, omit, and refuse to procure for or to give or administer to the same child milk or other food whatsoever, by means of which said last mentioned exposure, leaving, and abandonment of the same child, and also by the omitting and refusing to tie, fasten, and secure the navel-string of the body of the same child as afore- said, and to i)rovide and procure clothing, covering, and shelter for the body of the same child as last aforesaid, and to procure for and give and administer to the same child milk and food as last aforesaid,! the same child, from the time of its birth afore- said, on the day and year first aforesaid, until the fourteenth day of the same month, at the parish aforesaid, in the county afore- said, did languish, and languishing did live ; on which said four- teenth day of April, in the year aforesaid, the same child, at the parish aforesaid, in the county aforesaid, of such leaving, aban- donment, and exposure, and of such wilful omission, neglect, and refusal as in this count mentioned, did then and there die. And so the jurors aforesaid, upon their oaths aforesaid, do say, that tlie said A. W. the same child in manner and form last aforesaid, feloniously, wilfully, and of her malice aforethought, did kill and murder, against the peace of our lady the queen, her crown and dignity. Fifth count. (Exactly similar to the fourth, but instead of the joarts between ( ), inserting the folloiuing): To protect and defend the same child from the cold and inclemency of the weather, and to provide and procure such clothing, covering, and shelter for the body of the said child as was then and there necessary and sufficient to protect and defend the same child from the cold and inclem- ency of the weather.* {And instead of the allegation between ft, inserting the following) : And that the said A. W. did then and there feloniously, wilfully, and of her malice aforethought, wholly neglect, omit, and refuse to i)rotect and defend the same child from the cold and inclemency of the weather, or to pro- vide or procure any clothing, covering, or shelter whatsoever for the same child,** by means of which said last mentioned exposure, leaving, and abandonment of the same child, and also 140 HOMICIDE. (165) neglecting, omitting, and refusing to protect and defend the same child from the cold and inclemency of the weather, and to provide and procure clothing and shelter for the body of the same child, as in this count mentioned.*** Sixth count. {Exactly similar to the fifth coimt, except that in stating the duty of the 'prisoner, the following words were added at the *): And also to procure for, and give and administer to the same child, such milk and food as was then and there necessary and sufficient for the support and maintenance of the same child. [And in stating the cause of the death, the following allegation was inserted at ihe^*): And that the said A. W. did then and there feloni- ously, wilfully, and of her malice aforethought, wholly neglect, omit, and refuse to procure for, give, or administer to the same child any milk or other food whatsoever. {And at the *** the following ivas insei-ted): And to procure for, and to give and administer to the same child, milk and food as last aforesaid. (165) Manslaughter — by forcing an aged woman out of her house in the night, ducking, taning, feathering, and whipping her. That A. B., C. D., E. F., G. H., I. J., and K L., all late of the county aforesaid, etc., at the county of Montgomery afore- said, with force and arms, in and upon the body of one M. N"., then and there being, unlawfully did make an assault, and that they, the said A. B., C. D., E. F., G. H., I. J., and K. L., did then and there unlawfully and forcibly take the said M. N. from the dwelling-house wherein she was then and there residing, out into the open air, and that they did then and there unlawfully carry and force along the said M. JST. a great distance, to wit, the distance of two hundred yards, and that they did then and there unlawfully throw, cast, force, push, and dip the said M. l!^. into the Great Miami River, then and there flowing, wherein there was a great quantity of water, whereby (this being in the night season of the said day, and the said M. N. being then and there an old woman, and just taken from her dwelling-house as aforesaid) the said M. IS[. was then and there thoroughly chilled, and that they did then and there unlawfully cast, throw, and knock the said M. K. down unto and upon the ground, with 141 (166) OFFENCES AGAINST THE PERSON. great force and violence, and that they did then and there un- lawfully drag the said M. N. along and upon the ground a great distance, to wit, the distance of one hundred yards, and that they did then and there unlawfully force and spread in and upon the body of the said M. IST. a great quantity of tar, and a great quan- tity of feathers, and that they did then and there unlawfully strike, beat, whip, and kick the said M. N. with their hands and feet, and with certain switches, which they then and there in their hands had and held, in and upon the head, neck, breast, back, belly, sides, legs, and other parts of the body of the said M. IST., then and there giving to the said M. IST., by the forcibly taking the said M. N. from the said dwelling-house as aforesaid, and by the casting and throwing and knocking the said M. 'N. down unto and upon the ground as aforesaid, and by the drag- ging her along and upon the ground as aforesaid, and by the pouring and spreading the said tar and the said feathers in and upon the body of the said M. N. as aforesaid, several mortal injuries in and upon the head, neck, breast, back, belly, sides, legs, and other parts of the body of the said M. N., of which said mortal injuries the said M. IST., from the said to the in the county aforesaid, did languish, and languishng did live; on which said at the county aforesaid, the said M. !N"., of the mortal injuries aforesaid, died: And so the jurors aforesaid, on their oaths aforesaid, do say, that the said A. B., C. D., E. F., G. H., I. J., and K. L., in the manner and by the means aforesaid, her the said M. iST. unlawfully did kill and slay, contrary, etc., and against, etc.(Z:) (166) Manslaughter — against the keeper of an asylum for pauper children^ for not supplying one of them with proper food and lodging^ whereby the child died.{l) The jurors, etc., upon their oath present, that heretofore and during all the days and times hereinafter in this count men- tioned, James Andrews was a poor, indigent, and destitute infant child of very tender age, to wit, of the age of six years, (Jc) Warren, C. L. 11. (l) 3 Cox, C. C. Appendix, p. Ixxv. For starving an apprentice, see supra, 161. Wh. Cr. L. 8th ed. §§ 1563 et seq. 142 HOMICIDE. (166) and unable to provide himself with necessary food, shelter, or clothing, or any of the necessaries of life ; and that heretofore, to wit, on the twenty-eighth day of October, in the year of our Lord, etc., Peter Bartholomew Drouet, late of the parish of Toot- ing, in the county of Surrey, and Avithin the jurisdiction of the said central criminal court, gentleman, being the keeper of a certain asylum for the reception of poor, destitute, and indigent children, at the parish aforesaid, and within the jurisdiction of the said court, to wit, called and known by the name of Surrey Hall, at the request and with the approbation of the guardians of the poor of the Holborn Union, in the county of Middlesex, who then had the charge and custody of the said J. A., and then under the laws of this realm relating to the relief of the poor, were charged with the relief and support of the said J. A., within their said union, at his request received, and had the said J. A. in the charge and custody of the said P. B. D., by him to be provided with good and proper abode, shelter, and lodging, and all the necessary sleeping accommodation, meat, drink, food, and clothing, for and on behalf of the said guar- dians, for reward to the said P. B. D. in that behalf. And the jurors further present, that thenceforth and on and from the said twenty-eighth day of October, in the year of our Lord and upon and during all the days and times between that day and the fifth day of January, in the year of our Lord the said P. B. D. kept and detained the said J. A., and the said J. A. continued and remained, and was under the charge, care, dominion, government, custody, and control of the said P. B. D. in the said asylum, to wit, at the parish aforesaid, and within the jurisdiction of the said central criminal court, and the said J. A. was, during all the several days and times aforesaid, wholly subject to and dependent upon the said P. B. D. for such abode, shelter, lodging, sleeping accommodation, meat, drink, food, and clothing as aforesaid, and was unable to obtain the same, or any of them, from any other source, or from any other person or per- sons whomsoever. And the jurors aforesaid, upon their oath aforesaid, do further present, that thereupon, to wit, upon the said twenty-eighth day of October, in the year of our Lord and thenceforth during all the days and times in this count aforesaid, it became and was the duty of the said P. B. D. to 143 (166) OFFENCES AGAINST THE PERSON. furnish, provide, and supply the said J. A. with good and whole- some food, meat, and drink, in such sufficient quantities as should be necessary for the healthy support, nourishment, and sustenance of the body of the said J. A. ; and also to furnish, provide, and supply the said J. A. with such proper, suitable, and wholesome lodging, shelter, and abode, as should, upon and during all the several days and times aforesaid, be needful for the said J. A., and be necessary to preserve him in a good and sound state of bodily health, and free from sickness, weakness, and disorder; and also during all the days and times aforesaid, to furnish, provide, and supply the said J. A. with such healthy, wholesome, and proper bedding and sleeping accommodation as should be necessary to enable the said J. A. to enjoy a due and proper quantity of wholesome, healthy, and refreshing rest and sleep ; and also to furnish, provide, and supply the said J. A. with a sufficient quantity of warm and wholesome clothing, for the protection of the body of the said J. A. from the cold, damp, and inclemency of the weather; all of wliich said several prem- ises the said P. B. D., upon and during all the several days and times in this count mentioned, well knew. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said P. B. D., on the several days aforesaid, with force and arms, at the parish of Tooting aforesaid, and within the jurisdiction of the said central criminal court, in and upon the said J. A., feloniously did make divers assaults ; and that the said P. B. D., not regarding his duty as aforesaid, upon all and every the days aforesaid, and during all the said times, whilst the said J. A. remained and continued under the care, charge, dominion, government, custody, and control of the said P. B. D. in the said asylum, at the parish of Tooting aforesaid, and within the juri^^diction of the said central criminal court, feloniously did omit, neglect, and refuse to furnish, provide, or supply the said J. A. with good and wholesome food, meat, and drink, in such sufficient quantities as were upon and during all and every of those days respectively, and during all the time aforesaid, neces- sary for the healthy support, nourishment, and sustenance of the body of the said J. A., according to the duty of the said P. B. D. in that behalf, and on the contrary thereof, upon and dur- ing all and every the days aforesaid, and during all the time 144 HOMICIDE. (166) aforesaid, at the parish of Tooting aforesaid, and within the jurisdiction of the said central criminal court, feloniously, and without any lawful excuse whatsoever, did furnish, provide, and supply the said J. A. with food, meat, and drink in very insuffi- cient and inadequate quantities, and in no sufficient and ade- quate quantity or quantities whatsoever, for such support, nour- ishment, and sustenance of the body of the said J. A. as afore- said ; and that the said P. B. D., not regarding his dutj^ as aforesaid, upon and during all and every of the days aforesaid, and during all the said time whilst the said J. A. remained and continued under such charge, care, dominion, government, custody, and control as aforesaid, in the said asylum, at the parish of Tooting aforesaid, and within the jurisdiction of the said central criminal court, feloniously did omit, neglect, and refuse to furnish, provide, or supply the said J. A. with such proper, suitable, and wholesome lodging, shelter, and abode as was, upon and during all the several days aforesaid, and during all the time aforesaid, needful for the said J. A., and necessary to preserve him in a good and sound state of bodily health, and free from sickness, weakness, and disorder, and as, according to the said duty of the said P. B. D., he ought to have done, and on the contrary thereof, the said P. B. D.,at the parish of Toot- ing aforesaid, and within the jurisdiction of the said central criminal court, upon and during all the several days aforesaid, and during all the time aforesaid, knowingly, feloniously, and contrary to his duty in that behalf, did keep the said J. A., and force, compel, and oblige the said J. A. to be and remain in divers ill- ventilated and unwholesome rooms, inhabited by and overcrowded with an excessive and injurious number of other persons in the said asylum, and feloniously did expose the said J. A., and force and compel the said J. A. to be and remain exposed for divers long spaces of time, on each of the days afore- said, to divers fetid, injurious, noxious, unwholesome, and pesti- lential exhalations and vapors in, near to, around, and about the said as34um then arising and existing; and that the said P. B. D., not regarding his duty as aforesaid, upon and during all and every the days aforesaid, and during all the said time whilst the said J. A. remained and continued under such charge, care, dominion, government, custody, and control as aforesaid, VOL. I.— 10 145 (166) OFFENCES AGAINST THE PERSON. in the said asylum, at the parish of Tootino; aforesaid, and within the jurisdiction of the said central criminal court, feloniously did omit, neglect, and refuse to furnish, provide, and supply the said J. A. with such healthy, wholesome, and proper bedding and sleeping accommodation as was necessary to enable the said J. A., on all and every the said several days aforesaid, to enjoy a due quantity of wholesome, healthy, and refreshing rest and sleep, and as, according to the duty of the said P. B. D., he ought to have done, and on the contrary thereof, upon divers nights during all the time aforesaid, at the parish of Tooting aforesaid, and within the jurisdiction of the said cen- tral criminal court, feloniously and knowingly did force, oblige, and compel the said J. A. to lie and be in a certain ill-ventilated and unwholesome room, then overcrowded with an excessive and injurious number of other persons in the said asylum, and to be and remain, for divers long spaces of time on each of the nights aforesaid, in divers fetid, injurious, noxious, unwhole- some, and pestilential vapors and exhalations in the said room arising and existing, and also to lie and be in a certain small bed in the said room, together with two other persons, to wit, Joseph Andrews and William Derbyshire, whereby the said bed became and was, on all and every of the said nights, ren- dered unwholesome and injurious to the said J. A., and totally unfit for and incapable of affording to the said J. A. such wholesome, healthy, and refreshing sleep as aforesaid ; and that the said P. B. D., not regarding his duty as aforesaid, upon and during all and every the days aforesaid, and during all the said time whilst the said J. A. remained and continued under such charge, care, dominion, government, custody, and control as aforesaid, in the said asylum, at the parish of Tooting aforesaid, and within the jurisdiction of the said court, feloniously did omit, neglect, and refuse to furnish, provide, or supply the said J. A. with any sufficient quantity of warm and wholesome clothing, or with a sufficient quantity of any clothing whatever for the protection of the body of the said J. A. from the cold, damp, and inclemency of the weather, and as, according to the duty of the said P. B. D., he ought to have done, and on the contrary thereof, during divers cold, wet, and inclement days during the time aforesaid, at the parish aforesaid, and within 146 HOMICIDE. (166) the jurisdiction of the said central criminal court, feloniously, and contrary to his duty in that behalf, left the said J. A. ex- posed, and then and there suffered and permitted the said J. A. to remain exposed, for divers long spaces of time, to the cold, damp, and inclemency of the weather, etc., without any suffi- cient or adequate quantity of clothing or covering for his body, and with a totally inadequate and insufficient quantity of cloth- ing and covering for the body of the said J. A., to protect him from the severity and inclemency of the weather. By reason and means of which said several felonious acts, defaults, and omissions of the said P. B. D. hereinbefore alleged, the said J. A. afterwards, on the said hfth day of January, in the year of our Lord at the parish of Tooting aforesaid, and within the jurisdiction of the said court, became and was, and the said P. B. D. did thereby then and there feloniously cause and occasion the said J. A. to become and be mortally sick, weak, diseased, disordered, and distempered in his body. Of which said mor- tal sickness, weakness, disease, disorder, and distemper, the said J. A., on and from the said last mentioned day in the year of our Lord until the sixth day of January in the same year, as well at the parish aforesaid and within the jurisdiction of the said court, as at the parish of Saint Pancras, in the county of Middlesex, and within the jurisdiction of the said court, did languish, and languishing did live, and then on the said last mentioned day, at the parish last aforesaid, in the county last aforesaid, and within the jurisdiction of the said court, of the mortal sickness, weakness, disease, disorder, and distemper afore- said, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said P. B. D., the said J. A., in man- ner and form aforesaid, feloniously did kill and slay, against the peace, etc. Second count. {The same as the Jirst^ except that it charged acts of omission only.) Third count. {The same as thejirst, charging acts of commission only.) Fourth count. The jurors aforesaid, upon their oath aforesaid, do further present, that heretofore and during all the days and times here- 147 (166) OFFENCES AGAINST THE PERSON. inafter in this count mentioned, J. A., hereinafter in this count mentioned, was a poor, indigent, and destitute infant child of a tender age, to wit, of the tige of six years, and unable to pro- vide himself with necessary food, shelter, or clothing, or any of the necessaries of life, and that heretofore, to wit, on the said twenty-eighth day of October, in the year of our Lord the said P. B. D., being the keeper of the said asylum, in the first count of this indictment mentioned, to wit, at the parish of Tooting aforesaid, and within the jurisdiction of the said court, voluntarily received the said J. A. into the charge and custody of the said P. B. D., and the said P. B. D. thenceforth and on and from the said twenty-eighth day of October, and upon and during all the days and tim.es between that day and the fifth day of January, in the year of our Lord kept and detained the said J. A., and the said J. A. continued, remained, and was under the care, charge, dominion, govern- ment, custody, and control of the said P. B. D., in the said asy- lum, to wit, at the parish of Tooting aforesaid, and within the jurisdiction of the said central criminal court, and the said J. A. was, during all the several days and times in this count aforesaid, wholly subject to and dependent upon the said P. B. D. for abode, shelter, lodging, sleeping accommodation, meat, drink, food, and clothing, and was unable to obtain the same, or any of them, from any other source or from any other person or persons whomsoever. And the jurors aforesaid do further present, that the said P. B. D., on the several days in this count aforesaid, at the parish of Tooting aforesaid, and within the jurisdiction of the said central criminal court, in and upon the said J. A., feloniously did make divers assaults, and that the said P. B. D., upon and during all and every the days in this count aforesaid, and during all the said time whilst the said J. A. remained and continued under the care, charge, dominion, government, custody, and control of the said P. B. D., in the said asylum, as in this count mentioned, at the parish of Toot- ing aforesaid, and within the jurisdiction of the said central criminal court, feloniously did omit, neglect, and refuse to fur- nish, provide, or supply the said J. A. with meat and drink in sufficient quantities for the support, nourishment, and suste- nance of the body of the said J. A., according to the duty of 148 HOMICIDE. 0-Q^) the said P. B. D., in that hehalf ; but on the contrary thereof, upon and during all and every the days in this count aforesaid, and during all the time in this count aforesaid, at the parish of Tooting aforesaid, and within the jurisdiction of the said court, feloniously and witliout any lawful excuse whatsoever, did fur- nish, provide, and supply the said J. A. with food, meat, and drink in very insufficient and inadequate quantities, and in no sufficient and adequate quantity whatsoever for such support, nourishment, and sustenance of the body of the said J. A., as in this count aforesaid, and that the said P. B. D., U[)on and during all and every the days in this count aforesaid, and during all the said time whilst the said J. A. remained and continued under such charge, care, dominion, government, custody, and control, as in this count aforesaid, in the said asylum, at the parish of Tooting aforesaid, and within the jurisdiction of the said central criminal court, feloniously did omit, neglect, and refuse to furnish, provide, or supply the said J. A. with such proper and suitable lodging, shelter, and abode, as was, upon all and every the days in this count aforesaid, and during all the said last mentioned time, needful for the said J. A. and necessary to preserve him in a good state of bodily health, according to his duty in that behalf, but on the contrary there- of, the said P. B. D., upon all the several days and times in this count aforesaid, at the parish of Tooting aforesaid, and within the jurisdiction of the said central criminal court, knowingly and feloniously did force, compel, and oblige the said J. A. to be and remain, for divers long spaces of time, in divers ill- ventilated and unwholesome rooma and apartments, then over- crowded with an excessive and injurious number of other jiersons in the said asylum, and feloniously did expose the said J. A., and force, oblige, and compel the said J. A. to be and remain exposed for divers long spaces of time to divers fetid, injurious, noxious, unwholesome, and pestilential vapors and exhalations in, near to, around, and about the said asylum, then arising and existing; and that the said P. B. D., upon and during all and every the days in this count aforesaid, during all the time whilst the said J. A. remained and continued under such charge, care, dominion, government, custody, and control of the said P. B. D., as in this count aforesaid, at the parish of 149 (166) OFFENCES AGAINST THE PERSON. Tooting aforesaid, an8 HOMICIDE. (17^3) and against, the planks, iron, and timbers of the said steamboat, by whicli said throwing and casting of the said Thomas Shed down upon and against the phmks, iron, and timbers of the said steamboat, in manner last aforesaid, the said Henry Robert Heasman did then and there wilfully and feloniously give to the said Thomas Shed one mortal fracture of his skull, of which last mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid, upon their oath afore- said, do say, that the said Henry Robert Heasman, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, the said Thomas Shed, in manner last aforesaid, unlawfully and feloni- ously did kill and slay ; against the peace, etc. Fifth count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Henry Robert Heasman, afterward, to wit, on the day aforesaid, in the year aforesaid, at the parish afore- said, in the county aforesaid, and within the jurisdiction of the said court, did wilfully and feloniously close, tie down, and fasten, and did keep closed, tied down, and fastened, certain, to wit, four, safety-valves of a certain boiler, in which said last mentioned boiler divers large quantities, to wit, ten thousand cubic feet, of steam, beyond such quantity of steam as the said last mentioned boiler was capable of bearing, were then and there accumulated, confined, and retained, and that thereby, and by means of the premises in this count mentioned, the said Henry Robert Heasman did then and there unlawfully and feloniously cause the said last mentioned boiler to burst, and did then and there, and by the means last aforesaid, with force and arms, unlawfully and feloniously make an assault upon the said Thomas Shed, and the said Thomas Shed, down u[)on and against the planks, iron, and timbers of a certain steamboat called the "Cricket," then and there being, then and there un- lawfully and feloniously did cast and throw, thereby then and there giving to the said Thomas Shed one mortal fracture of his skull, of which said last mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Henry Robert 169 (173) OFFENCES AGAINST THE PERSON. Heasman, on the day and year last aforesaid, at the parish afore- said, in the county aforesaid, and within the jurisdiction of the said court, the said Thomas Shed, in manner last aforesaid, un- lawfully and feloniously did kill and slay; against the peace, etc. Sixth count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Henry Kobert Heasman, afterwards, to wit, on the day aforesaid, in the year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, did wilfully and feloniouslj', by causing to be made and generated within a certain boiler, and by keeping and retaining within the said last mentioned boiler divers large quantities, to wit, ten thousand cubic feet, of steam more than the said last mentioned boiler was strong enough and able to contain and bear, cause the said last mentioned boiler to burst, and did then and there, and by the means last aforesaid, with force and arms, unlawfully and feloniously make an assault upon the said Thomas Shed, and the said Thomas Shed, down upon and against the planks, iron, and timbers of a certain steamboat called the "Cricket," then and there being, then and there unlawfully and feloniously did cast and throw, thereby then and there giving to the said Thomas Shed one mortal frac- ture of his skull, of which said last mentioned mortal fracture the said Thomas Shed then and there died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Henry Robert Heasman, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, and within the juris- diction of the said court, the said Thomas Shed, in manner last aforesaid, unlawfully and feloniously did kill and slay; against the peace, etc. Seventh count. {Charges an assault in other terms.) 170 HOMICIDE. (1"74-) (174) Against agent of company for neglecting to give a proper sig- nal to denote the obstruction of a line of railway, whereby a collision took place and a passenger was Jcilled.{u) The jurors, etc., upon their oath present, that before and at the time of committini^ the felony hereinafter mentioned, George Pargeter, late of the parish of Shrivenham, in the county of Berks, laborer, on the eleventh day of May, in the year of our Lord at the parish aforesaid, in the county of Berks aforesaid, was a servant and policeman in the service and employ of a certain company, to wit, the Great Western Railway Company, in and upon a certain railway, to wit, the Great Western Railway. And the jurors aforesaid, upon their oath aforesaid, do further present, that before and at the time of committing the said felony, certain signal posts had been and were erected by the said company near to certain stations upon the said railway, for the purpose of making signals for the regulation, guidance, and warning of the drivers of locomotive engines attaclied to and drawing the trains of carriages travel- ling upon and along the said railway, which said signals were sufficient and proper for the purposes aforesaid, and were, at the time of the committing of the said felony, in constant use and in full force and eflect, and well known to the said G. P., to wit, at the parish aforesaid, in the county of Berks aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further (u) 1st. This indictment charges that the prisoner's duty was to attend to the proper working of tlie signals, according to the rules. Hehl, that it was not necessary to set out tlie rules. 2d. It appeared that the prisoner had many other duties besides attending to the signal posts, some of them being incompat- ible with his duty there. Held, that it was not necessary to set forth all the other duties, and then to negative that the prisoner was employed at the time in the discharge of either of such other duties. 3d. Held, that an averment that it was prisoner's duty to signal an obstruction, and there was an obstruction which prisoner neglected to signal, was a sufficient description of the otience, and that it was not necessary to aver tiiat tlie prisoner's duty was, if there was an obstruction and he saw it, to signal it, and that there was an obstruction which he might have seen, but neglected to see. 4th. That it is sufficient to aver the duty to be to make a "proper signal," without further describing it. 5th. Tiiat a count which charged both a neglect to give the riglit signal, and the giving of the wrong signal, is not bad for duplicity. 6th. That it is sufHcient to charge " that the prisoner did neglect and omit to alter the said signal," without stating more particularly what was the specific alteration wiiich lie so neglected to make. R. v. Pargeter, 3 Cox, C. C. 191 ; see AVli. Cr. L. 8th ed. §S 305, 337, 338, 340. 171 (174) OFFENCES AGAINST THE PERSON. present, that one of such signals, in such use and so used as aforesaid, and known to the said Gr. P. as aforesaid, when made, denoted, and was intended to denote and give warning and notice to the said drivers, that the line of the said railway, at the station near unto which the said signal was made, was then free from obstruction, and that the driver of any engine attached to and drawing any train of carriages then approach- ing the said station might safely pass through the same, with the train, without stopping, and which said signal was then and there called and known by the name of the "all right" signal; and that one other of such signals, so used as aforesaid, and known to tlie said G. P. as aforesaid, when made, denoted, and was intended to denote and give warning and notice to the said drivers, tliat the line of the said railway near to which the said last mentioned signal was made, was then obstructed, and that the driver of any engine attached to and drawing n\^y train of carriages then approaching the said station could not safely pass through the same, with the train, without stoj^ping, and which said last mentioned signal was then and there called and known by the name of the signal " to stop." And the jurors aforesaid, upon their oath aforesaid, do further present, that certain rules and directions had been and were at the time of the committing of the said felony established for the guid- ance of the conduct of the servants and policemen of the said company, employed in and upon the said railway, and having the care and regulation of the said signals, and which said rules and regulations were sufficient and proper for the purposes aforesaid, and were, at the time of committing the said felony, in full force and effect, and well known to the said G. P., to wit, at the parish aforesaid, in the said county of Berks. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said G. P., on the day and year aforesaid, at the parish aforesaid, in the county of Berks aforesaid, in and upon one Arthur Augustus Lea feloniously did make an assault ; and that the said G. P., so being such servant and policeman in the service and emiiloyment of the said Great Western Railway Company as aforesaid, then and there had, b}- virtue of such his emplo3'ment, the care and regulation of the said signals, at a certain signal post erected and being near a certain station on 172 HOMICIDE. (174) the said line of the said railway, to wit, the Shrivenham Station, and near the line of the said railway there, and that hefore and on the said eleventh day of May, in the year afm^esaid, at the parish aforesaid, in the county of Berks aforesaid, it became and was the duty of the said G. P. to attend to the due and proper righting, exhibiting, and making of the said signals at the said last mentioned station, and duly and properly to work, exhibit, and make the same, according to the rules and regula- tions there established for the guidance of the conduct of the servants and policemen of the said company, employed in and upon the said railway as aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that on the day and year aforesaid, at the parish aforesaid, in the county of Berks aforesaid, a certain train of carriages drawn by a locomo- tive engine, under the care and guidance of a certain driver thereof, to wit, one Robert Roscoe, was travelling on the said railway, to wit, from Exeter to London, and was before and at the time of the committing of the felony by the said G. P., as hereinafter mentioned, due at the said Shrivenham Station, to wit, at the hour of three of the clock in the afternoon of the said eleventh day of May, and was expected and intended, according to the time table and regulations by the said com- pany in that behalf established, to arrive and pass through the said Shrivenham Station at the time and hour last aforesaid, as the said G. P. then and there well knew ; and that the said G. P. had then and there, in expectation of the arrival of the said last mentioned train of carriages, made and turned on the signal called the ''all right" signal. And the jurors afore- said, upon their oath aforesaid, do further present, that after- wards, and before the arrival of the said last mentioned train of carriages at the Shrivenham Station, to wit, on the day and year aforesaid, at the parish aforesaid, in the county of Berks aforesaid, a certain carriage, to wit, a horse box, was put and placed and continued, and was upon and across and obstructing the same line of rails of the said railway, near to the said Shrivenham Station, as that on which the said last mentioned train of carriages was then travelling, and it thereu[)on then and there, and in consequence of such last mentioned obstruc- tion, became and was the duty of the said G. P. to alter, remove, 173 (174) OFFENCES AGAINST THE PERSON. and turn off the said signal called the " all right" signal, and to make, turn on, and keep made and turned on, the said signal called the signal " to stop." And the jurors aforesaid, upon their oath aforesaid, do further present, that the said G. P., then and there heing wholly unmindful and neglectful of his duty in that behalf, at the time and place last aforesaid, on the day and year aforesaid, at the parish aforesaid, in the county of Berks afore- said, with force and arras, unlawfully and feloniously did neglect and omit to alter, remove, and turn off the said signal called the " all right" signal, and did then and there unlawfully and feloniously neglect and omit to make, turn on, and keep made and turned on, the said signal called the signal " to stop." By means of which said several premises, and of the said felonious omissions and neglect by the said G. P. as aforesaid, the driver of the engine attached to the said last mentioned train of carriages, to wit, the said R. P., was induced to believe, and did believe, that the line of rails of the said railway, upon which the last mentioned train of carriages was then travelling, was then all clear and without obstruction, and that the said driver, to wit, the said P. P., might then safely pass through the said Shrivenham Station with the last mentioned engine and train of carriages without stopping ; and the said driver, to wit, the said P. P., acting upon such belief as aforesaid, did there- upon, on the day and year aforesaid, at the parish aforesaid, in the county of Berks aforesaid, drive the said engine, so attached to and drawing the last mentioned train of carriages as aforesaid, through the said Shrivenham Station, and, in so drawing the said last mentioned train of carriages, did then and there unavoidably, and without any fault or default of the said P. P., with great force come into violent contact and col- lision with the said carriage, called a horse box, then being on, upon, and across and obstructing the same line of rails of the said railway as that on which the said last mentioned train of carriages was then travelling, near to the said Shrivenham Station there, by means of which said contact and collision, caused and occasioned as aforesaid, the said A. A. L,, then law- fully being and travelling in one of the carriages of the said last mentioned train of carriages, Avas then and there violently and iforcibly thrown on and against the back and sides of the 174 • "' HOMICIDE. (174) said carnage in which he was so travelling as aforesaid, and was then and there violently and forcibly cast and thrown from and out of the said carriage in which he was so travelling as aforesaid, down to and upon the ground there ; by means of which said casting and throwing of the said A. A. L., as well to and against the sides and back of the said carriage in which he was so travelling as aforesaid, as from and out of the said carriage, down to and upon the ground there as aforesaid, the said A. A. L. then and there had and received, and the said G. P. then and there feloniously did give and cause to be given to the said A. A. L. divers mortal wounds, bruises, and contusions, in and upon the head, body, arms, and legs of the said A. A. L., and divers mortal fractures of both the legs of the said A. A. L., and divers mortal ruptures of the bloodvessels in and upon the brain of the said A. A. L., of which said mortal wounds, bruises, and contusions, mortal fractures, and mortal ruptures of the said A. A. L., on and from the said eleventh day of May, in the year aforesaid, as well at the parish of Shrivenham aforesaid, in the county of Berks aforesaid, as at the parish of Swindon, in the county of Wilts, did languish, and languishing did live, and there, to wit, on the day and year last aforesaid, at the parish of iSwindon aforesaid, in the county of Wilts aforesaid, of the said mortal wounds, bruises, and con- tusions, mortal fractures, and mortal ruptures, did die. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said G. P., in manner and form aforesaid, the said A. A. L., at the parish of Swindon aforesaid, in the county of Wilts aforesaid, feloniously did kill and slay, against the peace, etc. Second count. The second count states, that " it was the duty of the said G. P., as such servant and policeman as aforesaid, to make certain signals to the drivers of locomotive engines attached to and drawing or propelling trains travelling upon and along the said railway, and passing along the same at a certain part thereof, to wit, near a certain station, to wit, the said Shrivenham Station, to wit, at the parish of Shrivenham aforesaid, in the county of Berks aforesaid, for the purpose of giving warning and notice to the said drivers, whether the line of rails on the said railway * 175 (174) OFFENCES AGAINST THE PERSON. on and upon which any such locon^otive engine and train of carriages as aforesaid, should or might be passing at, near, and through the said, Shrivenham Station, was free of obstruction or not, of all which the said G. P., at the time of the committing of the said felony, had full knowledge and notice, to wit, at tiie day and year last aforesaid, at the parish last aforesaid, in the county of Berks aforesaid." It then proceeds to aver that a train was travelling on the line, "on and along the part of the said railway which lies in the said parish, etc., and up to and towards the place wdiere it was the duty of the said G. P. to make such signals as aforesaid," and that just before the time of its arrival at the said place, "there was a certain obstruction on and upon the same line of rails as that upon which the said last mentioned locomotive engine and train was travelling, to wit, a certain horse box, standing, and being upon and across the said last mentioned line of rails, near to the place Avhere it was the duty of the said G. P. to make such signals as last aforesaid, to wnt, at the parish last aforesaid, in the county of Berks. And the said G. P. could, and might, and ought, then and there, to wit, at the parish last aforesaid, in the county of Berks, on the said eleventh day of May, in the year aforesaid, in the course of his duty, and in the exercise of reasonable and proper skill and diligence, to have given warning and notice by means of the proper signal to the driver of the said last men- tioned locomotive engine, attached to and drawing the last mentioned train of carriages, to wit, the said R. P., that there was then such obstruction as last aforesaid, in and upon the said line of rails, to wit, the said horse box. And the jurors, etc., do further present, that the said G. P., then and there being wholly unmindful and neglectful of his duty in that behalf, on, etc., at the parish, etc., with force and arms, unlawfully and feloniously did neglect and omit to give notice and warning, by means of the proper signal, to the driver of the last mentioned locomotive engine attached to and drawing the said last men- tioned train of carriages, to wit, the said R. P., that there was an obstruction u]»on the same line of rails as that on which the said last mentioned train of carriages was then travelling, by means of which," etc. 176 HOMICIDE. (174) Tldrd count. The third count states the averment of the sio^nals, and of the prisoner's duty, thus: Reciting, that the said G. P. was in the employ, etc., as a policeman, and that " for the safe and proper working and travelling of the several trains of carriages and locomotive engines proceeding along and upon the said railway, certain signals had been and were at the time of the committing of the offence by the said G. P., as hereinafter mentioned, estab- lished by the said company at and near a certain station upon the said railway, and at and near the said station, to wit, the Shrivenham Station, at which the said G. P. was employed as aforesaid, and were well known to the said G. P., to wit, at the parish last aforesaid, in the county of Berks aforesaid. And the jurors, etc., do further present, that on the said, etc., at the parish, etc., the said G. P. had the care and control of the said signals, at the said station, to wit, the Shrivenham Station, at which the said G. P. was so employed as servant or policeman as aforesaid, and it then and there became and was the duty of the said G. P., by virtue of such his employment as aforesaid, from time to time, and at all times, as occasion might require, to make due and proper signals to the drivers of all locomotive engines travelling along and upon the said railway, and enter- ing the said station, to wit, the Shrivenham Station." The count then proceeds to set forth, that a train was travelling on the said line of railway, that a horse box had been placed upon and across it so as to obstruct the passage of the train, "and that it thereupon then and there became the duty of the said G. P. to indicate by proper signals to the driver of the said last men- tioned train of carriages so due and about to enter and pass through the said last mentioned station as aforesaid, that the line of rails of the said railway upon which the said last men- tioned train of carriages were then travelling, was there ob- structed. And the jurors, etc., do further present, that the said G. P. afterwards, to wit, on the day, etc., at the parish, etc., wholly neglecting his duty in that behalf, with force and arms, unlawfully and feloniously did neglect and omit to indicate by proper signals to the driver of the said last mentioned train of carriages so travelling upon the said railway as aforesaid, and VOL. I.— 12 177 (175) OFFENCES AGAINST THE PERSON. eo due, and about to enter and pass through the said last men- tioned station as aforesaid, that the line of rails of the said railway upon which the said last mentioned train of carriages M'as then travelling, was then obstructed, but on the contrary thereof, the said G. P., then and there, unlawfully and feloniously did indicate by signals to the driver of the said last mentioned train of carriages, that the line of rails of the said railway, on which the said last mentioned train of carriages was then travelling, at or near the said last mentioned station, was then all clear and free from obstructions, by means of which several premises and the said felonious omissions and neglects of the said G. P.," etc. etc. [The fourth count was a common count for manslaughter^ by assaulting^ heating^ and bruising^ etc.'] (175) Against the driver and stoker of a railway engine, for negli- gently driving against another engine, whereby the deceased, met his death.{v) The jurors, etc., upon their oath present, that S. H., late of the parish of Richmond, in the county of Surrey, laborer, and W. W., late of the same place, laborer, on the seventeenth day of November, in the year of our Lord with force and arms, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, in and upon R. P. feloniously and wilfully did make an assault. And the jurors aforesaid, upon their oath aforesaid, do further present, that before and on the said seventeenth day of November, the said S. H. was employed by a certain body corporate, to wit, the London and South- Wes- tern Railway Company, for the purpose of conducting, driving, managing, and controlling certain locomotive steam-engines belonging to the said London and South- Western Railway Com- pany, and that tlie said W. W., before and on the da}^ and year aforesaid, was employed by the London and South-Western Railway Company, for the purpose of assisting the said S. H. in the conducting, driving, management, and control of such locomotive steam-engines as aforesaid, and that, by virtue of such their respective employments, the said S. IT. was, on the (f) 3 Cox, C. C. Appendix, p. Ivii. 178 HOMICIDE. (1-75) day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, con- ductino; and drivino*, and then and there had the manascement and control of a certain locomotive steam-engine, to and behind ■which a certain carriage, called a tender, was then and there attached, and which said locomotive steam-engine and tender were then and there the property of and belonging to the said London and South-Western Railway Company, and were then and there in and upon a certain side line of railway leading into and upon a certain main line, to wit, the Richmond Railway, and the said W. "W. was then and there, the said S. H., in and about the said conducting, driving, management, and control of the said locomotive steam-engine and tender, aiding and assist- ing, and that it then and there became and was the duty of the said S. H. and of the said W. W"., by virtue of their said em- ployment, not to conduct or drive, or suffer or permit to be conducted or driven, the said locomotive steam-engine and tender from and off the said line of railway, into, upon, or across the said main line of railway, in case any train or engine should be then due, and about to arrive at that part of the said main line of railway where the same was joined by the said line of railway aforesaid ; yet the said S. H. and the said W. "W., well knowing the premises, and well knowing that a certain train, to wit, a train consisting of a certain other locomotive steam-engine, with a certain other tender, and divers, to wit, twenty, carriages attached thereto and drawn thereby, was then and there lawfully travelling, and being propelled on and along the said main line of railway, and was then due and about to arrive at that part of the said main line of railway where the same was joined by the side line of railway aforesaid ; but dis- regarding their duty in that behalf, did, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, wilfully and feloni- ously, and with great force and violence, and in a wanton, negli- gent, and improper manner, and contrary to their said duty in that behalf, and while the said train was so then and there due, and about to arrive as aforesaid, conduct and drive, and suffer and permit to be conducted and driven, the said first mentioned locomotive steam-engine and tender from and off the said line 179 (175) OFFENCES AGAINST THE PERSON. of railway, into, upon, and across the said main line of railway, and into, upon, and against the said train so then and there law- fully travelling and being propelled on and along the said main line of railway as aforesaid ; and that the said S. H. and the said W. W. did thereby, and by means of the said several prem- ises, and by reason of the shock and concussion thereby given and communicated to the said first mentioned locomotive steam- engine, then and there wilfully and feloniously, and with great force and violence, push, force, dash, drive, and jam, and cause to he pushed, forced, dashed, driven, and jammed in, upon, over, against, and between a certain part of the said first mentioned locomotive steam-engine, to wit, the hinder part thereof, the said R. P., who was then and there standing and being in and upon the said first mentioned locomotive steam-engine, and did then and there, by means of the pushing, forcing, dashing, and driving and jamming aforesaid, wilfully and feloniously inflict and cause to be inflicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said R. P., divers mortal wounds, bruises, contusions, burns, and scalds, of which said several mortal wounds, fractures, bruises, contu- sions, burns, and scalds, the said R. P., on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said S. H. and the said W. W., the said R. P., in the man- ner and by the means aforesaid, wilfully and feloniously did kill and slay, against the peace, etc. Second count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. H. and the said W. W., on the day and year aforesaid, with force and arms, at the parish of Richmond, in the county of Surrey, and within the jurisdiction of the said court, in and upon the said R. P., feloniously and wilfully did make an assault. And the jurors aforesaid, upon their oath aforesaid, do further present, that before and on the day and year aforesaid, the said S. H. was employed by a certain corpo- 180 HOMICIDE. (175) rate body, to wit, the London and South -Western Railway Company, for the purpose of conducting, driving, managing, and controlling certain locomotive steam-engines belonging to the said London and South- Western Railway Company, and the said W. W., before and on the day and year aforesaid, was employed by the said London and South-Western Railway Company, for the purpose of assisting the said S. H. in the con- ducting, driving, management, and control of such locomotive steam-engines as aforesaid, and that by virtue of such their re- spective employments, the said S. H. was, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, conducting and driv- ing, and then and there had the management and control of a certain locomotive steam-engine, to and behind which a certain carriage, called a tender, was then and there attached, and which said locomotive steam-engine and tender were then and there the property of and belonging to the said London and South-Western Railway Company, and were then and there in and upon a certain side line of railway, leading into and upon a certain main line of railway, to wit, the Richmond Railway, and that the said W. W. was then and there, the said S. H., in and about the said conducting, driving, management, and control of the said locomotive steam-engine and tender, aiding and assisting, and that it then and there became and was the duty of the said S. H. and of the said W. W., by virtue of their said employment, not to conduct or drive, or suffer or permit to be conducted or driven, the said locomotive steam-engine and tender from and otf the said line of railway, into, upon, or across the said main line of railw^ay, in case any train or engine should be then due and about to arrive at that part of the said main line of railway where the same was joined by the said line of railway aforesaid; yet the said S. H. and the said W. W., well knowing the premises, and well knowing that a certain train, consisting of another locomotive steam- engine, with a certain other tender, and divers, to wit, twenty, carriages attached thereto, and drawn thereby, was then and there lawfully travelling and being propelled on and along the said main line of railway, and was then due and about to arrive at that part of the said main line of railway where the same (175) OFFENCES AGAINST THE PERSON. was joined by the side line of railway aforesaid, but disregard- ing their duty in that behalf, did, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, wilfully and feloniously, and with great force and violence, wilfully and in a wanton, negli- gent, and improper manner, contrary to their said duty in that behalf, and while the said train was so then and there due and about to arrive as aforesaid, conduct and drive, and suifer and permitted to be conducted and driven, the said first mentioned locomotive steam-engine and tender from and oft' the said line of railway, into, upon, and across the said main line of railway, and thereby and bj"^ reason of the said premises, and of the sev- eral negligent and improper conduct of the said S. H. and of the said W. W., the said train so then travelling and being propelled on and along the said main line of railway, did then and there unavoidably, with great force and violence, strike, run, and impinge against the said first mentioned locomotive steam-engine; and by means of the said several premises, and of the shock and concussion thereby given and communicated to the said first mentioned locomotive steam-engine, the said R. P., who was then and there standing and being in and upon the said first mentioned locomotive steam-engine, was then and there, with great force and violence, pushed, forced, dashed, driven, and jammed in, upon, over, and between a certain part of the said first mentioned locomotive steam-engine, to wit, the hinder part thereof, and by means of the said pushing, forcing, dashing, driving, and jamming, then and there were made and inflicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said R. P., divers mortal wounds, bruises, contusions, burns, and scalds, of which said several mortal wounds, fractures, bruises, con- tusions, burns, and scalds, the said R. P., on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, instantly died. And so the jurors, etc. 182 HOMICIDE. (1T5) Third count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. H. and the said W. W., on the day and year aforesaid, with force and arms, at the parish of Richmond aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said court, in and upon the said R,. P. felo- niously and wilfully did make an assault, and that the said S. H. was then and there conducting and driving, and then and there had the management and control of a certain locomotive steam-engine, to and behind which a certain carriage, called a tender, was then and there attached, and which said locomotive steam-engine and tender were then and there in and upon a certain way, to wit, a certain side line of railway leading into and upon a certain main line of railway, to wit, the Richmond Railway, and that the said W. W. was then and there, the said S. H., in and about the said conducting, driving, management, and control of the said locomotive steam-engine and tender, aiding and assisting; and that it then and there became and was the duty of the said S. H., and of the said W. W., to use all due and proper caution in and about the conducting and driving the said locomotive steam-engine and tender, from and oft' the said side line of railway, in, upon, or across the said main line of railway, yet the said S. H. and the said W. W., well knowing the premises, and not regarding their duty in that behalf, did not, nor would use all due and proper caution in and about the conducting and driving of the said locomotive steam-engine and tender, from and off the said side line of rail- way, in, upon, or across the said main line of railway ; but on the contrary thereof, did then and there, wilfully and feloniously, and with great force and violence, and without due and proper caution, and in a negligent and improper manner, and contrary to their said duty in that behalf, conduct and drive the said locomotive steam-engine and tender from and oft* the said side line of railway, into, upon, and across the said main line of railway, and into, upon, and against a certain train, to wit, a train consisting of another locomotive steam-engine, with a certain other tender, and divers, to wit, twenty, carriages attached thereto, and drawn thereby, which said train was then and there 183 (17o) . OFFENCES AGAINST THE PERSON. lawfully travelling and being propelled on and along the said main line of railway; and that the said S. H. and W. W. did thereby and by means of the said several premises, and by reason of the shock and concussion thereby given and communicated to the said first mentioned locomotive steam-engine, then and there wilfully and feloniously, and with great force and vio- lence, push, force, dash, drive, and jam, and cause to be pushed, forced, dashed, driven, and jammed in, upon, over, and between a certain part of the said first mentioned locomotive steam-en- gine, to wit, the hinder part thereof, the said R. P., who was then and there standing, and being in and upon the said first mentioned locomotive steam-engine, and did then and there, by means of the said pushing, forcing, dashing, driving, and jam- ming, wilfully and feloniously inflict, and cause to be inflicted, in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said R. P., divers mortal wounds, bruises, contusions, burns, and scalds, of which said several mortal wounds, fractures, bruises, contusions, burns, and scalds, the said R. P., on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, instantly died. And so the jurors aforesaid, etc. Fourth count And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. H. and the said W. W., on the day and year aforesaid, with force and arms, at the parish of Richmond aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said court, in and upon the said R. P. feloni- ously did make an assault, and that the said S. H. was then and there conducting and driving, and then and there had the management and control of a certain locomotive steam-engine, to and behind which a certain carriage, called a tender, was then and there attached, and which said locomotive steam-engine and tender were then and there in and upon a certain way, to wit, a certain side line of railway, leading into and upon a cer- tain main line of railway, to wit, the Richmond Railway, and 184 HOMICIDE. (175) that the said W. W. was then and there, the said S. H., in and about the said conducting, driving, management, and control of the said locomotive steam-engine and tender, aiding and assist- ing, and that it then and there became and was the duty of the said S. H., and of the said W. W., to use all due and proper caution in and about the conducting and driving the said loco- motive steam-engine and tender from and off the said side line of railway, in, upon, or across, the said main line of railway; yet the said S. li., and the said W". W., well knowing the prem- ises, and not regarding their duty in that behalf, did not, nor would use all due and proper caution in and about the conduct- ing and driving of the said locomotive steam-engine and tender, from and off the said side line of railway, in, upon, or across the said main line of railway, but on the contrary thereof, did then and there wilfully and feloniously, and with great force and violence, and without due and proper caution, and in a negligent and improper manner, and contrary to their said duty in that behalf, conduct and drive the said locomotive steam- engine and tender from and off the said side line of railway, into, upon, and across the said main line of railway, and there- by and by reason of the said several premises, and of the said negligent and improper conduct of the said S. H., and of the said W. W., a certain train, to wit, a train consisting of a cer- tain other locomotive steam-engine, with a certain other tender, and divers, to wit, twenty, carriages attached thereto, and drawn thereby, which said train was then and there lawfully travelling and being propelled on and along the said main line of railway, did then and there inadvertently, with great force and violence, strike, run, and impinge upon and against the said first men- tioned locomotive steam-engine, and by means of the said sev- eral premises, and of the shock and concussion thereby given and communicated to the said first mentioned locomotive steam- engine, the said R. P., who was then and there standing and being in and upon the said first mentioned locomotive steam- engine, was then and there, with great force and violence, pushed, forced, dashed, driven, and jammed in, upon, against, over, and between a certain part of the said first mentioned locomotive steam-engine, to wit, the hinder part thereof, and by means of the said pushing, forcing, dashing, driving, and jara- 185 (175) OFFENCES AGAINST THE PERSON. ming, then and there were made and inflicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said E.. P., divers mortal wounds, bruises, contusions, burns, and scalds, of which said several mortal wounds, frac- tures, bruises, contusions, burns, and scalds, the said R. P., on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, instantly died. And so the jurors aforesaid, etc. Fifth count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. H. and the said W. W., on the day and year aforesaid, with force and arras, at the parish of Richmond aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said court, in and upon the said R. P. felo- niously and wilfully did make an assault; and that the said S. H., and the said W. W., a certain locomotive steam-engine, to and behind which a certain carriage, called a tender, was then and there attached, and which said locomotive steam-engine and tender were then and there being forced and propelled by the power of steam on and along a certain way, to wit, a railway, and which said locomotive steam-engine and tender, the said S. H, was then and there managing, controlling, conducting, and driving, in and along the said railway, and in the managing, controlling, conducting, and driving whereof the said W. W. was then and there the said S. H. aiding and assisting, did then and there wilful!y and feloniously, by the wanton and felonious negligence of them and each of them respectively, and by the wilful and felonious disregard of the duties incumbent upon them, and each of them respectively, in that behalf, cause, occa- sion, permit, and suffer to strike and run into, upon, and against, and to be with great force and violence forced, driven, and dashed into, upon, and against a certain other locomotive steam- engine, to which said last mentioned locomotive steam-engine a certain other tender and divers, to wit, twenty, carriages, were then and there attached, and which said last mentioned locomo- tive steam-engine and tender and carriages were then and there 186 HOMICIDE. (I'^S) lawfully travelling and being propelled on and along the said rail- way, and that the said S. II., and the said W. W., did thereby, and by means of the said several premises, and b^-^ reason of the shock and concussion thereby caused and communicated to the said first mentioned locomotive steam-engine and tender, then and there wilfully and feloniously, and with great force and violence, push, force, dash, drive, and jam, and cause to be pushed, forced, dashed, driven, and jammed in, upon, over, and between a certain part of the said first mentioned locomotive steam-engine, to wit, the hinder part thereof, the said R. P., who was then and there standing and being in and upon the said first mentioned locomo- tive steam-engine, and did then and there, and by means of the said pushing, forcing, dashing, driving, and jamming, wilfully and feloniously inflict, and cause to be inflicted, in and upon the head, to wit, the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said R. P., divers mortal wounds, contusions, bruises, burns, and scalds, of which said several wounds, fractures, contusions, bruises, burns, and scalds, the said R. P., on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, instantly died. And so the jurors aforesaid, etc. Sixth count And the jurors aforesaid, upon their oath aforesaid, do fur- ther present, that the said S. H. and the said W. W., on the day and year aforesaid, with force and arms, at the parish of Richmond aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said court, in and upon the said R. P. feloniously and wilfully did make an assault, and that the said S. H. and the said W. W., a certain locomotive steam-en- gine, to and behind wliich a certain carriage, called a tender, was then and there attached, and which said locomotive steam- engine and tender were then and there being forced and pro- pelled by the power of steam on and along a certain way, to wit, a railway, and which said locomotive steam-engine and tender the said S. H. was then managing, controlling, conduct- ing, and driving in and along the said railway, and in the 187 (175) OFFENCES AGAINST THE PERSON. managing, controlling, conducting, and driving whereof the said W. W. was then and there the said S. H. aiding and assist- ing, did then and there wilfully and feloniously, and by the wanton and felonious negligence of them and each of them respectively, and by the wilful and felonious disregard of the duties incumbent upon them and each of them respectively in that behalf, and with great force and violence, conduct, drive, and propel, and cause and permit to be conducted, driven, and propelled to, upon, along, and across a certain other part of the railway aforesaid, and thereby and by reason of the said several premises, and of the said wilful and felonious negligence of the said S. H., and of the said W. W"., a certain train, to wit, a train consisting of a certain other locomotive steam-engine, with a certain other tender, and divers, to wit, twenty, carriages attached thereto and drawn thereby, and which said train was then and there lawfully travelling and being propelled on and along the said last mentioned part of the said line of railway, did then and there unavoidably and with great force and violence strike, drive, dash, and impinge upon and against the said first men- tioned locomotive steam-engine ; and by means of the said several premises, and of the shock and concussion thereby given and communicated to the said first mentioned locomotive steam- engine, the said R. P., who then and there was standing and being in and upon the said first mentioned locomotive steam- engine, was then and there, with great force and violence, pushed, forced, dashed, driven, and jammed in, upon, over, and between a certain part of the said first mentioned locomotive steam-en- gine, to wit, the hinder part thereof, and by means of the said pushing, forcing, dashing, driving, and jamming, then and there were inflicted in and upon the head, to wit, in and upon the right side of the head of the said R. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said R. P., divers mortal wounds, bruises, contusions, burns, and scalds, of which said mortal wounds, fractures, bruises, contusions, burns, and scalds, the said R. P., on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the juris- diction of the said court, instantly died. And so the jurors, etc. 188 HOMICIDE. (I'^S) Seventh count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. H. and the said W. W., on the day and year aforesaid, with force and arms, at the parish of Richmond aforesaid, in the county of Surrey aforesaid, and within the jurisdiction of the said court, in and upon the said R. P. feloni- ously and wilfully did make an assault, and that the said S. H. and W. W., a certain locomotive steam-engine, to and behind which a certain carriage, called a tender, was then and there attached, and which said locomotive steam-engine and tender were then and there the property of a certain corporate body, to wit, the London and South-Western Railway Company, and were then and there lawfully standing and being in and upon a certain railway, to wit, at and near a certain station belonging to the said railway, did then and there wilfully and feloniously, and without any lawful authority in that behalf, and with great force and violence, conduct, drive, and propel, and cause, per- mit, and suffer to be conducted, driven, and propelled away from the said station along, to, upon, and across a certain other part of the railway aforesaid, and thereby and by reason of the said several premises a certain train, to wit, a train consisting of a certain other locomotive steam-engine, with a certain other ten- der, and divers, to wit, twenty, carriages attached thereto and drawn thereby, and which said train was then and there law- fully travelling and being propelled on and along the line of the said railway, did then and there unavoidably and with great force and violence strike, dash, drive and impinge upon and against the said first mentioned locomotive steam-engine ; and by means of the said several premises, and of the shock and concussion thereby given and communicated to the said first mentioned locomotive steam-engine, the said R. P., who then and there was standing and being in and upon the said first mentioned locomotive steam-engine, was then and there, with great force and violence, pushed, forced, dashed, driven, and jammed in, upon, over, and between a certain part of the said first mentioned locomotive steam-engine, to wit, the hinder part thereof, and by means of the said pushing, forcing, dashing, driving, and jamming, then and there were made and inflicted, 189 (176) OFFENCES AGAINST THE PERSON. in and upon the head, to wit, in and upon the right side of the head of the said E,. P., divers mortal wounds and fractures, and in and upon the body, to wit, in and upon the back, sides, belly, thighs, legs, and feet of the said R. P., divers mortal wounds, bruises, contusions, burns, and scalds, of which said several mortal wounds, fractures, bruises, contusions, burns, and scalds, the said R. P., on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the juris- diction of the said court, instantly died, and so the jurors, etc. (176) Involuntary manslaughter in Pennsylvania^ by striking an infant zvith a dray. That C. M'G., late of the county aforesaid, porter, on the day of in the year, etc., with force and arms, at the city of Philadelphia, in the county aforesaid, in and upon one S. G., an infant of tender years, to wit, of the age of two years, and in the peace of God and the commonwealth, then and there being, did make an assault; and that the said C. M'G., then and there driving one horse drawing a dray, did then and there, in the city aforesaid, unlawfully and violently drive the said horse, so as aforesaid drawing the said dray, to and against the said S. G., and that he the said C. M'G., with one of the wheels of the said dray, did then and there, in the city aforesaid, by such driving, unlawfully and violently, the said S. G., drive, force, and throw to the ground, by means whereof, one of the wheels of the said dray, against, upon, and over the head of the said S., did strike and go, thereby and then and there given unto the said S. one mortal fracture and contusion, of which said mortal fracture and contusion, she the said S., on the same day and year aforesaid, at the county aforesaid, died, and so the inquest aforesaid, upon their oaths and affirmations aforesaid, do say, that the said C. M'G., her the said S. G., in manner and by the means aforesaid, unlawfullj- did kill, contrary, etc. {Conclude as in book 1, chapter 3.) 190 HOMICIDE. (1'7'7) (177) 31urder on the high seas. General form as used in the United, States courts. {With commencement and conclusion as adopted in the federal courts of New York.){w) First count. By striking with a sharp instrument. Southern District of ISTew York, ss. The jurors of the United States of America, within and for the circuit and district afore- said, on tlieir oath present, that late of the city and county of New York, in the circuit and district aforesaid, mari- ner, late of the city and county of "New York, in the circuit and district aforesaid, mariner, and {if as many as three were engaged) late of the city and county of I^ew York, in the circuit and district aforesaid, mariner, not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the day of in the year of our Lord one thousand eight hundred and with force and arms, upon the high seas, out of the jurisdiction of any particular state of the said United States, within the admiralty and maritime jurisdiction of the said United States, and within the jurisdiction of this court, in and on board of a certain vessel being a called the owned by a certain person or persons whose names are to the said jurors unknown, being a citizen or citizens of the United States of America, in and upon one in the peace of God and the said United States, then and there being on board said called the on the high seas, out of the jurisdiction of any particular state of the said United States of America, within the admiralty and maritime jurisdiction of the said United States, and within the jurisdiction of this court, piratically, feloniously, wilfully, and of their malice aforethought, did make an assault, and that the said with a certain instrument of called a of the value of which he the said in his hand then and there had and held, upon the of him the said then and there being on the high seas, in the afore- said, and out of the jurisdiction of any particular state of the (w) This indictment, -which is framed with great accuracy, is that on which Babe, the pirate, was convicted in the Southern District of New York. This and the remaining federal forms from New York were obtained from Mr. May- berry, assistant to the U. S. district attorney. 191 (176) OFFENCES AGAINST THE PERSON. said United States, and within the jurisdiction of this court, then and there feloniously, wilfully, and of his malice afore- thought, did strike, giving the said with the afore- said, in manner aforesaid, in and upon the of him the said several mortal strokes, wounds, and bruises, to wit, one mortal wound on the of him the said of the length of inches, and of the depth of inches, of which said mortal wound the said on the high seas aforesaid, out of the jurisdiction of any particular state of the said United States, and within the jurisdiction of this court, instantly died {or otherwise), and that the said then and there feloniously, wilfully, and of their malice aforethought, were present aiding and assisting the said in the felony and murder aforesaid, in manner and form aforesaid to do and commit ; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said in manner and form aforesaid, piratically, feloniously, and of their malice aforethought, did kill and murder, against the peace of the said United States of America and their dig- nity, and against the form of the statute of the said United States in such case made and provided. Second count. (^Same as first count, substituting^ : " owned by citizens {or a citizen) of the United States of America," /or "owned by a cer- tain person or persons, whose names are to the said jurors un- known, being a citizen of the United States of America." Third count. {Same as second count, S'pecifyiyig one other of the persons engaged, as principal, and the others as aiders and abettors.) Fourth count. {Same as third count, specifying one other of the persons engaged, as principal, and the others as aiders and abettors, and so on until the number is exhausted.) Fifth count. And the jurors aforesaid, upon their oath aforesaid, do further present, that late of the city and county of New York, 192 HOMICIDE. (177) in the circuit and district aforesaid, mariner, late of the same place, in the circuit and district aforesaid, mariner, and late of the same place {or otherwise)^ not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the day of in the year of our Lord one thousand eight hundred and with force and arms, on the high seas, out of the jurisdiction of any particular state of the said United States of America, within the admi- ralty and maritime jurisdiction of the said United States, and within the jurisdiction of this court, on board of a certain ves- sel being a called the owned by citizens of the United States of America, in and upon one in the peace of God and the said United States, then and there being on board the said called the on the high seas, out of the jurisdiction of any particular state of the said United States, and within the jurisdiction of this court, piratically, feloniously, wilfully, and of their malice aforethought, did make an assault; and the said with a certain instrument of called a of the value of which he the said then and there in his hand had and held, and the said {here specif i/ one other) with a certain other instrument of called a of the value of which he the said in his hand then and there had and held, and the said {here specific one olher^ if as many are contained in the complaint) with a certain other instrument of called a of the value of which he the said in his hand then and there had and held, the said in and upon the head, face, breast, and other parts of the body of him the said then and there being on the high seas, in the said called the out of the jurisdiction of any particular state, and within the jurisdiction of this court, then and there feloniously, wilfully, and of their malice aforethought, did strike and beat, giving him, the said then and tliere with the aforesaid, by such striking and beating, divers mortal wounds, bruises, and contusions, in and upon the head, face, breast, and other parts of the body of him the said of which said mortal wounds, bruises, and contusions, he the said on the high seas aforesaid, out of the jurisdiction of any particular state of the said United States of America, and within the jurisdiction of this court, did in- voL. I.— 13 198 (177) OFFENCES AGAINST THE PERSON, stantly die {or as in preceding indictment). And so the jurors aforesaid, on their oath aforesaid, do say, that they the said in the manner and by the means last aforesaid, on the high seas, out of the jurisdiction of any particular state of the said United States of America, within the admiralty and mari- time jurisdiction of the said United States, and within the jurisdiction of this court, piratically, feloniously, wilfully, and of their malice aforethought, the said did kill and mur- der, against the peace of the said United States of America and their dignity, and against the form of the statute of the said United States in such case made and provided. Sixth count. By drowning. And the jurors aforesaid, on their oath aforesaid, do further present, that {as in fifth count), not having the fear of God be- fore their eyes, but being moved and seduced by the instigation of the devil, on the day of in the year of our Lord one thousand eight hundred and with force and arms, upon the high seas, out of the jurisdiction of any particular state of the said United States, and within the admiralty and maritime jurisdiction of the said United States, and within the jurisdic- tion of this court, on board of a certain vessel being a called the owned in whole or in part by one of the a citizen of the United States of America, in and upon one in the peace of God and of the said United States, then and there being, on board of the said called the on the high seas, out of the jurisdiction of any particular state of the said United States, within the admiralty and maritime jurisdiction of the said United States, and within the jurisdic- tion of this court, piratically, feloniously, wilfully, and of their malice aforethought, did take the said into their hands, he the said then and there being on the high seas, in the aforesaid, out of the jurisdiction of any particular state of the said United States, within, etc., and within the jurisdic- tion of this court, and did then and there feloniously, wilfully, and of their malice aforethought, cast, throw, and push the said from and out of the said called the so being on the high seas aforesaid, out of the jurisdiction of any par- ticular state of the said United States, and within the jurisdic- 194 HOMICIDE. (177) tion of this court, into the sea, by means of which said casting, throwino;, and pushing of the said into the sea aforesaid, by them the said in manner and form aforesaid, he the said in the sea aforesaid, with the waters thereof, was then and there choked, suftbcated, and drowned, of which said choking, suffocation, and drowning, he the said then and there in the sea aforesaid, out of the jurisdiction of any par- ticular state of the said United States of America, within, etc., and within the jurisdiction of this court, instantly died ; and so the jurors aforesaid, on their oath aforesaid, do say, that the said in the manner and by the means aforesaid, on the high seas, out of the jurisdiction of any particular state of the said United States of America, within, etc., and within the jurisdiction of this court, piratically, feloniously, wilfully, and of their malice aforethought, the said did kill and murder, against the peace and dignity of the United States of America, and against the form of the statute of the said United States in such case made and provided. Seventh count. {Same as last^ stated differently^ s-pecifying one as principal and the others as aiding^ etc.) And the jurors aforesaid, upon their oath aforesaid, do further present, that {as in preceding counts specijied), not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the day of in the year of our Lord one thousand eight hundred and with force and arms, on the high seas, out of the jurisdiction of any particular state of the said United States of America, within the admiralty and maritime jurisdiction of the said United States, and within the jurisdiction of this court, on board of a certain vessel, being a called the owned in whole or in part by one {specify one of the owners) of the in the a citizen of the United States of America, in and upon one in the peace of God and of the said United States, then and there being on board the said called the on the high seas, out of the jurisdiction of any particular state of the said United States, within the admiralty and maritime jurisdiction of the said United States, and within the jurisdic- 195 (177) OFFENCES AGAINST THE PERSON. tion of this court, piratically, feloniously, wilfully, and of their malice aforethought, did make an assault; and that he the said {he?'e name one as principal), then and there feloniously, wilfully, and of his malice aforethought, did take the said in his hands, he the said then and there being on the high seas, in the aforesaid, out of the jurisdiction of any particular state of the said United States, within the admiralty and mari- time jurisdiction of the said United States, and within the jurisdiction of this court, and did then and there feloniously, wilfully, and of his malice aforethought, cast, throw, and push the said from and out of the said called the so being on the high seas as aforesaid, out of the jurisdiction of any particular state of the said United States of America, within the admiralty and maritime jurisdiction of the said United States, and within the jurisdiction of this court, into the sea, by means of which said casting, throwing, and pushing of the said into the sea aforesaid, by him the said in manner and form aforesaid, he the said in the sea afore- said, with the waters thereof, was then and there choked, suffo- cated, and drowned, of which said choking, suffocation, and drowning, he the said then and there, in the sea afore- said, out of the jurisdiction of any particular state of the said United States, within the admiralty and maritime jurisdiction of the said United States, and within the jurisdiction of this court, instantly died ; and that the said {here name the remaining ones), then and there feloniously, wilfully, and of their malice aforethought, were present, aiding, helping, abetting, assisting, and maintaining the said in the felony and murder afore- said, in manner and form aforesaid, to do and commit. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said in manner and form last aforesaid, piratically, feloniously, wilfully, and of their malice aforethought, the said did kill and murder, against the peace and dignity of the United States of America, and against the form of the statute of the said United States in such case made and pro- vided. 196 HOMICIDE. (177) Eighth count. (^Same as seventh county substituting one other as principal.) Ninth count. {Same as eighth count, substituting one other as principal, if as many were engaged ; and if more than three^ go on as before as to each person.) Tenth count. By wounding and drowning. And the jurors aforesaid, on their oath aforesaid, do furtlier present, that {as in the preceding counts specified) heretofore, to wit, on the day of in the year of our Lord one thousand eight hundred and with force and arms, upon the high seas, out of the jurisdiction of any particular state of the United States, within the admiralty and maritime juris- diction of the said United States, and within the jurisdiction of this court, in and on board of a certain vessel, being a called the owned by citizens of the United States of America, in and upon a person known and commonly called by the name of a mariner {or otherwise), in and on board said vessel, in the peace of God and of the said United States, then and there being, piratically, feloniously, wilfully, and of their malice aforethought, did make an assault, and that they the said with a certain instrument of called a which he the said in his hand then and there had and held, the said in and upon the head, breast, and other parts of the body of him the said upon the high seas, and on board the vessel aforesaid, and out of the jurisdiction of any particular state of the said United States, within the admiralty and maritime jurisdiction of the said United States, and within the jurisdiction of this court, piratically, feloniously, wilfully, and of their malice aforethought, did strike and beat, giving to the said in and upon the head, breast, and other parts of the body of him the said upon the high seas, in and on board the vessel aforesaid, several grievous wounds, and did then and there, in and on board the vessel aforesaid, on the high seas aforesaid, out of the jurisdiction of any particular state of the said United States, and within the jurisdiction of this 197 (177a) OFFENCES AGAINST THE PERSON. court, piratically, feloniously, wilfully, and of their malice aforethought, him the said cast and throw from and out of the said vessel into the sea, and plunge, sink, and drown him the said in the sea aforesaid, of which said grievous wounds, casting, throwing, plunging, sinking, and drowning, the said upon the high seas aforesaid, out of the juris- diction of any particular state of the said United States, and within the jurisdiction of this court, then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said him the said then and there, upon the high seas as aforesaid, and out of the jurisdiction of any particular state, piratically, feloniously, wilfully and of their malice aforethought, did kill and murder, against the peace and dignity of the said United States of America, and against the form of the statute of the said United States in such case made and provided. Eleventh count. {Same as tenth county inserting the name of one only of the per- sons engaged^ as principal^ with the others as accomplices, making the proper variations.) Last count. And the jurors aforesaid, on their oath aforesaid, do further present, that the southern district of New York {or otherwise), in the second circuit, is the district and circuit in which the said was first apprehended for the said oflence.(x) (177a) Murder. By shooting on the high seas. The jurors of, etc., upon their oath present, that C. P., mari- ner, otherwise called C. W. P., late of, etc., in said district, W. H. C, mariner, otherwise called R. C, late of, etc., in said dis- trict, W. H., late of, etc., in said district, mariner, and C. H. S., mariner, otherwise called J. W. B., late of, etc., in said district, on, etc., with force and arms, on the high seas and within the admiralty and maritime jurisdiction of the said U. S., and within the jurisdiction of this court, and out of the jurisdiction (x) See supra, 17, 18; infra, 239, note. 198 HOMICIDE. (177a) of any particular State of the U. S., in and on board of a certain vessel, the same then and there being a ship called J., then and there owned by D. R. &., E,. B. G., D. W., and W. N., all citizens of the said U. S., in and upon one A. M., then and there being in and on board of the ship aforesaid, and on the high seas aforesaid, and within the admiralty and maritime jurisdiction of the said U. S., and within the jurisdiction of this court, and out of the jurisdiction of any particular state of the said U. S., feloniously, wilfully, and of their malice afore- thought, did make an assault ; and that the said C. P., otherwise etc., with a certain gun, called a whaling gun, then and there charged with gunpowder and three leaden bullets, which said gun he the said C. P., otherwise, etc., in both his hands then and there had and held, at and against the body of him the said A. M., then and there being in and on board of the ship aforesaid, and on the high seas aforesaid, and within the admi- ralty and maritime jurisdiction of the said U. S.,and within the jurisdiction, etc., and out of the jurisdiction, etc., then and there feloniously, wilfully, and of his malice aforethought, did shoot oft' and discharge, and that the said C. P., otherwise, etc., then and there with the three leaden bullets aforesaid, out of the gun aforesaid, then and there by force of the gunpowder aforesaid, by hira the said C. P., otherwise, etc., then and there shot oft", discharged, and sent forth as aforesaid, him the said A. M., then and there being in and on board of the ship afore- said, and on the high seas aforesaid, and within the, etc., of the U. S., and within the jurisdiction of, etc., and out of the juris- diction, etc., in and upon the left side of the body of him the said A. M., then and there feloniously, wilfully, and of his malice aforethought, did strike, penetrate, and wound, then and there giving to him the said A. M. tlien and there with the three leaden bullets aforesaid, so as aforesaid, by him the said C. P., otherwise, etc., then and there shot oft", disciiarged, and sent forth out of the gun aforesaid, by force of the gunpowder aforesaid, in, upon, and against the left side of the body of hira the said A. M., and then and there penetrating into and through the body of him the said A. M., one mortal wound, of which said mortal wound the said A. M., in and on board of the sliip aforesaid, and on the high seas aforesaid, and within the, etc., 199 (178) OFFENCES AGAINST THE PERSON. jurisdiction of the said U. S.,and within the jurisdiction of, etc., and out of, etc., then and there on, etc., instantly died. And that the said W. H. C, otherwise, etc., W. H., C. H. S., other- wise, etc., then and there on, etc., in and on board of the ship aforesaid, and on the high seas aforesaid, and within, etc., and within etc., and out of, etc., feloniously, wilfully, and of their malice aforethought, were present, and then and there feloniously, wilfull3^ and of their malice aforethought, were aiding, abetting, comforting, assisting, and maintaining the said C. P., otherwise, etc., the felony and murder aforesaid, in the manner and form aforesaid, then and there to do, commit, and perpetrate. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. P., otherwise, etc. (here follow the other names), feloniously, wilfully, and of their malice aforethought, him the said A. M., did then and there, in the manner and form afore- said, kill and murder, against the peace, etc.(?/) 178) Miu'der on the high seas, by striJciyig loUh a handspike. {With commencement and conclusion as adopted in the federal courts of Pennsylvania.){z) In the Circuit Court of the United States of America, in and for the Eastern District of Pennsylvania, of Sessions, in the year, etc. Eastern District of Pennsylvania, to wit : The grand inquest of the United States of America, inquir- ing for the eastern district of Pennsylvania, upon their oaths and atiirmations respectively do present, that A. B., late of the district aforesaid, one of the crew of an American vessel, to wit, the bark "Active," not having the fear of God before his eyes, but being moved and seduced by the instigations of the devil, on the day of in the year, etc., on the high seas, within the admiralty and maritime jurisdiction of the United States, to wit, at the district aforesaid, and within the (?/) Jt was held in tins case that tliere was a sumcient averment that the cir- cuit court liad jurisdiction, and that tlie injured party was within and under the protection of the United States and in the peace tliereof. U. S. v. Flumer, 3 Clitr. 28. {z) Lewis's C. L. 644. See U. S. v. Moran, Phil. April Sess. 1837, where Jud^e Hopkins sustained a capital conviction u^jon an indictment possessing the ■same general ieatures as the present 200 HOMICIDE. (179) jurisdiction of this court, with force and arms, in and upon one C. D., being the second mate of the said vessel, piratically, feloniously, wilfully, and of his malice aforethought, did make an assault ; and that the said A. B., with a certain handspike of the value of ten cents, which he the said A. B. in both his hands then and there had and held, him the said C. D., in and upon the right side of the head of him the said C. D., did strike and beat, giving the said C. D., then and there, with the handspike aforesaid, in and upon the right side of the head of him the said C. D., one mortal wound and fracture, of the length of five inches, and of the depth of two inches, of which said mortal wound and fracture the said C. D. then and there instantly died. And so the grand inquest aforesaid, upon their oaths and affirmations aforesaid, do say, that the said A. B. the said C. D., in manner and form aforesaid, piratically, feloniously, wilfully, and of his malice aforethought, did kill and murder, contrary to the form of the act of congress in such case made and provided, and against the peace and dignity of the United States of America. And the grand jury aforesaid, inquiring as aforesaid, upon their oaths and affirmations aforesaid, do further ]>resent, that after the commission of the said crime on the high seas, and within the jurisdiction of this court, the said A. B. was first brought, to wit, on or about the day of in the year, etc., into the said eastern district of Pennsylvania.(a) (179) Striking with a glass bottle on the forehead^ on hoard an American vessel in a foreign jurisdiction. ( With commence- ment and conclusion as adopted in the federal courts of Mas- sachusetts.{b) The jurors of the said United States within and for the said district, upon their oath present, that F. M., late of Boston, in said district, mariner, on the day of in the 3'ear, etc., in and on board of the barque "Eliza," then lying within the jurisdiction of a foreign state or sovereign, to wit, at one of the islands called the Navigators' Islands, in the South Pacific, (a) See supra, 17, 18; infra, 239, note. [h] This iorm, as well as several tliat will follow, was obtained through the valuable aid of F. O. Prince, Esq., of Boston. 201 (180) OFFENCES AGAINST THE PERSON. the said barque then and there being a ship or vessel of the United States, belonging to certain citizens of the United States, whose names are to the jurors aforesaid unknown, with force and arms, in and upon one P. M., feloniously and wil- fully did make an assault, and that the said F. M., with a cer- tain glass bottle of the value of ten cents, which he the said F. M. in his right hand then and there held, him the said P. M., in and upon the head of him the said P. M., then and there feloniously and wilfully did strike, giving unto him, the said P. M., then and there, with the said glass bottle, by the stroke aforesaid, in the manner aforesaid, and upon the head of him the said P. M., one mortal wound, of the depth of one inch, and of the length of one inch, of which said mortal wound he the said P. M., on and from the day of aforesaid, until the day of on board said barque, then lying at the said island, did languish, and languishing did live; on which said day of aforesaid, the said P. M., on the high seas (the said barque having then left the said island), and within the admiralty and maritime jurisdiction of the said United States, of the said mortal wound died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said F. M. the said P. M., in manner and form aforesaid, feloniously did kill and slay, against the peace and dignity of the said United States, and contrary to the form of the statute of the United States in such case made and provided. And the jurors aforesaid, on their oath aforesaid, do further present, that afterwards, to wit, on the day of in the year, etc., the said F. M. was first apprehended in ISTantucket, in the said district of Massachusetts, which was the district in which the said F. M. was first brought after the commission of the offence aforesaid. (180) Against a mother for drowning her child^ by throwing it from a steamboat on Long Island Sound. {Commencement and con- clusion as adopted in the federal courts of Massac husetts.){c) The jurors, etc., do present, that late of in the district of M., wife of of in on the day (c) See U. S. v. Hewson, 7 Bost. L. R. 361 ; Wh Cr. L. 8th ed. §§ 44, 309. 202 HOMICIDE. (180) of in the waters of Long Island Sound, the same being an arm of the sea, within the admiralty and maritime juris- diction of the United States, and out of the jurisdiction of any particular state, in and on board of the steamer " M.," the same then and there being an American ship or vessel, in and upon the female child of her the said the said female child then and there being an infant of tender age, to wit, about the age of three weeks, whose name is as yet unknown to the jurors aforesaid, feloniously, wilfully, and of her malice aforethought, did make an assault, and that the said then and there, feloniously, wilfully, and of her malice aforethought, did take the said female child into both the hands of her the said and did then and there feloniously, wilfully, and of her malice aforethought, cast and throw the said female child from on board the said steamer " M." into the waters of the said Long Island Sound, by reason of which casting and throwing of the said fe- male child into the waters aforesaid, the said female child, in the said Long Island Sound, by the waters aforesaid, was then and there choked, suffocated, and drowned, of which said choking, suffocating, and drowning, the said female child then and there instantly died. And the jurors aforesaid, on their oath afore- said, do say, that the said the said female child, in the said arm of the sea, within the admiralty and maritime juris- diction of the United States, and without the jurisdiction of any particular state, in the manner and by the means aforesaid, feloniously, wilfully, and of her malice aforethought, did kill and murder, against the peace and dignity of the said United States, and contrary to the form, etc. Second count. {Omitting averment of relationship^ and charging the sex to he unknown.) And the jurors, etc., further present, that late of in the district of M., wife of of in on the day of in the waters of the Long Island Sound, the same being an arm of the sea, within the admiralty and maritime jurisdiction of the United States, and out of the juris- diction of any particular state, in and on board of the steamer "M.," the same then and there being an American ship or ves- 203 (181) OFFENCES AGAINST THE PERSON. sel, in and upon a certain child, the said child then and there being an infant of tender age, to wit, under the age of one year, whose name and sex are unknown to the jurors aforesaid, feloni- ously, wilfully, and of her malice aforethought, did make an assault ; and that the said then and there feloniously, wilfully, and of her malice aforethought, did take the said child into both the hands of her the said and did then and there feloniously, wilfull}'', and of her malice aforethought, cast and throw the said child from on board the said steamer " M." into the waters of said Long Island Sound, by reason of which casting and throwing of the said child into the waters aforesaid, the said child, in the said Long Island Sound, by the waters aforesaid, was then and there choked, suifocated, and drowned, of which said choking, suffocating, and drowning, the said child then and there instantly died. And tlfe jurors aforesaid, on their oath aforesaid, do say, that the said the said child on the said arm of the sea, within the admiralty and maritime jurisdiction of the United States, and without the jurisdiction of any particular state, in the manner and by the means aforesaid, feloniously, wilfully, and of her malice aforethought, did kill and murder, against the peace and dig- nity of the said United States, and contrary to the form, etc. And the jurors, etc., on, etc., further present, that afterwards, to wit, on the said the said w^as first apprehended at in said District of Massachusetts, and that, etc.(t;?) (181) 3Iurder on the high seas, with a hatchet.{e) Southern District of New York, ss. The jurors of the United States of America, within and for the district and circuit afore- said, on their oath present, that of the city and county of Ifew York, in the district and circuit aforesaid, mariner, of the said city and county, mariner, and of the said city and county, mariner, not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the day of in the year, etc., with force and arms, upon the high seas, out of the jurisdiction of any partic- (<^) See .sw/7ra, 17, 18; infra, 239, note. (e) On this indictment the defendants were convicted in the circuit court for the southern district of New York in U. S. v. Wilhelm et al. 204 HOMICIDE. (181) ular state of the said United States, within the admiralty and maritime jurisdiction of the said United States, and within the jurisdiction of this court, on board of a certain vessel, being a called the owned by a certain person or persons whose names are to the said jurors unknown, then being a citi- zen or citizens of the United States of America, in and upon one in the peace of God and of the said United States, then and there being, on board the said called the on the high seas, out of the jurisdiction of any particular state, and within the jurisdiction of this court, piratically, feloniously, wilfully, and of their malice aforethought, did make an assault; and that the said with a certain instrument of wood and iron called a hatchet {or other instrument), of the value of which the said in his hand then and there had and held, the said in and upon the head, face, breast, and other parts of the body of him the said then and there being, on the high seas, in the aforesaid, and out of the jurisdic- tion of any particular state, and within the jurisdiction of this court, then and there feloniously, wilfully, and of his malice aforethought, did strike, giving to the said then and there, with the aforesaid, by such striking with the afore- said, in manner aforesaid, in and upon the head, face, breast, and other parts of the body of him the said several mortal strokes, wounds, and bruises, to wit, one mortal wound on of him the said of the length of inches, and of the depth of inches, one mortal wound on the of him the said of the length of inches, and of the depth of inches, and one mortal wound on the of him the said of the length of inches, and of the depth of inches, of which said mortal wounds the said from the said day of in the year aforesaid, until the day of the same month {or otherwise) of in the year afore- said, on the high seas aforesaid, out of the jurisdiction of any particular state, and within the jurisdiction of this court, did languish, and languishing did live; on which said day of in the year aforesaid, the said . on the high seas aforesaid, out of the jurisdiction of any particular state, and within the jurisdiction of this court, of the said mortal wounds, died. And that the said and then and there feloni- 205 (181) OFFENCES AGAINST THE PERSON. ously, wilfully, aud of their malice aforethought, were present aiding, abetting, eomfortitig, assisting, and maintaining the said in the felony and murder aforesaid, in manner and form aforesaid, to do and commit, and so the jurors aforesaid, upon their oath aforesaid, do say, that the said {here insert the names of all) in manner and form aforesaid, piratically, felo- niously, wilfully, and of their malice aforethought, the said did kill and murder, against the peace and dignity of the United States of America, and the form of the statute of the said United States in such case made and provided. Second count. {Same as preceding county inseiiing the name of one other as principal ; and also, instead of " being a called the owned by a certain person or persons, whose names are to the said jurors unknown, then beiiig a citizen or citizens of the United States of America," insert " being a called the owned by citizens {or a citizen) of the United States of America.") Third count. {Same as preceding count, inserting the name of one other persori as principal if as many as three were engaged) Fourth count. And the jurors aforesaid, on their oath aforesaid, do further present, that of the city and county of New York, in the district and circuit aforesaid, mariner, of the said city and county, in the district and circuit aforesaid, mariner, and of the said city and county, in the district and circuit aforesaid, mariner {if as many are specified in the complaint), not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the day of in the year, etc., with force and arms, upon the high seas, out of the jurisdiction of any particular stateof the said United States, with- in the admiralty and maritime jurisdiction of the said United States, and within the jurisdiction of this court, on board of a certain vessel being a called the owned by citizens {or a citizen) of the United States of America, in and 20G HOMICIDE. (181) upon one in the peace of God and the said United States, then and there being, on board the said called the on the high seas, out of the jurisdiction of any particular state, within the admiralty and maritime jurisdiction of the said United States of America, and within the jurisdiction of this court, piratically, feloniously, wilfully, and of their malice aforethought, did make an assault, and that the said {specify one), with a certain instrument of called a of the value of which he the said then and there in his hand had and held, and the said {specify another), with a certain other instrument of called a of the value of which he the said in his hand then and there had and held, and the said {specify another if as many as three were engaged), with a certain instrument of of the value of which he the said in his hand then and there had and held, the said in and upon the head, face, breast, and other parts of the body of him the said then and there being on the high seas, in the afore- said, out of the jurisdiction of any particular state, and within the jurisdiction of this court, then and there, feloniously, wilfully, and of their malice aforethought, did strike, giving to the said then and there, with the aforesaid, by such striking, with the aforesaid, in manner aforesaid, in and upon the head, face, breast, and other parts of the body of him the said several mortal strokes and wounds, to wit, one mortal stroke and wound on the of him the said of the length of inches, and of the depth of inches, one mortal stroke and wound on the of him the said of the length of inches, and of the depth of inches, one mortal stroke and wound on the side of the breast of him the said of the length of inches, and of the depth of inches, and one other mortal stroke and wound on the of him the said of the length of inches, and of the depth of inches, of which said mortal strokes and wounds the said from the said day of in the year, etc., on the high seas aforesaid, out of the jurisdiction of any particular state, and within the jurisdiction of this court, did languish, and languishing did live, until the day of the same month {or otherwise) of in the year last aforesaid, on which said 207 (182) OFFENCES AGAINST THE PERSON. day of in the year last aforesaid, the said on the high seas aforesaid, out of the jurisdiction of any particular state, and within the jurisdiction of this court, of the said mor- tal strokes and wounds died. And the jurors aforesaid, on their oath aforesaid, do say, that they the said him the said in the manner and by the means last aforesaid, on the high seas, out of thejurisdiction of any particular state, and within the jurisdiction of this court, piratically, feloniously, wilfully, and of their malice afore- thought, the said did kill and murder, against, etc., and against, etc. Final count. And the jurors aforesaid, upon their oath aforesaid, do fur- ther present, that the southern district of New York, in the second circuit aforesaid, is the district and circuit in which the said oifenders, viz. the said were first brought and appre- hended for the said offences.(/) (182) Manslaughter on the high seas.{g) First count. Drowning, etc., on a vessel whose name was unknown, etc. The grand inquest of the United States of America, inquiring (y) As a matter of course, -wliere the party or parties have not been arrested, but where the indictment is drawn for the purpose of issuing a bench warrant, the count in concUision is not to be put in. AV^here an otience has been com- mitted against the hiws of the United States of America, under the admiralty and maritime jurisdiction, in or near a foreign port or phace, in and on board of a vessel belonging in whole or in part to a citizen or citizens of the United States of America (see act of Congress of March 3d, 1825, § 5), the indictment should, after beginning in the usual way, proceed thus : on the high seas, near, etc., or, at a port or place within the jurisdiction of a foreign state or sovereign, to wit (name distinctly the port or place, and the state or sovereign under wliose juris- diction it is), on waters out of the jurisiliction of any particular state of tlie said United States of America, within the admiralty and maritime jurisdiction of the said United States, and within thejurisdiction of this court, in and on board of a certain American vessel, being a called the belonging in whole or in part to a certain person or persons, whose name or names are to tlie said jurors unknown, then and still being a citizen or citizens of the said United States of America, etc. ((/) U. S. r. Holmes, 1 Wall. Jr. 1. The defendant was convicted under this indictment, and was sentenced to a small punishment, but was afterwards par- doned by the President. The case was of great singularity, involving the ques- tion, whetiier a mariner in a case of extreme necessity, is justiiied in throwing overboard a passenger from a boat unable to hold the two. See Wh. Cr. L. 8th wl. §§ 511, 1SG9. 208 HOMICIDE. (^82) in and for the eastern district of Pennsylvania, on tlieir oaths and affirmations respectively, do present, that A. W. H., late of the district aforesaid, mariner, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the day of in the year, etc., upon the high seas, witliin the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any partic- ular state, and within the jurisdiction of this court, on board of a certain vessel, to wit, a vessel the name wliereof is to the jurors unknown, then and there belonging to a citizen of the United States, to wit, one J. P. V., late of the district aforesaid, with force and arms, in and upon a person known and commonly- called by the name of F. A., in and on board of said vessel, in the peace of God and of the United States, then and there being, unlawfully and feloniously did make an assault ; and that he the said A. W. H., then and there on board of the said vessel, upon the high seas, within the admiralty and maritime juris- diction of the United States, and out of the jurisdiction of any particular state, and within the jurisdiction of this court, with force and arms, unlawfully and feloniously did cast and throw the said F. A. from and out of the said vessel into the high seas there, by means of which said casting and throwing of him the said F. A. from and out of the said vessel into the high seas aforesaid, he the said F. A., in and with the water thereof, upon the high seas, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any partic- ular state, and within the jurisdiction of this court, then and there was suffocated and drowned, of which said suffocation and drowning he the said F. A. did then and there instantly die. And so the grand inquest aforesaid, inquiring as aforesaid, on their oaths and affirmations aforesaid, do say, tliat the said A. W. H. him the said F. A,, in the manner and by the means aforesaid, unlawfully and feloniously did kill, contrary, etc., and against, etc. Second count. Same on a long-boat belonging to J. P. F"., etc. And the grand inquest aforesaid, inquiring as aforesaid, on their oaths and affirmations aforesaid, do further present, that afterwards, to wit, on the day and year aforesaid, the said A. VOL. I. — 14 • ■zO\) (182) OFFENCES AGAINST THE PERSON. "W. H., not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, upon the high seas, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state, and within the jurisdiction of this court, on board of a certain vessel, to wit, the long-boat of the ship "W. B.," then and there belonging to a citizen of the United States, to wit, one J. P. v., late of the district aforesaid, with force and arms, in and upon a person known and commonly called by the name of F. A., in and on board of said vessel, in the peace of God and of the United States, then and there being, unlawfully and felo- niously did make an assault ; and that he the said A. W. H. then and there, on board of the said vessel upon the high seas, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state, and within the jurisdiction of this court, with force and arms, un- lawfully and feloniously did cast and throw the said F. A. from and out of the said vessel into the high seas, by means of which said casting and throwing of him the said F. A., from and out of the said vessel into the high seas aforesaid, he the said F. A., in and with the waters thereof, upon the high seas aforesaid, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state, and within the jurisdiction of this court, then and there was suffo- cated and drowned, of which said suffocation and drowning he the said F. A. did then and there instantly die. And so, etc. {as in first count). Final count. And the grand inquest aforesaid, inquiring as aforesaid, on their oaths and affirmations aforesaid, do further present, that after the commission of the crimes so as aforesaid committed on the high seas, and out of the jurisdiction of any particular state, to wit, on the day of the said A. W. H., the ofi'ender aforesaid, was apprehended in the eastern district of Pennsyl- vania.(/i) (A) See sujsra, 17, 18; infra, 239, note. 210 CONCEALING DEATH OF BASTARD CHILD. (183) (193) Misdemeanor in concealing death of bastard child hy casting it in a well, under the Pennsylvania statute.{i) And the inquest aforesaid, on their oaths and affirmations aforesaid, do further present, that the said R. P., on the said day of in the year aforesaid, being big with a male (i) See generally under this head, Wh. Cr. L. 8th ed. §§ 600 et seq. It is not necessary in Pennsylvania to set forth in what manner or b}^ what arts the mother endeavored to conceal the death of the child. Boyle v. Com., 2 S. & R. 40. It is a fatal objection that an indictment for concealing the death does not directly aver the death of the child. It is not sufficient to aver that the defendant " did endeavor privately to conceal the death of the said female bas- tard child." Douglas v. Com., 8 Watts, 535; Com. v. Clark, 2 Ash. 105. Whether the child be born dead or alive would seem to be immaterial. Douglas V. Com., 8 Watts, 535, Rogers, J. See R. v. Coxhead, 1 C. & K. 623. The concealment is not conclusive evidence of the fact, unless the circumstances at- tending it are sufficient to satisfy the jury that the mother did wilfully and ma- liciously destroy the child. Penn. v. M'Kee, Add. 2. Under the North Carolina act against the mother, for concealing the birth of her bastard child, it is said that it is not incumbent on the prosecution to show that the child was born alive, but the burden of showing the contrary is on the part of the accused (see R. v. Douglas, 1 Mood. C. C. 462) ; and that the corpun delicti is concealing the death of a being upon whom the crime of murder would have been committed ; and, therefore, if the child be born dead, concealment is not an offence against the statute. State v. Joiner, 4 Hawks, 350. A mother having caused the body of her child to be buried privately, her object being to conceal its birth, it was held, under the stat. 43 Geo. III. c. 58, and 9 Geo. IV. c. 31, s. 14, from which the American acts differ but little, that the fact of her having previously acknowledged the birth to several persons, did not prevent her conviction of the concealment. R. v. Douglas. 1 Mood. C. C. 462. Where the woman was delivered of a child, the dead body of Avhich was found in a bed amongst the feathers, but there was no evidence to show who put it there, and it appeared that the mother had sent for a surgeon at the time of her confine- ment, and had prepared child's clothes, the judge directed an acquittal of the charge for endeavoring to conceal the birth. R. v. Higley, 4 C. & P. 366. Where a woman delivered of a seven months' child, threw it down the privy, and it appeared that another woman, charged as an accomplice, knew of the birth ; upon an indictment for murder against the two, the jury found the motlier guilty of the concealment ; and the point being saved upon a doubt, whether it was a case within the stat. 43 Geo. III. c. 58, as a second person knew of the birth, the judges held that the act of throwing the child down the i)rivy was evidence of the endeavor to conceal the birth, and that the conviction was right. R. V. Cornwall, R. & R. 336. An indictment on stat. 9 Geo. IV. c. 31, s. 14, for endeavoring to conceal the birth of a dead child, need not state whether the child died before, at, or after its birth. Reg. v. Coxhead, 1 C. & K. 623. An indictment which charged that the defendant did cast and throw the dead body of the child into soil in a certain privy, "and did thereby, then and there, un- lawfully dispose of the dead body of the said child, and endeavor to conceal the birth thereof," sufficiently charges the endeavor to conceal the birth, as the word "thereby" applies to the endeavor, as well as to the disposing of the dead body. R. V. Douglas, 1 Mood. C. C. 462. By the act of 22d April, 1794 (Purd. 532), the grand jury may join a count for murder with a count for concealment. For other forms in such cases, see supra, 15 7-159. 211 (184a) OFFENCES AGAINST THE PEKSON. child, the same day and year, in the county aforesaid, by the providence of God did bring forth the said chikl of the body of her the said R., alone and in secret,(J) which said male child if it were born alive would by the laws of this commonwealth be a bastard ; and that the said R. afterwards, to wit, on the day of in the year aforesaid, as soon as the said male child was born, did endeavor privately to conceal the death of the said child,(Z;) and did take the said child into both the hands of her the said R., and did then and there wilfully and privately cast and throw the said child into and down the well of a cer- tain privy there situate, so that it might not come to light, whether the said child Avas born dead or alive, or whether it were murdered or not, contrary, etc., and against, etc. (184) Same where means of concealment are not stated.ij) That J. B., late of the county aforesaid, spinster, on, etc., at, etc., b.ing big with a certain female infant, the same day and year, at the county aforesaid, did bring forth the said infant of the body of her the said J. B., alone and in secret, which same infant, so being brought forth alive, was by the laws of this commonwealth a bastard; and that the said J. B. afterw^ards, to wit, the same day and year aforesaid (the said female infant having on the day and year last aforesaid, at the township and county aforesaid, died), did endeavor privately to conceal the death of the said female infant, so that it might not come to light whether the said female infant was born dead or alive, or whether the said female infant was murdered or not, con- trary, etc., and against, etc. (184a) Form used in Philadelphia in 1880. First count. That late of the said county on the day of in the year of our Lord one thousand eight hundred and at the county aforesaid, and within the juris- (y) The facts must be specially stated. Foster v. Com., 12 Bush, 373. {k) The time of death need not be stated. R. v. Coxhead, 1 C. & K. 623. {/) See Boyle v. Cora., 2 S. & R. 40, where this count was sustained. The usual form, however, is to charge the object of the offence as a -'child," and not an "infant," and I Avould add another count so stating it, notwithstanding the sanction by the supreme court of the form in the text. 212 CONCEALING DEATH OF BASTARD CHILD. (184a) diction of this court, with force and arms, etc., being big and pregnant with a certain child, afterwards, to wit, on the said day of in the year aforesaid, at the county aforesaid, and within the jurisdiction of this court, did bring forth of the body of her the said the said chiki alive, which said child by the laws of the commonwealth of Pennsylvania aforesaid, then and there was a bastard. And the grand inquest aforesaid, upon their oaths and affir- mations aforesaid, do further present, that afterwards, to wit, on the said day of in the year aforesaid, at the county aforesaid, and within the jurisdiction of tliis court, the said bastard child so brought forth of the body of the said as aforesaid, did die. And the grand inquest aforesaid, upon their oaths and affir- mations aforesaid, do further present, that the said after- wards, to wit, on the said day of in tlie year afore- said, at the county aforesaid, and within the jurisdiction of this court, the bastard child aforesaid, so brought forth of the body of her the said as aforesaid, and dead as aforesaid, did then and there unlawfully and wilfully conceal, and did then and there unlawfully and wilfully conceal the death of the said bastard child, so that it might not come to light whether the said bastard child had been born dead or alive, or whether the said bastard child was murdered or not, contrarj', etc. Second count. And the grand inquest aforesaid, upon their oaths and affir- mations aforesaid, do further present, that the said on the said day of in the year of our Lord one thousand eight hundred and at the county aforesaid, and within the jurisdiction of this court, being big and pregnant with a certain child, on the said day of in the year aforesaid, at the county aforesaid, and within the juris- diction of this court, did bring forth the said child of the body of her the said which said child theretofore died in the womb of her the said and being so brought forth as aforesaid, then and there was dead ; and which suid 213 (185) OFFENCES AGAINST THE PERSON. child if born alive, by the laws of the commonwealth of Pennsylvania aforesaid, would then and there be a bastard. And the grand inquest aforesaid, upon their oaths and affir- mations aforesaid, do further present, that the said after- wards, to wit, on the said day of in the year afore- said, at the county aforesaid, and within the jurisdiction of this court, the bastard child aforesaid, so brought forth of the body of her the said as aforesaid, and dead as aforesaid, did unlawfully and wilfully conceal, and did then and there unlawfully and wilfully conceal the death of the bastard child aforesaid, so that it might not come to light whether the said bastard child was born dead or alive, or whether the said bastard child was murdered or not, contrary, etc.(m) (185) Endeavor to conceal the hirlh of dead child under the English statute,{n) That A. C, late of, etc., on, etc., at, etc., being big with a cer- tain female child, afterwards, to wit, on the same day, and in the year aforesaid, in the parish aforesaid, in the county afore- said, of the said child was delivered. And the jurors aforesaid, upon their oath aforesaid, do fur- ther present, that the said A. C. afterwards, to wit, on the same day, and in the year aforesaid, with force and arms, at the par- ish aforesaid, in the county aforesaid, with both her hands, unlawfully did cast and throw the dead body of the said child into and amongst the soil, waters, and tilth then being in a cer- tain privy there, and did thereby then and there unlawfully dispose of the dead body of the said child, and endeavor to conceal the birth thereof, against, etc., and against, etc. (m) For this form I am indebted to W. W. Kerr, Esq., formerly assistant district attorney in Piiiladelpliia. (n) E,. V. Coxhead, 1 C. & K. 623. 214 RAPE. (186) CHAPTER 11. RAPE, (a) (186) General form. (187) For carnally knowing and abusing a woman child under the age of ten years. Mass. stat. 1852, ch. 259, § 2. (188) Rape. Upon a female other than a daughter or a sister of the defendant, under Ohio stat. p. 48, § 2. (189) Rape. Upon a daughter or sister of the defendant, under Ohio stat. p. 48, §1._ (190) Rape. Abusing female child with her consent, under Ohio stat. p. 48, §2. (190a) Rape under Indiana statute. (1906) Another form. (190f) Procuring defilement under English statute. [For assaults with intent to ravish, see 253, etc.] (186) General form. That I. S,,(6) late of the parish of B., in the county of M., laborer//?) on the day of etc., with force and arnis,((i) at the parish aforesaid, in the county aforesaid, in and upon one (a) See Wh. Cr. L. 8th ed. § 550 et seq. (b) Two defendants may be joined as principals, supra, notes to form 97. R. V. Burgess, 1 Russ. on Cr. 687 ; Strong v. People, 24 Mich. 1. An indictment charging, in one count, G. as principal in the first degree and W. as present aiding and abetting, and in another count W. as principal in the first degree and G. as aiding and abetting, was sustained In R. v. Gray, 7 C. & P. 164. Wh. Cr. L. 8th ed. § 5G9. A general conviction of defendant, charged both as principal in the first degree, and as an aider and abettor of other men in rape, is valid on tlie count charging him as principal. And on such an indictment, evidence may be given of several rapes on the same woman, at the same time, by the defendant and other men, each assisting the other in turn, without putting the prosecutor to elect on which count to proceed. R. v. Folkes, 1 Mood. C. C. 344. An Indictment Is good which charges that A. committed a rape, and that B. was present aiding and abetting him in the commission of tlie felony ; for the party aiding may be charged either as he was in law, a principal In the first de- gree, or as he was In fact, a principal in the second degree. R. v. Crisham, C. & M. 187. (c) Age need not be stated, so as to exclude impuberty. Com. v. Sugland, 4 Gray, 7 ;" People v. Ah Yek, 29 Cal. 575. (d) These words are surplusage. Supra, note to form 2, p. 17. 215 (187) OFFENCES AGAINST THE PERSON. A. '^.•(c) in the peace of God atul the said state, tlien and there being, violently and feloniously did make an assault,(/) and hev the said A. N., then and there forcibly and against her will,(^) feloniously did ravish(/i) and carnally knovv,(?:) against, etc. {Conclude as in book 1, chapter 3. Add a count for assaidt and intent to ravish.){j) (187) For carnally knowing and abusing a icoman child under the age of ten years.{k) The jurors, etc., upon their oath present, that C. D., late of B., in the county of S., laborer, on the first day of June, \\\ the year of our Lord with force and arms, at B. aforesaid, in the county aforesaid, in and upon one E. F., a woman child, under the age of ten years, to wit, of the age of nine years, feloniously did make an assault, and her the said E. F. then and there felo- niously did unlawfully and carnally know and abuse, against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. (e) It is not necessary to aver that the prosecutrix was a -woman (Com. v. Sulli- van, 6 Gray, 47 7 ; Cora. v. Fogerty, 8 Gray, 489 ; State r. Farmer, 4 Ired. 224) ; nor need her age be given (lb.; Com. i'. Scannel, 11 Cush. 547; State t;. Stor- key, G3 N. C. 7), unless the object be to prosecute under a distinct statute, of which age is the ingredient, as is the case with statutes making peculiarly penal offences against infant children. Infra, 190; R. i-. Martin, 9 C. & F. 215. As to Ohio statute, see O'Meara v. State, 17 Ohio St. 515. The averment of age may be rejected as surplusage. Mobley v. State, 46 Miss. 501. (/■) An indictment charging that the defendant in and upon A. B. "feloni- ously and violently did make (omitting the words 'an assault'), and her the said A. 15. then and there, against her will, violently and feloniously did ravish and carnally know," etc., was held sufficient in arrest of judgment. R. v. Allen, 1 Mood.'C. C. 179 ; 9 C. &P. 521 ; O'Connell v. State, 6 Minn. 279. There can be no conviction of assault, however, on such an indictment. ((/) Though these words used to be considered essential (Wli. Cr. PI. & Pr. § 263 ; State v. Jim, 1 Dev. 142), yet it has been held that the clause might be supplied by "feloniously did ravish and carnallv know her." Harman v. Com., 12 S. & R. 69 ; Com. v. Bennett, 2 Va. Cases,' 235 ; Wh. Cr L. 8th ed. § 573. [h) "Ravish" is essential. Gougleman v. People, 3 Park. C. R. 15; Chris- tian V. Com., 23 Grat. 954 ; Davis v. State, 42 Tex. 226. "Unlawfully" may be dispensed with. Weinzorptlin v. State, 7 Blackf. 186. (i) The omission of the '• carnaliter cognovif" makes the indictment bad on demurrer, but, as it seems, not after verdict, under the late English statute of jeo- fails. R. ?'. Warren, 1 Russ. 686. (j) See closing notes to form 2, p. 31, as to the propriety of such a joinder; and see also Wh. Cr. L. 8th ed. § 570; Wh. Cr. PI. & Pr. §§ 285-90. (k) Tr. & H. Free; Mass. St. 1852, ch. 259, § 2. 216 RAPE. (190) (188) Bape apon a female other than a davghter or sister of the defendant^ under Ohio stat. 2?. 48, § 2. That A. B., on the iifth tlay of June, in the year of our Lord one thousand eio;ht hundred and forty-nine, in the county of Cuyahoo;a aforesaid, in and upon M. N., then and there being;, unlawfully, violently, and feloniously did make an assault, and her the said M. N. then and there forcibly and against her will, feloniously did ravish and carnally know, she the said M. N. then and there not being the daughter or sister of the said A. B., contrary, etc. {Conclude as in book 1, chapter 3.) (189) Rape xqoon a daughter or sister of the defendant, under Ohio Stat. p. 48, § 1. That A. B., on the day of in the year of our Lord one thousand eight hundred and in the county of aforesaid, in and upon one M. IST., then and there being, unlaw- fully, violently, and feloniously did make an assault, and her the said M. iN"., then and there forcibly and against her will, feloniously did ravish and carnally know, she the said M. K. then and there being the daughter (or sister, as the case may be) of the said A. B., and the said A. B. then and there well know- ing the said M. IS", to be his daughter {or sister), contrary, etc. {Conclude as in book 1, chapter 3.) (190) Rape. Abusing female child with her consent, under Ohio Stat. p. 48, § 2. That A. B., on the day of in the year of our Lord one thousand eight hundred and in the county of aforesaid, being then and there a male person of the age of seventeen years and upward, in and upon one M. N., a female chi]d,(^) under the age of ten years, to wit, of the age of eight years, then and there being, unlawfully, forcibly, and feloniously did make an assault, and her the said M. I^. then and there un- lawfully and feloniously did carnally know and abuse, with her consent, contrary, etc. {Conclude as in book 1, chapter 3.)(m) (?) That this is required under statute see O'Meara v. State, 17 Oh, St. 515. The qualiOeation may be rejected as surplusage. Mobley v. State, 46 Miss. 501. (m) Warren C. L. 68. 217 (190c) OFFENCES AGAINST THE PERSON. (190rt) Rape under Indiana statute. Indictment for rape, alleging that the defendant, " on, etc., at, etc., did then and there, in and upon A. V., a woman, forci- bly and feloniously make an assault ; and her the said A. Y., then and there, unlawfully, forcibly, and against her will, felo- niously ravish and carnally know, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of," etc.(n) (1906) Another form. "The grand jury, etc., on their oath do present and charge, that A. v., late of said county, on, etc., at, etc., did then and there unlawfully, in and upon D. W., a woman, forcibly and feloniously make an assault, and her, the said D. W., then and there, unlawfully, forcibly, and against her will, feloniously ravish and carnally know, contrary," etc.(o) (190c) Procuring defilement of girl under English statute. That I. S., etc., on, etc., at, etc., by falsely pretending and representing unto one I. N. that {here set out the false pretences or representations) did procure I. N. to have illicit carnal con- nection with a certain man, named {or to the jurors aforesaid unknown).^ she, the said I. i^., at the time of such pro- curement, being then a woman under the age of twenty-one years, to wit, of the age of ; whereas, in truth and fact {negativing the pretences or representations)^ against, etc.(2j) [n) It was held in Indiana that this indictment was not bad because the word "did" was not repeated before the words " ravish and carnally know." Whit- ney V. State, 35 Ind. 503. (o) Sustained in Vance v. State, 65 Ind. 460. {p) Arch. C. P. 19th ed. p. 767. 218 SODOMY. (191a) CHAPTER III. SODOMY.(a) (191) General form. {191a) Under Pennsylvania statute. (191) General foy^m. That A. B., on, etc., at, etc., in and upon T. L., then and there being, felonious!}' did make an assault, and then and there felo- niously, wickedly, diabolically, and against the order of nature, had a venereal affair (6) with the said T. L., and then and there carnally knew the said T. L., and then and there feloniously, wickedly, and diabolically, and against the order of nature, with the said T. L. did commit and perpetrate that detestable and abominable crime of buggery (c) (not to be named among Chris- tians), to the great displeasure of Almighty God, to the great scandal of all human kind, against, etc. {Conclude as in book 1, chapter 3.) (191a) Under Pennsylvania statute. That A. B., late of the said county on the day of in the year of our Lord one thousand eight hundred and eighty- at the county aforesaid, and within the jurisdiction of this court, with force and arms, etc., feloniously, wilfully, wickedly, and against the order of nature, did have a certain venereal affair and carnal intercourse and copulation with and between him the said A. B. and one L. R., and then and there, feloniously, wilfully, wickedly, indecently, and against the (a) Stark. C. P. 434. See Wh. Cr. L. 8th ed. § 579. (ft) "Had a venereal affair" is not essential. Lambertson ?;. People, 5 Par- ker, C. C. 200. (c) This word is essential. Co. Ent. .350 ; Post. 424; Wh. Cr. L. 8th cd. ? 580, etc. That "commit sodometical practices" Is Insufficient, soc R. v. Rowed, 2G. &U. 518; 3 Q. B. 180; Davis v. Slate, 3 H. & J. 154. That specification is required, see State v. Campbell, 29 Tex. 44. For letter soliciting, see lOCOa. 219 (191a) OFFENCES AGAINST THE PERSON. order of nature, did insert the person and private parts of him the said A. B. into the of him the said L. R. {or, did suffer and permit the said L. R. then and there to insert the person and private parts of him the said L. R,. into the of him the said A. B.), and did then and there, in manner and form aforesaid, commit the crime of sodomy and buggery with the said L. R., contrary, etc.{d) (d) For this form I am indebted (1881) to Wm. W. Ker, Esq., formerly assistant district attorney of Philadelphia. 220 MAYHEM. (192) CHAPTER IV. MAYHEM, (a) (192) Indictment on Coventry Act, 22 and 23 Car. II. c. 1, for felony, by slitting a nose, and against the aider and abettor. (193) Mayhem by slitting the nose, under the Rev. Stat. Massachusetts, ch. 125, § 10. (194) Mayhem by cutting out one of the testicles, under the Pennsylvania statute. (195) Against principal in first and second degree for mayhem in biting off an ear, under the statute of Alabama. (19G) Biting off an ear, under Rev. Stat. N. C. ch. 34, § 48. (197) Maliciously breaking prosecutor's arm with intent to maim him, under the Alabama statute. (192) Indictment on Coventry Act, 22 and 23 Car. II. ch. 1, for fel- ony^ by slitting a nose, and against the aider and abettor.{b) That J. W., late of, etc., laborer, and A. C, late of, etc., Esq., on, etc., contriving and intending one E. C. to maim and disfig- ure,(c) at, etc., with force and arms, in and upon the said E. C, in the peace of God and the said state, then and there being, on purpose,((i) and on {or "of their") malice aforethought,(ri) and by- lying in wait, unlawfully and feloniously(e) did make an assault, and the said J. W., with a certain iron bill of tiie value of one penny, which he the said J. W. in his right hand then and there had and held,(/) the nose of the said E. C, on purpose, and of his malice aforethought, and by lying in wait, then and there (a) See Wh. Cr. L. 8th ed. § 581. (6) Chit. C. L. vol. 3, 786. Though mayhem is still an offence at common law, and as such is the subject of prosecutions in England, there are fe-w prece- dents of indictments for it as a common law offence. This form was taken by Mr. Chitty (3 C. L. 786) from the Cro. C. C. 264. In most of our states, how- ever, so far as the ground is unoccupied by statute, the common law remedy remains, and mayhem may still be treated as a common law olfence. (c) The intent as thus laid is necessary. 1 East, P. C. 402. (d) The omission of these words would be unsafe. 1 East, P. C. 402; Penn. V. M'Birnie, Add. R. 28. (e) This is requisite. Hawk. b. 2, c 23, s. 18; Chit. C. L. 786, 787. See infra, note (r/) . (/) The same precision is necessary as in murder. Hawk. b. 2, c. 23, s. 79. 221 (183) OFFENCES AGAINST THE PERSON. unlawfully and feloniously (^) did 8lit,(A) with intention the said E. C, in so doing, in manner aforesaid, to maim and disfigure ;(i) and that the. aforesaid A. C , at the time the aforesaid felony by the said J. W., in manner and form aforesaid, was done and committed, to wit, on the said, etc., at, etc., with force and arms, on purpose, and of his malice aforethought, and by lying in wait, unlawfully and feloniously was present {knowing of and yrivy to the said felony)^{j) aiding and abetting the said J. W. in the felony aforesaid, in manner and form aforesaid done and com- mitted. And so the jurors, etc , do say,(/t) that the said J. W. and A. C, on the said, etc., at, etc., aforesaid, with force and arms, on purpose, and of their malice aforethought, and by lying in wait, the felony aforesaid, in form aforesaid, unlawfully and feloniously did do and commit, and each of them did do and commit, against, etc., and against, etc. (193) Mayhem by slitting the nose, under Rev. Stat. Mass. eh. 125, § 10. That C. D., late of B. in the county of S., laborer, on the first day of June, in the year of our Lord with force and arms, at B. aforesaid, in the county aforesaid, the said C. D. being then and there armed with a certain dangerous weapon, to wit, a knife, with malicious intent the said J. N. then and there to (_9) In England, 3 Chit. C. L. 786, and in Pennsylvania, the practice is to charge the otlience as a felony ; but in Massachusetts, Georgia, and Alabama, it is treated as a misdemeanor. See Wh. Cr. L. 8th ed. § 583, for authorities. "Every indictment for maiming," says Mr. Chitty (3 C. L. 787), "though at common hiAv, must charge the offence to have been done feloniously, because the defendant was formerly punished with loss of member." Hawk. b. 2, c. 23, s. 18. The term mahtimacit was always essential formerly, as the word maim is at present. lb. s. 17; Com. v. Newell, 7 Mass. 245. The wound should be set forth with the same degree of precision as in cases of murder ; and a similar con- clusion must be drawn, that so the defendant i\l(ifelolno^^sllJ maim, etc., though this will not supply the omission of either of these words in the previous descrip- tion of the violence. 1 East, P. C. 402. In case of indictment on the statute of Charles, its language must be accurately followed ; so that the expressions on imrpose, of malice aforethourjht, and by lying in wait, as well as tlie allegation that the act was done tcith intent to maim and disfgure, are material. lb. ; Penn. v. M'Birnie, Add. R. 28. (A) The wound should be laid with the same precision as in murder. 3 Chit. C. L. 786. (t) In New York the indictment must aver a premeditated design. Tully v. People, 67 N. Y, 15. (y) The words of the statute. (it) This conclusion is necessary. 1 East, P. C. 402; 3 Chit. C. L. 786, 787. 222 MAYHEM. (194) maim and disfigure, in and upon the said J. N. feloniously did make an assault; and that the said C. D., with the said knife, the nose of the said J. N. then and there feloniously and ma- liciously did cut and slit, with malicious intent then and there and thereb}-, in manner aforesaid, the said J. N. then and there, to maim and disfigure; against, etc., and contrary, etc.(^) {Con- dude as in book 1, ch. 3.) (194) Mayhem by cutting out one of the testicles^ under the Pennsylvania statute.{m) That negro T., late of the said county, yeoman, on the second day of May, A. D. one thousand eight hundred and six, at the county aforesaid, and within the jurisdiction of this court, con- triving and intending one T. W. to maim and disfigure, with force and arms, in and upon the said T. W., in the peace of God and the commonwealth, then and there being, feloniously, volun- tarily, and maliciously did make an assault; and the said negro T., with a certain knife of the value of ten cents, which he the said negro T. in his right hand then and there had and held, on purpose, and of his malice aforethought, then and there, unlawfully, voluntarily, maliciously, and feloniously did cut out, mutilate, and destroy one of the testicles, to wit, the left testi- cle of him the said T. W., with intention him the said T. W., in so doing, in manner aforesaid, to maim and disfigure; and so the jurors aforesaid, upon their oaths, etc., aforesaid, do say, that the said negro T., on the said day of in the year aforesaid, at the county aforesaid, with force and arms, on purpose, and of his malice aforethought, the otience afore- said in manner and form aforesaid, did do and conmiit, con- trary, etc., and against, etc.(n) {I) Tr. & H. Free. 385. See Com. n. Newell, 7 Mass. 245. (m) The det'endant was convicted in 180G, under this indictment, in the Phila- delphia quarter sessions. (n) In an early indictment in Pennsylvania (Resp. v. Langcake, 1 Yeatcs, 415), the first count stated, that Langcake, contriving and intending Jonathan Carmalt, a citizen of Pennsylvania, to maim and disfigure, with force and arms, etc., on purpose and of his malice aforethought, and by lying in toaif, on tiie 13th August, 1794, at, etc., unlawfully and feloniously did make an assault on the said Jonathan with a cart-wliip, of the value of Is., and the right eye of the said Jonathan then and tliere did strike and ])ut out, with an intent in so doing to maim and disfigure him, against tlie act of assembly, etc., and that Hook was then and there present, aiding and abetting tlie fact, etc., against tlie act, etc. The second count was grounded on the latter part of the Gth section of the 223 (195) OFFENCES AGAINST THE PERSON. (195) Against principal in Jirsi and second degree for mayhem in biting off an ear under the statute of Alabama.{o) That W. M., on, etc., at, etc., in and upon one W. E. W"., in the peace of the said state, then and there being, did make an act of 22d April, 1794 (p. GOl), and pursued the words of the first count, leav- ing out the words " and by lying in wait," and charging tlie fact to have been done "voluntarily and maliciously, and of purpose," both against tiie principal and accessary. The third count stated, that Langcake and Hook, contriving to maim and disfigure Jonathan Carmalt, in the peace of God and of the commonwealth then and there being, the said Langcake on the 13th August, 1794, at, etc., voluntarily, wickedly, maliciously, unlawfully, and feloniously, did assault the said Jonatlian, and liim with a cart-whip, which he in his right hand had and held, the right eye of the said Jonathan, then and there voluntarily, etc., did strike and ])ut out, with intent in so doing to maim and disfigure him, and that Hook, at the time of the felony by Langcake done and committed, vol- untarily, etc., was present aiding and abetting Langcake in the felony aforesaid, etc., concluding as in mayhem at common law, against the peace, etc. " The first clause of our act of assembly of 22d April, 1784, s. 6, is borrowed from the words of the British statute of 22 and 23 Car. II. c. 1, s. 7. It pur- sues the same language, except that our act particularly enumerates the cutting ott" 'the ear,' and mildly varies the mode of punishment. Under that statute, commonly called the Coventry Act, it has been adjudged not necessary that either the malice ai'orethought, or lying in wait, should be expressly proved to be on purpose to maim or disfigure. Leach's case, 193. And also that he who intends to do this kind of mischief to another, and^ hij deliberately icatching an opportunity^ carries that intention into execution, may be said to Lie in wait on pu)-pose. lb. 194; Mills' case. "Under the first clause of the act of assembly, no intent to maim or disfigure in 3, particular manner is necessary, and therefore on the first count in the indict- ment, if the general intent is established to the satisfaction of the jury, their next material incpiiries will be, as to the malice and lying in wait, whetlier the same has been proved, or can fairly be inferred from all the circumstances which have been disclosed in evidence. "The second clause of the 6th section of the act goes further than the Cov- entry Act, and was evidently introduced to prevent the infamous jjractice of gouging. The words are very com])rehensive, and extend to pulling out or put- ting out the eye, while fighting or otherwise. But we hold it necessary, in order to convict on this clause, tliat a specific intent to pull out or put out the eye must be shown to the satisfaction ot the jury. We apprehend that the evidence will scarcely warrant the conviction of Langcake on the second count; and though Hook has behaved himself grossly amiss during the whole transaction, yet he cannot properly be convicted on either of the two first counts in the indictment. " On the third and fourth counts, Langcake is admitted by his counsel to be guilty, and perliaps the evidence will suffice to reach Hook on these two last counts." Sentence was afterwards pronounced against Langcake, that he should un- dergo a confinement in the jail and penitentiary house for tin-ee years, the one- twelfth part to be in the solitary cells ; to pay a fine of §1000, whereof three- fourth parts to be for the use of Carmalt ; and give security for his good beha- vior for seven years, himself in £500, and two sufficient sureties in £250 each, and pay costs. (o) State V. Absence, 4 Port. 397. The court said: " The indictment seems to be in the form pointed out by the most usual and correct i)recedents, aTul con- MAYHEM. (196) assault, and that the said "W. M., the right ear of him the said "W. E. "W., then and there on purpose, and of his malice afore- thought, unlawfully did bite off. And the jurors aforesaid upon their oaths aforesaid, do further present, that E. A., late of the county aforesaid, in the county aforesaid, etc., with force and arms, on the day and year aforesaid, unlawfully, and on purpose, and of his malice aforethought, was present, aiding and abetting and assisting the said W. M. the said mayhem to do and commit, contrary, etc., and against, etc. (196) Biting off an ear, under Bev. Stat. N. C. ch. 34, § 48.(/)) That defendant, on, etc., at, etc., unlawfully, and on purpose, did bite off the left ear of one J. W., contrary, etc. tains only one count, which charges Mosely with committing the act, and Absence with being present, and aiding and assisting. " It is objected, however, that the statute having declared the biting off of an ear to be mayhem, it was necessary to charge the individuals indicted with this legal conclusion. Hawk. vol. 1, p. 107, and 2 Hawk. 311, are relied on to es- tablish this position. "It is admitted, if a statute adopt a common law offence without otherwise defining the crime, all the common law requirements should be followed in the indictment ; thus our statutes affix the punislmaent of death to murder and rape, without attempting to define the crimes. Here, no doubt, the terms ' murdraviV and ' rapuiV would be essential ; but when a statute describes a particular act or acts as a misdemeanor or crime of a particular grade, it is not necessary in an indictment, after charging the acts, to state the legal conclusion, that they amount to the misdemeanor or crime of the grade declared by statute, because such is the conclusion of the Imo on the facts alleged. The same reason is con- ceived applicable to the omission of the word ' feloniously.' If the statute had declared, that all persons who should be guilty of the crime of mayhem, should be punished in a particular manner, without attempting to further define the offence, the question would properly arise on an indictment framed under such a statute, whether it was necessary to allege the mayhem to have been done felo- niously. "It is sufficient to decide, that the word entering into no part of the defi- nition of this offence, as created by the statute, it was properly omitted in the indictment. " It is further urged, that there is no sufficient allegation of time and place, so far as Absence is noticed in the indictment. "The court recognizes the authority of the rule requiring an averment of time and place to each substantive fact charged in the indictment. Arch. C. P. 36. But the indictment, it is believed, conforms to this rule with the utmost precision. " It follows, as the consequence of these views, that there was no error in re- fusing to arrest the judgment in the court below." (jo) State V. Girkin, 1 Ire. 121. Under this indictment it was held, that an intent to disfigure is prima facie to be inferred from an act which does in fact disfigure, unless that presumption be repelled by evidence on the part of the ac- cused of a different intent, or at least of the absence of the intent mentioned in the statute. It is not necessary, it was said, in an indictment under this statute, to prove malice aforethought, or a preconceived intention to commit the maim. VOL. I. — 15 225 (197) OFFENCES AGAINST THE PERSON. (197) Maliciously breaking prosecutor^s arm with intent to maim him, under the Alabama statute.{q) That the defendant, with force and arms, in and upon one P. J., did make an assault, and upon the left arm of him the said P. J., with a certain stick, which he the said defendant then and there held in both his hands, did strike and break, and did on purpose and of malice aforethought, unlawfully disable the said left arm of him the said P. J., with intent him the said P. J. then and there to maim, contrary, etc., and against, etc.(r) To constitute a maim under this statute, by biting off an ear, it is not necessary that the whole ear should be bitten off ; it is sufficient if a part only is taken off, provided enough is taken off to alter and impair the natural personal appearance, and to ordinary observation to render the person less comely. (17) See State i\ Bailey, 8 Port. 472, where it was held, that where the act of eighteen hundred and seven (Aik. Dig. 102) speaks of disabling a limb or mem- ber, a permanent injury is contemplated, such as at common law would constitute mayhem ; a temporary disabling of a finger, an arm, or an eye, is not sufficient to constitute the statutory offi^nce. (?•) A demurrer was filed to the indictment, which was overruled, and upon a plea of " not guilty" the defendant was convicted, and the sufficiency of the indictment was reserved by the court below for review. 226 ABDUCTION — KIDNAPPING. (200a) CHAPTER V. ABDUCTION— KIDNAPPING, (a) (200) Abduction under New York Rev. Stat. vol. 2, p. 553, § 25. (200a) Under English statute. (201) Abduction of a white person, under Ohio stat. p. 51, § 14. (202) Attempt to carry a white person out of the state, under Ohio stat. p. 51, ? 14. (203) Kidnapping. Attempt to carry off a black person, under Ohio stat. p. 51, § 15. (203a) Abduction of child, under Pennsylvania statute. (200) Abduction under New York Rev. Stat. vol. 2, jp. 553, § 25. That T. M., late of the First Ward of the city of ITew York, in the county of !N"ew York aforesaid, laborer, on, etc., at the ward, city, and county aforesaid, with force and arms, in and upon one J. T., in the peace of God and of the said people, then and there being, feloniously did make an assault, and her the said J. T. then and there feloniously did take against her will,(^) with the intent to compel her by force, menace, and duress to be defiled, and other wrongs to the said J. T. then and there did, to the great damage of the said J. T., against, etc., and con- trary, etc. (200a) Abduction of woman on account of her fortune., under English statute. That J. S., on, etc., at, etc., feloniously, and from motives of lucre, did take away and detain one A. l!^., against her will, she, the said A. N., then having a certain present and absolute inte- rest (or conditional, or contingent, or future) in certain real estate {or personal estate), with intent her, the said A. N., to marry, against, etc.(c) (a) See Wh. Cr. L. 8th ed. §§ 586 et seq. (5) This is essential. Click i'. State, 3 Tex. 282. (c) Arch. C. P. 19th ed. 757. 227 (203) OFFENCES AGAINST THE PERSON. (201) Ahduciion of a white person, under Ohio stat. p. 51, § 14.(<:f) That A. B., C. D., and E. F., on the twenty-second day of May, in the year of our Lord one thousand eight hundred and fifty- four, in the county of Hamilton aforesaid, one M. N., a white person, then and there being, did unlawfully, fraudulently, and wickedly, and without any lawful warrant or authority what- ever, then and there seize, take, steal, and kidnap, and him the said M. N". then and there did forcibly', fraudulently, and against his will, and without his consent, carry off out of this state, contrary, etc. (Conclude as in book 1, chapter 1.) (202) Attempt to carry a white person out of the state^ under Ohio Stat. p. 51, § 14.(e) That A. B., C. D., and E. F., on the twenty-second day of May, in the year of our Lord one thousand eight hundred and fifty-four, in the county of Hamilton aforesaid, one M. N"., a white person, then and there being, did forcibly, fraudulently, and wickedly, and not in pursuance of any law of this state, ari'est and imprison, with an intention then and there of having him the said M. N. carried out of this state without the consent of him the said M. N., and against his will. {Conclude as in book 1, chapter 1.) (203) Kidnapping — Attempt to carry off a black person., under Ohio stat. p. 51, § 15.(/) That A. B., C. D., E. F., G. H., I. J., and K L., late of said county, heretofore, to wat, on the twenty-seventh day of March, in the year of our Lord one thousand eight hundred and forty- six, at the county of Franklin aforesaid, under the pretence that M. N., a free black person, then and there being, was then and there a slave, did with force and arms and by violence, fraud, and deception, seize upon the said M. IST., a free black person, then and there being, and did then and there keep the said M. ]^.,a free black person as aforesaid, in restraint and con- finement for a long space of time, to wit, three hours, with intent to transport him the said M. N. out of the State of Ohio, contrary, etc. {Conclude as in book 1, chapter 3.) {d) Warren's C. L. 70. (e) Warren's C. L. 70. (/) AVarren's C. L. 70. 228 ABDUCTION — KIDNAPPING. (203a) (203a) Abduction of child under Pennsylvania statute. That heretofore, to wit, on the first day of July, in the year of our Lord one thousand eight hundred and seventy-four, at the county aforesaid, and within the jurisdiction of this court, with force and arms, etc., Charles Brewster Ross was then and there a minor child, under the age of six years ; and he the said Charles Brewster Ross was then and there in the lawful charge, care, and possession of his parents, Christian K. Ross, and Sarah Ann Ross, she the said Sarah Ann Ross then and there being the lawfully wedded wife of the aforesaid Christian K. Ross, and they the said Christian K. Ross and Sarah Ann Ross then and there lived and cohabited together as husband and wife, as aforesaid ; and he the said Charles Brewster Ross was then and there the lawful child and issue of them the said Christian K. Ross and Sarah Ann Ross his wife as aforesaid. And the grand inquest aforesaid, upon their oaths and affir- mations aforesaid, do further present, that William Westervelt, late of the said county, yeoman, and Mary Westervelt, late of the said county, matron, and William Mosher, late of the said county, yeoman, alias William Henderson, and Joseph Doug- lass, late of the said county, yeoman, alias Joseph Clark, after- wards, to wit, on the said first day of July, in the year afore- said, at the county aforesaid, and within the jurisdiction of this court, with forceand arms, etc., unlawfully, fraudulently, wilfully, and maliciously, did decoy, entice, lead, take, and carry away the said Charles Brewster Ross, out of and from the lawful charge, care, and possession of the said Christian K. Ross and Sarah Ann Ross his wife as aforesaid, and him the said Charles Brewster Ross, from his said parents did then and there unlaw- fully, fraudulently, wilfully, and maliciously conceal and detain, with intent thereby, then and there unlawfully, fraudulently, wilfully, and maliciously to deprive the said Christian K. Ross and Sarah Ann Ross of their lawful charge, care, and possession of the said Charles Brewster Ross as aforesaid, contrary, etc.(^) [g) This is the first count of the indictment in Westervelt's case, Phil. 1875, the child abducted being "Charlie Ross." Several counts for conspiracy followed. The defendants were found guilty on a general verdict. 32 Legal Intel. 346. The punishment for conspiracy was two years' imprisonment ; the punishment for abduction was seven years. The court sentenced the defendant to seven years' imprisonment. The Supreme Court refused an allocatur, holding that the sentence was proper. 229 (204) OFFENCES AGAINST THE PERSON. CHAPTER VI. ABORTION, (a) (204) Production of abortion at common law. First count. By assault and thrusting an instrument in the prosecutrix's womb, she being "big, quick, and pregnant." (205) Second count, averring prosecutrix to be "big and preg- nant." (206) Third count, merely averring pregnancy in same. (207) Assault on a woman with quick child, so that the child was brought forth dead. (At common law.) (208) Against A. the principal, for producing an abortion by using an in- strument on the person of a third party, and B. an accessary before the fact, under the English statute. (209) Administering a potion at common law with the intent to produce abortion. (210) Producing abortion in New York, 2 R. S. 550, 551, § 9, 2d ed, (210a) Same in Massachusetts. (2106) Another form. (210c) Against accessary before the fact with unknown principal. (210d) Form used in Philadelphia in 1880. (210e) Same averring death. (211) Administering medicine under the Indiana statute, with intent to produce abortion. (212) Attempt to procure abortion by administering a drug, under Ohio statute. (204) Production of abortion at common law.ib) First count. By assault and thrusting an instrument in the prose- cutrix's womby she being " big, quick, and pregnant." That W. B. T., late of the said county, yeoman, A. D., alias (a) See Wh. C. L. 8th ed. § 592. That the indictments, when the offence is statutory, must conform to the statute, see U. S. v. May, 2 McArthur, 512; Com. v. Snow, 116 Mass. 47; Com. V. Brown, 121 Mass. 69; State v. Owens, 22 Minn. 238; State v. Mc- Intyre, 19 Minn. 93 ; Willey v. State, 52 Ind. 246. As to New York statute, see People v. Lohman, 2 Barb. 216; 1 Comst. 379; People v. Stockham, 1 Park. C. R. 424 ; Davis v. People, 2 Th. & C. 212 ; Mongeon v. People, 54 N. Y. 613. As to Wisconsin, see State v. Dickinson, 41 Wis. 299. (6) This indictment was sustained in Com. v. Demain, 6 Penn. L. J. 29 ; Brightly R, 441. 230 ABORTION. (205) A. F., late of the said county, single woman, and — F., late of the said county, yeoman, on, etc., with force and arms, etc., at the county aforesaid, and within the jurisdiction of the said court, in and upon one S. R. S., then and there being big, preg- nant, and quick with child, did make a violent assault, and her the said S. then and there did violently bruise, wound, and ill- treat, 80 that her life was thereby despaired of; and a certain instrument, made of silver or other metal, in the shape and form of a hook, up and into the womb and body of the said S., then and there violently, wickedly, and inhumanly did force and thrust, with a wicked intent, to cause and procure (c) the said S. R. S. to miscarry, abort, and to bring forth the said child, of which she was big, quick, and pregnant, as aforesaid, dead, and to kill and murder the said child, by reason and means of which said last mentioned premises, the said child was killed and its life destroyed and taken away in its mother's womb ; and she, the said S., afterwards, to wit, on, etc., miscarried and was aborted and delivered of the said child, being a female child, and being at the time of its birth dead, to the great injury and detriment of the said S., to the evil example of all others in like manner offending, and against, etc. {Conclude as in book 1, chapter 3.) (205) Second count, averring prosecutrix to be ^'•big and j^regnant." That the said W. B. T., A. D. alias A. F., and — F., after- wards, to wit, on the day and year aforesaid, at the county In the Supreme Court judgment on demurrer was entered for the common- wealth, Sergeant, J., delivering the following opinion: — "We see nothing in any of the points taken by the defendants in demurrer. "1. This exception is only pleadable in abatement, in which the defendant must give a better name. It is not cause of demurrer. " 2. The indictment is in proper form, and sufficiently avers that she (the party injured) was pregnant and quick with child, which was destroyed and killed, etc. "3. This exception is not true in fact. The indictment contains but seven counts, with the usual conclusions. "4. This exception is not cause of demurrer. If the counts are improperly joined, the court may be asked to interfere before the trial, and put the common- wealth to its election. " 5. The name Ford alone, there being no plea in abatement, is not a nullity ; and as to inserting Susannah Schoch as a party, that rests with the prosecution. Two or more may be indicted for a conspiracy with others not parties." (c) This is necessary at common law, and under the statutes. State v. Drake, 1 Vroom (N. J.), 432 231 (206) OFFENCES AGAINST THE PERSON. aforesaid, and within the jurisdiction of the said court, in and upon the said S. R. S., then and there being big and pregnant(6?) with a certain other child, did make another violent assault, and a certain other instrument, made of silver or other metal, in the shape and form of a hook, up and into the womb and body of the said S., then and there violently, wickedly, and inhumanly did force and thrust, with a wicked intent to cause and procure the said S. to miscarry, and to bring forth the said child of which she was big and pregnant, as last aforesaid, dead, by reason and means of which said last mentioned premises, she the said S., afterwards, to wit, on, etc., miscarried, and was delivered of the said child, being a female child, the said child being dead at the time of delivery, to the great injury and det- riment of the said S., to the evil example of all others in like manner offending, and against, etc. {Conclude as in book 1, chapter 3.) (206) Third count, merely averring pregnancy in same. That the said W. B. T., A. D. alias A. F., and — F., after- wards, to wit, on the day and year aforesaid, at the county afore- said, and within the jurisdiction of the said court, in and upon the said S. R. S., then and there being pregnant with a certain other child, did make another violent assault, and a certain other instrument, made of silver or other metal, in the shape and form of a hook, up and into the womb and body of the said S., then and there violently, wickedly, and inhumanly did force and thrust, with a wicked intent, to wit, to cause and procure the said S. to miscarry and to bring forth the said child of which she was big and pregnant, as last aforesaid, dead, to the great injury and detriment of the said S., to the evil example of all others in like manner offending, and against, etc. {Con- clude as in book 1, chapter 3.) (rf) That "quickening" is not essential to the indictment, see Com. r. De- main, supra; Mills v. Cora., 13 Penn. St. 631. It has been held otherwise at common law in Massachusetts ; Com. v. Parlcer, 9 Met. 263 ; New Jersey ; State V. Cooper, 2 Zab. 57; and Iowa; Abrams v. Foshee, 3 Clarke, 274. 232 ABORTION. (208) (207) Assault on a ivoman with quick child,, so that the child was brought forth dead. {At common law.){e) That defendant, on, etc., at, etc., in and upon M., the wife of one W. E., then and there being big with a quick child, did make an assault ; and her the said M., then and there did beat, wound, and ill-treat, so that her life was greatly despaired of, by reason whereof she the said M., afterwards, to wit, on, etc., at, etc., did bring forth the said child dead, and other wrongs to the said M. then and there did, against, etc. {Conclude as in book 1, chapter 3.) (208) Against A. the principal, for producing an abortion by using an instrument on the person of a third party, and B. an acces- sary before the fact, under the English statute.{f) That T. A., late of, etc., on, etc., at, etc., feloniously, unlaw- fully, and maliciously did use a certain instrument, the name of which instrument is to the jurors unknown, by then and there forcing, thrusting, and inserting the said instrument into the (e) Stark. C. P. 429. (/) R. V. Ashmall, 9 C. & P. 236. At the trial, the defendant, Ashmall, was called, but did not appear ; but Fay, who had been on bail, appeared. Godson, for the defendant Fay : "I submit that my client is not compellable to plead to this indictment. He is indicted as an accessary, and as an accessary only. For- merly an accessary before the fact could in no case be brought to trial without his principal, except after the con\'iction of his principal, or by his own consent. But now, by the stat. 7 Geo. IV. c. 64, s. 9, accessaries before the fact may be tried in either one of three modes : 1st, with the principal ; 2d, after the convic- tion of the principal felon ; or, 3d, for a substantive felony. This indictment is not for a substantive felony, because everything charged against Mr. Fay is charged as having been done accessarily to Ashmall ; and what shows decisively that Mr. Fay is charged as an accessary only, is, that if Mr. Ashmall was acquitted on this indictment, Fay must be acquitted also as a legal consequence." Car- rington, on the same side : "At the time of the passage of the act, 7 Geo. IV. c. 64, I had occasion to compare it with all the previous enactments on the subject, and I believe I am correct in stating that the only alteration in the law then made, as to the trial of accessaries without and before the conviction of the prin- cipal, was by the provisions relating to the accessary being indicted for a sub- stantive felony. I submit, also, that an indictment for a substantive felony must be so framed as not to depend on the conviction or acquittal of any person, ex- cept the party who is charged with the substantive felony ; indeed, the ordinary counts for the substantive felony of being accessary do not even name the princi- pal, but merely state him to be 'a certain evil disposed person.' " Gurney, B. (after conferring with Patterson, J.): "My learned brother Patterson concurs with me in opinion that Mr. Fay is not compellable to plead to this indictment at present. There might have been an indictment against him for a substantive felony, but this is not so." 233 (210) OFFENCES AGAINST THE PERSON. private parts of H. L., now known by the name of H. E., with intent in so doing, then and there and thereby to procure the miscarriage of the said H. L., now known by the name of H. E., against, etc., and against, etc. And the jurors aforesaid, upon their oath aforesaid, do further present, that T. J. F., late of, etc., before the committing of the felony by the said T. A., as aforesaid, to wit, on, etc., at, etc., feloniously did procure, coun- sel, and command the said T. A. the felony aforesaid, in manner and form aforesaid, to commit, against, etc., and against, etc. {Conclude as in booh 1, chapter 3.) (209) Administering a potion at common law, with intent to produce ahortion.{g) That A. B., of in the county of laborer, on, etc., at B. aforesaid, in the county aforesaid, did, unlawfully and wickedly, administer to, and cause to be administered to and taken by one C. B., single woman, she the said C. B. being then and there pregnant and quick with child, divers quantities, to wit, four ounces, of a certain noxious, pernicious, and destruc- tive substance called savine;{h) with intent thereby to cause and procure the miscarriage of the said C. B., and the premature birth of the said child, of which the said C. B. was then and there pregnant and quick; by the means whereof, the abortion, miscarriage, and premature birth of the said child was caused and produced. And she the said C. B., afterwards, to wit, on, etc., next following, at B. aforesaid, in the county aforesaid, by means of the noxious, pernicious, and destructive substance afore- said, so as aforesaid administered by the said A. B., and taken by the said C. B., was prematurely delivered of the said child, against, etc. {Conclude as in book 1, chapter 3.) (210) Producing abortion in New York, 2 R. S. 550-51, § 9, 2d ed. That, etc., on, etc., in and upon one S. S., she the said S. S., then and there, etc., being pregnant with a quick(z) child, felo- niously and wilfully did make an assault ; and that the said de- {g) 3 Chit. C. L. 797, 800; Davis's Free. 33. (Ji) Not necessary to state the medicine. State v. Van Houten, 37 Mo. 357 ; State V. Vawter, 7 Black. 922. Infra, note to 210a. [i) Under this, there may be a conviction when the child is not quick. People V. Jackson, 3 Hill, 92 ; Lohman v. People, 1 Comst. 379. 234 ABORTION. (2106) fendant on, etc., feloniously and wilfully did use and employ on and upon the body and womb of the said S. S., the mother of the said quick child, certain instruments, to wit, one piece of wire, etc., with the intent thereby then and there feloniously and wilfully to destroy the said quick child,(J) the same not being necessary to preserve the life of the said S. S., the mother of the said child, and not having been advised by two physicians to be necessary for such purpose ;(^) by means whereof the death of the said quick child was thereby produced, contrary, etc., against, etc.(/) {Conclude as in book 1, chapter 3.) (210a) Abortion, under Mass, stat. c. 27. (m) That A. B., etc., on, etc., at, etc., " with force and arms, ma- liciously, and without lawful justification, did force and thrust a certain metallic instrument, which he the said W. then and there had and held in his hand, into the womb and body of a certain woman by the name of S. C, she the said S. being then and there pregnant with a child, with the wicked and unlawful intent of him the said W. then and there to cause and procure the said S. to miscarry and prematurely to bring forth the said child, with which she was then and there pregnant as aforesaid; and she, the said S., on, etc., at, etc., by means of the said forc- ing and thrusting of said instrument into the womb and body of the said Sarah, in manner aforesaid, did bring forth the said child of which she was so pregnant, dead ; against, etc." {Con- clude as in book 1, chapter 3.) (2106) Another form. That (the defendant) on, etc., at, etc., in and upon one E. A. F., then and there being pregnant with child, unlawfully did (j) An indictment omitting this averment is defective under the statute as an indictment for manslaughter, though good for the misdemeanor. Lohman v. People, 2 Barb. 216 ; 1 Comst. 379. [k) That the averment of exceptions is unnecessary, see State v. Rupe, 41 Tex. 33. (1) On this indictment — to which there is a second count, averring the opera- tion to have been with an instrument unknown — the court on trial held that if the jury doubted as to the killing of the quick child, which is manslaughter by the Rev. Statutes, they could convict of killing the child not quick, which is but a misdemeanor. The jury having found the defendant guilty of the misdemeanor, the directions given below were sustained by the Supreme Court. People v. Jack- son, 3 Hill, 93. (to) This was sustained in Com. v. Wood, 11 Gray, 86. 235 (210(?) OFFENCES AGAINST THE PERSON. make an assault, and a certain instrument, the name of which is to the jurors unknown, up and into the womb and body of the said F., unlawfully did force and thrust, with intent then, there, and thereby to cause and procure the said F. to miscarry, abort, and to bring forth the said child of which she was preg- nant as aforesaid, and to kill and murder said child, by reason and means of which said last mentioned premises, the said child was killed and its life destroyed in its mother's womb, and she, the said F., afterwards, to wit, on, etc., miscarried, and was aborted and delivered of the said child, the sex thereof being to the jurors unknown, said child being at the time of its birth dead.(w) (210c') Accessary before the fact in Massachusetts. "And the jurors aforesaid, for, etc., on their oath aforesaid, do further present, that a certain person, whose name and a more particular description of whom are to said jurors unknown, on, etc., at, etc., with force and arms, with intent to procure the miscarriage of one A. F. C, did unlawfully use some un- lawful means to the said jurors unknown, with said intent, she the said A. being then and there pregnant with child ; and the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. afterwards, to wit, on, etc., at, etc., by means of the unlawful means so as aforesaid to the said jurors unknown, in manner and form aforesaid used by said person so as afore- said unknown, then and there died ; against the peace, etc. And the jurors aforesaid, for, etc., on their oath aforesaid, do further present, that G. A. E., M. J. A., and M. E. S., before the said felony and abortion was committed in manner and form afore- said, to wit, on, etc., with force and arms, at, etc., did feloniously and maliciously incite, move and procure, aid, counsel, hire, and command the said person as aforesaid unknown the said felony (n) Com. V. Snow, 116 Mass. 47. In this case it was held that the allegation as to the time and place of the offence applied to the particular acts set forth as the means by which the abortion was alleged to be performed, as well as to the alleged assault. And it was held also that the instrument and the means by which it was used were sufficiently described. It was further held that it was not neces- sary to prove an assault, or an intent to kill the child, and that the defendant might be convicted although the woman consented. 236 ABORTION. (210cZ) and abortion, in manner and form aforesaid, then and there to do and commit, against the peace," etc.(o) (210t/) Form used in Philadelphia in 1880. First count. By uiiknown drug. That late of the said county on the day of in the year of our Lord one thousand eight hundred and at the county aforesaid, and within the jurisdiction of this court, with force and arms, etc., unlawfully and wilfully did feloniously administer to one she the said being then and there a woman pregnant with child, a certain drug and substance, the name and components of the said drug and substance being to this grand inquest as yet unknown, with intent thereby then and there to procure the miscarriage of her the said contrary, etc. Second count. By poison. That the said late of the said county on the said day of in the year of our Lord one thousand eight hundred and at the county aforesaid, and within the juris- diction of this court, with force and arms, etc., unlawfully and wilfully did feloniously administer to one she the said being then and there a woman pregnant with child, a certain poison, drug, and substance, the name and components of the said poison, drug, and substance being to this grand inquest as yet unknown, with intent thereby then and there to procure the miscarriage of her the said contrary, etc. Third count. By unknown instruments. That the said late of the said county on the said day of in the year of our Lord one thousand eight hundred and at the county aforesaid, and within the juris- diction of this court, with force and arms, etc., unlawfully and wilfully did feloniously use a certain instrument, the name of which said instrument is to this grand inquest as yet unknown, in, upon, about, and within the body of the said she the (o) Sustained as against an accessary before the fact in Com. v. Adams, 127 Mass. 15. 237 (210e) OFFENCES AGAINST THE PERSON. said being then and there a woman pregnant with child, with intent thereby then and there to procure the miscarriage of her the said contrary, etc. Fourth count. By unhnown means. That the said late of the said county on the said day of in the year of our Lord one thousand eight hundred and at the county aforesaid, and within the juris- diction of this court, with force and arms, etc., unlawfully and wilfully did feloniously use certain means, the nature of which said means is to this grand inquest as yet unknown, in, upon, about, and within the body of the said she the said being then and there a woman pregnant with child, with intent thereby then and there to procure the miscarriage of her the said contrary, etc. (210e) Same, avowing death. By unhnown drug. That late of the said county on the day of in the year of our Lord one thousand eight hundred and at the county aforesaid, and within the jurisdiction of this court, with force and arms, etc., unlawfully and wilfully did feloniously administer to one she the said then and there being a woman pregnant with child, and supposed and believed by the said to be then and there pregnant with child, a certain drug, the name and components of the said drug being to this grand inquest as yet unknown, with intent thereby then and there to procure the miscarriage of her the said ; and in consequence of the unlawful, wilful and felonious administering of the said drug, as aforesaid, the said did then and there become sickened and distempered in her body, and afterwards, to wit, on the said day of in the year aforesaid, at the county aforesaid, and within the jurisdiction of this court, in consequence of the unlawful, wil- ful, and felonious administering of the said drug as aforesaid, and of the sickness and distemper in her body as aforesaid, did die, contrary, etc. Second count. By unhiown poison. That the said late of the said county on the said 238 ABORTION. (210e) day of in the year of our Lord one thousand eight hundred and at the county aforesaid, and within the juris- diction of this court, with force and arms, etc, unlawfully and wilfully did feloniously administer to one she the said then and there being a woman pregnant with child, and supposed and believed by the said to be then and there pregnant with child, a certain poison, drug and substance, the name and components of the said poison, drug and substance being to this grand inquest as yet unknown, with intent thereby then and there to procure the miscarriage of her the said ; and in consequence of the unlawful, wilful, and felonious ad- ministering of the said poison, drug, and substance as aforesaid, the said did then and there become sickened and dis- tempered in her body, and afterwards, to wit, on the said day of in the year aforesaid, at the county aforesaid, and within the jurisdiction of this court, in consequence of the unlawful, wilful, and felonious administering of the said poison, drug, and substance as aforesaid, and of the sickness and dis- temper in her body as aforesaid, did die, contrary, etc. Third count By unknown means. That the said late of the said county on the said day of in the year of our Lord one thousand eight hundred and at the county aforesaid, and within the juris- diction of this court, with force and arms, etc., unlawfully and wilfully did feloniously use certain means, the nature of which said means is to this grand inquest as yet unknown, in, upon, about, and within the body of the said she the said being then and there a woman pregnant with child, and sup- posed and believed by the said to be then and there pregnant with child, with intent thereby then and there to procure the miscarriage of her the said ; and in consequence of the unlawful, wilful, and felonious using of the said means as aforesaid, the said did then and there become sickened and distempered in her body, and afterwards, to wit, on the said day of in the year last aforesaid, at the county aforesaid, and within the jurisdiction of this court, in con- sequence of the unlawful, wilful, and felonious using of the said 239 (212) OFFENCES AGAINST THE PERSON. means as aforesaid, and of the sickness and distemper in her body as aforesaid, did die, contrary, etc.(p) (211) Administering medicine^ under the Indiana statute^ with intent to 'produce abortion.{q) That A. B., on, etc., at, etc., did feloniously, wilfully, and unlawfully administer to one L. H., then and there heing preg- nant with a child, a large quantity of medicine with intent thereby feloniously, etc., to procure the miscarriage of said L. H., the administering said medicine to said L. H. not then and there being necessary to preserve the life of said L. H., contrary to the statute, etc. {Conclude as in book 1, chapter 3.) (212) Attempt to procm^e abortion by administering a drug, under Ohio statute. That A. B., on the first day of October, in the year of our Lord one thousand eight hundred and fifty, in the county of Cuyahoga aforesaid, unlawfully, wilfully, and feloniously did administer to, and cause(r) to be taken by one M. !N"., then and there being a pregnant woman, a large quantity of a certain noxious and poisonous drug and substance, to wit, one pint of a certain noxious and poisonous decoction of brandy, logwood, and other poisonous drugs and medicines to the deponent afore- said unknown, with intent then and there, and thereby, to pro- (;)) For the above two preceding forms I am indebted to W. AV. Ker, Esq., formerly assistant district attorney in Philadelphia. (. People, 86 111. 147; Wh. Cr. L. 8th ed. I 737. Where the indictment, by these or similar averments, fails to claim to set out a copy of the instrument in words and figures, it will be invalid. 2 Leach, 597, 660, 661 ; State V. Bonney, 34 Me. 383 ; Com. v. Wright, 1 Cush. 46 ; Dana v. State, 2 Oh. St. 91 ; Wh. Cr. L. 8th ed. §§ 737 et seq., 1656. Purport, it is said, means the effect of an instrument as it appears on the face of it in ordinary construction, and is insufficient when literal exactness is required ; tenor means an exact copy of it. 2 Leach, 661 ; State v. Bonney, 34 Me. 383 ; State V. Witham, 47 Me. 165 ; Com. v. Wright, 1 Cush. 46. And if the instru- ment does not " purport" to be what the indictment avers — i. e., if its meaning is not accurately stated — the variance is fatal. Dougl. 300 ; State r. Molier, 1 Devereux, 263; State v. Carter, Conf. N. C. R. 210; State i'. Wimberly, 3 McCord, 190; Wh. Cr. Ev. § 114. The words " in manner and form following, that is say," do not profess to give more than the substance, and are usual in an indictment for perjury (1 Leach, 192 ; Dougl. 193, 194) ; but the word "aforesaid" binds the party to an exact recital. Ibid.; Doug. 97. " According to the purport and efi'eet, and in sub- stance," are bad, in cases where exactness of setting forth is required. Com. v. Wright, 1 Cush. 46 ; State v. Brownlow, 7 Humph. 63 ; Dana v. State, 2 Oh. St. 91. And so is "substance and effect." Com. v. Sweney, 10 S. & R. 173. Quotation marks by themselves are not sufficient to indicate tenor, unless there be something to show that the document within the quotation marks is that on which the indictment rests. Com. v. Wright, 1 Cush. 46. The attaching of one of the original printed papers to the indictment, in place of inserting a copy, is not sufficient indication that the paper is set out in the very words. Com. r. 'Tarbox, 1 Cush. 66 ; Wh. Cr. L. 8th ed. §§ 736 et seq. A mere variance of a letter will not be fatal, even when it is averred that the 276 FORGERY, COINING, UTTERING, ETC. (-64) tenor is set out, provided the meaning be not altered by changing the word mis- spelt into another of a different meaning. Wh. Cr. PI. & Pr. § 273 ; Wh. Cr. Ev. § 114; Pt. V. Drake, Salk. 660; Pt. v. Wilson, 2 C. & R. 527 ; 1 Den. C. C. 281 ; 2 Cox C. C. 426 ; U. S. v. Himnan, 1 Bald. 292; U. S. v. Burroughs, 3 McL. 405 ; State v. Bean, 19 Vt. 530 ; State v. Weaver, 13 Ired. 491 ; State V. Coffee, 2 Murphey, 320. For illustrations see Wh. Cr. PI. & Pr. § 173. Where the document on tchich the indictment rests is in the defendant's j^os- session, or is lost or destroyed, it is sufficient to aver such special tacts as an ex- cuse for the non-setting out of the document, and then to proceed, either by stat- ing its substance, or by describing it as a document which " the said inquest can- not set forth by reason," etc., of its loss, destruction, or detention, as the case may be (Wh. Cr. Ev. §§ 118, 199. See Com. v. Sawtelle, 11 Cush 142 ; People V. Bogart, 36 Cal. 245) ; giving, however, the purport of the insti-ument as near as may be. Wh. Cr. L. 8th ed. §§ 728 et seq. ; Pt. v. Watson, 2 T. R. 200 ; R. V. Haworth, 4 C. & P. 254; R. i-. Hunter, 4 C. & P. 128; U. S. v. Britton, 2 Mason, 468 ; State v. Bonney. 34 Me. 223 ; State v. Parker, 1 Chipman, Vt. 294; People v. Badgeley, 16 Wend. 531 ; Wallace v. People, 27 111. 45; Hart V. State, 55 Ind. 599; Pendleton v. Com. 4 Leigh, 694 ; State v. Davis, 69 X. C. 313 ; Du Bois v. State, 50 Ala. 139. See fully AVh. Cr. Ev. §§ 118, 199. For illustrations see Wh. Cr. PI. & Pr. § 176. The same rule, as we will here- after see, is applied to indecent publications. Even where the prosecutor's negligence caused the loss, the loss will be an excuse for non-description, unless the misconduct was so gi'oss as to imply fraud. State V. Taunt, 16 Minn. 109. When there is an allegation that a document is destroi/ed, as an excuse for its non-description, there is a fatal variance between the indicrtment and the proof if the destroyed instrument is produced on trial. Smith v. State, 33 Ind. 159. Wherever the whole document is essential to the description of the offence, the whole must be set out in the indictment. • It is otherwise, however, as to indorsements and other extraneous matter having nothing to do with the part of the document alleged to be forged. Wh. Cr. L. 8th ed. § 753. And see Com. (7. Ward, 2 Mass. 397; Com. c. Adams, 7 Met. 50; Perkins v. Com., 7 Grat. 651 ; Buckland i-. Cora., 8 Leigh, 732; State v. Gardiner, 1 Ired. 27 ; Hess v. State, 5 Ohio, 5; see R. v. Testick, 1 East, 181, n. ; Wh. Cr. L. 8th ed. §§ 729 et seq. Where the indictment is for forging a note or bill, the indorsement, though forged, need not be set out. Com. v. Ward, 2 Mass. 397; Com. v. Adams, 7 Met. 50 ; Com. v. Perkins, 7 Grat. 654 ; Simmons v. State, 7 Ham. 116 ; Wh. Cr. L. 8th ed. §§ 731-3, and Wh. Cr. PI. & Pr. § 176. And, as we have seen, it is not necessary to set forth vignettes or other embellishments, though if this be attempted a variance may be fatal. Wh. Cr. Ev. § 114 ; Wh. Cr. L. 8tli ed §731. Alterations. — An altered document, as is elsewhere seen, maybe averred to be wholly forged. Wh. Cr. L. 8th ed. § 735. But if an alteration be averred, the alteration must be specified (Ibid.), and an addition which is collateral to the document must, if forged, be specially pleaded. Com. v. Woods, 10 Gray, 480. Translations. — A document in a foreign language must be translated and ex- plained by averments. R. v. Goldstein, R. & R. 473 ; 7 Moore, 1 ; 10 Price, 88; Wh. Cr. L. 8th ed. § 729. The proper course is to set out, as "of the tenor following," tiie original, and then to aver the translation in English to be "as follows." Ibid.; R. v. Szudurskie, 1 Moody, 429; R. v. Warshaner, 1 Mood. C. C. 466 ; Wormouth i\ Cramer, 3 Wend. 394. As to California, see special statute. People c. Ah Woo, 28 Cal. 205. If the translation be incor- rect the variance is fatal. R. v. Goldstein, tit supra ; and see 20 Wis. 239. And so where initials appear without an averment of wiiat they mean ; R. v. Barton, 1 Moody C. C. 141 ; R. o. Inder, 2 C. & K. 635 ; and where tiicre is no aver- ment of who the officer was whose name is copied in a forged instrument, tliere being no averment of what the instrument purports to be. R. v. Wilcox, R. & R. C. C. 50. 277 (264) OFFENCES AGAINST PROPERTY. {Whether it he neces.tari/ to set out the whole of the forged loriting.) "In the short report of Smith's case, in the first volume of Salkeld (Salk. 342, Pasch. 2 Ann), it is stated, that the defendant was indicted for forging a deed of as- signment of a lease, signed with the mark of one Goddard, citjus tenor seqiiitur, but set not down the mark as in the assignment ; it was objected that without the mark it could be no forgery, and the objection was overruled. But this is a very loose report of the case, which appears to be the same Avith that reported in the'third volume of Salkeld, and by Ld. Raymond, under the title of the Queen V. Goddard, in 3 Salk. 171, Trin. 2 Ann; R. v. Goddard e< o/., Ld. Raym. 920, R. V. Goddard and Carlton ; according to which the defendant was indicted for foro'ing an assignment of a lease, and the tenor was set out ; at the bottom of the assignment was the mark of the assignor, but no mark appeared upon the postea; and the whole court held, that since, by the statute of frauds, an assignment must be signed, the want of the mark of the defendant upon the postea was a fatal defect; but as another indictment had been found against the defendant, the court gave no judgment, but ruled that the defendant should plead to the signing. But Ld. Holt held, that if the indictment had been for forging a deed of assignment (Mr. East, in his Pleas of the Crown, 776, cites Salk. 342, and questions this point), and the deed had been set forth without any mark or sig- nature, that might have been good, because signing is not necessary to a deed ; for in former times they were sealed only, and not signed. Salk. 342, Pasch. 2 Ann." Where the instrument forged was a bond, purporting to be attested by one A. B., and the indictment charged that the defendant '' wittingly and willingly did forge and cause to be forged a certain paper Avriting, purporting to be a bond, and to be signed by one C. U., with the name of him the said C. D., and to be sealed with the seal of the said C. I). ;" and the tenor of the bond, with a sub- scribing witness was set forth, but did not charge that the bond purported to be attested by one A. B., a motion to arrest the judgment on this account was over- ruled, on the ground that nothing need be averred in the indictment which is not necessary to constitute the offence charged. It is not necessary, it is said, that there should be a subscribing witness to a bond, and if there be one, it is not his signature, but the signing, stealing, and delivery by the obligor, that con- stitute the instrument a deed. State ;;. Ballard, 2 Murph. 186. It seems, in all cases, to be sufficient to set out that part of a written docu- ment which comprehends the particular instrument forged, though connected with other matter. Thus, in an indictment for publishing a forged receipt for money, the receipt alone was set forth, as follows : " 18th March, 1733, received the contents above, by me, Stephen Withers;" and, upon its appearing in evi- dence that the above was forged at the bottom of a certain account, it was ob- jected that the account itself should have been set forth, for otherwise, it would not appear that it was a receipt for money. But all the judges held the indict- ment to be suthcient ; for it was laid to be a forged receipt for money, under the hand of S. W., for £1 4s., and the bill itself was only evidence to make out that charge. R. v. Testick, 1 East, 181 ; East, P. C. 925. How the forged instrument should he shown to he of the kind prohibited. It must be shown on the face of the indictment, by proper averments, that the instrument forged is of the particular kind prohibited, in respect to Avhich an indict- ment lies. Under a subsequent head [infra, form 415) will be given a summary of the principal terms used in this connection, viz. , ' ' receipt, " " acquittance, " " bill of exchange," " promissory note," " bank note," " warrant, order, and request," "deed," "obligation." Where a full setting forth of a document is given, its technical title need not be avei-red. Wh. Cr. PI. & Pr. § 184 ; Wh. Cr. L. 8th ed. § 728. But where only the forgery of documents of a particular class is indictable by statute, then the document must be averred to be of such class. Wh. Cr. L. 8th ed. § 728 and cases there cited. The indictment must show the document to be capable of being used in legal procedure, Wh. Cr. L. 8tli ed. 278 FORGERY, COINING, UTTERING, ETC. (264) § 739. In other words, it must be such that it could have been used as an instru- ment of fraud. " A forged instrument cannot in strictness be called by the name of the real instrument which it assumes to be ; an instrument purporting to be a bond, or writing obligatory, is not such, for no one is bound by it ; and a forged writing, purporting to be a will, ought not in strictness to be called a will, for it is not so in any sense, and can have no legal operation whatever." Stark. C. P. 113. "But many statutes describing the offence of forgery use the words, 'and if any person shall forge any Wi7/, or bond (22 Geo. II. c. 25), or writing ohlif/atory, etc.]' and therefore it may be averred in the indictment, that the defendant forged the will (R. v. Birch and Martin, Leach, 92 ; East, P. C. 980), bond, or writing obligatory. Dunnett's case, East, P. C. 985. But it is in all cases proper, and seemingly more correct, to aver, that the defendant forged and counterfeited a certain paper writing imrportinfj to be the last will {or other in- strument ichose forgery is penal). In the case of the King v. Birch and Martin, it was so averred, and the judges held, that although the statute uses the words 'shall forge a will,' it was sufficient to lay it either way. R. v. Birch and Mar- tin, Leach, 92 ; East P. C. 980 ; 2 Bl. R. 790. And, therefore, in general, if it can be collected from the forged writing itself that it assumes to be a bond, etc., it may be averred in the indictment, either that the defendant forged a certain bond, or that he forged a certain writing purporting to be a bond. Thus, in Taylor's case (R. v. Taylor, Leach, 255; East, P. C. 97 7), the defendant was charged with forging a receipt for the sum of £20, as followeth : ' Re'd R. Wil- son.' And in Testicle's ease (1 East, 181), the tenor set out was : ' Received the contents above, by me, William Withers ;' and this was holden to be prop- erly described as a receipt. In fact, in such case the very terms of the instru- ment showed it to be a receipt. '■^ The purport of a writing is that which appears on the face of that writing (R. V. Gilchrist, Leach, 753) ; if, therefore, the forged writing assumes in terms to be a will, bond, or receipt, it may be described as purporting to be a will, bond, or receipt. But in alleging the purport of a forged writing, great caution is necessary ; for unless it can be collected plainly from the terms of the writing set forth that it is in form and assumes to be that particular Instrument which, according to the allegation, it purports to be, the indictment will be vicious. R. V. Huntei-, R. & R. 510; R. v. Birkett, lb. 251. Thus, in William Jones's case (Leach, 243 ; East, P. C. 883 ; Doug. 302), the indictment alleged, ' purporting to be a bank note ;' the writing set forth was as follows : ' No. F. 946. I prom- ise to pay John Wilson, Esquire, or bearer, ten pounds, London, March 4th, 1776, for self and company of yny bank in England, entered, S. Jones.' And the court were of opinion that the paper writing did not purport to be a bank note, and, therefore, that the indictment was repugnant. So an Indictment for forf)-in"f a bill of exchange, as purporting to be directed to John A'ing, by the name and addition of John -Ring, Es(^., was for the same reason holden to be vicious. R. V. Jeremiah Reading, Leach, 672. The same was holden of an indictment which described the subscription C. Oliver as purporting to be the name of Christopher Oliver. R. v. Reeves, Leach, 933. The objection was at first over- ruled by Heath and Lawrence, JJ., and Thomson, B., who thought that there was a shade of difference between this case and that of Gilchrist ; and it does not appear what the ultimate opinion was. In Lovell's case (East, P. C. 990 ; Leach, 282), the indictment ran thus: 'purporting to be directed to Messrs. Drummond and Co., Charing Cross,' by the name of Mr. Drummond ; and the indictment was held to be good, but it does not appear that the objection \yas taken." An indictment for uttering as true a forged promissory note, purporting to be made by A., payable to B., or order. Is proved by evidence of the uttering of such note with the indorsement of B.'s name on the back thereof. Com. v. Adams, 7 Met. 50. "In Gilchrist's case (Leach, 753; East, P. C. 982), the Indictment charged the defendant with forging a paper writing, etc., purporting to have been signed 279 (264) OFFENCES AGAINST PROPERTY. bv Thomas Exon, clerk, and to be directed to George Lord Kinnnird, William Morland, and Tliomas Hammersley, of, etc., bankers and partners, by the name and description of Messrs. Rawson, Morland, and Hammersley ; the tenor of the bill was then set out as follows : ' Messrs. Raicson, Morland, and Hnmmerslei/, please to pay, etc. (signed) T. Exon;' and the indictment was, by the ten judges present at the conference, holden to be repugnant and defective, for it could not purport to be directed to Lord Kinnaird, since his name did not ap- pear upon the bill. "And with respect to the -word pwport, it is to be observed generally, that its use is to show that the forged writing falls within the prohibited description ; and therefore no other description should be given under the word purport, except of the particular nature of the forged writing, as that it purports to be a bond, a bill of exchange, a bank note, or the like. Any fiirtlier description is highly objec- tionable, since it is unnecessary, and exposes the record to great danger from variance. See ^Ir. Justice BuUer's observations, R. v. Gilchrist, Leach, 75-3. "And the same objection applies to giving any other description of the written instrument (whose tenor is afterwards set forth), beyond that of its general nature. " The defendant was indicted for forging and uttering a bill of exchange, recjuiring, etc., and signed hy Henry Hutchinson, for, etc. Upon the trial, the prosecutor proved that the signature Henry Hutchinson was forged ; it was tlien objected tliat the indictment, averring it to have been signed by him, was dis- proved ; and so the judges held, upon reference to them after conviction. East, P. C 985. And an indictment will be defective, if it allege, after describing the forged Avriting, 'by which A. is bound to B.,' for, since it is forgery, A. could not be bound by it. Bac. Abr. tit. Ind. ,556." Stark. C. P. 117. Where a bill of parcels is of this tenor, viz. : "Mr. J. L. bought of E. and O. — the above charged to G. C," the ])urchaser. J. L., added these words, " by order of C. C," it was hehl, that tiie addition amounted to an acquittance or discharge, and was a forgery within the Massachusetts statute. Com. v. Ladd, 15 Mass. 52G. For other points see notes to form 415. " An indictment charged the defendant witli forging a bond and writing obli- gatory. The statute upon which it was founded mentions bond and also writing obligatory. The instrument set forth purported to be a bond, but the judge held that it was properly described. R. v. Dunnett, East, P. C. 985. For a bond is a writing obligatory, and at all events, semble, the subsequent descrip- tion would be but surplusage." Stark. C. P. 117. An indictment charging the forging of " a certain bond," instead of a certain paper writing purporting to be a bond, is good. State v. Gardiner, 1 Ire. 27. See note to form 415. So of an indictment which mentions the instrument forged as an instrument of writing purporting to be an order drawn by A. on B. for nine dollars. Mc- Guire V. State, 3 7 Ala. 161. "In Bigg's case, the prisoner was charged with erasing an indorsement on a bank note ; it turned out in evidence that the inscription charged to have been erased liad been written, according to the custom of the bank, upon the inside and face of the bill. The jury found specially, that an inscription so written was commonly called an indorsement, and a majority of the judges held, that the description was correct." Stark. C. P. 117. An order on the cashier of the Bank of the United States is evidence in sup- port of an indictment for forging an order on the cashier of the corporation of the Bank of the United States. U. S i'. Hinman, 1 Bald. 292. Instruments of other specific denominations may, it seems, be described as waiTants or orders, if they be in effect such. Lockett's case. East, P. C. 940 ; Leach, 110; R. i>. Sheppard, Leach, 265 ; see infra, 415, note. And a bill of exchange, it has been held, may be laid a< an order for the payment of money. WlUoughby's case. East, P. C. 944. " Wiiere the forged instrument is actually within the meaning of the statute on which you intend framing your indict- 280 FORGERY, COINING, UTTERING, ETC. (264) ment," says Mr. Archbold, C. P. 357, "but does not sufficiently appear to be so on the face of it, you must, it tlie instrument be set out, not only set out a literal copy of it in the indictment, but must also add such averments of extrin- sic facts as may be necessary to make it appear upon the face of the record that the forged instrument is one of those intended by and described in the statute. Thus, for instance, where, by the usage of a public office, the bare signature of a party upon a navy bill operated as a receipt, an indictment for forging such a receipt, setting forth the navy bill and indorsement, and charging the defendant with having forged 'a certain receipt of money,' to wit, the sum of tAventy-five pounds, mentioned and contained in the said paper called a navy bill, which forged receipt was as follows : that is to say — ' William Thornton, William Hunter,' " was holden bad, because it did not show, by proper averments, that these signatures imported a receipt. R. i'. Hunter, 2 Leach, 624 ; 2 East, P. C. 928. So, where an indictment charged the defendant with forging a receipt in the handwriting of Henry Hargreaves, as thus: "Received, H. H.," it was holden that the indictment was bad, because there was nothing to show what H. H. meant. R. v. Barton, 1 Mood, C. C. 141. See R. v. Testick, 1 East, 181, n. ; ante, p. 274 (see Archbold's C. P. p. 46). So the words, "settled, Sam. Hughes," written at the foot of a bill of parcels, were hehl of themselves to import a receipt of acquittance, and that no averment was necessary that the word "settled" meant a receipt or ac(juittance. R. v. Martin, 1 Mood. C. C. 483 ; 7 C. & P. 549 ; overruling R. v. Thompson, 2 Leach, 810. And see R. v. Houseman, 8 C. & P. 180; R. l\ Vaughan, lb. 276; Reg. v. Bordman, 2 M. & Rob. 147 ; see infra, 415, note. An indictment, which charged the false making to have been In the alteration' of an order, given by the defendant, without charging that the alteration was made after it was circulated and had been taken up by him, was held to be erro- neous. State V Greenlee, 1 Dev. 523. For the same reason, an indictment for forging a deed must aver that it was sealed. 3 Keb. 388 ; 3 Inst. 1G9 ; Smith's case, 3 Salk. 171 ; though see Penna. v. Misner, Add. R. 44. "An indictment for forging an order for the delivery of goods must show that the person whose name is subscribed had authority to make such an order. East, P. C. 958; 2 Leach, 3d ed. 611. But it is sufficient, if the order purport that the party sending it had such authority, altliough, in fact, he had not. Fost. 119 ; East, P. C. 940. And it must, for the same reason, appear that the person to whom the order is directed, had possession of the goods." Stark. C. P. 119. An indictment for forging an acquittance need not allege that it was pre- sented, or delivered to any person as a genuine acquittance for goods delivered, and in consideration thereof. Com. v. Ladd, 15 Mass. 526. "If the instrument, as stated with proper averments u])on the record, be such as if genuine would be illegal, the indictment will be vicious and ineffectual; and therefore, in the case of the King v. Moffat, l^each, 483, for forging a bill of ex- change for the pajment of three guineas, without specifying the payee's place of abode, the judges wei*e of opinion, that the forgery did not amount to a capital offence; since, by the stats. 15 Geo. III. c. 51, and 17 Geo. III. c. 30, made perpetual by 27 Geo. III. c. 16, the bill of exchange, if read, would not have been valid. Wall's case. East, P. C. 953. " And in Smith's case (3 Salk. 371), above alluded to, the court were of opin- ion, that an indictment for forging an assignment would be vicious, unless it showed that the assignment was signed. 7'Ae distinction seems to he this : where the instrument appears to be valid, an indictment may be maintained, although, from some collateral defect, that instrument, if genuine, could never legally have been put in use ; otherwise, where the defect is apparent on the face of the Instrument. Per Eyre, J., R. v. Jones and Palmer, East, P. C. 991 ; Leach, 405. Hence an indictment has been holden to be maintainable for forging a conveyance, though the estate was described by the wrong name (Japiiet Cooke's case, Str. 901 ; Fitzg. 57 ; Mastermau's notes) ; for forging a protec- 281 (264) OFFENCES AGAINST PROPERTY. tion in the name of one as member of Parliament who was not so (R. v. Dea- kins, 1 Sid. 142) ; for forging and publishing a writing as the last will of a person still living (R. v. Murphy, 10 St. Tr. 183; R. r. Sterling, Leach, 117 ; Cogan's case, 2 Leach, 503) ; for forging an order for the payment of a seaman's prize money, though in fact the seaman was, at the time the note bore date, in a situa- tion which rendered the order invalid under the stat. (R. v. M'Intosh, East, P. C. 956 ; 32 Geo. III. c. 34, s. 2)." Starkie, lit supra. When a document is incomplete on its face, and does not apparently fall under the head of documents which are subjects of forgery, the indictment must supply the necessary explanation. See cases in Wh. Cr. L. 8th ed. § 740. ( /') The manner of averring intent generally has been already examined in notes to form 2. In forging it is sufficient to allege a general intention to defraud a particular person, rohich intention must he proved as laid. Powell's case, Leach, 90 ; R. V. Ellsworth, 2 East, P. C 986 ; and see East, P. C. 988; R. v. Powell, 12 Cox, C. C. 230; People v. Rathbun, 21 Wend. 509 ; State y. Odel, 2 Tr. Con. Rep. S. C. 758 ; Rose. Cr. Ev. 400 ; 3 Brevard, 552 ; State v. Greenlee, 1 Dev. 523 ; Wh. Cr. L. §§ 297, 1492. It is not necessary, at common law, however, to allege the intention to defraud, when it may be gathered from other averments ; unless in cases where the statute upon which such indictment is founded requires the use of the terms. State i\ Calvin, etc., Charlt. 151. " But it is not essential, either in indictments tor obtaining money under false pretences, or in case of forgery, after setting out the false pretences or forged writing, to aver the particular means by which the false pretences were made available in the one case, or how the forged writing was to be made the instru- ment of fraud in the other. Thus an indictment for (causing and procuring a counterfeit bank note to be offered to be passed, Avithout stating by whom or how the accused caused and procured it to be done, is sufficiently certain and good." Stark. C. P. 122 ; see also Brown v. Com., 2 Leigh, 769. " So, in the case of R. v. Young, 3 T. R. 176, above referred to, after stating the false pretence, namely, a wager, which was pretended to have been betted upon a foot-race, the indictment averred that the defendant, under color and pre- tence of having made the bet, obtained from the prosecutor the sume of twenty guineas, as a part of such pretended debt, with intent to defraud and cheat him thereof, without stating by what particular inducement he obtained the money. And in the case of forgery, it is sufficient to aver generally, that the defendant intended to defraud a particular person, without showing upon the record how he intended to do so. Powell's case. Leach, 90 ; East, P. C. 989 ; Ellsworth's case, 2 East, P. C. 986; Crook's case. East, P. C. 992; Stark. C. P. 122." Where the offence was forgery of a deposition, with intent to procure a divorce, it is not necessary to aver an intent to defraud. State v. Kimball, 50 Maine, 409. When the statute includes only banks duly incorporated, then the indictment must aver the incorporation of the bank alleged to have been defrauded. It is otherwise when the statute, in cases of home banks, does not make the case of the prosecution dependent upon incorporation. The pleader, in any case, may charge the intent to have been to defraud the party on whom the note was passed ; and if so the incorporation of the bank need not be averred. See for authorities AVh. C. L. 8th ed. § 741. Though a party defrauded must be specified, it is not necessary that the specification should include all the parties defrauded. It is enough if any one of them be averred. See cases cited in Wh. Cr. L. 8th ed. All the partners in a firm need not be set out in averring the intent to defraud. Thus, where the first count charged the ofiience to have been committed with intent to defraud D. L. and D. L. Jr., and the second count stated the offence to have been committed with intent to defraud the president and dii'ectors of said com[)any, the fourth count, etc., with an intent to defraud D. L. ; the court, on motion in arrest of judgment, held, that the omission of one of the partners in one count, and of two of them in another, was not fatal ; for an acquittal on such 282 FORGERY, COINING, UTTERING, ETC. (265) (265) First count. Forging at common law a certificate of an officer of the American army., in 1111 .^ to the effect that he had received certain stores, etc.{h) That C. S., late of the county aforesaid, yeoman, on, etc., and long before and since, was a clerk to the department of the com- missary-general of military stores in the armies of the United States of America, and intrusted and employed by Colonel B. F., the commissary-general of military stores in the armies aforesaid, and by the honorable Continental Congress, to make payments and take receipts, bills of parcels, and other vouchers for mili- tary stores, and for divers articles necessary and fitting in the preparation of military stores purchased for the use of the armies aforesaid, and to keep the accounts thereof. And the jurors aforesaid, upon their oaths and affirmations aforesaid, do further present, that the said C. S., on, etc., at the city of Philadelphia, in the county aforesaid, contriving and intending falsely and fraudulently to deceive and defraud the United States aforesaid, with force and arms, falsely, wickedly, and unlawfully did make, forge, and counterfeit, and cause to be made, forged, and coun- terfeited, a certain writing purporting to be a receipt for one thousand and twenty pounds and fifteen shillings, and purport- ing to be sio;iied in the name of one A. F., in the words and fig- ures following, to wit, " 3. Received 1st July, 1777, of Col. B. F., C. G. U. S., one thousand and twenty pounds, fifteen shillings, for 820 bayonet belts, and 920 cartouch boxes for the use of the army. "—£1020 15— A. F." to the evil example of all others in like case ofiTending, to the an indictment will always be a bar to another prosecution for the same forgery, though laid with intent to injure some other person. People v. Curling, 1 Johns. R. 320 ; see R. v. Hanson, 1 C. & M. ;}34. Infra, 2dii[d). (fj) This averment is unnecessary in statutory forgeries, and does not seem to be required at common law (People v. Rynders, 12 Wend. 42,5). In fact, indict- abllity does not depend upon damage having been done. That the document was one capable of doing damage is enough. R. r. Goate, 1 Ld. Ray. 737 ; R. v. Holden, R. & R. 154 ; Com. v. Ladd, 15 Mass. 526 ; People v. Stearn, 21 Wend. 534 ; West v. State, 2 Zab. 292 ; Hess v. State, 5 Oh. St. 5. (h) Res. V. Sweers, 1 Dall. 41. The objection taken to this and the su(.'ceed- ing indictment, that the intent to defraud the United States was vicious, was overruled by McKean, C. J., and the defendant sentenced. The trial, it should be observed, was in the supreme court of Pennsylvania. 283 (267) OFFENCES AGAINST PROPERTY. great damage of the United States, and against, etc. (^Conclude as in book 1, chapter 3.) (266) Second count. Publishing the same. And the jurors aforesaid, upon their oaths and affirmations aforesaid, do further present, that the said C. S., contriving and intending the said United States falsely and fraudulently to deceive and defraud, then and there, with force and arms, the said writing so as aforesaid falsely made and counterfeited, pur- porting to be a receipt for the sum of one thousand and twenty pounds and fifteen shillings, and purporting to be signed in the name of the said A. F., wickedly, unlawfully, and fraudulently did publish and cause to be published as and for a true writing and receipt of the said A. F. ; which said falsely forged and counterfeited writing is in the words and figures following, to wit, "3. Received 1st July, 1777, of Colonel B. F., C. G. U. S. one thousand and twenty pounds fifteen shillings, for 820 bay- onet belts, and 920 cartouch boxes for the use of the array. "—£1020 15— A. F." (he the said C. S., at the time of publishing the said false and counterfeit writing, there by him in form aforesaid, well know- ing the said writing to have been falsely forged and counter- feited as aforesaid), to the evil example of all others in like case ofiending, to the great damage of the said United States, and against, etc. {Conclude as in book 1, chapter 3.) (267) Forgery. Altering a certijicate of an officer of the American army in 1778, to the effect that he had received for the use of the troops at Carlisle certain articles of clothing. Offence laid at common law., the intent being to defraud the United States.{i) That C. S., late of the county aforesaid, yeoman, on, etc., was a deputy commissary-general of military stores in the armies of the United States of America, and entrusted and employed by Colonel B. F., the commissary-general of military stores in the armies aforesaid, and by the honorable Continental Congress, to make purchases of military stores and of divers other articles [i) R. V. Sweers, 1 Dall. 41. 284 FORGERY, COINING, UTTERING, ETC. (267) necessary and fitting in the preparation of military stores, for the use of the armies aforesaid, and to make payments and take receipts, bills of parcels, and other vouchers therefor. And the jurors aforesaid, upon their oaths and aflirmations aforesaid, do Bay, and further present, that the said C S., on, etc., at the city of Philadelphia, in the county aforesaid, having in his custody and possession a certain bill of parcels or account, with a certifi- cate and receipt all in writing, for a parcel or quantity of flannel cloth by him purchased of one M. D., for the use of the labora- tory of the same armies, and which said writing was in the words, figures, ciphers, and letters following, that is to say : — " U. S. A. To M. D., Dr. " 1778, Feb. 4th. To 57 & a qr. yds. flannel, 32s. 6^. £83 5 7 To 9 yds. do. 35.s. 15 15 9 To 107 & 3 qr. yds. do. b2s. Qd. 282 16 10 £381 17 5" "I do certify that the above was purchased and delivered to me for the use of the laboratory at Carlisle. I. C, Cap. of the Artillery." And on the back side of which said writing is indorsed and writ- ten the words following : " Received the within contents in full, M. D. ;" he the said C. S., afterwards, to wit, on the same day and year aforesaid, at Philadelphia aforesaid, in the county afore- said, with force and arms, the said bill of parcels or writing falsely, fraudulently, and deceitfully did alter and cause to be altered, by falsely making, forging, and adding the figure 4 to and before the figure 9, in the second item of the said bill of parcels or writing, which figures and letters did, before such last mentioned forgery, import and signify nine yards, but by reason and means of such last mentioned forgery and addition did be- come, import, and signify forty-nine yards ; and also by forging and altering the figure 1, in the sum of the said second item in the bill of parcels or writing aforesaid, to the figure 8 ; which figures did, before such last mentioned alteration and forgery, import and signify fifteen pounds and fifteen shillings, but by reason and means of such last mentioned forgery and alteration did become, import, and signify eighty-five pounds and fifteen 285 (268) OFFENCES AGAINST PROPERTY. shillings; and also by falsely forging and altering the figure 3 to the figure 4, and the figure 8 to the figure 5, in the sum total or amount of the said bill of parcels or writing ; which figures did, before such last mentioned forgery and alteration, import and signify three hundredandeighty-onepounds, seventeen shil- lings, and five pence, but by reason and means of such last men- tioned forgery and alteration did become, import, and signify four hundred and fifty-one pounds, seventeen shillings, and five pence, with intention to defraud the United States of America aforesaid, of seventy pounds, of lawful money of Pennsylvania, to the evil example of all others in like case ofl:ending, to the great damage of the said United States, and against, etc. {Co7i- clude as in hook 1, chapter 3.) (268) Forgery. Altering and defacing a certain registry and record^ etc., under the Pennsylvania act of 17Q0.{j) That H. R., etc., at, etc., aforesaid, on, etc., being an evil dis- posed person, and devising, designing, and intending evil to the people of this commonwealth, under the pretext of examining the enrolments, registers, and records in the ofiice of the sur- veyor-general of this commonwealth, on, etc., aforesaid, at the county aforesaid, with the intention to defraud and deceive one G. R., falsely, deceitfully, and corruptly in and on a certain reg- istry and record, then and there being and remaining as a pub- lic record, in the ofiice of the surveyor-general of this common- wealth, to wit, in book F., and on the page of the said book numbered one hundred and ninety-five, containing the list of returns made by him, the said H. R., while acting as deputy- surveyor of the surveyor-general of this commonwealth, did then and there falsely alter and deface the registry and records of said office and of this commonwealth, by a false and corrupt inter- lineation made in writing and figures, as follows, to wit, in the said book F., and on the page of said book numbered therein one hundred and ninety-five, and between the lines of writing on said page, counted from the upper line of said page, includ- ing the said upper line, numbers twenty-three and twenty-four: {j) Ream v. Com., 3 S. & R. 207. The judgment of the quarter sessions of Dauphin County, passing sentence on this indictment, was affirmed by the su- preme court. 286 FORGERY, COINING, UTTERING, ETC. (2t)8i) " April, 1794, H. R., in right of S. S., 161 acres and 9o perclies." To the great damage of the said G., contrary, etc., and against, etc. {Co7iclude as m book 1, chapter 3.) (268a) Forging loill under English statute. That J. S., on, etc., at, etc., feloniously did forge a certain will and testament, purporting to he the last will and testament of one A. B., with intent thereby to defraud (certain persons to the jurors unknown), against, etc.(/.') (2686) Making a false entry in a ynarriage register under English statute. feloniously, knowingly, and unlawfully did insert {^'- insert or cause to be inserted'") in a certain register of marriages, which was then by law authorized to be kept {'■'• any register of births^ bajjtisms, marriages^ deaths^ or burials which now is or herecfter shall be by law authorized or required to be kept, etc., or any certified copy thereof), a certain false entry of a matter relating to a supposed marriage, and which said false entry is as follows : that is to say {set it out ver'batim, with innuendoes if necessary to explain it); whereas in truth and in fact the said A. B. was not married to the said C. D. at the said church, on the said day of as in the said entry is falsely alleged and stated ; and whereas, in truth and in fact the said A. B. was not married to the said C. D., at the said church or elsewhere, at the time in the said entry mentioned, or at any other time whatsoever ; against the form, etc. {2d count for uttering.) feloniously did knowingly and wil- fully offer, utter, dispose of, and put off a copy of a certain other false entry relating to a certain supposed marriage, which said last mentioned false entry was before then inserted in a certain register of marriages by law^ authorized to be kept, and which said last mentioned false entry is as follows: that is to say (set it out), whereas in truth and in fact {as above). And the jurors aforesaid, upon their oath aforesaid, do say, that the said J. S., at the time he so offered, uttered, disposed of, and put off the said (Jt) Arch. C. P. 19th ed. p. 625. The judges were in R. v. Tylney, 1 Den. 319, equally divided on the question, whether, in the absence of the existence of some person who could have been defrauded by the forged will, a count charg- ing an intent to defraud persons unknown could be sustained. 287 (269) OFFENCES AGAINST PROPERTY. copy of the said last mentioned false entry, well knew the said last mentioned false entry to be false, against, ete.(^) (268c) 31aking false entry in registry of baptism. The jurors for, etc., upon their oath present, that, before and at the time of the commission of the oftence next hereinafter mentioned, a certain register of baptisms solemnized at S. P.'s church, etc., by law authorized and required to be kept in Eng- land, was at the parish aforesaid, kept by and in the custody of A. M., then and there being the parish clerk. And the jurors aforesaid, upon their oath aforesaid, do further present, that J. M., on, etc., feloniously, knowingly, and unlawfully, did then and there, within the jurisdiction of the said court, cause to be inserted by one J. H. S., in said register of baptisms, so kept as aforesaid, a certain false entry of a matter relating to the baptism in the said church of a certain female child of one A. T., called A. A. M., to wit, a false entry that the surname of the parents of the said child then was Dodd, whereas the sur- name of the parents of the said child was not then Dodd, as the said J. B. then and there well knew, against the form of the statute, etc.(7/i) (269) For forging^ etc., a bill of exchange, an acceptance thereof, and an indorsement thereon.{n) That (defendant), etc., feloniously did falsely make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, and willingly aid and assist in the false mak- ing, forging, and counterfeiting a certain bill of exchange ; the tenor of which said false, forged, and counterfeited bill of ex- change is as follows, that is to say : — "No. £54 Is. Bristol, America, 17th Sept., 1797. " Three months after sight, pay to Messrs. S. R. and Son, or order, fifty-four pounds, one shilling, value received. " To Mr. R. G. A. M. " Old Change, London." with intention to defraud A. S., against, etc., and against, etc. {Conclude as in book 1, chapter 3.) {I) Arch. C. p. 19th ed. p. 648. (m) 10 Cox C. C. App. I. (ji) Stark. C, P. 455. ^qq post, 278. 288 FORGERY, COINING, UTTERING, ETC. (272) (270) Second county for uttering. {o) Feloniously did utter and publish(2?) as true, a certain false, forged, and counterfeited bill of exchange, which said last men- tioned false, forged, and counterfeited bill of exchange (g) is as follows, that is to say {set out the bill as before)., with intention to defraud said A. S., he the said A. B., at the same time he so uttered and published the said last mentioned false, forged, and counterfeited bill of exchange as aforesaid, then and there, to wit, on, etc., at, etc., well knowing the same to be false, forged, and counterfeited, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (271) TJiird count., for forging an acceptance.{r) That the said A. B., having in his possession a certain other bill of exchange, whose tenor follows, that is to say {set out the bill),^ oil, etc., with force and arras, at, etc., feloniously did falsely make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, and willingly act and assist in the false making, forging, and counterfeiting on the said last mentioned bill of exchange,** an acceptance of the said last mentioned bill of exchange, to the tenor following, that is to say, "Accepted R. G., 'Nov. 13th," with intent to defraud the said A. S., against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (272) Fourth count for uttering a forged acceptance., as in the last count to the *, and proceed: On which last mentioned bill of exchange was written a cer- tain false, forged, and counterfeited acceptance of the said last mentioned bill of exchange, whose tenor follows, that is to say, (o) See Harrison v. State, 3G Ala. 248. (p) As to when there must be an averment of the party on whom the note was passed, see Wh. Cr. PI. & Pr. Sth ed. § 740 ; notes to form 264, supra. [q] Not necessary to aver indorsement, note to form 264, supra. People v. Ah Woo, 28 Cal. 205. (7-) It is usual, in a count of this kind, first to aver the date, direction, and other circumstances of the bill, and then set it out ; but the first averments seem to be superiluous, and the above form is much more concise. It is not essential to set out the whole of the bill, since the acceptance only is alleged to have been forged. See Stark. C. P. 112, 113 ; notes to form 264, supra. VOL. I.— 19 289 (275) OFFENCES AGAINST PROPERTY. " Accepted R. G., Nov. 13th," on, etc., with force and arms, at, etc., feloniously did utter and publish as true the said last men- tioned false, forged, and counterfeited acceptance of the said last mentioned bill of exchange, with intent to defraud the said A. S., he the said A. B., at the time of uttering and publishing as true the said last mentioned false, forged, and counterfeited ac- ceptance of the said last mentioned bill of exchange, then and there, to wit, on, etc., at, etc., well knowing the said last men- tioned false, forged, and counterfeited acceptance to be false, forged, and counterfeited, against, etc., and against, etc. {Con- chide as in book 1, cha^^ter 3.) (273) Fifth county for forging an indorsement^ etc.^ as in the third count to the *, and -proceed: An indor8eraent(s) of the said last mentioned bill of exchange, whose tenor follows, etc., that is to say, " S. R. and Son," with intent to defraud, etc. {as before). (274) Sixth county for publishing a forged indorsement^ etc. {Same with that of the fourth county substituting the indorsement and its tenor for the accej^iance and its tenor): against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (275) For forgery at common law., in antedating a mortgage deed with intent to take place of a prior mortgage.{t) That whereas, a certain M. IST., yeoman, on, etc., at, etc., was seized in his demesne as of fee of and in two certain lots or pieces of ground, one of them situate, lying, and being in Prince Street, in the borough of Lancaster, in Lancaster County afore- said, containing, etc. ; the other of which said lots, situate, etc., and that the said M. N., the same day and year aforesaid, at Lancaster County aforesaid, for a good and valuable considera- tion to him, the said M. N., by a certain A. K., before that time paid, did make and execute, seal, and deliver, to the said A. K., {s) See Stark. C. P. 116, 117; K. v. Biggs, 3 P. Wms. 419. (t) This indictment, which was drawn in 1763, is signed by "Benj. Chew, attorney-general," but a note on a manuscript copy with which, among others, I have been furnished by Mr. Dillingham, of Philadelphia, sta,tes that it was "settled by Edward Shippen, deputy attorney-general," and afterwards chief justice. Whether the case is one of forgery, see Wh. Cr, Law, 8th ed. § 663. 290 FORGERY, COINING, UTTERING, ETC. (275) a certain indenture and deed of mortgage, dated the same day and year aforesaid, wherein and whereby the said M. IN. did grant, bargain, sell, aliene, release, and confirm unto the said A. K., his heirs and assigns, all those two adjacent lots or pieces of ground before mentioned and described, situate on Prince Street aforesaid, in the borough and county aforesaid, together with the houses and out-houses, edifices, and buildings thereon erected, and all and singular their appurtenances, to have and hold the same to the said A. K., his heirs and assigns forever, with a pro- viso in the same indenture contained, that if the same M. N., his heirs, executors, or administrators, should and did well and truly pay, or cause to be paid, to the said A, K., or his execu- tors, administrators, and assigns, the sum of pounds, on the day of together with lawful interest for the same, then that indenture to be void, and the estate thereby granted to cease and determine {here recite the proof or acknowledgraeyit of the deed and enrolment^ loith the day, place, and book), as by the said indenture, reference being thereunto had, more fully and at large appears. And that M. R., of L., in Lancaster County, aforesaid, yeo- man, and D. S., of the borough of Lancaster, in Lancaster County, attorney at law, well knowing the premises, and design- ing and fraudulently intending the said A. K. falsely and un- lawfully to deceive and defraud, and with an intent to destroy, invalidate, and render of no effect the mortgage deed aforesaid, and to deprive the said A. K. of all benefit and advantage therefrom, and to lessen and destroy the security which the said A. K. had by the said mortgage deed, for the payment of the said sum of pounds, with the interest thereof, afterwards, to wit, the fourth day of November, A. D. 1763, at Lancaster County aforesaid, and within the jurisdiction of this court, with force and arms, knowingly, subtly, and falsely did forge and make, and cause to be forged and made, one false writing sealed, purporting to be an indenture of mortgage from the said M. N. to the said M. R., for the two lots of ground afore- said, before granted and mortgaged as aforesaid, by the said M. N. to the said A. K., and purporting to bear date and to have been sealed and delivered, by the said M. IST., on the fourth day of June, 1763, which same false and forged writing contains 291 (275) OFFENCES AGAINST PROPERTY. the matter following, to wit, this indenture, etc. {setting forth the same), as by the said false and forged indenture fully ap- pears. And the inquest aforesaid do further present, that the said M. R. and D. S., the said fourth day of ISTovember, at Lancaster County aforesaid, fraudulently and deceitfully designing to de- fraud and supplant the said A. K., with an intent, that the said false and forged writing should invalidate, defeat, and become prior to the indenture of mortgage aforesaid of the said M. K, before that time made, sealed, and delivered to the said A. K. (the last mentioned indenture of mortgage being then and there in full force, and the moneys mentioned in the pro- viso aforesaid being unpaid to the said A. K., his attorney, or assigns), the same false and forged writing did antedate, and cause to be antedated, and to bear date on a day prior to the sealing and delivery of the indenture aforesaid, to the said A. K., to wit, on the fourth day of June aforesaid, and the said M. R. and D. S., on the fourth day of November aforesaid, at the county aforesaid, falsely, unlawfully, and deceitfully did prevail upon and procure the aforesaid M. N. to execute and acknowledge, sign, seal, and deliver, as his act and deed, the same false and forged writing, he the said M. N. then and there not knowing the same false writing to have been as aforesaid antedated, but. believing the same to have borne date on the day of the execution and delivery of the same, to wit, on the fourth day of November aforesaid. And the inquest, etc., do further present, that the said M. R. and D. S., afterwards, to wit, the same fourth day of November, at Lancaster County aforesaid, with an intent the said A. K. to injure, cheat, deceive, and defraud, and to cause the aforesaid false and forged writing to invalidate, defeat, and become prior to the true, genuine, and lawful deed aforesaid, made and sealed as aforesaid, and deliv- ered to the said A. K., the same false, forged, and antedated deed, as the true and genuine deed of the said M. N., by him made, executed, sealed, and delivered, on the fourth day of June aforesaid, falsely, unlawfully, knowingly, fraudulently, and deceitfully did publish, and cause to be published, when in truth the said M. R. and D. S. then and there well knew the Baid last mentioned writing to be false, forged, and antedated, 292 FORGERY, COINING, UTTERING, ETC. (276) and not to have been sealed and delivered by him the said M. IN", on the fourth day of June aforesaid, but on the fourth day of November aforesaid, to the great injury and deceit of the said A. K.,to the evil example of all others in such case offending, and against, etc. {Conclude as in book 1, chapter 3.) (275a) Forgery of note under Indiana statute. The grand jurors for, etc., upon their oath present, that D. S., on, etc., at, etc., unlawfully, feloniously, and falsely did forge and counterfeit a certain promissory note for the payment of money, which said forged and counterfeit note is as follows, to wit, " $200.00. Waterloo, Indiana, August 28th, 1876. Thirty days after date, we or either of us promise to pay to the order of the De Kalb Bank, two hundred dollars, with interest at ten per cent, per annum after maturity, the interest until matu- rity at that rate having been paid in advance, and ten per cent, attorney's fees, negotiable and payable at the De Kalb Bank, Waterloo, Indiana, value received, without any relief whatever from valuation or appraisement laws. The drawers and endors- ers severally waive presentment for payment, protest, and notice of protest and non-payment of this note, and all defences on the ground of any extension of the time of its payment, that may be given by the holder or holders to them or either of them. Due . No. . John Shirrey, John R. Walker," with intent to defraud J. I. B. and C. A. O. McC, who were doing business under the firm name of De K. Bank, contrary, etc.(M) (276) At common law. Against a member of a dissolved firm for forging the name of the firm to a promissory note. That D. Gr., late, etc., on, etc., and after the dissolution of the copartnership of the said D. G. and J. 0., who had shortly before carried on trade and merchandise, under the name and firm of 0. and G., at, etc., did falsely make, forge, and counter- feit, and did cause and procure to be falsely made, forged, and (m) This was held good on motion to quash in Sharley v. State, 54 Ind. 168. 293 (278) OFFENCES AGAINST PROPERTY. counterfeited a certain promissory note, for the payment of money, signed by the said D. G. with the partnership names of 0. and G., and purporting to have been signed by the said D. G. with the partnership name of 0. and G, before the said part- nership was dissolved, the tenor of Avhich jjromissory note is as follows: "$5000. Ninety days after date w^e promise to pay "W. S., or order, five thousand dollars, at the State Bank at Elizabeth, without defalcation or discount, for merchandise rec'd, E. T., 80th December, 1812, 0. and G.," with intent to defraud the said J. O., and to render him liable to the payment of the said sum of money in the said note mentioned and made payable, contrary, etc.(v) {Conclude as in book 1, chapter 3.) (277) Forging a letter of attorney^ at common law. That J. B., late of the said county, yeoman, on, etc., with force and arms, at the county aforesaid, falsely, fraudulently, and deceitfully did make, forge, and counterfeit a certain letter of attorney, purporting to be signed by one T. E.., with the mark of him the said T. R., and to be sealed and delivered by him the said T. R., the tenor of which said letter of attorney is as follows {here recite letter of attorney, verbatim et literatim), with an intent to defraud the said T. R., against, etc. {Conclude as in book 1, chapter 3.) (278) Forgery of bill of exchange. First count, forging the bill.{w) That (defendant), on, etc., at, etc., feloniously, etc., did forge a certain bill of exchange, which said forged bill of exchange is as follows, that is to say: " £50. Bristol, 25th March, 1830. Three months after date pay to," etc. etc. {setting out the bill of [v) State V. Gustine, 2 Southard, 744. Mr. Hazley moved to quash: 1. For uncertainty and inconsistency. 2. Because the purport was incorrectly stated, it being stated to be signed by defendant, with partnei"ship name of Ogden and Gustin, whereas it did not purport to be signed by D. Gustine. 2 East, 982. 3. Because partner before or after dissolution of partnership, may sign partnership name for a separate business, and not be liable to the pains of forgery. Chet- wood answered, and referred to 2 Hawk. 344; 1 Mod. 78; 1 Str. 234, 241, 266; 1 Salk. 381; 1 Leach, 239, 410; 2 Str. 486; 2 Leach, 6C0. The court, Southard, J., dissenting, overruled the motion, and put the defendant to plead. (i/j) Arch. C. P. 5th Am. ed. 444. This form is drawn under the stat. 11 Geo. IV. and 1 Wm. IV. c. 66, s. 3, which makes it felony to forge "any bill of exchange or promissory note for the payment of money." For a more com- prehensive form, see No. 269, etc. 294 FORGERY, COINING, UTTERING, ETC. (281) exchange in words and figures correctly)^ with intent to defraud one J. 1:^., against, etc. [Conclude as in book 1, chapter 3.) (279) Second count. Uttering the same. That the defendant "did offer, utter, dispose of, and put off" a certain other, etc. etc. (280) Third count. Forging an acceptance on the same. {If the acceptance be also forged^ add counts for it in this form) : And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S., afterwards, to wit, on the year and day last aforesaid, at the parish aforesaid, in the county afore- said, having in his custody and possession a certain other bill of exchange, which said last mentioned bill of exchange is as follows, that is to say {here set out the bill)., he the said J. S., after- wards, to wit, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, feloniously did forge on the said last mentioned bill of exchange an acceptance ("any indorse- ment on, or assignment of, any bill of exchange, or promissory note for the payment of money, or any acceptance of a bill of exchange") of the said last mentioned bill of exchange, which said forged acceptance is as follows, that is to say, " Accepted, payable at the bank of Messrs. C. & Co., J. G." {or as the accep- tance may be), with intent to defraud the said J. N., against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (281) Fourth count. Offering., etc., a forged acceptance. {Same as the last., to the end of the copy of the bill of exchange, then as follows): and on which said last mentioned bill of exchange was then and there written a certain forged acceptance of the said last mentioned bill of exchange, which said forged accep- tance of the said last mentioned bill of exchange is as follows, that is to say {here set out the acceptance as in the last count), he, the said J. S., well knowing the premises last aforesaid, after- wards, to wit, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, feloniously did offer, utter, dispose of, and put off the said forged acceptance of the said last mentioned bill of exchange, with intent to defraud the said J. IST. (he the said J. S. at the time he so offered, uttered, dis- 295 (282) OFFENCES AGAINST PROPERTY. posed of, and put off the said forged acceptance of the said last mentioned bill of exchange, then and there well knowing the said acceptance to be forged), against, etc., and against, etc. {Conclude as in book 1, chapter 3.) {If an indorsement be also forged, add counts for it in this form.) Fifth count. And the jurors aforesaid, upon their oaths aforesaid, do further present, that the said J. S., afterwards, to wit, on the day and year last aforesaid, at the parish aforesaid, in the county afore- said, having in his custody and possession a certain other bill of exchange, which said last mentioned bill of exchange is as follows, that is to say {here set out the bill), he the said J. S., afterwards, to wit, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, feloniously did forge on the back of the said last mentioned bill of exchange a cer- tain indorsement of the said bill of exchange, which said forged indorsement is as follows, that is to say, "J. S. & Co.," with in- tent to defraud the said J. l!^., against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (282) Sixth count. Offering, etc., forged indorsement. {Same as the last, to the end of the copy of the bill of exchange, then as follows:) and on the back of which said last mentioned bill of exchange was then and there written a certain forged indorsement of the said last mentioned bill of exchange, which said last mentioned forged indorsement is as follows, that is to say, " J. S. & Co.," he the said J. S., well knowing the premises last aforesaid, afterwards, to wit, on the day and year last afore- said, at the parish aforesaid, in the county aforesaid, feloniously did ofter, utter, dispose of, and put oft" the said last mentioned indorsement of the said last mentioned bill of exchange, with intent to defraud the said J. 15^. (he the said J. S., at the time he so oftered, uttered, disposed of, and put off" the said last men- tioned forged indorsement of the said last mentioned bill of ex- change, then and there well knowing the said indorsement to be forged), against, etc., and against, etc. {Conclude as in book 1, chapter 3.) 296 PORGERY, COINING, UTTERING, ETC. (285) (283) For forging and imhlishing a receipt for judgment of money. [x) That J. B., etc., on, etc., at, etc. {averring forgery as in i^reced- ing forms)^ a certain acquittance and receipt {y) for money, to wit, for the sum of three pounds and three shillings, in the words, letters, and figures following, that is to say, " August the 26th, 1781. Received of Mr. J. B. for Moustone quarry, the full sum of three pounds and three shillings. Received by me, T. F.," with intent to defraud the said T. F., etc., against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (i;84) Second count, for' idtering. That the said J. B., etc., on, etc., at, etc., a certain false, forged, and counterfeited acquittance and receipt for money, to wit, for the sum of three pounds and three shillings, feloniously did utter and publish as true ; which said last mentioned false, forged, and counterfeited acquittance and receipt is in the words, letters, and figures following, that is to say {set out the receipt as before), with intent to defraud the said T. F., he the said J. B., at the time when he so uttered and published the said last men- tioned false, forged, and counterfeited acquittance and receipt, well knowing the same acquittance and receipt, so by him uttered and published, to be false, forged, and counterfeited, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (285) Forging a receipt, under the North Carolina statide.{z) That J. S., late of the county of Johnston, in the state of IS'orth Carolina, on, etc., with force and arms, in the county of (.r) Stark. C. P. 457. [y) Unless the instrument on the face of it appear to be a receipt, it must be shown by the aid of proper averments that it could so operate. Stark. C. P. 116, 117; supra, notes to form 264; infra, notes to form 415. See also "\Yh. Cr. PI. & Pr. § 185. (2) State V. Stanton, 1 Iredell, 424. "Upon the form of the indictment, the court would perhaps not be bound now to decide, since the other point disposes of the case here. But as the point may be material upon the next trial, and would, probably, soon arise in other cases, we deem it fit to state the oj)inion we have formed of it, with the view of settling the question. It would have been more satisfactory to us if in the books of criminal pleading or in an adjudication a precedent or a direct authority could have been found. We have, however, looked through the standard works on crown law, from Lord Coke's commentary on the statute 5 Elizabeth, c. 14, in the third institute, down to Mr. Chitty's treatise, and through many books of forms, without succeeding in finding an in- 297 (285) OFFENCES AGAINST PROPERTY. Johnston aforesaid, feloniously did wittingly and. falsely forge, make, and counterfeit, and did cause and procure to be falsely dictment upon these words in that statute, ' show forth in evidence, ' or a rule laid down upon them. This circumstance may not perhaps be deemed so very singular, wlien it is remembered that the same act contains also the words ' pro- nounce and publish,' which are more extensive, and include ' shoAV forth in evi- dence.' This furnishes a reason why the indictment should always be for 'pro- nouncing and publishing,' and none for 'showing forth in evidence;' since, although every publication is not showing forth in evidence, yet showing forth in evidence is a publishing of it. Lord Coke saying that using any words, written or oral, whereby the instrument is set forth or held up as true, is ' to pronounce and publish it.' We have therefore only principle for our guide, and, being so guided, we have arrived at the conclusion that the second count is sufficient. "In the first place, we adhere to Britt's case, 3 Dev. 122, that the words 'show forth in evidence,' refer to a judicial proceeding. The question then is, •whether tiie particular proceeding must be set forth at large in the indictment, or may not be shown on evidence under the general words used in the statute and in this indictment. "It seems to be proper, and perhaps may be said to be necessary, when an offence is created by statute, to describe it in the indictment, whether consisting of the commission or omission of particular acts, or of certain acts accompanied by a particular intent in the words of the statute. This is certainly so, unless for a word or phrase in the statute another is used in the indictment which is clearly of the same legal import, or has a broader sense including that in the statute. Of this exception, R. v. Fuller (1 B. & P. 180) is an example. But such examples are very rare ; and on the contrary, the case of Rex. v. Davis (Leach, 403), and others of that kind, show how strictly the courts adhere to the letter of the law. Finding it thus to be generally true, that in describing the offence, the indictment must use all the words of the statute ; so on the other hand, it would seem to be equally true as a general rule, that the indictment is sufficient if it contain all the words of the statute. AVhen the language of the statute is transferred to the indictment, the expressions must be taken to mean the same thing in each. There can be few instances in which the same words thus used, ought to or can be received in a different sense in the one instrument from that in the other. As it is certain that the indictment was intended to describe the offence which the statute describes, it follows, from the use of the very same language in both, that the one means what the other does, neither more nor less. It is true that some few exceptions from this rule have been established by adjudications, but they have not appeared to us to embrace the present case. Thus, a statute may be so Inaccurately penned, that its language does not express the whole meaning the legislature had ; and by construction, its sense is extended beyond its words. In such a case, the Indictment must contain such averments of other facts not expressly mentioned in the statute, as will bring the case within the true meaning of the statute; that is, the Indictment must contain such words as ought to have been used in the statute, if the legislature had correctly expressed therein their precise meaning. In State v. Johnson, 1 Dev. 360, for example, it was held, that besides charging in the words of the act, that the prisoner, being on board the vessel, concealed the slave therein, the indictment should have charged a connection between the prisoner and the vessel, as that he was a mari- ner belonging to her ; because that was the true construction of the act. So, where a statute uses a generic term, it may be necessary to state in the indictment the particular species in respect to which the crime Is charged. As, upon a stat- ute for killing or stealing ' cattle,' an indictment using only that word is not suffi- cient, but it ought to set forth the kind of cattle, as a horse or a cow. R. v. Chalkeley, R. & R. 258. But where a statute makes a particular act an offence, 298 FORGERY, COINING, UTTERING, ETC. (285) made, forged, and counterfeited, and did willingly act and assist in the false making, forging, and counterfeiting a certain receipt, which said false, forged, and counterfeited receipt is as follows, that is to say, " received of J. S. thirty-five dollars and ninety- one cents, this 22d day of May, 1838, in part of the rent of land that I rented to him for the year 1837. W. W." with intention to defraud one W. W., against, etc., and against, etc. {Conclude as in book 1, chapter 3.) And the jurors aforesaid, upon their oath aforesaid, do further say and present, that the said J. S., afterwards, to wit, on, etc., in the county of Johnston aforesaid, feloniously did utter and publish as true, and show forth in evidence a certain other false, forged, and counterfeit receipt, which said last mentioned false, forged, and counterfeited receipt is as follows, that is to say, " Eeceived of J. S. thirty-five dollars and ninety-one cents, this 22d day of May, 1838, in part of the rent of the land that I rented to him for the year 1837. W. W." with intention to defraud the said W. W., he, the said J. S., at the time he so uttered and published, and showed forth in evi- dence the said last mentioned false, forged, and counterfeited receipt as aforesaid, then and there well knowing the same to be false, forged, and counterfeited, against, etc., and against, etc. [Conclude as in book 1, chapter 3.) and sufficiently describes it by terms having a definite and specific meaning, -with- out specifying the means of doing the act, it is enough to charge the act itself, ■without its attendant circumstances. Thus, upon a statute making it felony to endeavor to seduce a soldier from his duty, an indictment is good which charges such 'an endeavor,' without stating the mode adopted. Fuller's case, before cited. So, in the indictments founded on the words 'pronounce and publish,' in this same statute of Elizabeth (which are not ours), the precedents uniformly charge 'tlie pronouncing and publishing of the forged instrument as true,' with- out stating the means by which, or the person to whom it was published. Upon the more modern English statutes against 'putting off" or disposing of forged or counterfeit money or bank notes, it is also held, that the circumstances need not be stated. Rex. v. Holden et al., 2 Taunt. 334. We do not perceive why the same principle does not apply to the other words 'show forth in evidence,' used in the act of Elizabeth, and in our act ; and we are not aware of any disadvan- tage to the prisoner from the omission to set out in the indictment tlie particular proceeding in which the evidence was offered. We agree that such a judicial proceeding must be proved ; and if it be not properly proved, the prisoner can put the matter on the record by an exception, and have the same benefit thereof on a motion to reverse the judgment, and for a venire de novo, that he could have from a motion in arrest of judgment. Hence we hold the second count in this indictment to be good." 299 (287) OFFENCES AGAINST PROPERTY. (286) Forging a fieri facias at common law. {a) That J. S., late, etc., on, etc., unlawfully and wickedly con- triving to injure, oppress, impoverish, and defraud one J. jST., then and there unlawfully, knowingly, and falsely did forge and counterfeit a certain writing on parchment, purporting to be a writ, of our lady the queen, of fieri facias., and to have issued out of the court of our said lady the queen of the bench at Westminster, in the county aforesaid; which said false, forged, and counterfeited writing is as follows, that is to say {here set out the fieri facias verbatim)., with intent the said J. N, to injure, oppress, impoverish, and defraud, to the great damage of the said J. N. , to the evil example of all others in the like case offending, and against, etc. {concluding as in book 1, chapter 3). (" This count" remarks Mr. Archbold., " appears to be sufficient., without stating that the ivrit was actucdly executed., or the prosecutor^ s goods seized under it.^' However, it mag be as well to add a second • count., sirnilar to the above, to the end of the statement of the fieri facias, and then continue:) with intent the said J. JS". to injure, oppress, impoverish, and defraud. And the said J. S., afterwards, and before the said last mentioned pretended writ purported to be returnable, to wit, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, the said last mentioned false, forged, and counterfeited writing, knowingly, falsely, and deceitfully, as a true writ of our said lady the queen, oi fieri facias, (ha cause to be delivered to the then sheriff of "Middlesex, for execution to be made thereof; and afterwards, and before the last mentioned pretended writ purported to be returnable, to wit, on the day and year aforesaid, in the parish aforesaid, in the county aforesaid, did cause to be seized and taken divers goods and chattels of the said J. l!^. to a large amount, by pre- tence of the said pretended writ, to the great damage of the said J. N., to the evil example of all others in the like case offending, and against, etc. {Conclude as in book 1, chapter 3.) (287) Second count. Uttering same. And the jurors aforesaid, upon their oath aforesaid, do fur- ther present, that the said J. S., afterwards, to wit, on the day (a) Archbold's C. P. 5th Am. ed. 392. 300 FORGERY, COINING, UTTERING, ETC. (288) and year aforesaid, at the parish aforesaid, in the county afore- said, unlawfully, falsely, and deceitfully did utter and publish as a true writ of our lady the queen, oi fieri facias^ a certain other false, forged, and counterfeited writing on parchment, purporting to be a writ of our said lady the queen, oi fieri facias, and to have issued out of the court of our said lady the queen of the bench at Westminster, in the county aforesaid; which said false, forged, and counterfeited writing is as follows, that is to say {here set out the writ verbatim), with intent the said J. ^N". to injure, oppress, impoverish, and defraud (he the said J. S., at the time he so uttered and published the said last mentioned false, forged, and counterfeited writing as aforesaid, then and there well knowing the same to be false, forged, and counter- feited). And the said J. S., afterwards, and before the said last mentioned pretended writ purported to be returnable, to wit, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, the last mentioned false, forged, and counterfeited writing, knowingly, falsely, and deceitfully, as a true writ of our lady the queen, oi fieri facias, did cause to be delivered to the then sheriff of Middlesex, for execution to be made thereof ; and afterwards, and before the said last mentioned pretended writ purported to be returnable, to wit, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, did cause to be seized and taken divers goods and chattels of the said J. N". to a large amount, by pretence of the said pretended writ, to the great damage of the said J. N., to the evil example of all others in the like case offending, and against, etc. {Conclude as in book 1, chapter 3.) {Add counts describing the instrument, etc., in such manner as would sustain an indictment for stealing the same.) (288) Forgery of a bond at common law.ib) That D. M. G., etc., late of, etc., on, etc., with force and arms, in, etc., of his own head and imagination, did wittingly and (6) State V. Gardiner, 1 Ired. 27. Ruffin, C. J. : "As the rrroiinds of the motion in arrest of judgment are not stated in the record, and the court has not had the assistance of counsel for the prisoner, it is possible we may have over- looked some point on which the motion ought to have been allowed. If so, it will be a source of sincere regret, for in the absence of counsel of his own selec- tion, the court has endeavored to discharge for the prisoner that office which, as 301 (288) OFFENCES AGAINST PROPERTY. falsely make, forge, and counterfeit, and did wittingly assent to the falsely making, forging, and counterfeiting a certain bond and writing obligatory in the words, letters, and figures, that is to say : — " Four months after date, with interest from the date, we or either of us do promise to pay E. M., or order, the sum of twenty- four dollars and thirty-eight and three-quarter cents, for value received of him, as witness our hands and seals this 19th day of June, 1839. " D. M'G., [Seal.] A. G., [Seal.] J. v., [Seal.]" with intent to defraud the said E. M., against, etc., and against, etc. {Conclude as in hook 1, chapter 3.) a public duty, is devolved on us. After a careful examination of the record, we are unable so to discover any reason why the sentence of the law should not fol- low the conviction. "In considering the case, however, one or two points have suggested them- selves, on which it may be supposed an objection might have been taken, and on which, therefore, the court may proj^erly give an opinion. "As the name of the prisoner and that of one of the supposed obligors in the forged instrument appear to be the same, it may have been intended to present the question, whether the indictment can allege the forgery of the whole instru- ment by one of the parties to it. To that, we think, there would be several answers. One, that the objection ought to have been taken on the evidence, and cannot be taken in this manner, since it does not legally follow that the prisoner is the same person with the supposed obligor, although the names be the same. But admitting the identity of those persons, yet secondly, that it will not vitiate the indictment. Tlie forgery may have consisted of alterations of a true instrument, as by making the sum mentioned in the bond more or less than it was at first, or by adding the names of the other two obligors without their knowledge or consent, and that of the obligee. Now, it is a settled rule, that in such cases the forgery may be charged specially, by alleging the altera- tions ; or the forgery of the entire instrument may be charged ; and this last will be supposed by evidence of the alterations. R. v. Ellsworth, 2 East, P. C. 986,988. After the alterations, the instrument as a whole, is a different instru- ment from what it was ; and therefore, in its altered state, is a forgery for the whole. Possibly, the prisoner's counsel meant to object to the indictment, as a repugnancy, that it charges the forgery of a certain bond ; whereas if it be a forgery, it is not a bond, but only purports to be such. But that objection, too, would be untenable. The statute uses the same language : ' forge any deed, will, bond, etc. ;' and while it is prudent, so it is generally safe, to follow in the indictment the words of the statute. Besides, upon looking to the precedents, in books of criminal pleading, it is found, that in this respect the present indict- ment conforms to those long settled. "Without further lights as to the points intended to be relied on for the prisoner, the court is therefore under the necessity of saying, that there is no error in the judgment, and directing the steps necessary to its execution." 302 FORGERY, COINING, UTTERING, ETC. (290) (289) At commoyi laiu, by separating from the back of a note an indorsement of -part iKiyment.{c) That J. M'L., of, etc., on, etc., with force and arms, at, etc., did wittingly, falsely, and deceitfully forge and alter, and did procure to be forged and altered a certain promissory note, of the tenor following, that is to say : — " Barnet, August 21st, 1821. "• For value received, we jointly and severally promise to pay J. M'L., or his order, sixty dollars, to be paid in beef cattle, the 1st Oct. 1822, or grain, the 1st Jan. 1823, with interest. "E. C. R. M. "Attest, H. A. R." On the back of which promissory note, was then and there indorsed twenty dollars, in part payment thereof. And the said J. M'L., said indorsement then and there being on the back of said note, and the balance of said note being then and there due, and no more, with force and arms, wittingly, falsely, and deceitfully did alter said note, by then and there wittingly, falsely, and deceitfully separating said indorsement from said note, with intent to defraud and deceive the said E. C. and R. M., to the great damage of the said C. and M., to the evil ex- ample of others in like cases offending, contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (290) Forgery in altering a peddler^s license, at common law.{d) That Gr. K., late, etc., on, etc., having been recommended by the court of general quarter sessions of the peace and gaol delivery in and for the county of as a proper person for the employment of a hawker or peddler, within this state, did obtain, receive, and have a license for that purpose, from the supreme executive council of this commonwealth, under the hand of the honorable C. B., esquire, then and still being vice- president of the same council, and under the seal of the state, (c) See State v. M'Lenan, 1 Aik. 312; where this form was held good at common law. {d) Drawn in 1787 by Mr. Bradford, then attorney-general of Pennsylvania. See as to forms for altering, infra., 317, etc. 303 (291) OFFENCES AGAINST PROPERTY. which license was in the words following, to wit, "By the su- preme executive council, etc. : whereas, G. K., the bearer hereof, intending to follow the business of a peddler, within this com- monwealth of Pennsylvania, hath been recommended to us as a proper person for that employment, and requesting a license for the same, we do hereby license and allow the said G. K. to em- ploy himself as a peddler and hawker within the said common- wealth, to travel with one horse, and to expose and sell divers goods, wares, and merchandises, until, etc., one thousand seven hundred and eightj^-six, provided he shall during the said term observe and keep all laws and ordinances of the said common- wealth to the said employment relating. Given under the seal, etc. C. B., V. P." And that he the said G. K.,so being in possession of the said license, afterwards, to wit, on, etc., at, etc., with force and arms, etc., the said license falsely, fraudulently, and deceitfully did alter, and cause to be altered, by falsely and deceitfully erasing the word six in the said license, and in the place thereof falsely and deceitfully did make, forge, and add the word seven, where- by the said license so altered as aforesaid, purporting to be given, etc., was made to extend, etc., with intent to defraud the said commonwealth and to deceive the citizens thereof, to the evil example of all others, and against, etc. {Conclude as in book 1, chapter 3.) (291) Forgery of a note ivhich cannot be particularly described in consequence of its being destroy ed.{e) That, etc., at, etc., on, etc., devising and intending to cheat and defraud one D. C. of his goods and moneys, did falsely and fraudulently forge and counterfeit a certain negotiable promis- sory note, for the payment of money, purporting to be made by the said D. C, payable to one A. S. B., which said false, forged, and counterfeited negotiable promissory note is to the purport following, that is to say : — " Ninety days after date, I promise to pay to A. G. B., or (e) See People v. Badgeley, 16 Wend. 53 ; where the fact of the destruction of the note, as here set forth, was held to supersede the necessity of pleading it according to its precise form. For other cases of forgery of lost documents see sup7-a, notes to form 264. 304 FORGERY, COINING, UTTERING, ETC. (293) order, fourteen hundred and twenty-eight dollars, value re- ceived. May, 1833. D. C. (indorsed), A. S. B. :" a more par- ticular description of which is now here to the jurors unknown, said note being destroyed: with intent to cheat and defraud the said C. D., etc. (292) Forgery of a note whose tenor cannot be set out on account of its being in defendants possession. That A. B., etc., at, etc., falsely and fraudulently did forge and counterfeit a certain promissory note, for the payment of money, purporting to be made by one A. B., payable on demand, to one C. D., the tenor of which note is to this inquest un- known, by reason that the said A. B., having the said note in his possession and custody, hath altogether refused and still doth refuse to produce the same, and to permit the same to be inspected by this inquest, although thereto often requested, to wit, by the (attorney-general of the commonwealth), at and before the sitting of this inquisition, but which said note was in substance as follows (Aere set forth the substaiice of the note and conclude as in last 'precedent). (293) Forgery of bond luhen forged instrument is in defendants possession.{f) That J. K., etc., on, etc., at, etc., did falsely and feloniously make, forge, and counterfeit, and did then and there willingly and feloniously aid and assist in the false making, forging, and counterfeiting, of a certain false, forged, and counterfeited bond and writing obligatory for the payment of money, bearing date on some day and year to the jurors aforesaid unknown, in a penal sum to the jurors aforesaid unknown, with a condition thereunder written for the payment of a certain sum to the jurors aforesaid unknown, with interest thereon, to the said J. K. (the defendant), purporting to have been executed by one G. B., late of, etc., which said false, forged, and counterfeited bond and writing obligatory for the payment of monc}', is in (/) People I'. Kinsley, 2 Cow. 522. The second count in this indictment charged the defendant with destroying the alleged forged bond on some day to the jurors unknown, and the third count was for uttering the same. Judgment was entered upon the verdict of the jury, the court adopting the principles of Com. V. Houghton, 8 Mass. 373. VOL. I.— 20 305 (294) OFFENCES AGAINST PROPERTY. the possession and custody of the said J. K. (the defendant), with intent to defraud one J. C, against, etc. {Conclude as in hook 1, chapter 3.) (294) Forgery in Pennsylvania at common law, in passing counterfeit bank notes.{g) That the said J. S., on the same day and year aforesaid, at the county aforesaid, with force and arms, having in his cus- tody and possession a certain other false, forged, and counter- feited paper writing, partly written and partly printed, purport- ing to be a true and genuine promissory note for the payment of money, called a bank note of the Bank of North America,(A) and purporting to be signed by J. N., president, and also by the cashier of the said bank, the tenor of which said last men- tioned, false, forged, and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money, called a bank note of the Bank of North America, is as follows, that is to say: — "X. I promise to pay to D. C, or bearer, on demand, 10" ten dollars. Philadelphia, 26th of February, 1808, n. 2467, e. 614. For the president, directors, and com- pany of the Bank of North America. "10 H. D., Jr., Cash. J. N., Pres't. X" falsely, illegally, knowingly, fraudulently, and deceitfully did utter and publish, as a true and genuine promissory note for the payment of money, called a bank note of the Bank of North America, the said last mentioned false, forged, and coun- terfeited paper writing, partly written and partly printed, pur- porting to be a true and genuine promissory note for the pay- ment of money, called a bank note of the Bank of North America, he the said J. S., at the time of uttering and publish- ing the same, then and there well knowing the same to be false, [g) Com. V. Searle, 2 Binn. 332. The then Pennsylvania act of assembly, making penal the passmg of counterfeit bank notes, used the expression " pass- ing" alone, and consequently this count, independently of the want of the con- clusion against the statute, was held not to comprehend the statutory misde- meanor. It was sustained, however, at common law, and it is on this principle that indictments in Pennsylvania at common law, for forging and uttering coun- terfeit notes of foreign banks, rest. See next form. (h) As to the averment of incorporation, see Wh. Cr. PI. & Pr. § 110; Wh. Cr. L. 8th ed. § 741 ; svpra, notes to form 2 and form 264. 306 FORGERY, COINING, UTTERING, ETC. (295) forged, and counterfeited, with intent to defraud, etc.,(?') to the evil example of all others in like case offending, and against, etc. (295) Forgery of the note of afoi^eign hank as a misdemeanor at common law. That A. B., late of, etc., on, etc., with force and arms, did falsely make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, a certain note in imitation of, and purporting to be, a note issued b}^ the order of the president, directors, and company oi {stating the bank), (J) for the sum of dollars, purporting to be signed by presi- dent and cashier, payable to or bearer, on demand, dated one thousand eight hundred and which said falsely made, forged, and counterfeited note, partly written and partly printed, is in the words and figures following: {setting forth the note), with intent to defraud the said {if there be proof of the incorjporation of the bank, or the chaHer is one of which the court takes judicial notice, you can point the intent at it, if not, at the 'party to whom the note was probably meant to be passed ; a general intent to defraud the people of the state or district unll do lohen no particular intent can be shown), {k) against, etc. {Conclude as in book 1, chapter 3.) And the inquest aforesaid, upon their respective oaths and affirmations aforesaid, do further present, that the said A. B., on the day and year aforesaid, at the county and within the jurisdiction aforesaid, with force and arms, then and there did pass, utter, and publish, and attempt to pass, utter, and publish, as true, a certain false, forged, and counterfeit note, purporting to be a note issued by the said {as in last count), for the sura of dollars, signed by president, and cashier, pay- able to or bearer, on demand, and dated one thousand eight hundred and which said false, forged, and counter- (i) As to intent, see Wh. Cr. L. 8th ed. § 741 ; supra, notes to form 264. ( /) See notes to form 264. (k) See People v. Stearns, 2 Wend. 409. See next form for the general methods of stating intent in such cases. An intent to defraud A. & B. is sus- tained by proof of an intent to defraud A. Veasic's case, 7 (xreenl. 131 ; Peo- ple V. Curling, 1 Johns. It. 320; 11. v. Hanson, 1 C. & M. 334. Sec notes to form 264. 307 (297) OFFENCES AGAINST PROPERTY. feited note, partly written and partly printed, is in the words and figures following, to wit {setting fo7'th note), the said A. B., then and there well knowing the said note to be as aforesaid false, forged, and counterfeit, with intent to defraud [the party on vjhom it was passed), against, etc. {Conclude as in book 1, chap- ter 3.) (296) Forging a bank note, and uttering the same, under English statute.(f) That J. B., late of, etc., laborer, heretofore, that is to say, on, etc., with force and arras, at, etc., feloniously did forge and coun- terfeit(?/i) a certain bank note,(>?) the tenor(o) of which said forged and counterfeited bank note is as followeth, that is to say (the note is here set out verbatim) ^{'p) with intent(g) to defraud the governor and company of the Bank of England, (?•) against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (297) Second count. Putting away same. That the said J. B., heretofore, that is to say, on, etc., with force and arms, at, etc., did dispose of and put away(.s) a certain forged and counterfeited bank note, the tenor of which said last mentioned forged and counterfeited bank note is as followeth, that is to 8ay,(^) with intent to defraud the governor and com- pany of the Bank of England, he the said J. B., at the said time of his so disposing of and putting away the said last mentioned [l) This form is found in Starkie's C. P. 452. [m) These are the words of the statute ; it is unnecessary to allege that he did falsely forge and counterfeit. This count is framed upon the stat. 45 Geo. III. c. 89, s. 2. [n) It is essential to show that the instrument forged is of the description pro- hibited by the statute. See notes to form 264. As to the averments which are necessary, when the forged writing does not purport to be of the kind prohibited, see Stark. C. P. 113. {n) As to the words by which the instrument is usually introduced, see Stark. C. P. 109 ; Lyon's case, Leach, 696 ; supra^ notes to form 264, etc. [p) As to the accuracy with which the forged writing should be set out, see supra, notes to form 264. {q) See Stark. C. P. 121, 122, 199, as to the general necessity for averring an intent to defraud in case of perjury, the form of the averment, and the effects of variance. (r) As to averment of charter of bank, see Wh. Cr. PI. & Pr. § 110; supra, notes to forms 2, 264. (s) According to the words of the act 45 Geo. III. c. 89. s. 2. {t) Setting out the note. 308 . FORGERY, COINING, UTTERING, ETC. (301) forged and counterfeited bank note, then and there, to wit, on, etc., at, etc., well knowing such last mentioned note to be forged and counterfeited, against, etc., and against, etc. (Conclude as in book 1, chapter 3.) (298) Third count. Forging promissory note. Feloniously did falsely make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, and willingly act and assist in the false making, forging, and counterfeiting a certain promissory note for the payment of money, the tenor of which said last mentioned false, forged, and counterfeited note is as followeth, that is to say {note., as before)^ with intention to defraud the governor and company of the Bank of England, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (299) Fourth count. Putting away same. Feloniously did dispose of and put away a certain false, forged, and counterfeited promissory note for the payment of money, the tenor of which said last mentioned false, forged, and counterfeited note is as followeth, that is to say {note^ as before)^ with intent to defraud the governor and company of the Bank of England, he the said J. B., at the said time of his so dis- posing of and putting away the said last mentioned false, forged, and counterfeited note, then and there, to wit, on, etc., at, etc., well knowing the said last mentioned note to be false, forged, and counterfeited, against, etc., and against, etc. {Con- clude as in book 1, chapter 3.) (300) Fifth count. Same asjirst, ivith intent to defraud J. S. Feloniously did forge and counterfeit a certain other bank note, the tenor of which said last mentioned forged and counterfeited bank note is as followeth, that is to say {note^ as before)^ with intent to defraud one J. S., against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (301) Sixth count. Putting away same. Feloniously did dispose of and put away a certain forged and counterfeited bank note, the teuor of which said last mentioned 309 (304) OFFENCES AGAINST PROPERTY. forged and counterfeited bank note is as followeth, that is to say {noie^ as before), with intent to defraud the said J. S., he the said J. B., at the time of his so disposing of and putting away the said last mentioned forged and counterfeited bank note, then and there, to wit, on, etc., well knowing such last mentioned note to be forged and counterfeited, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (302) Seventh count. Same as second., with intent to defraud J. S. Feloniously did falsely make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, and willingly act and assist in the false making, forging, and counterfeiting a certain other promissory note for the payment of money, the tenor of which said last mentioned forged and counterfeited note is as followeth, that is to say {note, as before), with intention to defraud the said J. S., against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (303) Eighth count. Putting away same. Feloniously did dispose of and put away a certain other false, forged, and counterfeited promissory note for payment of moi>ey, the tenor of which said last mentioned false, forged, and counterfeited note is as followeth, that is to say {note, as before), with intention to defraud the said J. S., the said J. B., at the said time of his so disposing of and putting away the said last mentioned false, forged, and counterfeited note, then and there, to wit, on, etc., well knowing the same last mentioned note to be false, forged, and counterfeited, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (304) Attempt to pass counterfeit bank note, under Ohio statute. That A. B., on the day of in the year of our Lord one thousand eight hundred and in the county of Hamil- ton aforesaid, did unlawfully attempt to pass to one M. N., with intent then and there to defraud the said M. 'N., a certain forged and counterfeited bank note, as a true and genuine bank note of the Bank of Corning, given for the payment of ten dollars, which aforesaid forged and counterfeited bank note then and there was of the tenor and effect following, to wit : — 310 FORGERY, COINING, UTTERING, ETC. (305) SB a " STATE OF NEW YORK, No. 2269. Ten The Bank of Corning Will pay ten dollars to the Bearer on demand. Corning, March 9, 1854. Ten Ten 02 S. Mallory, Cash'r. H. W. Bostwick, Fres'L" he, the aforesaid A. B., then and there well knowing the afore- said forged and counterfeited bank note to be forged and counterfeited; the true and genuine of which said bank notes then circulated in this state as and for money.(w) (305) Forging a certificate granted by a collector of the customs.{v) The jurors of the United States of America, within and for the circuit and district aforesaid, on their oath present, that late of the city and county of New York, in the circuit and district aforesaid, heretofore, to wit, on, etc., with force and arms, at the city of New York, in the southern district of New York aforesaid, and within the jurisdiction of this court, feloniously did falsely make, forge, and counterfeit a certain official document, granted by a collector of customs by virtue of his office, to wit, an official document granted by the collector of the customs for the port and district of the city of New York {insert averment to the effect that the collector^ as such^ was charged with the duties of supervisor of the revenue']^ which said false, forged, and counterfeited official document is as follows, that is to say (Jiere insert the document as altered)^ with intent to defraud one against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (n) Warren's C. L. 247. (y) This form was approved by the district court for the southern district of New York, and was hehl bad in the circuit court, for want of an averment that the collector had been charged with the duties of supervisor of the revenue. See U. S. V. Schoyer, 2 Bl. C. C. 59. By making the necessary averment, in con- formity with the act of congress, the form in the text may be sustained. 311 (307) OFFENCES AGAINST PROPERTY. Second count. {Same as first count substituting)', "with intent to defraud some person or persons to the jurors aforesaid unknown," /or "with intent to defraud one ." (306) Third count. Causing and procuring forgery., etc. And the jurors aforesaid, on their oath aforesaid, do further present, that late of the city and county of New York in the circuit and district aforesaid, heretofore, to wit, on etc., with force and arms, at the city of New York, in the cir- cuit and district aforesaid, and within the jurisdiction of this court, feloniously did falsely make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, and willingly aid and assist in falsely making, forging, and counterfeiting a certain official document, granted by a col- lector of customs by virtue of his office {insert here averment in brackets as in first count)., to wit, an official document granted by the collector of the customs for the port and district of the city of New York, which said false, forged, and counterfeited official document is as follows, that is to say {as in first and second counts mentioned)., with intent to defraud one against, etc., and against, etc. {Conclude as in book 1, chapter 3.) Fourth count. {Same as third count., substituting) : " with intent to defraud some person or persons to the said jurors unknown,"/or "with intent to defraud one ." (307) Fifth count. Altering, etc. And the jurors aforesaid, on their oath aforesaid, do further present, that late of the city and county of New York, in the circuit and district aforesaid, heretofore, to wit, on, etc., with force and arms, at the city of New York, in the circuit and district aforesaid, and within the jurisdiction of this court, feloniously did falsely alter a certain official document granted by a collector of the customs by virtue of his office, to wit, a certain official document granted by the collector of the customs for the port and district of the city of New York {insert here 312 FORGERY, COINING, UTTERING, ETC. (308) averment in brackets^ as before), which said falsely altered official document is in the words following, that is to say {here repeat the document as altered^ ivord for ivoi'd), with intent to defraud the United States of America, against, etc., and against, etc. {Con- clude as in book 1, chapter 3.) Sixth count. {Same as fifth count, substituting) : " with intent to defraud one "for " with intent to defraud the United States of Amer- ica." Seventh count. {Same as sixth cou7it, substituting) : " with intent to defraud some person or persons to the jurors aforesaid as yet unknown," for " with intent to defraud one ." (308) Eighth count. Altering^ etc., averring specially the alterations. And the jurors aforesaid, on their oath aforesaid, do further present, that late of the cit}'- and county of New York, in the circuit and district aforesaid, heretofore, to wit, on, etc., having in his possession a certain official document granted by a collector of the customs by virtue of his office [insert aver- ment in brackets in first count), to wit, an official document granted by the collector of the customs for the port and district of the city of New York, which said official document, granted as afore- said, was, when so granted, in the words and figures following, that is to say {here insert complete copy of original document, before any alterations were made in it), he the said then and there, that is to say, on, etc., with force and arms, at, etc., and within the jurisdiction of this court, feloniously did falsely alter the said official document, by then and there falsely altering {w) the figure before written in the number in the said offi- cial document, and by falsely altering the figure before written in in the said official document, and by then and there falsely making, forging, and counterfeiting upon the said official document, in the place of the said figure before written in the said number in the said official document, (?y) The nature of the alteration must be stated. Mount, v. Com., 1 Duvall (Ky.), 90. Wh. Cr. L. 8th ed. § 180 ; supra, notes to § 264. 313 (309) OFFENCES AGAINST PROPERTY. the figure and by then and there falsely altering in the place of the said figure in before written in said in the said ofiicial document the figure by reason and by means of which said false alteration of the said figure and of the said figure and of falsely making, for- ging, and counterfeiting upon the place of the said figure the figure and upon the place of the said figure the figure the said number before written in the said ofiicial document did become, import, and signify and the said before written in the said official document, did be- come, import, and signify {or otherwise^ according to the 'peculiarities of the document)^ which said falsely altered official document is in the words and figures following, that is to say {here insert the document as altered)^ with intent to defraud one against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (309) Ninth count. Same in another shape. And the jurors aforesaid, upon their oath aforesaid, do further present, that late of the city and county of New York, in the circuit and district aforesaid, hertofore, to wit, on, etc., having in his possession a certain official document granted by a collector of the customs by virtue of his office, to wit, an offi- cial document granted by the collector of the customs for the port and district of the city of New York {insert here averment in brackets in first count), which said official document, granted as aforesaid, was, when so granted, in the words and figures fol- lowing, that is to say {insert document as in eighth count), he the said then and there, that is to say, on, etc., aforesaid, with force and arms, at the city of New York, in the circuit and dis- trict aforesaid, and within the jurisdiction of this court, feloni- ously did falsely alter the said official document, by then and there falsely altering, etc. {as eighth count specified), which said falsely altered official document is in the words and figures fol- lowing, that is to say {here insert copy of document as altered), with intent to defraud some person or persons to the jurors aforesaid unknown, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) 314 FORGERY, COINING, UTTERING, ETC. (311) (310) Tenth count. Uttering certificate as forged. And the jurors aforesaid, on their oath aforesaid, do further present, that late of the city and county of New York, in the circuit and district aforesaid, heretofore, to wit, on, etc., with force and arms, at the city of New York, in the cir- cuit and district aforesaid, and within the jurisdiction of this court, feloniously did pass, utter, and publish a certain false, forged, and counterfeited official document, purporting to be granted by a collector of the customs by virtue of his office, to wit, an official document, purporting to be granted by the col- lector of the customs for the port and district of the city of New York [insert here averment in brackets in first connt}, by virtue of his office, which said falsely altered official document is as follows, that is to say {here insert copy of document as altered), with intent to defraud the United States, he the said at the time of his so passing, uttering, and publishing the said last mentioned falsely altered official document, then and there, to wit, on, etc., at the said city of New York, in the circuit and district aforesaid, and within the jurisdiction of this court, well knowing such last mentioned official document to be falsely altered as aforesaid, against, etc., and against, etc. {Conclude as in hook 1, chapter 3.) Eleventh count. {Same as tenth count, substituting) : "with intent to defraud one "for " with intent to defraud the United States." Twelfth count. {Same as eleventh count, substituting): "with intent to defraud some person or persons to the jurors aforesaid as yet unknown," for " with intent to defraud one ." (311) Thirteenth count. Uttering certificate as altered. And the jurors aforesaid, on their oath aforesaid, do further present, that late of the city and county of New York, in the circuit and district aforesaid, heretofore, to wit, on, etc., with force and arms, at the city of New York, in the cir- cuit and district aforesaid, and within the jurisdiction of this 315 (312) OFFENCES AGAINST PROPERTY. court, feloniously did attempt to pass, utter, and publish a cer- tain falsely altered official document, purporting to be granted by a collector of the customs by virtue of his office, to wit, purporting to be an official document granted by the collector of the customs for the port and district of the city of New York {insert here averment in brackets in first count)^ which said falsely altered official document is as follows, that is to say {here insert a copy of the document as altered), with intent to defraud the United States of America, he the said at the said time of his so passing, uttering, and publishing the said last mentioned falsely altered official document, then and there, to wit, on, etc., at the city of New York, in the circuit and district aforesaid, and within the jurisdiction of this court, well knowing such last mentioned official document to be falsely altered, against, etc., and against, etc. {Conclude as in hook 1, chapter 3.) Fourteenth count. {Same as thirteenth count, substituting) : "with intent to defraud one ,"/o?'"with intent to defraud the United States of America." Fifteenth count. {Same as fourteenth count, substituting) : "with intent to defraud Bome person or persons to the jurors aforesaid as yet unknown," for " with intent to defraud one ." (312) Forging a treasury note. Southern District of New York, ss. The jurors of the United States of America, within and for the circuit and district afore- said, on their oath present, that late of the city and county of New York, in the circuit and district aforesaid, hereto- fore, to wit, on, etc., with force and arms, at the city of New York, in the circuit and district aforesaid, and within the jurisdic- tion of this court, feloniously did falsely make, forge, and coun- terfeit a certain treasury note, which said false, forged, and coun- terfeited treasury note is as follows, that is to say {here insert a l^erfect copy of the note as counterfeited), on which said note was indorsed " ," with intent to defraud the United States of 316 FORGERY, COINING, UTTERING, ETC. (S14) America, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) Second count {Same as first county substituting): "with intent to defraud one ," for " with intent to defraud the United States of America." Third count. {Same as second county substituting): "with intent to defraud some person or persons to the jurors aforesaid unknown," /or " with intent to defraud one ." (313) Fourth count. Causing and -procuring^ etc. And the jurors aforesaid, on their oath aforesaid, do further present, that late of the city and county of New York, in the circuit and district aforesaid {state occupation)^ heretofore, to wit, on, etc., with force and arms, at the city of New York, in the circuit and district aforesaid, and within the jurisdiction of this court, feloniously did falsely make, forge, and counter- feit, and cause and procure to be falsely made, forged, and counterfeited, and willingly aid and assist in falsely making, forging, and counterfeiting, a certain instrument, for the pay- ment of money, called a treasury note, which said last men- tioned false, forged, and counterfeited instrument, for the pay- ment of money, called a treasury note, is as follows {insert copy of note as in preceding counts), on which said note was then and there indorsed " ," with intent to defraud the United States of America, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (314) Fifth count. Altering, ^tc. And the jurors aforesaid, on their oath aforesaid, do further present, that late of the city and county of New York, in the circuit and district aforesaid, heretofore, to wit, on, etc., having in his possession a certain treasury note, in the words, letters, and figures following, that is to say {insert copy of note as in preceding counts), which said note was indorsed " ," he the said then and there, that is to say, on, 317 (315) OFFENCES AGAINST PROPERTY. etc., with force and arms, at the city of New York, in the cir- cuit and district aforesaid, and within the jurisdiction of this court, feloniously did alter, forge, and counterfeit the said treas- ury note, by then and there falsely obliterating and defacing the figures {o7' otherwise)^ before written in in the said treasury note, and by then and there falsel}' making, forging, and counterfeiting upon the said treasury note, in the place of the said before written in in the said treasury note, the by reason and by means of which said obliterating and defacing of the said in the said treasury note, and of falsely making, forging, and counterfeiting upon the place of the said in said treasury note, the the said before written in in said treasury note, did become, im- port, and signify which altered, forged, and counter- feited treasury note is as follows, that is to say {here insert a comjylete copy of the note as in preceding co2mts), on which said note was indorsed " ," with intent to defraud the United States of America, against, etc., and against, etc. {Conclude as in hook 1, chapter 3.) (315) Sixth count. Passing note, etc. And the jurors aforesaid, on their oath aforesaid, do further present, that late of the city and county of Xew York, in the circuit and district aforesaid, heretofore, to wit, on, etc., with force and arms, at the city of New York, in the cir- cuit and district aforesaid, and within the jurisdiction of this court, feloniously did pass, utter, and publish a certain false, forged, and counterfeited treasury note, which said false, forged, and counterfeited treasury note is as follows, that is to say {here insert copy of treasury note as in preceding counts), on which said note was indorsed " ," with intent to defraud the United States of America, he the said at the time of his so passing, uttering, and publishing the said last mentioned false, forged, and counterfeited treasury note, then and there, to wit, on, etc., at the city of New York, in the circuit and district aforesaid, and within the jurisdiction of this court, well know- ing such last mentioned treasury note to be false, forged, and counterfeited, against, etc., and against, etc. {Conclude as in book 1, chapter 8.) 318 FORGERY, COINING, UTTERING, ETC. (317) Seventh count {Same as sixth count, substituting): "with intent to defraud one <>" for "with intent to defraud the United States of America." (316) Eighth count. Sayne as sixth, in another shape. And the jurors aforesaid, on their oath aforesaid, do further present, that late of the city and county of New York, in the circuit and district aforesaid, heretofore, to wit, on, etc., with force and arms, at the city of New York, in the cir- cuit and district aforesaid, and within the jurisdiction of this court, feloniously did pass, utter, and publish a certain false, forged, and counterfeited treasury note, of which the purport is as follows, that is to say {here insert a correct and complete copy of the treasury note as comUerfeited), which said note was then and there indorsed " ," with intent to defraud some person or persons to the jurors aforesaid as yet unknown, he the said at the time of his so passing, uttering, and publish- ing the said last mentioned false, forged, and counterfeited treasury note, then and there, to wit, on, etc., at the said city of New York, in the circuit and district aforesaid, and within the jurisdiction of this court, well knowing such last mentioned treasury note to be false, forged, and counterfeited, against, etc., and against, etc. {Conclude as in hook 1, chapter 3.) Last count. And the jurors aforesaid, on their oath aforesaid, do further present, that the southern district of New York, in the second circuit, is the circuit and district in which the said was first apprehended for the said ofience.(:c) (317) Feloniously altering a hank note.{y) That A. B., etc., on, etc., at, etc., having in his possession a bank note, whose tenor follows, that is to say {set out the note), feloniously did alter the said bank note by then and there(2:) {x) See supra, 3-16, 181, n., 287-239. {?/) Stark. C. P. 458. (2) See Mount v. Com., 1 Duv.ill, 00. 819 (318) OFFENCES AGAINST PROPERTY. falsely obliterating and defacing the letters een before printed in the word fifteen in the said blank note, and also the letters een before printed in the word fifteen^ in white letters, on a black ground underneath the said bank note, and by then and there falsely making, forging, and counterfeiting upon the said bank note, in the place of the first mentioned letters een before printed in the word fifteen in the said bank note, the letter y ; and also by then and there falsely making, forging, and counter- feiting upon the bank note, in the place of the said letters een, before printed in the word fifteen, in white letters, on a black ground underneath the said bank note, another letter y, by reason and means of which said obliterating and defacing the letters een, before printed in the said word fifteen in the said bank note, and also the letters een, being before printed in the said ^xov(\. fifteen, in white letters, on a black ground underneath the said bank note, and of falsely making, forging, and counter- feiting upon the place of the said letters een, before printed in the vfov^ fifteen, in and underneath the said bank note the letter y ; the letters fift, so remaining of the said word fifteen, before printed in the said bank note, with the said first mentioned let- ter y, so falsely made, forged, and counterfeited as aforesaid, did become, import, and signify fifty ; and the letters fift, so remaining of the %^\(i fifteen before printed in white letters on a black ground underneath the said last mentioned bank note, with the said other y, so falsely made, forged, and counterfeited as aforesaid, did become, import, and signify fifty, which said altered bank note is in the words, letters, and figures following, that is to say {set out the note as altered), with intent to defraud, etc.(«) (318) Having in possessioii forged bank notes without lawf id excuse, knowing the same to be forged.ip) That defendant, etc., feloniously, knowingly, and wittingly, and without lawful excuse, had in his possession and custody divers forged and counterfeited bank notes, that is to say, one forged («) Allege In one count an intention to defraud the governor and company of the I3ank of England; in another, an intention to defraud the person to whom it is paid, etc. ; add other count alleging the forgery of the bank note as altered, and for altering with intent to defraud, etc See supra, forms 302, 303. [h] Stark C. P. 454. 320 FORGERY, COINING, UTTERING, ETC. (319) and counterfeited bank note, the tenor of which said forsred and counterfeited bank note is as follows, that is to say {here the note is set out), and one other forged and counterfeited bank note, the tenor of which said last mentioned forged and counter- feited bank note is as follows, that is to say {here the other note is set out), he the said A. B. then and there, to wit, on, etc., at, etc., well knowing the same notes to be forged and counterfeited, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) Second count. Feloniously, knowingly, wittingly, and without lawful excuse, had in his possession and custody a certain other forged and counterfeited bank note, the tenor of which said last mentioned forged and counterfeited bank note is as folio weth, that is to say {the first note in the preceding count is here set out again), he the said A. B., then and there, to wit, on, etc., at, etc., well knowing the same last mentioned note to be forged and counterfeited, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (319) Uttering and passing a counterfeit bank bill, under § 4, ch. 96 of revised statutes of Vermont.{c) That A. B., etc., on, etc., at, etc., wittingly, deceitfully, and unlawfully did utter, pass, and give in payment to one E. W. F., of Mendon, in the state of Vermont, one certain false, forged, and counterfeited bank note, which said note was made in imi- tation of, and did then and there purport to be, a bank note for the sum of five dollars, issued by the president, directors, and company of the Bank of Cumberland, by and under the author- ity of the legislature of the state of Maine, one of the United States of America, made payable to S. B,, or bearer, on demand, numbered two hundred and seventy-four, and dated the first day of September, in the year of our Lord one thousand eight hundred and thirty-five, with the name of S. E. C. thereto sub- scribed as president of said bank, and the name of C. C. T. countersigned thereon as cashier of said bank, and was in the words and figures following, that is to say : — (c) Sustained in State i'. Wilkins, 17 Vt. 151. VOL. I.— 21 321 (321) OFFENCES AGAINST PROPERTY. " The State No. 974 of Maine. "The President, Directors, and Company of the Bank of Cum- berland, promise to pay Five Dollars to S. B., or bearer, on demand. Portland, let Sept., 1835. " C. C. T., Cash'r. S. E. C, Pres't:' He, the said A. B., then and there well knowing the said note to be false, forged, and counterfeited as aforesaid, with intent to defraud the said E. W. F., contrary, etc. {Conclude as in book 1, chapter 3.) (320) Uttering forged order ^ under Ohio statute. That A. B., on the twenty-seventh day of July, in the year of our Lord one thousand eight hundred and fifty-three, in the county of Cuyahoga aforesaid, feloniously did utter and publish as true and genuine, one certain false and forged order in writing, for the payment of money, which said false and forged order in writing is of the tenor and eftect following, that is to say: — " Cleveland, July 27, '53. "Mr. Ransom, Please pay T. Donley $11.30, and charge Schr. Fletcher. E. Goffet." with intent thereby then and there to prejudice, damage, and defraud one Chancy S. Ransom ; he, the said A. B., at the time when he so uttered and published the said false and forged order, then and there well knowing the same to be false and forged.(<:/) (321) Passing forged order ^ under Ohio statute. That A. B., on the thirty-first day of August, in the year of our Lord one thousand eight hundred and fifty-two, in the county of Hamilton aforesaid, did unlawfully falsely utter, pub- lish, and put off to one M. N., a certain false, forged, and coun- terfeited order, as a true and genuine order of 0. P., given for the payment of six dollars, which aforesaid forged order then and there was of the tenor and effect following, to wit: — (d) Warren's C. L. 249. 322 FORGERY, COINING, UTTERING, ETC. (323) " August Slst, A. D. 1852. "Mr. M. IST , Sir, Please to let the bearer, or order, have six dollars, and oblige yours, O P ." with the intent then and there to prejudice, damage, and defraud the said M. IS., he the said A. B., then and there well knowing the said false, forged, and counterfeited order to be false, forged, and counterfeited. (e) (322) Uttering a forged note purporting to he issued by a bank in another state, under the Vermont statute. That J. S., of, etc., in said county of Windsor, on, etc., with force and arms, at, etc., wittingly, falsely, deceitfully, and unlaw- fully did utter, pass, and give in payment to one A. L., of, etc., one certain false, forged, and counterfeit bank note, which said note was made in imitation of, and did then and there purport to be a bank note for the sum of two dollars, issued by the Presi- dent, Directors, and Company of the Suffolk Bank, a banking company incorporated by and existing under the authority of the legislature of the state of Massachusetts, one of the United States, made payable to E. C, or bearer, on demand, numbered one thousand four hundred and ninety-one, and dated Boston, May third, one thousand eight hundred and forty-three, with the name of H. B. S. thereto subscribed as president of said bank, and the name of J. V. B. countersigned thereon as cashier of said bank, and was in the words and figures following, that is to say {here set forth the note), he the said J. S. well knowing, then and there, the said note to be false, forged, and counter- feited as aforesaid, with intent to defraud the said A. L., con- trary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (323) Having counterfeit bank note in possession under Ohio statute. That A. B. and C. D., on the second day of February, in the year of our Lord one thousand eight hundred and fifty-five, in the county of Cuyahoga aforesaid, were detected with having un- lawfully in their possession two hundred forged and counterfeited bank notes, purporting to be issued by the Mechanics' Bank in (e) Warren's C. L. 249. 323 (324) OFFENCES AGAINST PROPERTY. Rhode Island, for the payment of five dollars each, which said forged and counterfeited bank notes are as follows, that is to say: " Rhode Island. ^ 5 THE MECHANICS' BANK 1^ Will pay Five Dollars on demand to the bearer. r « M. M. Newport, October 20, 1854. C. D. Hammet, Cash. Isaac Gould, Pres'' for the purpose and with the intent to sell, barter, and dispose of the said forged and counterfeit bank notes.(/) (324) Having in possession counterfeit plates, under Ohio statute. That A. B. and C. D., on the tenth day of September, in the year of our Lord one thousand eight hundred and forty-four, at the county of Hamilton aforesaid, did unlawfully and knowingly have in their possession, and then and there secretly did keep a certain plate, then and there designed and engraved for the purpose of striking and printing false and counterfeited bank notes, to wit, for the purpose then and there of striking and printing false and counterfeited bank notes in the likeness and similitude of the true and genuine bank notes of the Bank of Tennessee, of the denomination of twenty dollars, and which said plate then and there was etched and engraved, amongst other things, with the words and figures following, to wit: — 4' 1^0. No. , B. B. Capital five millions. Nashville, , 18 — . The Bank of Tennessee prom- ises to pay Twenty Dollars to the Bearer, on demand. " , Cash'r. , Pres't." which said plate they, the said A. B. and the said C. D., then and there well knew to be designed and engraved then and there for the purpose of striking and printing false and counterfeited bank notes as aforesaid, and which said plate they, the said A. B. and C. D., then and there so had in their possession, and then and there secretly kept as aforesaid, for the purpose then and there of striking and printing false and counterfeited bank notes.(^) (/) Warren's C. L. 258. (S') Warren's C. L. 266. This was sustained in State u. Sasser, 13 Ohio, 453. 324 FORGERY, COINING, UTTERING, ETC. (326) (325) Secretly keeping counterfeiting instruments^ under Ohio statute. That A. B., C. D., E. F., G. H., I. J., and K. L., on the twenty- seventh day of April, in the year of our Lord one thousand eight hundred and thirty-eight, at the said county of Huron, did knowingly and wilfully have in their possession, and secretly keep one bogus, one press, one pressing machine, one stamping machine, one set of dies, one pair of dies, one die, other two dies, two milling machines, two edging machines, two sets of milling bars, two pairs of milling bars, two moulds, two cruci- bles, two files, two rasps, ten iron bands, ten iron bolts, five steel punches, and five steel pins, the same then and there being instruments for the purpose of counterfeiting certain coins of silver, called Mexican dollars, the said coins of silver then being coins of silver currently passing in the said state of Ohio, as and for money.(A) (326) Having in possession counterfeit hank notes, under Ohio statute. That A. B. and C. D., on the tenth day of September, in the year of our Lord eighteen hundred and forty-four, at the county of Hamilton, aforesaid, did unlawfully and falsely have in their possession, and then and there were detected with so having in their possession, divers, to wit, five hundred, false, forged, coun- terfeited, and spurious bank notes, then and there made as and for true and genuine bank notes of the Merchants' and Me- chanics' Bank of Wheeling, of the denomination of five dollars, one of which said false, forged, counterfeited, and spurious bank notes then and there was of tenor and efi'ect following, to wit : — " No. 402. B. The Merchants' and Mechanics' Bank of Wheeling will pay Five Dollars on Demand to J. Gill, or bearer, at its Banking House, Wheeling, Va. June 9th, 1843. " S. Brady, Cash'r. R. C. Woods, Pres't." which said false, forged, counterfeited, and spurious bank notes, they, the said A. B. and C. D., then and there well knew to be false, forged, counterfeited, and spurious ; and which said false, forged, counterfeited, and spurious bank notes, they, the said A. B. and C. D., then and there had in their possession for the pur- (h) Warren's C. L. 263. 325 (328) OFFENCES AGAINST PROPERTY. pose then and there of selling, bartering, and disposing of the same.(f) {Conclude as in book 1, chapter 3.) (327) Having in possession forged note of United States Bank, under the Vermont statute.{j) That W. R., late of Franklin, in the county of Franklin afore- said, heretofore, that is to say, on, etc., with force and arms, at Franklin aforesaid, in the county of Franklin aforesaid, feloni- ously and unlawfully did have in his possession, with an inten- tion to utter, pass, and give in payment, one certain false, forged, and counterfeited bank note, which said note was made in imita- tion of, and did then and there purport to be, a bank note for the sum of ten dollars, issued by the president, directors, and company of the Bank of the United States, made payable at their office of discount and deposit in Charleston, to J. J., presi- dent thereof, or to the bearer, on demand, numbered three thou- sand and fourteen, and dated at Philadelphia the twentieth day of January, in the year of our Lord one thousand eight hundred and twenty-three, with the name of L. C. thereto subscribed, as president of said bank, and the name of T. W. countersigned thereon as cashier of said bank, and was in the words and figures following, that is to say {here the bill teas set forth verbatim). He the said W. R. then and there well knowing the said note to be false, forged, and counterfeited as aforesaid, contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (328) Forgery, etc., in New York. Having in possession a forged note of a corporation. That A. B., late of the ward of the city of 'Rew York, in the county of New York aforesaid, on, etc., with force and (i) WaiTcn's C. L. 259. Sustained by Supreme Court of Ohio in State v. Sasser, 13 Ohio, 453. {j) State V. Randal, 2 Aik. 89. " In this case it was held that the offences of counterfeiting bills of the Bank of the United States, of passing, and of know- ingly having in possession such counterfeits with intent to pass them, are cog- nizable by the courts of this state, under the statute of this state against coun- terfeiting, notwithstanding the congress of the United States, in virtue of the eighth section of the first article of the constitution, have legislated on the sub- ject, and given to the courts of the United States jurisdiction of the same of- fences. " The jurisdiction of the United States courts under the acts of congress, and of the courts of this state under the statute of Vermont, over those offences, are concurrent within this state." 326 FORGERY, COINING, UTTERING, ETC. (329) arras, at the ward of the city of New York, in the county of New York aforesaid, feloniously had in custody and possession, and did receive from some person or persons to the jurors aforesaid unknown, a certain forged and counter- feited negotiable promissory note, for the payment of money, commonly called a bank note, purporting to have been issued by a certain corporation or company called [setting out the name)^ duly authorized for that purpose by the laws of, etc., which said last mentioned false, forged, etc., and counterfeited negotiable promissory note for the payment of money is as follows, that is to say {setting out the note), with intention to utter and pass the same as true, and to permit, cause, and procure the same to be 80 uttered and passed, with the intent to injure and defraud one {setting out the party), and divers other persons to the jurors aforesaid unknown, he the said then and there well knowing the said last mentioned false, forged, and coun- terfeited promissory note, for the payment of money, to be false, forged, and counterfeited as aforesaid, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (329) Second count. Uttering the same. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., etc., afterwards, to wit, on the day and year last aforesaid, with force and arms, at the ward, city, and county aforesaid, feloniously and falsely did utter and pub- lish as true, with intent to injure and defraud the said C. D., etc., and divers other persons to the jurors aforesaid unknown, a certain other false, forged, and counterfeited negotiable promissory note for the payment of money, commonly called a bank note, purporting to have been issued by a certain corpo- ration or company called {giving name), duly authorized for that purpose by the laws of which said last mentioned false, forged, and counterfeited negotiable promissory note for the payment of money is as follows, that is to say {setting forth note as above), the said A. B., at the same time so uttered and published the said last mentioned false, forged, and counterfeited negotiable promissory note for the payment of money as aforesaid, then and there well knowing the same to be 327 (331) OFFENCES AGAINST PROPERTY. false, forged, and counterfeited, against, etc., and against, etc. {Conclude as in book 1, cha'pter 3.) (330) Forging an instrument for payment of money ^ under the New York statute. That A. B., late of tlie ward of the city of 'New York, in the county of New York aforesaid, etc., on, etc., with force and arms, at the ward, city, and county of i!^ew York afore- said, feloniously did falsely make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, and willingly act and assist in the false making, forging, and counterfeiting a certain for payment of money which said false, forged, and counterfeited for payment of money is as follows, that is to say {setting forth the instrument), with intent to injure and defraud (setting forth the jpersons to he defrauded), and divers other persons to the jurors aforesaid unknown, against, etc., and against, etc. {Conclude as in hook 1, chapter 3.) (831) Second count. Uttering the same. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said A. B., etc., afterwards, to wit, on the day and year last aforesaid, with force and arms, at the ward, city, and county aforesaid, feloniously and falsely did utter and pub- lish as true, with intent to injure and defraud the said C. D., etc., and divers other persons to the jurors aforesaid unknown, a certain false, forged, and counterfeited for payment of money, which said last mentioned false, forged, and counterfeited for payment of money is as follows, that is to say {setting forth the instrument as above), the said A. B., etc., at' the said time he so uttered and published the said last mentioned false, forged, and counterfeited for pay- ment of money as aforesaid, then and there well knowing the same to be false, forged, and counterfeited, against, etc., and against etc. {Conclude as in book 1, chapter 3.) 328 FORGERY, COINING, UTTERING, ETC. (333) (332) Having in "possession forged notes, etc., with intent to defraud^ under the New York statute.{k) That, etc., on, etc., at, etc., feloniously had in his custody and possession, and did receive from some person or persons to the jurors aforesaid unknown, a certain false, forged, and counter- feited negotiable promissory note for the payment of money, commonly called a bank note, purporting to have been issued by a certain corporation or company called the Morris Canal and Banking Company, duly authorized for that purpose by the laws of the state of New Jersey, which said last mentioned false, forged, and counterfeited negotiable promissory note for the payment of money is as follows {setting forth note verbatim et literatim), with intention to utter and pass the same to be true, and to permit, cause, and procure the same to be so uttered and passed, with the intent to injure and defraud said Morris Canal and Banking Company, etc.; he the said S. D. then and there* well knowing the said note to be false, forged, and counterfeited, against, etc. {Conclude as in book 1, chapter 8.) (333) Forgery of a note of a bank incorporated in Pennsylvania^ under the Pennsylvania statute.{l) That A. B., late of said county, on, etc., at the county afore- said, and within the jurisdiction of this court, with force and arms, feloniously did falsely make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, a certain note in imitation of, and purporting to be, a note issued by the order of the president, directors, and company of {setting out the name of the bayik), for the sum of dollars, purport- ing to be signed by president, and cashier, payable to or bearer, on demand, dated one thousand eight hundred and the said bank then and there being a bank within this commonwealth, incorporated in pursuance of an act of the general assembly, which said falsely made, forged, and counterfeited note, partly written and partly printed, is in {k) People V. Davis, 2 Wend. 309. (/) For forging the notes of a foreign bank, the above form is good at common law, striking out the word "feloniously," tlie averment of tlie cliarter of the bank, and charging the intent to be to defraud the persons actually defrauded, or to defraud persons unknown. See, for form of same, supra, 295. 329 (335) OFFENCES AGAINST PROPERTY. the words and fij^ures following {setting out the note), with intent to defraud the said bank, contrary, etc., and against, etc. {Con- clude as in book 1, chapter 3.) (334) Second count. Passing same. That, etc., A. B., etc., on, etc., at, etc., feloniously did pass, utter, and publish, and attempt to pass, utter, and publish as true, a certain false, forged, and counterfeit note, purporting to be a note issued by the said {setting forth the hank as in first count)., for the sum of dollars, signed by president, and cashier, payable to or bearer, on demand, and dated one thousand eight hundred and the said then and there, being a bank within this commonwealth, incorporated in pursuance of an act of the general assembly ; which said false, forged, and counterfeit note, partly written and partly printed, is in the words and figures following, to wit {setting out the note)., •the said A. B. then and there well knowing the said note to be as aforesaid false, forged, and counterfeit, with intent to defraud {the party to whom the note was j^assed), contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (335) Forgery of the note of a bank in another State, under the Virginia statute.{in) That A. B., of the county of Cabell, a certain false, forged, and counterfeit note, purporting to be a note of the Bank of Louisville, for five dollars, feloniously did pass as a true bank note for five dollars to one C, of the following tenor {setting forth note)., with intent to defraud the said C, and with intent also to defraud the corporation of the president, directors, and company of the Bank of Louisville, he the said A. B., at the time of pass- ing the said false, forged, and counterfeit bank note, well know- ing the same to be false, forged, and counterfeited, contrary, etc, {Conclude as in book 1, chapter 3.) {Second count in like form, only charging the passing of a differ- ent counterfeit note of the same bank to (7., with intent to defraud C.) (m) Sustained in Com. v. Murray, 5 Leigh, 720. 330 FORGERY, COINING, UTTERING, ETC. (388) (336) For making^ forging^ and counterfeiting^ etc.^ American coin, under act of congress.{ii) That A. B., etc., on, etc., at, etc., feloniously did falsely make, forge, and counterfeit pieces of coin, of and other mixed metals {or otherwise), in the resemblance and similitude of coin, called a which said coin, called a had before the said, etc., of, etc., been coined at the mint of the United States, with intent to defraud some person or persons to the jurors aforesaid unknown, against, etc., and against, etc. {Conclude as in hook 1, chapter 3.) (337) Second count. Same, averring time of coining. That the said A. B., on, etc., at, etc., feloniously did falsely make, forge, and counterfeit pieces of and other mixed metals, in the resemblance and similitude of coin, called which said coin, called after, etc., and before, etc., had • been coined at the mint of the United States of America, with intent to defraud some person or persons to the jurors aforesaid unknown, against, etc., and against, etc. (^Conclude as in book 1, chapter 3.) (338) Third count. Passing, etc. That the said A. B., on, etc., at, etc., feloniously did pass, utter, and publish as true, pieces of false, forged, and coun- terfeited coin, of metal in the resemblance and similitude of coin, called a which after, etc., and before, etc., had been coined at the mint of the United States of America, with intent to defraud some person or persons to the jurors aforesaid unknown, he the said at the time he so passed, uttered, and published as true the said last mentioned false, forged, and coun- terfeited well knowing the same to be false, forged, and counterfeited, against, etc., and against, etc. {Conclude as in book 1, chalkier 3.) (?i) This indictment is of the cliaracter in use in New York, in the United States court. The forms No. 841 and 342, which liave been sustained by the circuit court in Phihidelphia, are much more concise, and equally accurate. 331 (340) OFFENCES AGAINST PROPERTY. (339) Fourth count. Same in another shape. That the said A. B., on, etc., at, etc., feloniously did pass, utter, publish, and sell as true pieces of false, forged, and counterfeited coin, in the resemblance and similitude of coin, called a which said coin, called had before, etc., been coined at the mint of the United States of America, intending by such passing, uttering, publishing, and selling as true, the said pieces of false, forged, and counterfeited coin, to defraud some person or persons to the jurors aforesaid unknown, he the said at the time he so passed, uttered, published, and sold as true the said last mentioned false, forged, and counterfeited pieces of coin, then and there well knowing the same to be false, forged, and counterfeited, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) • {d4i0) Fifth count. Same, specifying party to be defrauded. That the said A. B., on, etc., at, etc., feloniously did pass, utter, and publish as true pieces of false, forged, and counterfeited coin, of metal in the resemblance and similitude of coin, called a which after, etc., and before, etc., had been coined at the mint of the United States of America, with intent to defraud one he the said at the time he so passed, uttered, and published as true the said last men- tioned false, forged, and counterfeited well knowing the same to be false, forged, and counterfeited, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) Sixth count. That the said A. B., on, etc., at, etc., feloniously did pass, utter, publish, and sell as true pieces of false, forged, and counterfeited coin, in the resemblance and similitude of the coin of the United States of America, called which said coin, called had before, etc., been coined at the mint of the United States, with intent to defraud one he the said at the time he so passed, uttered, published, and sold as true the said last mentioned false, forged, and coun- terfeited pieces of coin, then and there well knowing the 332 FORGERY, COINING, UTTERING, ETC. (341) same to be false, forged, and counterfeited, against, etc., and against, etc. (^Conclude as in book 1, chapter 3.) Seventh count. {Same as sixth count, except instead of): "did pass, utter, pub- lish, and sell as true," insert " did attempt to pass, utter, pub- lish, and sell as true," and for " with intent to defraud one ," insert " with intent to defraud some person or persons to the jurors aforesaid unknown." Eighth count. (Same as seventh count, except instead of): "had before, etc., been coined, etc.," insert " had after, etc., and before, etc., been coined, etc." Ninth count. That the said A. B., on, etc., at, etc., other pieces of coin, resembling, and intended to resemble and pass for the coin of the United States of America, commonly known by the name of and called of the value of feloni- ously did attempt to pass, utter, and publish, which said coin called after, etc., and before, etc., had been coined at the mint of the United States of America, with the intent to defraud one he the said at the time he so attempted to pass, utter, and publish the said last mentioned false, forged, and counterfeited pieces of coin, then and there well knowing the same to be false, forged, and counter- feited, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) Last count. {Same as ninth count, except that instead of): "after, etc., and before, etc.," insert " before, etc." {For final count, see ante, 17, 18, 181, ??.., 239, n.) (341) Counterfeiting half dollars under act of congrcs$.{o) That A. B., etc., late, etc., on, etc., with force and arms, un- lawfully and feloniously did falsely make and counterfeit, and (o) See act of cong. April 21, 1806; 2 Sts. at Large, 404. Act of cong. March 3, 1825; 4 Sts. at Large, 121, S 20, etc. 333 (344) OFFENCES AGAINST PROPERTY. cause and procure to be falsely made, forged, and counterfeited, and willingly aid and assist in falsely making, forging, and counterfeiting, one coin in the resemblance and similitude of the silver coin which has been coined at the mint of the United States, called a half dollar, contrary, etc., and against, etc. {Conclude as in book 1, chajiter 3.) {For final county see 17, 18, 181, ?i., 239, n.) (342) Passing counterfeit half dollars^ with intent to defraud an unknoivn persoji, under act of congress.{p) That A. B., etc., late, etc., on, etc., with force and arras, unlawfully and feloniously did pass, utter, and publish, and attempt to pass, utter, and publish as true, a certain false, forged, and counterfeited coin in the resemblance and similitude of the silver coin which has been coined at the mint of the United States, called a half dollar, he the said then and there knowing the same to be false, forged, and counterfeited, with intent to defraud a certain person to the grand inquest aforesaid unknown, contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (343) Second count. Same, loith intent to defraud R. K. That the said A. B., on, etc., at, etc., with force and arms, unlawfully and feloniously did pass, utter, and publish, and attempt to pass, utter, and publish as true, a certain other false, forged, and counterfeited coin, in the resemblance and similitude of the silver coin which has been coined at the mint of the United States, called a half dollar, he the said then and there knowing the same to be false, forged, and counterfeited, with intent to defraud one E,. K., contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) {For final count, see ante, 17, 18, 181, n., 239, n.) (344) Having coining tools in possession, at common law.{q) That A. B., late of the county aforesaid, yeoman, being a per- (p) Act of cong. April 21, 1806 ; 2 Sts. at Large, 404. Act of cong. March 3, 1825 ; 4 Sts. at Large, 121, § 20. [q) Drawn in 1787, by Mr. Bradford, the attorney general of Pennsylvania, afterwards attorney general of the United States. 334 FORGERY, COINING, UTTERING, ETC. (344a) son of ill name and fame, and of dishonest life and conversation, and intending the faithful citizens of this commonwealth to cheat, deceive, and defraud, the day, etc., at stamps {made of wood, iron, or whatever it be), upon which was then and there made and impressed the figure, resemblance, and similitude of a good and genuine bill of credit, emitted and made current by the resolves of the honorable continental congress, and which same stamp would then make and impress the figure, resem- blance, and similitude of a good and genuine bill of credit, afore- said, without any lawful authority or excuse for that purpose, knowingl}^ and unlawfully had in his custody and possession, with an intent to impress, forge, and counterfeit the bills of credit aforesaid, and to pass, utter, and pay such forged and counterfeit bills of credit to the faithful subjects of this com- monwealth and the United States of America, to the evil exam- ple of all others in like case offending, and against, etc. {Con- clude as in book 1, chapter 3.) (344a) Having die for counterfeiting in possession. •The jurors for, etc., upon their oath present, that W. F. H., on, etc., one die, in and upon which said die was then and there made and impressed the figure and apparent resemblance of one of the sides, that is to say, the obverse side of the queen's cur- rent gold coin called a sovereign, knowingly and without law- ful excuse, feloniously had in the custody and possession of him the said W. F. H., against the form of the statute, etc. Second count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. F. H., on, etc., in the year aforesaid, one die, in and upon which said die was then and there made and impressed the figure and apparent resemblance of one of the sides, that is to say, the reverse side of the queen's current gold coin called a sovereign, knowingly and without lawful excuse, feloniously had in the custody and possession of him the said "W. F. H., against the form of the statute, etc.(r) (r) Sustained in R. v. Harvey, 11 Cox C. C. 663. 335 (346) OFFENCES AGAINST PROPERTY. (345) Maki7\g^ forging^ ayid cou7iterfeiting, etc. ^foreign coin, quarter dollar, under act of congress.{s) That A. B., etc., on, etc., at, etc., pieces of false, forged, and counterfeited coin, each piece thereof resembling and intended to resemble and pass for a quarter of a Spanish milled dollar (or otherwise)y{ihQ quarter of a Spanish milled dollar then and there being a foreign silver coin, in actual use and circula- tion as money within the said United States), feloniously did falsely make, forge, and counterfeit, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (346) Second count. Procuriiig forgery. That the said A. B., heretofore, on, etc., at, etc., pieces of false, forged, and counterfeited coin, each piece thereof re- sembling and intended to resemble and pass for a quarter of a Spanish milled dollar (the quarter of a Spanish milled dollar then and there being a foreign silver coin, in actual use and cir- culation as money within the said United States), feloniously did cause and procure to be falsely made, forged, and counter- feited, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) Third count. {Same as second count, except instead of): "feloniously did cause and procure to be falsely made, forged, and counterfeited," insert " feloniously did willingly aid and assist in falsely making, forg- ing, and counterfeiting." Fourth count. {Same as third count, except instead of): "feloniously did will- ingly aid and assist in falsely making, forging, and counterfeit- ing," insert " feloniously did utter as true, for the payment of money, with intent to defraud some person or persons to the jurors aforesaid as yet unknown, he the said then and there knowing the said last mentioned pieces of coin to be false, forged, and counterfeited." (s) The defendant in this case pleaded guilty. 336 FORGERY, COINING, UTTERING, ETC. (347) Fifth count. {Same as fourth county substituting); "with intent to defraud one ^'^ f<^r " with intent to defraud some person or persons to the jurors aforesaid, as yet unknown." {For final count, see 17, 18, 181, n., 239.) (347) Passing, uttering, and 'publishing counterfeit coin of a foreign country, under act of congress, specifying iparty to be defrauded. That A. B., etc., on, etc., at, etc., did feloniously pass, utter, and publish as true, pieces of false, forged, and counter- feited coin, in the resemblance and similitude of the coin called the dollar of Mexico {or otherwise), which, before the said on, etc., had been by law made current in the said United States, he the said knowing at the time he so passed, uttered, and published the said pieces of false, forged, and counterfeited coin, that the same were false, forged, and coun- terfeited, and intended by such passing, uttering, and publishing, to defraud one of the said city of New York, in the cir- cuit and district aforesaid, against, etc., and against, etc. {Con- clude as in book 1, chapter 3.) Second count. That the said A. B., etc., on, etc., at, etc., other pieces of false, forged, and counterfeited coin, in the resemblance and similitude of the foreign coin {if such is the case), called the of wiiich, before the said on, etc., had been by law made current in the said United States, feloniously did pass, utter, and publish as true, he the said knowing at the time he so passed, uttered, and published as true, the said pieces of false, forged, and counterfeited coin last aforesaid, that the same were false, forged, and counterfeited, and intendino- by such passing, uttering, and publishing, to defraud some per- son or persons to the said jurors unknown, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) Third count. {Same as second count, substituting): "and intending by such passing, uttering, and publishing, to defraud one of the VOL. 1.— 22 337 (348) OFFENCES AGAINST PROPERTY. city of New York, in the circuit and district aforesaid" {or other- wise), for " and intending by such passing, uttering, and publish- ing, to defraud some person or persons to the said jurors un- known." Fourth count. That the said A. B., on, etc., at, etc., other pieces of false, forged, and counterfeited coin, in the resemblance and similitude of the coin called the of a foreign coin which, before the said on, etc., by an act of the con- gress of the United States of America, entitled, " An act regu- lating the currency of foreign gold and silver coin in the United States," approved on the third day of March, in the year of our Lord one thousand eight hundred and forty-three, had been made current in the said United States, feloniously did pass, utter, and publish as true, he the said knowing at the time he so passed, uttered, and published as true the said pieces of false, forged, and counterfeited coin, that the same were false, forged, and counterfeited, and intending by such passing, uttering, and publishing, to defraud one of the city and county of New York, in the circuit and district aforesaid, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) Last count. {For final count, see 17, 18, 181, n., 239.) (348) Debasing the coin of the United States, by an officer employed at the mint, under act of congress.{t) That A. B., on, etc., at, etc., being then and there a person and officer employed at the mint of the United States, at aforesaid, did debase and make worse certain pieces, to wit, ten pieces of gold coin called eagles (which had been struck and coined at the said mint of the United States), as to the propor- tion of fine gold therein contained, and which were then and there by the said A. B., he being such person and officer employed in the said mint of the said United States as afore- said, made of less weight and value than the same ought to be (f) Davis's Precedents, 138. 338 FORGERY, COINING, UTTERING, ETC. (350) by the provisions of the several acts and hiws of the said United Seates relative thereto, through the default and conni- vance of the said A. B., he being then and there such person and officer employed as aforesaid in the said mint, for the pur- pose of unlawful profit and gain, and with an unlawful and fraudulent intent to debase, make worse, and render of no value the aforesaid ten pieces of gold coin, against, etc., and contrary, etc. {Conclude as in hook 1, chapter 3.) {For final count, see 17, 18, 181, n., 239.) (349) Fraudulently diminishing the coin of the United States, under act of congress.{u) That A. B., etc., on, etc., at, etc., did unlawfully, fraudulently, and for gain's sake, impair, diminish, falsify, scale, and lighten certain pieces, to wit, ten pieces, of gold coin called eagles, which had been coined at the mint of the United States, with intent to defraud some person to the said jurors unknown, against, etc., and contrary, etc.(v) {Conclude as in hook 1, chap- ter 3.) {For final count, see 17, 18, 181, n., 239.) (350) Uttering a counterfeit half guinea, at common law.{w) That defendant, on, etc., at, etc., one piece of false money made of base metals, and colored wnth a certain wash producing the color of gold, to the likeness and similitude of a piece of good, lawful, and current gold money and coin of this realm, called a half guinea, unlawfully, unjustly, and deceitfully did utter and pay to one C. D., for and as a piece of good and law- ful gold money and coin of this realm, called half a guinea, he the said A. B., then and there well knowing the said piece to be false and counterfeit as aforesaid, to the great damage of the said C. D., and against, etc. {Conclude as in book 1, chapter 3.) (m) Davis's Prec. 138. Act of 21st April, 1806, § 3 ; Gordon's Dig. art. 3631, p. 711. {v) If tiie coin debased -was foreign gold or silver, then say, "which said gold coin were ten pieces of foreign gold coin, which were by the laws of the I'liited States made current, and were in actual use and circulation as money, within the said United States." {w) Stark. C. P. 447. 339 (352) OFFENCES AGAINST PROPERTY. (351) Passing counterfeit coin similar to a French coin^ at common law. That M.B., late of, etc., on, etc., at, etc., one false, forged, and counterfeited piece of pewter, lead, and other base and mixed metals, composed in form, similitude, and likeness of a silver French crown (the same silver French crown then and still being a silver French coin current and passing in circulation in this state), for and as a good, true, and genuine French silver crown, to a certain J. J., then and there did pass, pay away, utter, and tender in payment, he the said M. then and there well knowing the same piece to be so as aforesaid false, forged, and counterfeited, contrary, etc., and against, etc. {Conclude as in book 1, chaj^ter 3.) (352) Counterfeiting United States coin, under the Vermont statute.{x) That the respondent, at "Weybridge, " with intent the good people of this state and of the United States to deceive and defraud, with force and arms, on the tenth day of April, A. D. 1845, ten pieces of false, forged, and counterfeit coin and money, of pewter, lead, tin, and zinc, and other mixed metals, in the similitude of the good, legal, and current money and silver coins of the United States, which are current by law and usage in this state, called ' half dollars,' then and there unlawfully and feloni- ously did forge, make, and counterfeit, contrary," etc. {Conclude as in hook 1, chajHer 3.) {The second count was for having in (x) State V. Griffin, 18 Vt. 198. " The statute," it was said, " on which the third count rested, is intended to reach every part of the apparatus of coining, however much more might be necessary to make that effective, and that, there- fore, if it be shown that the respondent had in his possession one-half of a mould, it is sufficient, without proof that he also had the other half. "The allegation, in the indictment, that the respondent, 'ten pieces of false, forged, and counterfeit coin and money,' etc., ' unlawfully and feloniously did forge, make, and counterfeit,' etc., was held sufficient. The ambiguity, it was said, arises only from the different sense in which the word ' counterfeit' is used." An indictment for having in possession counterfeit coin, it was ruled, need not aver that the denomination of coin which was counterfeited was '' current by law, or usage, in this state," it being averred, that the coin was one of the current silver coins of the United States. The court will take judicial notice that the current coins of the United States are current also in this state. In such indictment it is not necessary to aver of what materials the counterfeit coin was made ; and if averred it need not be proved. 340 FORGERY, COINING, UTTERING, ETC. (354) possession counterfeit coin, icith intent to pass the same. The third count was for having in possession divers moulds and 'patterns, adapted and designed for making counterfeit coin, with intent to use the same in coining counterfeit half dollars.) (353) Having in possession coining instruments, under the Rev. Sts. of Massachusetts, ch. 127, § 18.(?/) That A. B., at, etc., on, etc., did knowingly have in his pos- session a certain mould, pattern, die, puncheon, tool, and instru- ment adapted and designed for coining and making one side of a counterfeit coin, in the similitude of one side or half part of a certain silver coin, called a half dollar, to wit, that side or half part thereof, which represents a spread eagle, and has the words, "United States of America — Half Dollar;" said coin, called a half dollar, being current by law and usage in this state and commonwealth aforesaid, with intent to use and employ the said mould, pattern, die, puncheon, tool, and instrument, and cause and permit the same to be used and employed, in coining and making such false and counterfeit coin as aforesaid, etc. (354) Having in possession ten counterfeit pieces of coin with intent to pass the same, under Mev. Sts. of Mass. ch. 127, § 15.(^) That, etc., at, etc., on, etc., had in his custody and possession, at the same time, ten similar pieces of false and counterfeit coin, of the likeness and similitude of the silver coin current within this commonwealth, by the laws and usages thereof, called Mexican dollars, with intent then and there tlie said pieces of false and counterfeit coin to utter and pass as true, he the said (?/) Com. V. Kent, 6 Met. 221. In this ease it was held that under the Kev. Sts. ch. 127, § 19, providing for the punislnnent of u person who sliall knowingly have in his possession any instrument adapted and designed i'or coining or mak- ing counterfeit coin, with intent to use the same, or cause or ])ermit the same to be used, in coining or making such coin, a person is punishable for so having in his possession, with such intent, an instrument adapted and designed to make one side only of a counterfeit coin. On the trial of a party who is indicted for knowingly having in his possession an instrument adapted and designed for coining or making counterfeit coin, with intent to use it, or cause or permit it to be used, in coining or making such coin, he cannot give in evidence his declarations to an artificer, at the time he em- ployed him to make such instrument, as to the purposes for which he wished it to be made. {z) Com. V. Fuller, 8 Met. 313, where the e.xceptions to this form were over- ruled. 341 (355) OFFENCES AGAINST PROPERTY. D. R. F. then and there well knowing the same to be false and counterfeited, against, etc. {Conclude as in book 1, chapter 3.) (355) Having in custody less than ten counterfeit pieces of coin, under Rev. Sts. of 31ass. eh. 127, § 16.(rt) That A. B., on, etc., at, etc., " had in his custody and posses- sion (at the same time) a certain piece of false and counterfeit coin, counterfeited in the likeness and similitude of the good (a) Com. V. Stearns, 10 Met. 256. Dewey, J.: " The objection of variance between the proof otTered and the offence charged, is not sustained. The crime charged in the indictment is the having in possession, etc., a certain counterfeit coin, in the likeness of a silver coin called a dollar. The evidence shows this coin to have been in the likeness and similitude of a Mexican dollar. But a Mexican dollar is not the less a dollar, nor is it inappropriately described as a dollar. The term ' dollar' does not import a coin coined at the mint of the United States. The United States statute of 1792, c. 16, legalized the dollar of the United States coinage, and the statute of 1834, c. 71, legalized the dollar of Mexico. Both are adopted by us, and both are coins current, by law and usage, in this commonwealth ; and the having in possession of counterfeits of either, with the criminal intent described in the Rev. Sts. ch. 127, §§ 15, 16, constitutes the statutory offence. "The only question in the present case, that can require much consideration, is that which arises upon the motion in arrest of judgment for supposed defi- ciency in the allegations in the indictment. As to the fii"st of these reasons, viz., that the indictment is insufficient, inasmuch as the term 'dollar,' therein used, may denote a coin, the counterfeiting whereof is not criminal by the laws of this commonwealth, it seems to be answered by the very language of the indictment. The dollar therein set forth is alleged to be ' in the similitude of the legal silver coin current, by law and usage, in this commonwealth.' And this is a substan- tial allegation, that must be proved. Hence, no dollar that is not of the simili- tude of the legal silver coin of this commonwealth, will correspond with that set forth in the indictment, and furnish the proof requisite to a conviction. " The remaining inquiry is whether the indictment is bad for uncertainty, in not specifying, with gi-eater particularity, the descriptive character of the coun- terfeit dollar, as of the coinage of the INIexican government and in the similitude of a Mexican dollar. It is true that the indictment must particularly set forth the lind of coin alleged to be counterfeit, etc., as is stated in 2 Hale's P. C. 187, and 2 Chit. C. L. 105, note d. But that rule does not affect the present ques- tion, nor present any objection to this indictment. The kind of coin to be set forth and described, is the denomination or name of the coin ; as the dollar, the half dollar, or the dime, as the case may be. And if this indictment had merely described the alleged counterfeit coin to be in the likeness of silver coin current in this commonwealth, by the laws and usages thereof, it would have presented a case liable to the objection of a want of particularity of description. But such is not the case here. The coin is described under its appropriate denomination, and that is sufficient, without adding, as a further description, the place of coin- age. The place of coinage of a dollar is no necessary part of the description which is required to be given of a coin in an indictment. The recital of the various inscriptions and devices borne on it, and particularly the date of its issue, would seem to be quite as material as the place of coinage ; but these are not recjuired to be specified. The court are of opinion that this objection is not sus- tained either by authority or sound principle." 342 FORGERY, OOININa, UTTERING, ETC. (358) and legal silver coin current within said commonwealth, by the laws and usages thereof called a dollar, with intent then and there to pass the same as true ; he the said A. B. then and there well knowing the same to be false and counterfeit," etc. (356) For uttering and imhlishing as true a forged iworaissory note. Rev. Sts. of Mass. ch. 127, § 2.(6) That C. D., late of B., in the county of S., laborer, on the first day of June, in the year of our Lord at B. aforesaid, in the county aforesaid, had in his custody and possession a certain false, forged, and counterfeit promissory note, the said C. D. then and there knowing the same to be false, forged, and counterfeit, which false, forged, and counterfeit promissory note is of the tenor following, that is to say, etc. ; and that the said C. D. did then and there feloniously utter and publish the same as true, with intent thereby then and there to injure and defraud one J. N., the said C. D. then and there knowing the said promissory note to be false, forged, and counterfeit ; against, etc. {Conclude as in book 1, chapter 3.) (357) For forging a promissory note. Rev. Sts. of Mass. ch. 127, That C. D., late of B., in the county of S., laborer, on the first day of June, in the year of our Lord at B. aforesaid, in the county aforesaid, feloniously did falsely make, forge, and coun- terfeit a certain false, forged, and counterfeit promissory note, which false, forged, and counterfeit promissory note is of the tenor following, that is to say, etc., with intent thereby then and there to injure and defraud one J. N". ; against, etc. {Con- clude as in book 1, chapter 3.) (358) For counterfeiting a bank bill. Rev. Sts. of 31ass. ch. 127, §4. That C. D., late of, etc., on the first day of June, in the year of our Lord at B., in the county of S., feloniously did falsely make, forge, and counterfeit a certain false, forged, and counterfeit bank bill, payable to the bearer thereof, purporting (6) This and the nine following precedents are talcen from Tr. & Heard's Free. 224-232. 343 (360) OFFENCES AGAINST PROPERTY. to be issued by the president, directors, and company of the Merchants' Bank, then being an incorporated banking company established in this state, to wit, at B., in the county of S., and commonwealth aforesaid, which said false, forged, and counter- feit bank bill is of the tenor following, that is to say, etc., with intent thereby then and there to injure and defraud one J. N. ; against, etc. {Conclude as in book 1, chapter 3.) (359) For having in possession at the same time, ten or more coun- tei'feit hank hills, loith intent to utter and pass the same as true. Bev. Sts. of3Iass. ch. 127, § 5. That C. D., late of, etc., on the first day of June, at B., in the county of S., had in his possession at the same time,(c) ten similar false, forged, and counterfeit bank bills, payable to the bearer thereof, purporting to be issued by the president, direc- tors, and company of the Suffolk Bank, then being an incorpo- rated banking company established in this state, to wit, at B., in the county of S., and commonwealth aforesaid, one of which said false, forged, and counterfeit bank bills is of the following tenor, that is to say((/) {here insert a true copy of all and each of the ten hills ; after inserting a true copy of the first, go on to say, one other of which said false, forged, and counterfeit bank bills is of the following tenor, and so on with the whole of them) ; the said C. D. then and there knowing each and every one of said bank bills to be false, forged, and counterfeit as aforesaid, with intent then and there to utter and pass the same as true, and thereby then and thereto injure and defraud one J. N. ; against, etc. {Conclude as in book 1, chapter 3.) (360) Passing a counterfeit bank bill. Rev. Sts. of 3Iass. ch, 127, §6. That C. D., late of, etc., on the first day of June, in the year of our Lord at B., in the county of S., did utter and pass (c) It is necessary to aver that the defendant had the bills in his possession at the same time. An averment that he liad thoni in his possession on the same day, is not sufficient. Edwards c. The Commonwealth, 19 Pick. 124. And see R. V. Williams, 2 Leach, C. C. (4th London ed.), 529. (d) If the defendant has retained possession of the bills, allege as follows : " Each and every one of which said false, forged, and counterfeit bank bills were then and there retained and kept by the said C. D., so that the jurors aforesaid cannot set forth the tenor thereof." Tr. & H. Prec. 344 FORGERY, COINING, UTTERING, ETC. (362) to one E. F. a certain false, forged, and counterfeit bank bill, payable to the bearer thereof, purporting to be issued by the president, directors, and company of the Suifolk Bank, then being an incorporated banking company established in this state, to wit, at B. aforesaid, in the county aforesaid, and common- wealth aforesaid, which said false, forged, and counterfeit bank bill is of the tenor following, that is to say, etc., with intent thereby then and there to injure and defraud the said E. F., the said C. T>. then and there knowing the said bank bill to be false, forged, and counterfeit, against, etc. {Conclude as in book 1, chapter 3.) (361) Having in j)Ossession a counterfeit hank bill^ with intent to jpass the same. Rev. Sts. of 3Iass. ch. 127, § 8. That C. D., late of, etc., on the first day of June, in the year of our Lord at B., in the county of S., had in his possession a certain false, forged, and counterfeit bill, in the similitude of the bills payable to the bearer thereof, and issued by the presi- dent, directors, and company of the Boylston Bank, then being a banking company established in this state, to wit, at B., in the county of S., and commonwealth aforesaid, which said false, forged, and counterfeit bank bill is of the tenor following, that is to say, etc., with intent then and there to utter and pass the same, the said C. D. then and there knowing the said bank bill to be false, forged, and counterfeit; against, etc. {Conclude as in hook 1, chapter 3.) (362) Making a tool to be -used in counterfeiting hank notes. Rev. Sts. of JIass. ch. 127, § 9. That C. D., late of, etc., on the first day of June, in the year of our Lord at B., in the county of S., did engrave and make a certain plate, the same being then and there an instru- ment and implement adapted and designed for the forging and making of false and counterfeit notes, in the similitude of the notes issued by the president, directors, and company of the Suftblk Bank, then being a banking company legally established in this state, to wit, at B., in the county of S., and commonwealth aforesaid; against, etc. {Conclude as in book 1, chapter 3.) 345 (365) OFFENCES AGAINST PROPERTY. (363) Having in possession a tool to be used in counterfeiting bank notes with intent to use the same. Mev. Sis. of Mass. ch. 127, §9. That C. D., late of, etc., on the first day of June, in the year of our Lord at C, in the county of M,, feloniously had in his possession a certain engraved plate, the same being then and there an instrument adapted and designed for the forging and making.false and counterfeit notes in the similitude of the notes issued by the president, directors, and company of the Mer- chants' Bank, then being a banking company established in this state, to wit, at B,, in the county of S.,and commonwealth aforesaid, with intent then and there to use the same in forging and making false and counterfeit notes in the similitude of the notes issued by the president, directors, and company of the said Merchants' Bank ; against, etc. {Conclude as in book 1, chapter 3.) (364) Counterfeiting current coin. Rev. Sis. of Mass. ch. 127, § 15. That C. D., late of B., in the county of S., yeoman, on the first day of June, in the year of our Lord at B. aforesaid, in the county aforesaid, did counterfeit a certain piece of silver coin, current within this state, to wit, the commonwealth afore- said, by the laws and usages thereof, called a dollar; against, etc. {Conclude as in book 1, chapter 3.) (365) Uttering and passing counterfeit coin. Rev. Sts. of Mass. ch. 127, § 16. That C. D., late of, etc., on the first day of June, in the year of our Lord at B., in the county of S., a certain piece of counterfeit coin, counterfeited in the likeness and similitude of the good and legal silver coin current within this state, to wit, the commonwealth aforesaid, by the laws and usages thereof, called a dollar, did utter and pass as true to one E. F., the said C. J), then and there(e) well knowing the same to be false and counterfeit; against, etc. {Conclude as in book 1, chapter 3.) (e) An indictment which charged the defendant with uttering a counterfeit half crown to M. A. W., " knowing the same to be false and counterfeit," omit- ting the words "then and there," was held sufficient. R. v. Page, 2 Moody, C. C. 219. 346 FORGERY, COINING, UTTERING, ETC. (366) (366) Coining^ etc., under the North Carolina statute.{f) That the defendant, on, etc., 'with force and arms, in the county aforesaid, one pair of dies, upon which then and there were made and impressed the likeness, similitude, figure, and resemblance of the sides of a lawful Spanish milled dollar, without any lawful authority, then and there feloniously had in his possession, etc., for the purpose of then and there mak- ing and counterfeiting money, in the likeness and similitude of Spanish milled silver dollars, contrary, etc., and against, etc. {Conclude as in book 1, chcvpter 3.) (/) State V. Haddock, 2 Hawks, 462. Taylor, C. J. : " It does not admit of any reasonable dovibt, that a pair of dies is an instrument or instruments, within the 4th sect, of the act of 181 i, c. 814, upon which the first count is framed ; and being more generally used in coinage than any other instrument, is one upon which the act would be most likely to operate frequently. It may be said, that as the dies are described as having impressed upon them only the likeness, similitude, figure, and resemblance of the sides of a Spanish milled dollar, and not the edges, they cannot answer the purpose described in the act, of making a counterfeit similitude or likeness of a Spanish milled dollar. But it is for the jury to consider whether the dies be calculated to impress the counterfeit simili- tude or likeness of a dollar ; for these words in the act extend the offence be- yond an exact imitation of the figures and marks of the coin. For if the instru- ment, in point of fact, will impose on the Avorld, in general it is sufficient whether the imitation be exact or not. And this is the construction, upon those highly penal acts, relative to the coin, in England. Thus, having knowingly in posses- sion a puncheon for the purpose of coining, is within the stat. of 8 & 9 Wm. III., though that alone, without the counter puncheon, will not make the figure ; and though such puncheon had not the letters, yet it was held sufficiently described in the indictment as a puncheon which would impress the resemblance of the head side of a shilling. 1 East, P. C. 171. But if the parts of this indictment which are employed in a description of the dies were altogether omitted, the charge Avould be within the act, for it would then read, that the defendants had in their possession a pair of dies, for the purpose of making counterfeit dollars, which is the crime in substance created by the act. As I do not perceive any ground for any other objection arising from the record, the case having been sub- mitted without argument, my opinion is, that the reasons in arrest be overruled." And in this opinion the rest of the court concurred. 347 OFFENCES AGAINST PROPERTY. CHAPTER II. BURGLARY. (367) General frame of indictment for burglary and larceny, at common law. (3G8) Burglar)' and larceny at common law. Another form. (369) Second count. Receiving stolen goods. (370) Burglary at common law with no larceny. (370a) Entering dwelling house with intent to steal, under English statute. (370fe) House breaking, under English statute. (371) Breaking into dwelling-house, not being armed, with intent to com- mit larceny, under IMassachusetts statute. (372) General frame of indictment in New York. (373) Burglary by breaking out of a house. (374) Burglary and larceny, and assault with intent to murder. (375) Burglary, with violence. (376) Burglary and rape. (377) Burglary with intent to ravish: with a count for burglary with violence, under stat. 7 Wm. lY. and 1 Yict. c. 86, s. 2. (378) Burglary and larceny, at common law, by breaking into a parish church. (379) Burglary and larceny. Breaking and entering a store and stealing goods, under Ohio statute. (3 79a) Under Iowa statute. (379?>) Under Indiana statute. (379c) Under English statute. (379f?) Under Mass. statute. (380) Burglary and larceny. Breaking and entering a meeting-house, and stealing a communion cup and chalice, under Ohio statute. (381) Burglary. Breaking and entering a storehouse with intent to steal, under Ohio statute. (382) Burglary. Breaking and entering a shop with intent to steal, under Ohio statute. (383) Burglary. Breaking and entering a dwelling-house with intent to steal, under Ohio statute. (384) Breaking and entering a mansion-house in the daytime, and at- tempting to commit personal violence, under Ohio statute. (385) Breaking and entering a mansion-house in the night season, and com- mitting personal violence, under Ohio statute. (386) Against a person for attempting to break and enter a dwelling-house at night, at common law. 348 BURGLARY. (367) (387) Breaking a storehouse with intent to enter and steal, at common law. (388) Being found by night armed, with intent to break into a dwelling- house, and commit a felony therein. (367) General frame of indictment for burglary and larceny, at common laiv.{a) That A. B., late of, etc., in, etc., laborer, on, etc., about the hour of one of the nig;ht,(6) of the same day, with force and arms, at the parish (e) aforesaid, in the county aforesaid, the dwelling-house(6^) of one S. D.(e) there situate,(/) feloniously and burglariously {g) did break and enter,(A) with intent {i) the (a) This form is taken from Stark. C. P. 435. (/>) It was once thought necessary to allege a particular hour (State v. G. S., 1 Tyler, 295), and to state it to be in the night of the preceding day, though after twelve o'clock. If the noctanter be omitted in the common form averring larceny, the indictment will be turned into one for larceny. Thompson v. Com., 4 Leigh, 652. It is certainly bad to aver the offence to have been committed "between the hours of twelve at night and nine in the next morning" (State v. Mather, Chip. 32), though the day and hour themselves are not material to be proved as laid. See 2 East P. C. 515 ; Lewis v. State, 16 Conn. 32 ; Com. v. McLaughlin, 11 Cush. 598 ; Com. v. Marks, 4 Leigh, 658. But the better opin- ion now is that it is enough to aver the offence to have been in the night. Wh. Cr. PI. & Pr. § 130 ; Wh. Cr. L. 8th ed. § 817. "About the hour of twelve is sufficient." State v. Seymour, 36 Me. 225; Methard v. State, 19 Oh. St. 363. (c) The place should be correctly stated. (d) See on this point Wh. Cr. L. 8th ed. § 815. The house must be described as the dwelling-house of the real tenant (Stark. C. P. 79) ; and this is the proper description, though part only of the house be separately occupied. The particu- lar interest of the alleged owner is immaterial. It is enough if the house be his. People V. Van Blarcum, 2 Johns. 105. Whether burglary may be committed in a church or chapel, see Wh. Cr. L. 8th ed. § 782. If the offence be committed in an out-house within the curtilage, it should be laid to have been committed in the dwelling-house or in a stable, etc., being part of the dwelling-house. Dobb's case. East, P. C. 513 ; Garland's case, lb. 493 ; McElrath v. State, 55 Ga. 562. "Mansion-house is an equivalent." Com. v. Pennock, 3 S. & R. 133. The ownership may be averred to be in the occupant. AVh. Cr. L. 8th ed. § 816. An unoccupied house may be averred to be the dwelling-house of the owner. Com. V. Reynolds, 122 Mass. 454. (e) Under the Ohio statute it should be alleged or implied that sonie one re- sided in the house. Forsyth v. State, 6 Ham. 22. Tlie ownership should be correctly averred. Stark. C. P. 215 ; AVh. Cr. L. 8th ed. § 815. Even the first names of the owners must be proved as laid. Uoan /•. State, 26 lud. 495. (/) These words are essential (Lewis's C. L. 139; Hale's P. C. (by Stokes & Ing.) 549 ; Wh. Cr. L. 8th ed.) ; and so are the words " dwelling-house" and " in the night." The means of breaking and entering are immaterial. {g) See Wh. Cr. L. 8th ed. § 114. (/«) This is necessary at common law. Wh. Cr. PI. & Pr. § 265 ; 1 Hale, 549; Lyon v. People, 68 111. 271 ; Portwood v. State, 29 Tex.' 47. But the term has been held in ISIassachusetts not necessary in statutory house-breaking. Tully I'. Com., 4 Mete. 357. (t) The averment of intent is not necessary, when there is an averment 349 (368) OFFENCES AGAINST PROPERTY. goods and chattels of the said C. D-O) in the said dwelling-house then and there being, then and there feloniously and burglari- ously to steal,(/;) take, and carry away ; and one gold watch of the value of thirty dollars,(/) of the goods and chattels of the said C. D.,(m) in the said dwelling-house then and there being found, then and there feloniously and burglariously did steal, take, and carry away, against, etc. {Conclude as in book 1, chap- ter 3.) (368) Burglary and larceny at common law. Another form.{n) That J. B., late, etc., on, etc., about the hour of eleven in the night of the same day, at, etc., the dwelling-house of I. H. Jr., there situate, feloniously, and burglariously did break and enter (and the goods and chattels, moneys, and property of the said I. H. Jr., in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take, and carry away), and then and there in the said dwelling-house, etc., that a felony was committed. On the other hand an averment of intent will sustain an indictment when there is no averment of commission of the intended felony, thougli in this case there can be no conviction for the latter ofience, and the conviction must be for the burglary only. Wh. Cr. L. 8th ed. § 818. A statutable felony will support the indictment. 1 Hawk. c. 38, s. 38; R. i'. Knight and Rotirey, East, P. C. 610. [j) The owner of the goods need not be here stated. R. v. Clarke, 1 C. & K. 421 ; State v. Morrissey, 22 Iowa, 158. See Doan v. State, 26 Ind. 495, supra, note (c). [k) Unless the commission of a felony be actually laid, this is essential. R. v. Lyon, Leach, 221, 3d ed. ; Wh. Cr. L. 8th ed. § 818. (/) Describe the character and value of each article according to the fact, as in larceny. See infra, notes to form 415. (m) The ownership must be correctly stated if a conviction of larceny is asked. Wh. Cr. L. 8th ed. §§ 932 et seq. ; Stark. C. P. 210, 215. [n) Com. V. Brown, 3 Rawle, 207. Sentence was passed on this indictment in the supreme court. "The motion in arrest of judgment," said Gibson, C. J., " is founded on the absence of a direct averment that the breaking and entering was witka felonious intent, and although a larceny is charged to have been committed afterwards, it is argued, with much theoretic plausibility, that this may have been in pursuance of a design subsequently hatched. It is certain that all material facts must be positively charged instead of being collected by in- ferences ; but in this particular this indictment is found to be in strict accordance with the most approved jirecedents (Cro. Cir. Comp. 203), and for that reason this motion, also, must be overruled." In Cro. C. C. 203, the passage in brack- ets in the text, which is plainly surplusage, is omitted. See also 3 Chit. C. L. 203. The disadvantage of this form is that in case the stealing is left unproved, the defendant must be acquitted in toto. 1 Leach, 708; 3 Chit. C. L. 1114. On this account Lord Hale recommends the form first given, on which the de- fendant may be convicted of either burglary or larceny, or both. 1 Hale P. C. (ed. Stokes & Ing.) 559. 350 BURGLARY. (370a) twenty-eight yards of Scotch ingrain carpet, of dark colors, of the value of thirty- dollars, etc., of the goods and chattels, moneys, and property of the said I. H. Jr., in the said dwelling- house then and there being found, then and there feloniously and burglariously did steal, take, and carry away, contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (369) Second count. Receiving stolen goods. That the said J. B., afterwards, to wit, on, etc., at, etc., the goods and chattels, moneys, and property aforesaid, by some ill- disposed person to the jurors aforesaid yet unknown, then lately before feloniously and burglariously stolen, taken, and carried away, unlawfully, unjustly, and for the sake of wicked gain, did receive and have (the said J. B. then and there well know- ing the goods and chattels, moneys, and property last mentioned to have been feloniously and burglariously stolen, taken, and carried away), contrary, etc., and against, etc. {Conclude as in hook 1, chapter 3.)(o) (370) Burglary at common law with no larceny. That A. B., late, etc., on, etc., about the hour of eleven in the night of the same day, at, etc., the dwelling house of one C. D., there situate, feloniously and burglariously did break and enter, with intent the goods and chattels, moneys, and property of the said C. D., in the said dwelling-house then and there being, then and there feloniously and burglariously to steal, take, and carry away, contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (370a) Entering dwelling-house with intent to commit felony under English statute. {Comm.encement as in prior counts) — the dwelling-house of J. N., situate, etc., feloniously did break and enter, with intent to commit a felony therein, to wit {stating intended felony), against, etc.{p) (o) As to the joinder of these counts, see siip7-a, note to form 2, Wh. Cr. L. 8th ed. § 819. (jy) Archbold's C. P. 19th ed. p. 440. See K. v. Bain, L. & C. 129. 351 (372) OFFENCES AGAINST PROPERTY. (370^) House-breaking uyider English statute. {Commencement as in jjj'ior forms) — the dwelling-house of J. N., situate in, etc., feloniously did break and enter, with intent the goods and chattels of the said J. 'N. in the said dwelling- house there being, feloniously to steal, take, and carry away, and one {describe article) of the value of of the goods and chat- tels of the said J. N., then in the said dwelling-house, then and there feloniously did steal, take, and carry away, against, etc.{q) (371) Breaking into dwelling-house^ not being armed, with inieyit to commit larceny, under Massachusetts statute. That J. T., etc., on, etc., at, etc., in the night-time of said day, with intent to commit the crime of larceny, did break and enter the dwelling-house of one C. E., there situate, said J. T, not being armed, nor arming himself in said house with a dangerous weapon, nor making any assault upon any person then being lawfully therein, against, etc., and contrary, etc.(r) {Conclude as in book 1, chapter 3.) (372) General frame of indictment in New York.{s) That A. B., late of, etc., on, etc., with force and arms, about the hour of eleven in the night of the same day, at, etc. {setting forth the object of the burglary), of one C. D., there situate, feloni- ously and burglariously did break and enter, etc., with intent the goods and chattels of the said C. D., in the said then and there being, then and there feloniously and burglariously to steal, take, and carry away, and {setting forth the articles taken), of the goods, chattels, and property of the said C. D., in the {q) Arch. C. P. 19th ed. p. 436. (r) This indictment appears in Tully v. Com., 4 Met. 357, where the only error assigned by the learned and acute counsel who conducted the defence, was that the word "burglariously" was omitted. This, the court, however, deemed unnecessary under the statute. (s) It has been held in New York that an indictment for burglary which did not allege that the breaking into the dwelling-house was effected in one of the methods prescribed by the statute (2 R. 8.^668, § 10; 2 Edm. St. 688), was not good as an indictment for burglary in the Jirst degree. Tliat where a defen- dant so indicted was convicted and sentenced as for burglary in the first degree, for over ten years, the judgment should be reversed and a new trial granted. People V. Burt, Albany L. J.^ Feb. 4, 1871 ; see also People v. Van Gaasbecke; 9 Abbott, Prac. Rep. N. S. 518. 352 BURGLARY. (374) said then and there heing, then and there feloniously and burglariously did steal, take, and carry away, to the great dam- age of the said C. D., against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (373) Burglary hy breaking out of a house.(t) The jurors, etc., upon their oath present, th»t C. D., late of B., in the county of S., laborer, on the first day of June, in the year of our Lord about the hour of eleven of the clock in the night of the same day, with force and arms, at B. afore- said, in the county aforesaid, being in the dwelling-house of E. F., there situate, one watch, of the valjie of one hundred dol- lars, six tablespoons, of the value of four dollars each, and twelve teaspoons, of the value of two dollars each, of the goods and chattels of one J. N., in the same dwelling-house then and there being found, then and there feloniously did steal, take, and carry away. And that the said C. D., being so as aforesaid in the said dwelling-house, and having so committed the felony afore- said, in manner and form aforesaid, therein afterwards, to wit, about the hour of twelve of the clock in the night of the same day, with force and arms, at B. aforesaid, in the county afore- said, feloniously and burglariously did break out of the same dwelling-house; and the same goods and chattels then and there feloniously and burglariously did steal, take, and carry away, etc. {Conclude as in book 1, cha-pter 3.) (374) Burglary and larceny, and assault with intent to murder. The jurors, etc., upon their oath present, that C. D., late of B., in the county of S., laborer, on the first day of June, in the year of our Lord about the hour of ten of the clock in the night of the same day, with force and arms, at B. aforesaid, in the county aforesaid, tlie dwelling-house of one J. ]^., there situate, feloniously and burglariously did break and enter, Avith intent the goods and chattels of one R. 0., in the said dwelling- house then and there being, then and there feloniously and bur- glariously to steal, take, and carry away, and then and there in the said dwelling-house, two candlesticks, of the value of three [t) Wilmot, Law of Burglary. VOL. I.— 23 353 (376) OFFENCES AGAINST PROPERTY. dollars each, one silver tankard, of the value of fifty dollars, and one silver pitcher, of the value of one hundred dollars, of the goods and chattels of the said R. 0., in the said dwelling-house then and there being found, then and there feloniously and bur- glariously did steal, take, and carry away. And the jurora aforesaid, upon their oath aforesaid, do further present, that the said C. D., then and there, in the said dwelling-house then being, upon the day and at the hour aforesaid, in and upon the said J. N., in the said dwelling-house then and there being, unlaw- fully, maliciously, and feloniously did make an assault, with intent the said J. N. then and there feloniously, wilfully, and of his malice aforethought, to kill and murder, etc. {Conclude as iv hook 1, chapter 3.) (375) Burglary, with violence.{u) The jurors, etc., upon their oath present, that C. D., late of B., in the county of S., laborer, on the first day of June, in the year of our Lord about the hour of eleven of the clock in the night of the same day, with force and arms, at B. aforesaid, in the county aforesaid, the dwelling-house of one J. IST., there situate, feloniously and burglariously did break and enter, with intent to commit felony, and that the said C. D., in the said dwelling-house then being, in and upon the said J. N., in the said dwelling-house then being, then and there unlawfully, mali- ciously, and feloniously did make an assault, and the said J. I^^., in and upon the right thigh of the said J. IST., then and there un- lawfully, maliciously, and feloniously did stab, cut, and wound,(2;) with intent to do usto the said J. IST., some grievous bodily liarm,(w;) etc. {Conclude as in book 1, chapter 3.) (376) Burglary and rape.{x) The jurors, etc., upon their oath present, that John Bell, late of B., in the county of S., labore*", on the first day of June, in (w) Wilmot, Law of Burglary. (u) It is not necessary to state the instrument or means by which the injury was inflicted. Rex v. Briggs, 1 Moody, C. C. 318. (iv) "The intent is here inserted," says Wilmot (Law of Burglary, p. 240, note (a),) "in order that if the burglary should fail, the prisoner might still be found guilty of felony, under the fourth section of 7 Wm. IV. and 1 Vict. ch. 85." (x) On this count, if the evidence of actual i-ape should fail, but the jury should be satisfied of the intent, the defendant could be convicted of burglary. 354 BURGLARY. (378) the year of our Lord about the hour of twelve of the clock in the night of the same clay, with force and arms, at B. afore- said, in the county aforesaid, the dwelling-house of one Edward Styles, there situate, feloniously and burglariously did break and enter, with intent to commit felony, and then and there upon one Lucy Styles, the wife of the said Edward Styles, violently and feloniously did make an assault, and the said Lucy Styles then and there violently, and against her will, feloniously did ravish and carnally know, etc. {Conclude as in book 1, chapter o.) (377) Burglary with intent to ravish: with a count for burglary with violence^ under st. 7 Wm. IV. and 1 Vict. ch. 86, s. 2.{y) The jurors, etc., upon their oath present, that John Clarke, late of B., in the county of S., laborer, on the eighth day of May, in the year of our Lord about the hour of twelve in the night of the same day, with force and arras, at B. aforesaid, in the county aforesaid, the dwelling-house of one James Thomp- son, there situate, feloniously and burglariously did break and enter, with intent one Hannah Thompson, the wife of the said James Thompson, violently, and against her will, feloniously to ravish and carnally know, contrary to the form of the statute in such case made and provided, and against the peace, etc. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said John Clarke, on the day and year afore- said, at B. aforesaid, in the county aforesaid, having so burgla- riously as aforesaid broken and entered the said dwelling-house of the said James Thompson, then and there upon the said Hannah Thompson, in the said dwelling-house then and there being, wilfully, unlawfully, and maliciously did make an assault, and the said Hannah Thompson then and there did strike and beat, contrary to the form of the statute in such case made and provided, and against the peace, etc. (378) Burglary and larceny, at common law, by breaking into a parish church.{z) The jurors, etc., on their oath present, that Michael Wilson, late of B., in the county of S., laborer, on tlie first day of June, (y) Wilmot, Law of Burglary, [z) Wilinot, Law of Burglary. 3o5 (379) OFFENCES AGAINST PKOPERTY. in the year of our Lord about the hour of one of the clock in the night of the same day, with force and arms, at B. afore- said, in the county aforesaid, a certain church there situate, that is to say, the parish church of B. aforesaid, feloniously and bur- glariously did break and enter, and one pair of candlesticks, of the value of twenty dollars, and one communion dish, of the value of fifty dollars, of the goods and chattels of Henry Jack- son and others, being parishioners of B. as aforesaid, in the said church then and there being found, then and there feloniously and burglariously did steal, take, and carry away, against the peace, etc. (379) Burglary and larceny. Breaking and entering a store and stealing goods, under Ohio statute. That A. B., on the eleventh day of October, in the year of our Lord one thousand eight hundred and fifty, in the night season, to wit, about the hour of eleven in the night of the same day, in the county of Logan aforesaid, into the storehouse there situate of William S. Keller, Jacob Keller, Joshua M. Keller, and Joseph A. Keller, partners, trading under the name and firm of "William S. Keller & Brothers," wilfully, maliciously, forcibly, feloniously, and burglariously did break and enter, with intent then and there the goods, chattels, and valuable property of the said William S. Keller, Jacob Keller, Joshua M. Keller, Joseph A. Keller, partners as aforesaid, under the name and firm of "William S. Keller &; Brothers," in the said storehouse then and there being, then and there feloniously, wilfully, and bur- glariously to steal, take, and carry away ; and then and there, in the said storehouse, three yards of cassinette, of the value of three dollars, of the goods and chattels of the said William S. Keller, Jacob Keller, Joshua M. Keller, and Joseph A. Keller, partners as aforesaid, under the name and firm of "William S. Keller & Brothers," in said storehouse then and there being found, then and there feloniously and burglariously did steal, take, and carry away. {Conclude as in book 1, chapter 3.)(a) (n) Warren's C. L. 122. 356 BURGLARY. {B19c) (379a) Burglary and larency under Iowa statute. That J. H., etc., on or about etc., at or about the hour of one o'clock in the night of the same day, with force and arms, in the county aforesaid, one store building of B. there situated, wherein valuable merchandise was kept for sale and store, viz., pocket-knives, razors, and revolvers, of the value of one hundred dollars, feloniously and burglariously did break and enter into, with felonious intent, the goods and chattels of the said B., in said store then and there being found, then and there feloniously and burglariously to steal, take, and carry away, and seven dozen of pocket-knives, three razors, and two revolvers, of the goods and chattels of the said B., and of the value of seventy dollars, in the said store building, then and there feloniously and burglari- ously did steal, take, and carry away, contrary, etc.(6) {Conclude as in book 1, chapter 3.) (3796) Breaking and entering storehouse in Indiana. That H. T. E., late of said county, on, etc., at, etc., did then and there unlawfully and feloniously, in the night-time, bur- glariously break and enter into the storehouse of H. F., there situate, with intent then and there one thousand cigars, of the value of twenty-five dollars, the personal property, goods, and chattels of H. F., then and there being, then and there feloni- ously and burglariously to steal, take, and carry away, contrary to the statute in such cases made and provided, etc.(c) {Con- clude as in book 1, chapter 3.) (379(?) Shop breaking under English statute. {Commencement as in prior counts) — the shop of J. N. situate in, etc., feloniously did break and enter, with intent the goods and chattels of the said J. IsT., in the said shop there being, feloni- ously to steal, take, and carry away, and twenty yards of mus- lin, of the goods and chattels of the said J. l!^., of the value of then in the said shop, then and there feloniously did steal, take, and carry away, against, etc.(*^/) {h) This was sustained in State i\ Haym the pt-rson of " sundry gold coins, current as money in this commomvealth, of the aggregate value of twenty-nine doUars, but a more particnlar description of ivliieh the jurors cannot give, as they have no means of kno-vvledge," and containing similar allegations as to b;ink bills and silver coin, is sufficiently specific to irarrant a judgment upon a general ver- dict of gnilty. Com. r. Sayftelle. 11 Cusb. 142; Com. ir. Butts, 124 Mass. 449 ; People V. Bogart, 36 Cal. 245. See snpro, pp. 381, S85. And so « fortiori as to an averment of " four hundred and fifty- dollars in specie coin of the United States, the denomination and description of which is to the gi-and jury unknown." Chisholm (?. State, 45 Ala. 66. As to allegation "un- known" see further Wh. Cr. Ev. §§ 97, 122; itupra^ p. 20. But where practicable the pieces charged to be stolen should be specifically designated. Leftwieh v. Com., 20 Grat. 716 ; People v. Ball, 34 Cal. 101 ; Mur- phy^J. State, 6 Ala. 845. " Of the moneys of the said M. N." sufficiently describes oyrnership. R. v. Godfrey, D. & B. 426 ; Wh. Cr. L. 8th ed. § 979. Where the indictment charges stealing a particular note or piece of coin, and the evidence is that such note or coin -n-as given to the defendant to change, who refused to return the change, the defendant, even ander the stijtutes making such conversion larceny, cannot be convicted of stealing the change ; for there is a fatal variance between the description in the indictment and the proof. R. r. Jones, 1 Cox C. C. 105; R. v. Wast, D. & B. 109; 7 Cox C. C. 183; R. v. Bird, 12 Cox C. C. 257 ; and other cases eitefl supra ; Wb. Cr. Ev. § 123. But an indictment charging the larceny of the note or coin actisally given to the de- fendant may be good. Com. v. Barry, 124 Mass. 325. {(/) Value. — It is necessary that some specific value should be assigned to ■whatever articles are charged as the .subjects of larceny. Roseoe's Crim. Ev. 512 ; State V. Goodrich, 46 N. H. ISG ; State v. Fenn, 41 Conn. 590; People v. Payne, 6 Johns. 103 ; State v. Stimson, 4 Zab. 9 ; State v. Smart, 4 Rich. 356; State V. Tillery, 1 Nott & McCord, 9 ; State p. Thomas, 2 JNlcCord, 527 ; State r. AVilson, 1 Porter, 118; State v. Allen, Charlton, 518; Merwin f. People, 26 IVIich. 298; Moi^an i'. State, 13 Fla. 671; Sheppanl i-. State, 42 Ala. 531; supra, § 200; Wh. Cr, Ev. § 126; Wh. Cr. L. 8th ed. § 951. An indictment cannot be sustained for stealing a thing of no intrinsic or artificial value. State r. Bryant, 2 Car. Law Rep. 617. Value is only material in those eases in which an offence is graduated in con- formity to the value of the thing taken. People r. Stetson, 4 Barb. 151 ; Peo- ple ;•. Higbee, 66 Barb. 131 ; State v. Gillesi>ie, 80 N. C. 396 ; Lunn w. State, 44 Tex. 85- And where the value of a thing which is the subject of the ofience is necessary to fix the grade of the offence, it is a proper mode of stating it to aver that the thing is of or more than tlie value prest-ribed by the statute desig- nating such value. Phelps v. People, 72 N. Y. 334. An averment of the value of bank notes, not legtd tender, is always necessary, but not so of government coins, which are values themselves. State r. Stimson, 4 Zabr. (N. J.) 9 ; Grant v. State, 55 Ala. 201 ; WHi. Cr, PI. & Pr. ? 218. A description in an indictment in these words, "ten five-dollar bank bills of the value of five dollars each," is sufficiently definite. Eyland v. State, 4 Sneed, 357. A collective or lumping valuation, so far as demurrer or arrest of judgment is concerned, is always permissible. State v. Hood, 51 Me. 363 ; Com. v. Grimes, 10 Gray, 470; People yiRobles, 34 Cal. 591. In Com. v. O'Connell, 12 Allen, 451, the indictment was "for a quantity of bank notes current within this com- monwealth, amounting together to one hundred and fifty dollars, and of the value of one hundred and fifty dollars." It was said by the court that "it is not per- ceived that the descrij»tion of bank bills as 'a quantity,' instead of 'divers and sundry,' constitutes an error. And the statement of the aggregate of the property stolen, where all the articles are of one kind, has been sanctioned by the court." 390 LARCENY — DESCRIPTION OF PROPERTY. (415) Com. V. Sawtelle, 11 Cush. 142. Upon such an indictment, when the articles are all of one class, the defendant may be convicted of stealing a less sum than that charged in the indictment. Com. i'. O'Connell, 12 Allen, 451. But when articles of different kinds, e. g., "sundry bank bills, and sundry United States treasury notes," are thus lumped with a common value, the indict- ment cannot be sustained by proof of stealing only a part of the articles enume- rated. Wh. Cr. Ev. § 126; Cora. v. Cahill, 12 Allen, .540. Nor can a con- viction for stealing a part of the articles charged be sustained unless to such part sufficient value is assigned or implied. Hamblett v. State, 18 N. H. 384; Lord V. State, 20 N. H. 404; State v. Goodrich, 46 N. H. 186; Com. v. Smith, 1 Mass. 245 ; Low v. People, 2 Parker C. R. 37 ; Collins v. People, 39 111. 233 ; Shepard v. State, 42 Ala. 531. (e) As has been already observed, it is of necessary importance that the name of the party whose goods are alleged to have been stolen should be given cor- rectly. See notes to form 2, supra, pp. 20 et seq. In applying this principle, there are several points which it is essential to keep in mind in determining the question of property in each particular case. 1. AVhere goods are stolen out of the possession of the bailee, they may be de- scribed in the indictment as the property of either bailor or bailee. Wh. Cr. L. 8th ed. § 932; Arch. C. P. 10th ed. 212; State v. Somerville, 21 Maine, 586; State V. Grant, 22 Maine, 171. The cases usually given as an illustration of this rule are those of goods left at an inn (R. v. Todd, 2 East, P. C. 658) ; cloth given to a tailor to manufacture, and linen to a laundress to wash (R. v. Packer, 2 East, P. C. 658) ; chattels intrusted to a person for safe keeping (R. v. Taylor, 1 Leach, 356; R. v. Slatham, lb.; see R. v. Ashley, 1 C. & K. 198); goods levied.on by a constable and ia his custody (People r. Palmer, 10 Wend. 165) ; in each of these cases the property may be laid as the goods and chattels of the bailee or of the owner, at the option of the prosecutor. See 2 Hale, 181 ; 1 lb. 613 ; 1 Hawk. c. 33, s. 47 ; R. r. Bird, 9 C. & P. 44. But the bailee of a bailee has no such special property as would authorize the goods being laid as his. Thus an indictment will be vicious which lays the property of goods taken in execution in the bailee or receiptor of the sheriff. Com. v. Morse, 14 Mass. 217 ; Norton V. People, 8 Cow. 137. The property also cannot be laid in one who has neither had the actual nor constructive possession of the goods, and thus where the per- son named as owner was merely servant to the real owner, or where the property was laid in the master who actually had never seen or received the goods, and where in fact the servant had been specially intrusted with them, the ownership was held to be wrongly laid. R. v. Hutchinson, R. & R. 412; R. v. Ruddick, 8 C. & P. 237. But as a general rule, ownership, absolute or special, will sus- tain the averment. Wh. Cr. L. 8th ed. § 932. 2. Goods stolen from a dead person, such as the coffin or shroud, must be laid in the executors and administrators, if there be su(;h, and if not, in the person who defrayed the expenses of the funeral. Wh. Cr. L. 8th ed. ? 937. 3. Goods stolen from a married Avoman must be laid as the property of her husband, even though she lives in separation from him, with an income vested in trustees for her private use. Wh. Cr. L. 8th ed. § 940 ; Arch. C. P. 10th ed. 213. Under the married woman's acts, they may be laid as her own, though it is desirable to add a count averring the ownersliip to be in her husband. In any view he has such special ownership that a count charging him as owner is good. Wh. Cr. L. 8th ed. § 940 and cases there given. AVhere goods were stolen from a single woman, who afterwards before indictment married, it was held that the property was rightly laid in her by her maiden name. B. i\ Turner, 1 Leach, 536. 4. At common law where the owners form an unincorporated partnership, the names of all of them must be correctly stated (Wh. Cr. L. 8th ed. § 935), and even where the property was temporarily vested in one of them, the names of all the members of the firm must be set out. Hogg v. State, 3 Blackf. 32G ; R. v. Shovington, 1 Leach, 513; R. v. Beacall, 1 Mood. C. C. 15 (but see Marcus v. State, 26 Ind. 101 ; State v. Cunningham, 21 Iowa, 433). But if the goods of a 391 (417) OFFENCES AGAINST PROPERTY. (416) Stealing the property of different persons. That defendant, on, etc., at, etc., one silver watch, of the value of forty shillings, of the oroods and chattels of E. T., two hats, of the value of twenty shillings, and two waistcoats, of the value of six shillings, of the goods and chattels of(^) one G. H., then and there being found, feloniously did steal, take, and carry away, against, etc. {Conclude as in book 1, chapter 3.) (417) Larceny at a navy yard of the United States. That A. B., etc., on, etc., at, etc., and within the navy yard adjoining the city of Brooklyn, in the county of Kings, in the southern district of New York aforesaid, the site of which said navy yard had been before the said day of in the year last aforesaid, ceded to the said United States, and was on the said last mentioned day then and there under the sole and exclusive jurisdiction of the said United States, feloniously did take and carry away, with intent to steal and purloin [state deji- nitely the things taken, and the value of each separately), said {as before) then and there being the property of one against, etc., and against, etc. {Conclude as in book 1, chapter 3.) corporation are stolen, the property must be charged to be in the corporation in its corporate name, and not in tlie individuals who comprise it. Wh. Cr. L. 8th ed. § 941 ; R. i\ Patrick, 2 East, P. C. 1059 ; 1 Leach, 253 ; Arch. C. P. 10th ed. 214. It is not necessary to aver the political existence of a domestic cor- poration, as that is a matter for evidence, and after verdict it may be inferred from the name. Lithgow v. Com., 2 Va. Cas. 296. See supra, p. 20. 5. Necessaries furnished by a parent to a child, may be laid as the property of either parent or child (Arch. C. P. 10th ed. 213; 2 East, P. C. 654), though it is safer to allege them to be the property of the child. R. i'. Forsgate, 1 Leach, 463 ; E,. V. Hughes, C. & M. 593. See for recent authorities Wh. Cr. L. 8th ed. § 947. 6. Where the owner is unknown it is to be so stated (Com. v. Morse, 14 Mass. 217 ; Com. v. Manley, 12 Pick. 173; 1 Hale, 512 ; Wh. Cr. L. 8th ed. § 949); though if the names of the owners appear on the trial to have been known to the grand jury at the finding of the indictment, the defendant must be accpiitted. 11. V. Walker, 3 Camp. 2G4 : R. v. Robinson, Holt. N. P. C. 595. Qucere, Com. V. Stodihirt, 9 Allen (^Nlass.), 280. See fully si/;j;-rt, p. 20. (/) Where the subject of the larceny is live cattle, "steal, take, 'dnd lead away," may be substitutt^d. " 7'aAe," however, is essential. Wh. Cr. PI. & Pr. § 266; 2 Hale, 184. [g) Where the felonies are completely distinct, they ought not to be joined in the same indictment (see notes to form 2, supra, p. 31 ; Wh. Cr. PL & Pr. § 285), but where the transaction is the same, as where the property of different persons is taken at the same time, there seems to be no objection to the joinder. Ibid. ; People i;. Thompson, 28 Cal. 214. 392 LARCENY. (^18) Second count. {Like Jirst count, substituting) : "then and there being of the personal goods of one ," for " then and there being the property of one ." Third count. {Like second count, substituting): "being then and there the personal goods of some person or persona to the said jurors unknown," for "then and there being of the personal goods of one ." {For final count, see supra, 14, 15, 16, 181 n., 239 ?j.) (418) Larceny on the high seas. That A. B., etc., on, etc., at, etc., in and on board of a certain American vessel, being a called the belonging in whole or in part to a certain person or persons, then and still being a citizen or citizens of the United States of America, whose name or names are to the said jurors unknown, on tlie high seas, out of the jurisdiction of any particular state of the said United States, on waters within the admiralty and maritime jurisdiction of the said United States, and within the jurisdic- tion of this court, feloniously did take and carry away {state the nature of the things taken, their payiicular name and value), with intent to steal or purloin the same, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) Second courd. {Like first count, inserting after the specification of the articles taken, and before): "with intent to steal or purloin the same," " of the personal goods of some person or persons to the said jurors unknown." Third count. {Like second count, substituting): "of the personal goods of one ■,'' for "of the personal goods of some person or per- sons to the said jurors unknown." {For final count, see supra, 14, 15, 16, 181 n., 239 ?;.) 393 (420) OFFENCES AGAINST PROPERTY. (419) Larcevy on the high seas. Another form. That A. B., on, etc., at, etc., in and on board of a certain ves- sel being a called the belonging and appertaining, in whole or in part, to a certain person or persons then and still being a citizen or citizens of the United States of America, whose names are to the said jurors unknown, on the high seas, out of the jurisdiction of any particular state of the said United States, within the admiralty and maritime jurisdiction of the said United States of America, and of this court, felo- niously did take and carry away, with intent to steal and pur- loin {here state particularly each article^ ayid the value of each sej/a- rately)^ of the personal goods of some person or persons to the jurors aforesaid as yet unknown, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) Second count. {Same as first count, substituting): "belonging and appertain- ing, in whole or in part, to one then and still being a citizen of the United States of America," for "belonging and appertaining, in whole or in part, to a certain person or persons then and still being a citizen or citizeng of the United States of America, whose names are to the said jurors unknown." Third count. {Like first count, substituting) : " of the personal goods of one ,"/or "of the personal goods of some person or persons to the jurors aforesaid as yet unknown." Fourth count. {Like second count, substituting): "of the personal goods of one ^'' for "of the personal goods of some person or per- sons to the jurors aforesaid as yet unknown." {For final count, see supra, 14, 15, 16, 17, 181 n., 239 n.) (420) Larceny in an American ship at the Bahayna Islands. That, etc., on board of a certain vessel, to wit, a sloop, called the "C. W.," then and there belonging to S. P. W., J. C. B., and N. F., citizens of the United States, while lying in a place, 394 LARCENY. (422) to wit, Great Harbor, in Long Island, one of the Bahama IsLands, within the jurisdiction of a certain foreign sovereign, to wit, the king of the United Kingdom of Great Britan and Ireland, a certain J. P. M., otherwise called J. M,, otherwise called P. M., late of the district aforesaid, mariner, then and there being a person belonging to the company of the said ves- sel, did take and carry away, with an intent to steal and pur- loin, certain personal goods of the said P. W"., to wit, one quad- rant, of the value of twenty dollars, one reflecting semicircle, of the value of twenty dollars, twenty-four lunar tables, of the value of twenty-four dollars, one shaving box and glass, of the value of five dollars, one chart, of the value of one dollar, con- trary, etc., and against, etc. {Conclude as in hook 1, chapter 3.) (421) Second count. Receiving., etc. That, etc., on board of a certain vessel, to wit, a sloop, called the "C. W.," then and there belonging to S. P. W., J. C. B., and ]Sr. F., citizens of the United States, while lying in a place, to wit. Great Harbor, in Long Island, one of the Bahama Islands, within the jurisdiction of a certain foreign sovereign, to wit, the king of the United Kingdom of Great Britain and Ireland, the said J. P. M., otherwise called J. M., otherwise called P. M., then and there being a person belonging to the company of the said vessel, did then and there receive and buy certain goods and chattels that had been feloniouslj^ taken and stolen from a certain other person, to wit, the said S. P. W., at the district aforesaid, to wit, one quadrant, of the value of twenty dollars, one reflecting semicircle, of the value of twenty dollars, twenty- four lunar tables, of the value of twenty-four dollars, one shav- ing box and glass, of the value of five dollars, and one chart, of the value of one dollar, he the said J. P. M., otherwise called J. M., otherwise called P. M., then and there knowing the same to be stolen, contrary, etc., and against, etc. [Conclude as in hook 1, chapter 3.) {For final count., see ante., 14, 15, 16, 181 n., 239 n.) (422) Larceny. Form in use in New York. That A. B., etc., on, etc., at, etc., one leathern bucket, of the value of three dollars, of the goods, chattels, and property of 395 (423) OFFENCES AGAINST PROPERTY. one J. B., then and there being found, feloniously did steal, take, and carry away, to the great damage of the said J. B., against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (422rt) Same in Maine. That W. W. L. of A., in the county of A. and state of M., laborer, on, etc., at, etc., two oxen, of the value of one hundred and eighty dollars, one horse, of the value of one hundred dol- lars, one certain riding wagon, of the value of ninety dollars, and one harness, of the value of twenty dollars, of the goods and chattels of one C. P. J., then and there being found, feloni- ously did steal, take, and carry away, against the peace, etc.(A) {Conclude as in book 1, chapter 3.) (423) Same in Pennsylvania.{i) • That A. M., late, etc., on, etc., one mare, of the value of one hundred dollars, of the goods and chattels and property of J. C, then and there being found, then and there feloniously did steal, take, and carry away, contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (/() State V. Leavitt, 66 Me. 440. In this case the defendant, before his arraign- ment, filed a special denun-rer to the indictment, for causes following : — I. That there is no possession of the goods and chattels named in said indict- ment, set forth therein, or that thpy were at the time of the alleged taking in the possession of any one. II. That there is no trespass in the taking and caiTying away set forth or al- leged in said indictment. III. That it is not alleged in and by said indictment that the articles of prop- erty therein alleged to be taken and carried away, were ever in the possession of any one, and had not been abandoned or lost by the owner ; and that said indict- ment is in other respects informal and insufficient. Ajypleton, C. J. "The indictment alleges that the defendant 'feloniously did steal, take, and carry away, against the peace of the state, and contrary to the form of the statute in such case made and provided,' certain described property ' of the goods and chattels of one Charles P. Jordan, Jr.,' etc., and the defend- ant by his demurrer admits that he did so. This is precisely what is forbidden by R. S., c. 120, § 1, the language of which is followed in the indictment. I think the indictment is good. I should regret the giving a sanction to what the defend- ant has done by declaring it no offence. Wh. Pr. 417 ; 2 Archbold's Cr. Pr. & PI. 343. The indictment is alike good at common law and by statute. " (■/) Com. f. ]\I'j\Iickle, Sup. Ct. Pa., July T. 1828, No. 48. This case went up to the supreme court, after conviction in the (juarter sessions of Delaware county, apparently for the purpose of testing the propriety of joining a count i'or the felony of larceny, with a count for the misdemeanor of receiving stolen goods. The judgment on the verdict was sustained. The form in the text is the one or- dinarily used in practice in Pennsylvania. See also Com. v. Vandyke, JMarch term, 1828, No. 32, where the same point was ruled. 396 LARCENY. (427) (424) Second count. Receiving stolen goods. That the said A. M,, on, etc., at, etc., the goods and chattels and property aforesaid, by some ill-disposed persons (to the jurors aforesaid yet unknown) then lately before feloniously stolen, taken, and carried away, unlawfully, unjustly, and for the sake of wicked gain, did receive and have, the said A. M., then and there well knowing the goods and chattels, moneys, and property last mentioned, to have been feloniously stolen, taken, and carried away, contrary, etc., and against, etc. {Con- clude as in book 1, chapter 3.) (425) Same in Neiu Jersey. That A. B., etc., on, etc., at, etc., one hat, of the value of one dollar, then and there being found, unlawfully did steal, take, and carry away, contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (426) Same in South Carolina. That A. B., etc., on, etc., at, etc., one woollen jacket, of the value of two dollars, of the proper goods and chattels of J. K, then and there being found, feloniously did steal, take, and carry away, against, etc. {Conclude as in book 1, chapter 3.) Second count. That the said A. B., on, etc., at, etc., one other woollen jacket, of the value of two dollars, of the goods and chattels of a cer- tain person to the jurors aforesaid unknown, then and there being found, feloniously did steal, take, and carry away, against, etc. {Conclude as in book 1, chapter 3.) (427) Same in Michigan. That J. K., etc., on, etc., at, etc., one gelding, of the value of one hundred and twenty-five dollars, of the goods and chattels of one J. B., then and there being, feloniously did steal, take, and lead away; against, etc., and against, etc. {Conclude as in book 1, chapter 3.) 397 (429) OFFENCES AGAINST PROPERTY. (427a) Same in Indiana. That J. S., on, etc., at, etc., unlawfully and feloniously did steal, take, and carry away, of the personal goods and chattels of one A. then and there being, of the value of four dollars, one pair of boots, contrary to the form of the statute, etc. (J) {Con- clude as in book 1, chapter 3.) (4276) Ijarceny of notes under Mass. statute. That J. S., etc., on, etc., at, etc., divers promissory notes of the amount and of the value in all of five thousand dollars, a more particular description of which is to the jurors unknown, of the property,. goods, and chattels of one J. N. F., in his pos- session then and there being, feloniously did steal, take, and carry away, eic.{k) (428) Banknote in North Carolina. [l) That T. B., etc., on, etc., at, etc., one twenty dollar bank note, issued by the president and directors of the Baidv of a bank duly chartered and authorized by tlie state of I^orth Carolina,(?n) of the value of twenty dollars, of the goods and chattels, moneys, and property of A. B., then and there being found, then and there feloniously did steal, take, and carry away, contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (429) Bank note in Pennsylvania.{n) That T. B., on, etc., at, etc , one promissory note for the pay- ment of money, commonly called a bank note, purporting to be ( j) It was held in Indiana, that while this indictment was somewhat transposed and out of the usual form, it substantially and sufheiently charged a larceny of the personal goods of the party named. King v. State, 44 Ind. 285. (A) Sustained in Com. v. Butts, 124 Mass. 449. See supra, pp. 381-4-5. (/) This form seems approved by the court in State v. Rout, 3 Hawks, 618. (m) Or, in another case, "a certain twenty dollar bank note, issued by the president and directors of the Bank of Newbern." State v. Williamson, 3 Murph. 216. It is now proper to aver that the note was issued by the bank in question, and that the bank was duly authorized, etc. State v. Brown, 8 Jones, L. (N. C), 443 ; supra, p. 382. (w) This form was the one usually employed under the old statutes. M'Laugh- lin V. Com., 4 11. 464 ; Com. v. M'Dowell, 1 Browne, 359 ; Stewart v. Com., 4 S. & R. 194 ; Spangler r. Com., 3 Binn. 533. Under the rev. act of 1860, it is sufficient if the common title of a stolen document be given. See supra, p. 381. 398 LARCENY. (431 «) issued bj the {president and directors of the bank of, etc., as the case may be), for the payment of five dollars, being still due and unpaid, of the value of five dollars, of the goods and chattels, moneys, and property of A. B., then and there being found, then and there feloniously did steal, take, and carry away, con- trary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (430) Bank note in Connecticut.{o) That T. B., '^tc, on, etc., at, etc., thirteen bills against the Hartford Bank, each for the payment and of the value of ten dollars, issued by such bank, being an incorporated bank in this state, of the value of one hundred and thirty dollars, of the goods and chattels, moneys, and property of A. B., then and there being found, then and there feloniously did steal, take, and carry away, contrary, etc., and against, etc. {Conclude as in book ] , chapter 3.) (431) Ba7ik note in Tennessee.{p) That defendant, on, etc., at, etc., one bank note of the Plant- ers' Bank of Tennessee, payable on demand at the Mechanics' and Traders' Bank at ISTew Orleans, of the value and denomi- nation of five dollars, the bank note, personal goods, and chat- tels of J. B., then and there being, feloniously did steal, take, and carry away, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (481«) Stealing bank note in Iowa. That defendant "did feloniously steal, take, and carry away divers bank bills, commonly known and denominated national currency, of divers denominations, the number and denomination of which are to the grand jury un- known, of the amount and value of six hundred and fifty dol- lars, which said bank bills circulated and passed as money, and which were then and there the property and in the possession of one J. J. P.," etc.(^) {Conclude as in book 1, chapter 3.) (o) This form -was sanctioned in Salisbury v. State, 6 Conn. 101. {p) State ('. Hite, 9 Yerg. 358. [q) Sustained in State c. Hoppe, 39 Iowa, 4G8. See furtlier as to description, notes to 415 ; supra, pp. 384 et seq. 399 (432rt) OFFENCES AGAINST PROPERTY, (4316) Stealing hank notes of unknown hanks.{r) That A. B., etc., on, etc., at, etc., sundry bank bills, of some banks respectively to the said jurors unknown, of the amount atid value in all of thirty-eight dollars, of the property, goods, and chattels of one C. D., in his possession then and there being, feloniously did steal, take, and carry away, etc. {Con- clude as in book 1, chapter 3.) (432) Larceny in dicelling-house in daytime. 3Iass. Bev. Sts. cL 126, § 14.(5) That defendant, at, etc., on, etc., one certain original book of accounts concerning money due, of the value of twenty dol- lars, one receipt, release of defeasance, containing an acquit- tance of money due, of the value of six dollars, and sundry bank bills, amounting together to the sum of eleven dollars, and of the value of eleven dollars, of the goods and chattels of one A. B., in the dwelling-house of one C. D. there situate, in the said A. B.'s possession then and there being, did then and there, in the said dwelling-house (in the daytime),(^) feloniously steal, take, and carry away, against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (432a) Larceny in a building in 3Iassachusetts. That (the defendant), on, etc., at, etc., certain, etc. {describing things taken)^ of the property, goods, and moneys of J. G., in a certain building there situate, to wit, the dwelling-house of one P. McG., and then and there in the possession of the said J. G. being found, feloniously did steal, take, and carry away, against, etc. {Co7ich(de as in book 1, chapter S.){u) (?•) This -was sustained in Com. v. Grimes, 10 Gray, 470. (.s) Com. V. AVilliams, 9 Met. 273. In this case it was held, that a memoran- dum book, kept hy a person who works for a tailor by the piece, and in which entries are made of the names of- the persons owninjj the garments worked upon, and the prices of the work, is a "book of accounts for or concerning money or goods due, or to become due, or to be delivered," within the revised statutes, eh. 126, § 17, and is the subject of larceny. And such book, given by a tailor to the person who works for him, for the purpose of such entries being made therein, is the property of such person, and not of the tailor. (t) Where the larceny is in the night, it falls within stat. 1843, ch. 1, § 1, and the averment in brackets is to be left out, and ("in the night-time of the said day") inserted in its place. See Tr. & H. Prec. 346. (w) Sustained in Com. v. Smith, 111 Mass. 429. 400 LARCENY. (-135) (433) Breaking and entering a vessel in the rnghi-time^ and commit- ting a larceny therein^ under Mass. Rev. Sts. ch. 126, § ll.(?)) That C. D., etc., on, etc., at, etc., a certain vessel of one A. B., called the "Sally," of Boston, within the body of the said county of S. then and there lying and being, in the night-time of the said day, did break and enter, and one trunk, of the value of five dollars, and {ketr state the kind and value of each article}, of the goods and chattels of one E. F., in the trunk aforesaid then and there contained, and in the vessel aforesaid then and there being found, in the night-time of the said day, feloniously did steal, take, and carry away, in the vessel aforesaid, against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (434) Breaking and entering a shop in the night., and committing a larceny therein^ under Mass. Rev. Sts. ch. 126, § ll.{w) That C. D., etc., on, etc., at, etc., the shop of one A. B., there situate, in the night-time of the same day, did break and enter, and sundry bank bills, amounting together to the sum of one hundred dollars, and of the value of one hundred dollars, and {here insert all the articles stolen, alleging the kind, number, and value of each), of the goods and chattels of the said A. B., then and there in the shop aforesaid being found, feloniously did steal, take, and carry away, in the shop aforesaid, against, etc. {Con- clude as in book 1, chapter 3.) (435) Larceny by the cashier of a bank. Mass. Stat. 1846, ch. 171, § l.(^) That A. B., late of, etc., on the first day of June, in the year of our Lord at D., in the county of N., the said A. B., then and there being an ofiicer, to wit, the cashier, of the Ded- ham Bank, a corporation then and there duly and legally estab- (?;) Davis's Prec. 143. \w) See Tr. & H. Prec. 344 ; Davis's Prec. 142. The coupling in this form of the "breaking and entering" with the Larceny, is not duplicity. Com. v. Tuck, 20 Pick. 3.56. It was first held essential, however, that the averment in brackets, which was omitted by Mr. Davis, should be inserted; lb.; but the court since appears to have settled into a contrary doctrine. Devoc v. Com., 3 Met. 316; Phillips w. Com., lb. 588. This indictment, it is intimated in the latter case, would be good under Revised Statutes, ch. 126, § 11. (x) Tr. & H. Prec. 341. VOL. I.— 26 401 (437) OFFENCES AGAINST PROPERTY. lished, organized, and existing under and by virtue of the laws of this commonwealth, as an incorporated bank, did feloniously and fraudently convert to the said A. B.'s own use certain money, to a certain large amount, to wit, to the amount and sum of one hundred thousand dollars, and of the value of one hun- dred thousand dollars, of the property and moneys of the said president, directors, and company of the Dedham Bank, being in their banking-house there situate: whereby and by force of the statute in such case made and provided, the said A. B. is deemed to have committed the crime of larceny in said bank. And so the jurors aforesaid, upon their oath aforesaid, do say that the said A. B., then and there, in manner and form afore- said, the aforesaid money, of the property and moneys of the said president, directors, and company of the Dedham Bank, feloniously did steal, take, and carry away, in the banking-house aforesaid ; against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (436) Breom'dng and entering a stable in the night-time, and commit- ting a larceny therein. Mass. Stat. 1851, ch. 156, § l.(?/) That C. D., late of, etc., laborer, on the first day of June, in the year of our Lord with force and arms, at B. aforesaid, in the county aforesaid, a certain building, to wit, the stable, of one E. F., there situate, in the night-time of said day, feloni- ously did break and enter, and one chaise, of the value of one hundred dollars, one saddle, of the value often dollars, and one bridle, of the value of five dollars, of the goods and chattels of the said E. F., then and there in the stable aforesaid being found, then and there, in the night-time, feloniously did steal, take, and carry away, in the stable aforesaid ; against, etc., and con- trary, etc. {Conclude as in book 1, chapter 3.) (437) Breaking and entering a shop in the night-time, adjoining to a dwelling-house, with intent to commit the crime of larceny, and actually stealing therein. Mass. Stat. 1839, ch. Zl.{z) That Joseph H. Josslyn, late of, etc., on the first day of Feb- ruary, in the year of our Lord with force and arms, at [y) Tr. & H. Prec. 342. (2) Tr. & H. Free. 343. 402 LARCENY. (438) Waltham, in the county of Middlesex, the shop of one Charles W. Fogg, there situate, adjoining to a certain d\velling-house,(a) in the night-time, did break and enter, with intent the goods and chattels of said Fogg, then and there in said shop being found, feloniously to steal, take, and carry away ;(6) and one Eng- lish gold lever watch, of the value of one hundred dollars, and one gold Lepine watch, of the value of one hundred dollars, nine old silver watches, each of the value of ten dollars, (c) of the goods and chattels of the said Charles W. Fogg, then and there in the shop of the said Fogg being found, then and there, in the night-time, feloniously did steal, take, and carry away, in the shop aforesaid; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. (488) Entering a dicelling-house in the night-time, without breaking, some persons being therein, and being imt in fear. 31ass. Rev. Sts. ch. 126, § Vl.{tl) That C. D., late of, etc., on the first day of June, in the year of our Lord with force and arms, at D., in the county of IS"., the dwelling-house of A. B., there situate, in the night-time of said day, feloniously did enter, without breaking the same, with intent then and therein to commit the crime of larceny ; one A. B., and M., his wife, then, to wit, at the time of the com- mitting of the felony aforesaid, lawfully being in the said dwell- ing-house, and by the said C. D. were then and there [)Ut in fear ; against, etc., and contrary, etc. {Conclude as in book 1, cliapter 3.) (a) It is not necessary to aver that the shop was or was not "adjoining to a dwelling-house." Larned ?.'. Com., 12 Mete. 240; Devoe u. Com., 3 ^letc. 316. See Com. v. Tuck, 20 Pickering, 366; R. v. Marshall, 1 Moody, C. C. 158. {h) This, say Tr. & Heard, is a sufficient averment. The words of the Stat. 1839, ch. 31, are, "with intent to commit the crime of larceny." But it is not necessary to aver the intent in tlie words of the statute. Josslyn v. Com., 6 Mete. 236. (c) Where an indictment for breaking and entering a building, with intent to steal therein, is correctly framed, an additional charge, that the dei'endant com- mitted a larceny therein, though defective, and such as would not of itself be a sufficient indictment for larceny, is no cause for reversing a judgment rendered on a general verdict of guilty. Larned v. Com., 12 Mete. 240. (^ Tr. & H. Free. 345. 403 (440) OFFENCES AGAINST PROPERTY, (439) Breaking and entering a (hvelling-house in the daytime, the oioner being therein^ and being put in fear. Mass. Hev. Sts. ch. 126, § 12.(g) That C. D., late of, etc., on the first day of June, in the year of our Lord with force and arms, at D., in the county of N., the dwelling-house of one A. B., there situate, in the day- time, feloniously did break and enter, with intent then and there- in to commit the crime of larceny ; the said A. B., and M,, his wife, then, to wit, at the time of the committing of the felony aforesaid, lawfully being in said dwelling-house, and by the said C. D, were then and there put in fear; against, etc., and con- trary, etc. {Conclude as in book 1, chapter 3.) (440) Breaking and entering a city hall, and stealing therein, in the night-time. Mass. Rev. Sts. ch. 123, § 14.(/) That John Williams, late of, etc., on the twelfth day of No- vember, in the year of our Lord with force and arms, at Charlestown, in the county of Middlesex aforesaid, the city hall of the city of Charlestown, in said county, there situate, and erected for public uses, to wit, the transaction of the municipal business of said city of Charlestown, in the night-time of the said day, feloniously did break and enter, and ten pieces of gold coin, current within this commonwealth by the laws and usages thereof, called eagles, of the value of ten dollars each, ten other pieces of gold coin, current within this commonwealth by the laws and usages thereof, called sovereigns, of the value of five dollars each, of the goods and chattels and moneys of the said city of Charlestown, then and there in the city hall aforesaid being found, then and there, in the night-time, feloniously did steal, take, and carry away, in the city hall aforesaid, against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (e) Tr. & H. Tree. 345. ( /") Tr. & H. Preo. 347. In an indictment under this section of the statute, for breaking and entering in any of the buiklings therein mentioned, the amount or value of the property stolen is immaterial. And it is a suflicient allegation as to the stealing, if there is a larceny properly and technically charged of any of the goods alleged in the indictment to be stolen. Com. v. Williams, 2 Gushing, 582. 404 LARCENY. (443) (441) Stealing in a building that is on fire. 31ass. Bev. Sts. ch. 126, § 15.(i/) That C. D., late of, etc., on the first day of June, in the year of our Lord at S., in the county of E., with force and arms, one gold watch, of the value of one hundred dollars, one gold ring, of the value of ten dollars, and one gold bracelet, of the value of twenty dollars, of the goods and chattels of one E. F., in a certain building, to wit, the dwelling-house of the said E. F., there situate, then and there being, which said dwelling- house was then and there on tire, then and there feloniously did steal, take, and carry away, in the dwelling-house aforesaid, against, etc., and contrary, etc. ^Conclude as in book 1, chapte?^ 3.) (442) Larceny from the person. Rev. Sts. of Mass. ch. 126, § 16. (A) That C. D., late of L., in the county of M., laborer, on the first day of June, in the year of our Lord with force and arms, at L., in the county of M., one gold watch, of the value of one hundred dollars, of the goods and chattels of one E. F., then and there, from the person of the said E. F., feloniously did steal, take, and carry awaj', against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (443) Larceny of real property. Mass. Sts. 1851, ch. 151. (i) That C. D., late of C, in the county of M., laborer, on the first day of June, in the year of our Lord with force and arms, at C, in the county of M., fifty pounds weight of lead, each of the value of ten cents, of the property of one A. B., and against the will of the said A. B., then and there being parcel of the realty, to wit, of the dwelling-house of the said A. B., there situate, wilfully and maliciously did rip, cut, and break, and then and there did take and carry away the same, with intent then and there the same feloniously to steal, take, and carry away ; whereby and by force of the statute in such case made and pro- vided, the said C. D. is guilty of the crime of simple larceny. (g) Tr. & H. Prec. 348. (h) Tr. & H. Free. 349. See Com. v. Dimond, 3 Gushing, 235 ; Com. u. Eastman, 2 Grav. (t) Tr. & H.'Prec. 349. 405 (444) OFFENCES AGAINST PROPERTY. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said C. D., then and there, in manner and form afore- said, the lead aforesaid, of the property of the said A. B., fehv niously did steal, take, and carry away, against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (443«) Stealing and i^eceiving goods stolen in warehouse^under Mass. statute. And the jurors aforesaid, for, etc., on their oath aforesaid, do further present, that L. M. and J. II., otherwise called F. II., of B. aforesaid, on, etc., at, etc., with force and arms, two thou- sand pairs of stockings, each pair of the value of one dollar, of the property, moneys, goods, and chattels of one G. F. II., in a certain building there situated, to wit, the warehouse of the said H. and in his possession then and there being, did then and there in the said building, feloniously steal, take, and carry away, against the peace, etc. {Conclude as in hook 1, chapter 3.) And the jurors aforesaid, for, etc., on their oath aforesaid, do further present, that J. C, of B. aforesaid, on, etc., at, etc., with force and arms, the property, goods, and chattels aforesaid, so as aforesaid stolen, taken, and carried away, feloniously did buy, have, receive, and aid in concealment of; he, the said C, then and there well knowing the said property, goods, and chattels to have been feloniously stolen as aforesaid ; against the peace, etc.(y) {Conclude as in book 1, chapter 3.) (444) Larceny and embezzlement of public property^ on the statute of the United States of the 30^A April, 17b0, § 26.(A-) That A. B., etc., on, etc., at, etc., being a person having the charge and custody of certain arms and other ordnance and munitions of war belonging to the United States, certain arms, to wit, ten muskets,(/) of the value of one hundred dollars, of the property', goods, and chattels of the said United States, furnished and intended for the military service thereof, in the (/) Sustained in Com. v. Cohen, 120 Mass. 198. (k) Davis's Free. 149. Gordon's Digest, art. 3641, p. 714. See post, 460, et seq. (/) The same form is to be adopted as to all the other articles and property enumerated in the statute. 406 LARCENY. (445A) charge and custody of the said A. B, then and there being, did embezzle, steal,(?/() purloin, and knowingly and wilfully misap- propriate, and sell and dispose of, against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (445) Stealing, destroying, or concealing idHI, under statute 24 and 25 Viet. {Commencement as in prior forms) — a certain will and testa- mentary instrument of one J. IST. feloniously did steal, take, and carry away {or feloniously and for a fraudulent purpose did conceal, destroy, obliterate, or did conceal), against, etc.{n) {Con- clude as in book 1, chapter 3.) (445a) Stealing documents of title to real estate, under statute 24 and 25 Vict. {Commencement as in prior forms) — a certain deed, the property of J. ]^,, being {or containing) evidence of the title {or of part of the title) of the said J. N. to a certain real estate (or, to part of a certain real estate) called Whiteacre, in which said real estate the said J. IS. then had, and still hath, an interest, felo- niously did steal, take, and carry away {or, feloniously and un- lawfully, and for a fraudulent purpose did destroy; '■''destroy, obliterate, or concear'), against, etc.(o) {Conclude as in book 1, chap- ter 3.) (4456) Stealing valuable securities, under 24 and 25 Vict. {Commencement as in prior forms) — a certain valuable security, other than a document of title to lands, to wit, one bill of ex- change, for the payment of ten pounds, the property of J. iST., the said sum of ten pounds, secured and payable by and upon the said bill of exchange, being then due and unsatistied to the said J. N., feloniously did steal, take, and carry away, against, etc.(p) {Conclude as in book 1, chapter 3.) (m) In the original section of the statute on which this form was drawn, the word purloin is used in the former part, and the word stolen in tlie hitter part for the same purpose. The form in the text is adapted to Rev. Stat., tit. xiv. art. 60. (n) Arch. C. P. 19th ed. p. 393, citing R. v. Morris, 9 C. & P. 89. (r>) Arch. C. P. 19th ed. p. 394. \p) Arch. C. P. 19th ed. p. 408; citing R. v. Lowrie, L. R. 1 C. C. R. 61. 407 (445(i) OFFENCES AGAINST PROPERTY. (445c) Stealing lead, etc., under 24 and 25 Vict. (Commencement as in jpnor forms) — sixty pounds' weight of lead, the property of J. N., then being fixed to the dwelling- house (describing huilding so as to meet statute) of the said J. N., situate in, etc., feloniously did steal, take, and carry away {or, feloniously did rip, cut, sever, and hY&oik, following statute, with intent the same feloniously to steal, take, and carry away), against, etc.(5') {Conclude as in book 1, chapter 3.) (4456?) Stecding or cutting trees, etc., with intent to steal, \inder 24 and 25 Vict. {Commencement as in prior forms) — one ash-tree {describing so as to meet statute), of the value of six pounds, the property of J. N., then growing in a certain close {folloidng statute) of the said J. N. situate, etc., in the said close, feloniously did steal, take, and carry away {or, feloniously did cut, taking either alter- native of the statute, with intent the same feloniously to steal, take, and carry away; thereby then doing injury to the said J. !I\r. to an amount exceeding the sum of five pounds, to wit, to the amount of six pounds), against, etc.(r) {Conclude as in book 1, chapter 3.) (9) Arch. C. p. 19th ed. p. 405. That venue must be in place of offence, see K. V. Miller, 7 C. & P. 665. (r) Arch. C. P. 19th ed. p. 399. 408 RECEIVING STOLEN GOODS. (-i^^) * CHAPTER YI. RECEIVING STOLEN GOODS. («) (450) General frame of indictment. (452) Against receiver of stolen goods. Mass. Rev. Sts. cli. 12G, § 20. (453) Same in New York. (454) Same in Pennsylvania. (455) Against a receiver of embezzled property. Mass. Stat., 1853, ch. 184. (456) Receiving stolen goods from some unknown person, in Pennsylvania. (457) Same in South Carolina. (458) Same in Tennessee. (459) Soliciting a servant to steal, and receiving the stolen goods. (459a) Receiving and concealing, under Indiana statute. (450) General frame of indictn/ifi.nt.{b) That A. B., in the county aforesaid, one silver tankard, of the value of two pounds, of the goods and chattels((?) of one J. M., before then feloniously stolen, ((Z) taken, and carried away, (a) For offence generally, see Wh. Cr. L. 8th ed. § 942. (h) This offence, so far as it may be considered as a corollary of larceny, is treated of, supra, 415, note. The form in the text, with the accompanying notes, though based on the English statute, is useful for reference generally ; that statute having been substantially re-enacted throughout the Union. (c) A variance in this particular will be fatal. Wh. Cr. L. 8th ed. § 1002 ; People 11. Wiley, 3 Hill, N. Y. R. 194. If, however, a's in larceny, the crime be established in respect to only a single article, tliough the indictment describe several, the defendant may be convicted. Thus where, on the trial of an indict- ment which misdescribed a part of the goods, but contained a sufficient descrip- tion of the residue, the jury were instructed by the court below that there was no misdescription whatever, and a general verdict of guilty was rendered : it was held on review that the erroneous instruction constituted no ground for a new trial, inasmuch as it appeared by the bill of exceptions that the question of the defendant's guilt was identical in respect to the whole of the goods, he having received them, if at all, from the same person by a single act. People v. Wiley, 3 Hill, N. Y. R. 194. [d) The indictment need not give the name of the principal felon. R. r. Jervis, 6 C. & P. 156 ; R. v. Wheeler, 7 C. & P. 170; R. v. Pulliam, 9 C. & P. 280; Com. v. State, 11 Gray, 60; People v. Caswell, 21 Wend. 8G ; Schried- leyy. State, 23 Oh. St. 130; Swaggerty c. State, 9 Yerg. 338; State v. Smith, 37 Mo. 58. It is not essential in such case to aver that the principal felon or thief had been convicted. lb. But in some jurisdictions the name of the thief 409 (452) OFFENCES AGAINST PROPERTY. (feloniously)(e) did receive and have (he the said A. B. then and there well knovving(/) the said snoods and chattels to have been feloniously stolen, taken, and carried avvay),(^) against, etc. {Conclude as in book 1, chapter 3.) {For form in U. S. courts, see ante, 421.) (452) Against receiver of stolen goods. Mass. Rev. Sts. ch. 126, § 20. That C. D., late, etc., on, etc., at, etc. (one hat, of the value, etc., here enumerate the articles, and the value of each), of the goods and chattels of one E. F., then and there in the possession of the said E. F. being found, feloniously did steal, take,(A) and carry away; against the peace of said commonwealth, and con- trary to the form of the statute in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do further present, that G. H., late of, etc., laborer, afterwards, to wit, on the first day of July, in the year of our Lord with force and arms, at B. aforesaid, in the county aforesaid, the goods and chattels aforesaid, so as aforesaid feloniously stolen, taken, and carried away, feloniously did receive and have, and did then and there aid in the concealment of the same, the said G. H. then and there well knowing the said goods and chattels to have been feloniously stolen, taken, and carried away; against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) is averred ; and it may be prudent to insert it if known, or to allege it to be un- known. Wh. Cr. L. 8th ed. § 997. When tlie indictment states the larceny to have been committed by some persons to the jurors unknown, it is no objection that tlie grand jury at the same assizes find a bill for the principal felony, against J. S. R. i'. Bush, 11. & R. 372. An indictment charging that a certain evil-disposed person feloniously stole cei-tain goods, and that C. D. and E. F. feloniously received the said goods, knowing them to be stolen, was held good against the receivers, as for a substantive felony. R. v. Caspar, 2 Mood, C. C. 101 ; 9 C. & P. 289. The time and place, when and where the goods were stolen, need not be stated in the indictment. State v. Holford, 2 Blackf. 103 ; 1 Leach, 109, 47 7. (e) Of course where tlie offence is a misdemeanor, as in Pennsylvania, the word "feloniously" must be omitted. (/) This is essential. AVh. Cr. L. § 164; R. v. Larkin, Dears. 365 ; 6 Cox C. C. 377. See for other cases Wh. Cr. L. 8th ed. § 999. ((/) "Taken and carried away" are not necessary when "stolen" is used. Com. V. Lakeman, 5 (iray, 82. (h) See Com. v. Lakeman, 5 Gray, 82. 410 RECEIVING STOLEN GOODS. (455) (453) Same in New York. That 0. M. H., etc., at, etc., on, etc., one mare, of the value of eighty dollars, of the goods and chattels of one B. M., by a certain ill-disposed person, feloniously did receive and have, he the said 0. M. H. then and there well knowing the said goods and chattels to have been feloniously stolen, taken, carried, and led away, to the great damage, etc.(i) {Conclude as in book 1, chapter 3.) (454) Same in Pennsylvania. That A. B., etc., on, etc., at, etc., one hat, of the value of five dollars, of the goods and chattels, moneys, and property of E. F., by C. D. then lately before feloniously stolen, taken, and car- ried away, unlawfully, unjustly, and for the sake of wicked gain did receive and have (the said A. B. then and there well know- ing the goods and chattels, moneys, and property aforesaid, to have been feloniously stolen, taken, and carried away), contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (455) Against a receiver of embezzled property. Mass. Stat. 1853, ch. 184.(J) That C. D., late of F., in the county of M., trader, on the first day of June, in the year of our Lord at F. aforesaid, in the county aforesaid, being then and there employed as clerk of one J. N., the said C. D. not being then and there an apprentice to the said J. N., nor a person under the age of sixteen years, did, by virtue of his said employment, then and there, and whilst he was so employed as aforesaid, take into his possession certain money, to a large amount, to wit, to the amount of fifty dollars, of the moneys of the said J. N., his employer, and the said money then and there feloniously did embezzle and fraudu- lently convert to his own use, without the consent of the said J. N. ; whereby, and by force of the statute in such case made and provided, the said G. D. is deemed to have committed the crime of simple larceny. And the jurors aforesaid, upon their (0 Hopkins r. People, 12 "Wend. 76. It is not necessary to allege that any consideration passed between the receiver and the thief. {j) Tr. & H. Prec. 450. 411 (457) OFFENCES AGAINST PROPERTY. oath aforesaid, do further present, that the said C. D. then and there, in manner and form aforesaid, the said money, the property of the said J. N., his said employer, from the said J. N. feloni- ously did steal, take, and carry away ; against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. And the jurors aforesaid, upon their oath aforesaid, do further present, that G. H., late of F., in the county aforesaid, laborer, afterwards, to wit, on the first day of July, in the year of our Lord at F. aforesaid, in the county aforesaid, the money aforesaid, so as aforesaid feloniously em- bezzled, feloniously did receive and have, and did then and there aid in concealing the same, the said G. H. then and there well knowing the said money to have been embezzled as afore- said; against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (456) Receiving stolen goods from some unknown ijerson^ in Pennsylva7iia.{k) That M. J., late of the said county, spinster, being a person of evil name and fame, and of dishonest conversation, and a common buyer and receiver of stolen goods, on, etc., at, etc., one hundred yards of fine thread lace, of the value of twenty- five pounds, of the goods and chattels of J. S., by a certain ill- disposed person to the jurors aforesaid yet unknown then lately before feloniously stolen, of the same ill-disposed person, unlaw- fully, unjustly, and for the sake of wicked gain, did receive and have, she the said M. J. then and there well knowing the said goods and chattels to have been feloniously stolen, to the great damage of the said J. S., contrary, etc., and against, etc. {Con- clude as in hook 1, chapter 3.) (457) Same in South Carolina. That A. B., etc., on, etc., at, etc., one tin kettle, of the value of one dollar, of the proper goods and chattels of E. F., by C. T>. then lately before feloniously stolen, taken, and carried away, of and from the said C. D., unlawfully, unjustly, and for the sake of wicked gain, did buy and receive, the said A. B. then and {k) Drawn by AVm. Bradford, Esq., at the time attorney-general of the commonwealth. 412 RECEIVING STOLEN GOODS. (459) there well knowing the aforesaid goods and chattels to have been feloniously stolen, taken, and carried away; against, etc., and against, etc. {Conclude as in hook 1, chapter 3.) Second count. That the said A. B., on, etc., at, etc., one other tin kettle, of the value of one dollar, of the proper goods and chattels of the said E. F., by a certain evil disposed person, to the jurors aforesaid unknown, then lately before feloniously stolen, taken, and car- ried away, of and from the said evil disposed person, unlaw- fully, unjustly, and for the sake of wicked gain, did buy and receive, the said A. B. then and there well knowing the afore- said goods and chattels to have been felonious!}^ stolen, taken, and carried away ; against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (458) Sajne in Tennessee.il) That S. D. S., etc., on, etc., at, etc., two sides of upper leather, of the value of five dollars, of the goods and chattels of one M. H. B., then lately before feloniously and fraudulently stolen, did then and there receive and have, he the said S. then and there well knowing the said goods and chattels to have been feloni- ously and fraudulently stolen, taken^ and carried away, with intent to deprive the true owner thereof,(m) contrary, etc., and against, etc. {Co7iclude as in book 1, chapter 3.) (459) Soliciting a servant to steal and 7xceiving the stolen goods.{n) That E. D., etc., on, etc., at, etc., falsely, subtly, and unlawfully did solicit, entice, and persuade one M. P., servant of W. S., of the same county, yeoman, secretly and clandestinely to take and embezzle divers goods and chattels of the said W. S., and to give and deliver such goods and chattels to her the said E., and that the said E. afterwards, the said third day of May, in the year aforesaid, at the county aforesaid, two pounds of coffee, one quarter of a pound of candles, one pound of soap, ten pounds of iiour, one pound of bread, half a pint of rum, of the value of six (0 This form was hold pood in Swaggerty v. State, 9 Ycrg. 338. (m) This allegation is vital. Huivll c. State, 5 Humph. G8. (n) See for "Attempts to commit Oilences," infra, 1046, etc. 413 (459«) OFFENCES AGAINST PROPERTY. shiUlngs and sixpence, lawful money of Pennsylvania, of the goods and chattels of the said W. S., by the said M., then lately before on the same day and year above mentioned, by the solici- tation, incitement, and persuasion of the said E., taken and embezzled, then and there falsely, knowingly, subtly, and unlaw- fully did receive, obtain, and have, of and from the said M., to the great damage of the same W. S., to the evil example of all others in the like case oftending, and against, etc. {Conclude as in book 1, chapter 3.) (459rt) Receiving and concealing under Indiana statute. That M. K., on, etc., at, etc., did feloniously buy, receive, conceal, and aid in the concealment of eleven hogs, of the value of twelve dollars each, the said hogs then and there being the property of S. H., G. W. P., and 6. W. K; which said hogs, prior to the time they were so bought, received, and concealed by said Iv., had been feloniously stolen, taken, and carried away, at said county, by some person to said jurors unknown; he, the said Iv., at the time he so bought, received, concealed, and aided in the concealing of said hogs, well knowing that the same had been stolen, contrary, etc.(o) {Conclude as in book 1, chapter 3.) (o) It was held in Indiana that this indictment was good, though it did not show the time when the hogs were stolen, and that they were the subject of lar- ceny at the time they were so received. Kaufman v. State, 49 Ind. 248. 414 EMBEZZLEMENT. CHAPTER VII. EMBEZZLEMENT.(rO (460) Against officer of the United States mint, for embezzling money intrusted to him. (461) Against same person for same, charging him with being a person employed at the mint. (462) Against auctioneer for embezzlement, under the Mass. Rev. Sts. ch. 126, § 30. (463) Second count, larceny. (464) General form of indictment in New York. (465) Second count, larceny. (465a) Against cashier of national bank for embezzlement. (466) Against the president and cashier of a bank for an embezzlement. Rev. Sts. of Mass. ch. 126, § 17. (467) Against a clerk for embezzlement. Rev. Sts. of Mass. ch. 126, § 29. (467a) Another form. (468) Against a carrier for embezzlement. Rev. Sts. of Mass. ch. 126, § 30. (468a) Against bailee for embezzlement, under Mass. Gen. Stat. (469) Embezzlement by clerk or servant, In England. (469 a) Another form, (4696) Another form. (469c) Against banker for conversion, under English statute. (469rf}- ni' their masters or their principals. Com. v. Stearns, 2 Mete. 343. See also The People 17. Hennessey, 11 Wendell, 147. 429 (468) OFFENCES AGAINST PROPERTY. said B. is deemed to have committed the crime of simple lar- ceny. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said B. then and there, in manner and form aforesaid, the said money, of the property and moneys of the said P. and W., feloniously did steal, take, and carry away, against the law, etc.(i) {Conclude as in book 1, chapter 3.) (468) Against a carrier for embezzlement. Rev. Sis. of 31ass. ch. 126, § 30.(i) That one J. IST., on the first day of June, in the year of our Lord at F., in the county of M., did deliver to one J. S., late of, etc., the said J. S. being then and there a carrier, a cer- tain large sum of money, to wit, the sum of one thousand dol- lars, and of the value of one thousand dollars, of the property and moneys of the said J, E^., to be carried by the said J. S., for hire, to wit, for the sum of two dollars, and to be delivered by the said J. S., for the said J. N., and by the said J. N. sent and directed to one C. D., at B., in the county of S. ; and that the said J. S. did, by virtue of his said employment as a carrier, at F. aforesaid, in the <;ounty aforesaid, and while he was so em- ployed as aforesaid, take into his possession said money to be carried and delivered as aforesaid, and that the said J. S., car- rier as aforesaid, afterwards, to wit, on the first day of June, in the year of our Lord at F., in the county of M., and before the money so delivered to him as aforesaid was by the said J. S, delivered to the said C. I), at B., in the county of S., feloniously did embezzle and fraudulently convert the same to his own use ; whereby, and by force of the statute in such case made and pro- vided, the said J. S. is deemed to have committed the crime of simple larceny. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. S., on the said first day of June, in the year of our Lord at F., in the county of M., in manner and form aforesaid, the said money, the property of the said J. N., from the said J. K. feloniously did steal, take, (t) Sustained in Com. v. Bennett, 118 Mass. 443. ( /) Tr. & Heard Free. 191. Under the statute of Maine, if a person, to whom property is intrusted in IMaine to be carried for hire, and delivered in another state, shall, before such delivery, fraudulently convert the same to his own use, the crime is punishable in IMaine, whether the act of conversion be in that state or another. State v. Haskell, 33 Me. 127. 430 EMBEZZLEMENT. (469) and carry away, against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (468a) Against bailee for embezzlement under Mass. Gen. statute. That B. (the defendant) on, etc., did embezzle and fraudulently convert to his own use, divers promissory notes, payable to the bearer on demand, current as money in said commonwealth, of the amount and of the value of sixty-five dollars, a more par- ticular description of which is to the jurors unknown, of the property, moneys, goods, and chattels of one H. S., the said pro- missory notes being then and there the subject of larceny, and the said promissory notes having theretofore, to wit, on, etc., been there delivered to the said B. by the said S., in the trust and confidence and with the direction that the said B. would and should return said promissory notes to the said S., upon demand, and the said promissory notes and each thereof having been then and there received by the said B. in the said trust and confidence and with the said direction. (A-) {Conclude as in book 1, chapter 3.) (469) Embezzlement by clerk or servant, in England.iJ) That J. S., etc., on, etc., at, etc., being then and there employed as clerk ("clerk or servant, or any person employed for that pur- pose, or in the capacity of a clerk or servant"), to J. N., did, by virtue of his said employment, then and there, and whilst he (Jc) On the trial of the above indictment, it appearing by the evidence that the notes were of the amount and vakie of !5 70, and wci-e known so to be by the grand jury, this was held no variance. It was held also, that the indictment was not bad for failure to aver that the goods were to be returned upon the demand of H. S., or that H. S. did demand them. Com. v. Hussey, 111 Mass. 432. (/) Archbold's C. P. 5th Am. ed. 329. This form is drawn upon the statutes 7 & 8 Geo. IV. c. 29, s. 47, which, for the punishment of embezzlements committed by clerks or servants, declares and enacts, that if any clerk or servant, or any person employed for the ]Mn-j)ose or in the capacity of a clerk or servant, shall, by virtue of sucli employment, receive or take into his possession any chattel, money, or valuable security, for or in the name or on the account of his master, and sliall fraudulently embezzle the same or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master, although such chattel, money, or security was not received into the possession of such master otherwise than by the actual pos- session of his clerk, servant, or other person so employed ; and every such offender, being convicted thereof, shall be liable at the discretion of the court, to any of tlie punishments which the court may award as hereinbelbre last men- tioned. 431 (469a) OFFENCES AGAINST PROPERTY, was SO employed as aforesaid, receive and take into his posses- sion certain money ("chattel, money, or valuable 8ecurity"),(r/i) to a large amount, to wit, to the amount of ten pounds, for and in the name and on the account of the said J. N., his master, and the said money then and there fraudulently and feloniously did embezzle; and so the jurors, etc., do say, that the said J. S., on, etc., at, etc., then and there, in manner and form aforesaid, the said money, the property of the said J. N., his said master, from the said J. N. feloniously did steal, take, and carry away, against, etc., and against, etc. {Conclude as in. book 1, chapter 3.) {If the prisoner has been guilty of other acts of embezzlement within the i)eriod of six months, add the folloioing)'. That the said J. S., on, etc , at, etc., afterwards, and within six calendar months from the time of the committing of the said offence in the first count of this indictment charged and stated, to wit, on the day of in the year aforesaid, at the parish aforesaid, in the county aforesaid, being then and there employed as clerk to the said J. IST., did, by virtue of such last mentioned employment, then and tliere, and whilst he was so employed as last aforesaid, receive and take into his possession certain other money to a large amount, to wit, to the amount of ten pounds, for and in the name and on the account of the said J. N., his said master, and the said last mentioned money then and there, within the said six calendar months, fraudulently and feloniously did embezzle, and so, etc. {as in the first count to the end). (469a) Another form. That J. S., late, etc., on, etc., at, etc., was clerk (or servant) to J. IST., of, etc. {or was employed by J. N.), and that the said J. S., whilst he was such clerk {or servant) to the said J. N. as afore- said {or was so employed by the said J. N. as aforesaid), to wit, on the day and year aforesaid, certain money to the amount of ten pounds {describing articles), belonging to the said J. N. his master {or employer, varying with statute), feloniously did steal, take, and carry away, against, etc.(7?) {Conclude as in book 1, chapter 3.) (m) See 7 & 8 Geo. IV. c. 29, s. 5. (n) Arch. C. P. lOth ed. p. 383. 432 EMBEZZLEMENT. (469^/) (4696) Another form under 24 and 25 VicL, c. 96. That J. S., on, etc., at, etc., being then employed as clerk (or servant) to J. E"., did then, and whilst he was so employed as aforesaid, receive and take into his possession certain money to a large amount, to wit, etc., for and in the name and on the account of the said J. N". his master (or employer), and the said money then (and there) fraudulently and feloniously did em- bezzle; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said J. S., then, in manner and form aforesaid, the said money, the property of the said J. E". his said master (or employer), feloniously did steal, take, and carry away, against, etc.(o) (^Conclude as in book 1, chajJter 3.) (469c) Against hanker under English statute for conversion of money given him for specific 'purposes. That, on, etc., at, etc., J. N. did intrust J. S. as a banker (or broker or other agent) with a certain large sum of money, to wit, etc., with a direction to the said J. S. in writing, to pay the said sum of money to a certain person specified in the said direction ; and that the said J. S., banker as aforesaid, after- wards, to wit, etc., in violation of good faith, and contrary to the terms of the said direction, unlawfully did convert to his own use and benefit the said sura of money, so to him intrusted as aforesaid, against, Qtc.(p) (Conclude as in book 1, chapter 3.) (469(i) Against hanker for misappropriating goods given him for safe-keeping. (Commencement as in last precedent) — J. N^. did intrust to J. S. as a banker for safe custody, a promissory note (stating chattel or other security) of one J. P., for the payment of without any authority to him the said J. S. to sell, negotiate, transfer, or (o) Arch. C. P. 19th ed. p. 482. Under recent statutes " money" is a suffi- cient designation. It was otherwise previously. R. v. Furneaux, R. & R. 335; R. V. Tyers, R. & R. 402. But "money" is not sustained by proof of a check. R. V. Keena, L. R. 1 C. C. 113. The property must be averred to be in tlie master. R. v. McGregor, 3 B. & P. lOG ; R. & R. 23 ; R. v. Beacall, 1 Mood. C. C. 15. It is not necessary to prove from whom the money was received. R. V. Beacall, 1 C. & P. 454. It must appear that the defendant was servant at the time. R. r. Somerton, 7 B. & C. 463. (p) Arch. C. P. IDth ed. p. 500 ; citing R. v. Golde, 2 M. & Rob. 425. VOL. I.— 28 483 (469^) OFFENCES AGAINST PROPERTY. pledge the said promissory note; and that the said J. S., banker as aforesaid, at, etc., on, etc., in violation of good faith, and contrary to the object and purpose for which such promissory note was intrusted to him the said J. S. as aforesaid, unlawfully did negotiate and convert to his own use and benefit the said promissory note, against, etc.{q) {Conclude as in book 1, chapter 3.) (469e) Against factor under English statute. That, etc., J. jST. did intrust to J. S., the said J. S. then being a factor and agent of him the said J. N., ten bales of cotton (of the value of ) ; and that the said J. S., factor and agent as aforesaid, at, etc., on, etc., contrary to and without the author- ity of the said J. N., for his own use and benefit, and in viola- tion of good faith, unlawfully did make a deposit of the said ten bales of cotton with one J. P., as and by way of a pledge, lien, and security for a certain sum of money, to wit, the sum of ten pounds, then advanced by the said J. P. to him the said J. S., against, etc.(r) {Conclude as in hook 1, chapter 3.) (469/) Against trustee under English statute. That, before and at the time of the committing of the offences hereinafter mentioned, to wit, on, etc., at, etc., J. S. was a trustee of certain property, to wit {stating jjropertg), wholly {or par- tially) for the benefit of J. IST. ; and that he, the said J. S., so being such trustee as aforesaid, on, etc., at, etc., unlawfully and wilfully did convert and appropriate the said property to his own use, with intent thereby then to defraud (the said ), against, etc.(s) {Conclude as in book 1, chapter 3.) (469^) Against directors of public comjmny under English statute. That, before and at the time of the committing of the offence hereinafter mentioned, J. S. was a director {or member, or public officer) of a certain public company {or body corporate) called, etc. ; and that he the said J. S., so being director as aforesaid, on, etc., at, etc., did unlawfully and fraudulently take and apply (q) Arch. C. P. 19th ed. p. 502 ; citing R. v. Tiitlock, 2 Q. B. D. 15 ; R. v. Cooper, L. R. 2 C. C. 123. (r) Arch. C. P. 19th ed. p. 503. («) Arch. C. P. 19th ed. p. 505, where It Is advised that counts be added alleging that the defendant disposed of the property, or destroyed it. 434 EMBEZZLEMENT. (469z) for his own use and benefit certain money, to wit {specifying), of and belonging to the said company, against, etc.(<) {Conclude as in book 1, chapter 3.) (469/() Against same for publishing fraudulent statements. {Commencement as in last form) — did unhiwfully circulate and publish a certain written statement and account which said written statement and account was false in certain material particulars, that is to say, in this, to wit, that it was thereiii falsely stated that {state the particulars)^ he the said J. S. then well knowing the said written statement and account to be false in the several particulars aforesaid ; with intent thereby to de- ceive and defraud J. IST., then and there being a shareholder of the said public company, against, etc.(M) Conclude as in book 1, chapter 3.) (469i) Embezzlement by partner under English statute. That J. S., etc., being a member of a certain copartnership of persons trading under the name, style, and title of the A. S. and P. C. Soc, did, on, etc., receive into his possession the sum of one pound and one shilling in money, for and on the account of the said copartnership, and fraudulently and feloniously did em- bezzle the said sum of money. {Conclude as in book 1, chapter 3.) Tfie second count charged him ivith having imthin six months from the offence in the first count, that is to say, on, etc., while he was a member of the said copartnership, received on account of the said, co- partnership the further sum of £1 Is., and with having embezzled that sum. The third count charged him with having within six months from the offences in the first and second counts, that is to say, on, etc., while he teas a member of the said copartnership, received on account of the said copartnership the further sum of £1 bs., and having embez- zled that sum.{v) (0 Arch. C. P. 19th ed. p. 509. (u) Arch. C. P. 19th ed. p. 510. It is advised that counts be added statinc; the intent to be to dec(uve and defraud " certain persons to the jurors aforesaid unknown, being shareholders of the said," etc. ; and also further varying this intent. (v) Pt. V. Balls, 12 Cox C. C. 96 ; L. R. 1 C. C. 328. In this case evidence was given that during a certain week payments of ten snudler sums, making to- gether £1 Is., had been made to defendant, and tii.it he failed to account for 435 (469J) OFFENCES AGAINST PROPERTY. (469J) Embezzlement under English statute^ hy constable^ etc. That the prisoner, on, etc., being then employed in the public service of the queen, and being a constable and a person employed in the police force of the borough of L., and entrusted by virtue of such employment with the receipt and custody of money the property of the queen, did, by virtue of his said employment, and whilst he was so employed, receive and have in his posses- sion and was entrusted with certain money the property of the queen, to wit, to the amount of one pound and six shillings, for and on account of the public service of the queen, and then fraudulently and feloniously did apply the said money to his own use and benefit, and fraudulently and feloniously did steal the said last mentioned money, being the property of the queen, from the queen, against, etc. {Conclude as in book 1, chapter 3.) Second count. That prisoner afterwards, and within six calendar months of his committing the oftence in the first count mentioned, to wit, on, etc., being then employed, etc., and being a constable, etc., and entrusted, etc. {as in the first count)., did, by virtue of such employment and whilst he was so employed, receive and have in bis possession and was entrusted with certain money the pro- perty of the queen, and then fraudulently and feloniously did apply the said last mentioned money to his own use and benefit, and did fraudulently and feloniously steal the same, being the property of the queen, from the queen, against, etc. (^Conclude as in book 1, chapter 3.) Tfdrd count. That prisoner afterwards, and within six calendar months of his committing the offence in the first count mentioned, to wit, on, etc., being then employed, etc., and being a constable, etc., and entrusted, etc. (as in the first count), did by virtue of his those sums, or for any specific sum of £1 Is. It was held, that the indictment might properly charge the embezzlement of a gross sum, and he proved by evi- dence similar to the above, and that it was not necessary to charge the embezzle- ment of each particular sum composing the gross sum, and that, although the evidence might show a large number of small sums embezzled, the prosecution was not to be confined to the proof of such small sums only. See Wh. Cr. L. 8th ed. § 104. 436 EMBEZZLEMENT. (469^) said employment, and whilst he was so employed, receive and have in his possession and was entrusted with certain money, the property of the queen, to wit, the amount of 18s., as and on account of the public service of the queen, and then fraudulently and feloniously did apply the said last mentioned money to his own use and benefit, and did fraudulently and feloniously steal the same, being the property of the queen, from the queen, against, etc.(w7) {Conclude as in hook 1, chapter 3.) (469Z;) Fraudulent bankruptcy in England. The jurors for, etc., upon their oath present, that heretofore, and before the committing hereinafter mentioned, to wit, on, etc., a bankruptcy petition was presented against P. C, and the said P. C. was thereupon, to wit, on, etc., adjudged a bankrupt ; and that the said P. C, within four months next before the presentation of the said bankruptcy petition against him, to wit, on, etc., by the false representation to one M. B., that he the said P. C. was then buying the property hereinafter men- tioned, in part fulfilment of an order for sixty bales, and that he had funds in hand to pay for it, or an equivalent to funds, did obtain, from the said M. B., property, to wit, twenty-five bales of cotton, and has not paid for the same, whereas in truth and in fact the said P. C. was not then buying the said prop- erty in part fulfilment of an order for sixty bales, and had not funds in hand to pay for it, and had not an equivalent to funds, as he the said P. C. well knew when he made such false repre- sentations as aforesaid, against, etc. {Conclude as in book 1, chapter 3.) (?r) This wus sustained in R. v. Graham, 13 Cox C. C. 57. A., the prosecutor in tills case, an inspector of prisons, duly authorized to receivi^ the conti'ibu- tions of parents towards the maintenance of their children committed to relbnna- tory and industrial schools under 29 & 30 Vict. cc. 117, 118, and instructed to pay the amount received into the Bank of England, to the credit of the jiaynia^ter- general, employed the prisoner, a member of the police force of the borougli of L., as his agent in taking proceedings against the parents of suchchildi-en for the recovery of such contributions on A.'s behalf, and for generally carrying out the provisions of the reformatory and industrial schools act. Under this emjdoy- ment, which was sanctioned by tlie treasury department, the prisoner received and misajtjjropriated moneys, the contributions of parents, ordered by magistrates to be paid for the maintenance of their children in tlie schools. It was held, that the prisoner was, while so employed, in the public service, so as to be within the statute. 437 (469^) OFFENCES AGAINST PROPERTY. Second count. And the jurors aforesaid, on their oath aforesaid, do further present, that heretofore, and before the committing of the offence hereinafter mentioned, to wit, on, etc., a bankruptcy petition was presented against the said P. C, and the said P. C. was thereupon, to wit, on, etc., adjudged bankrupt; and that the said P. C, within four months next before the presenta- tion of the said petition against him, to wit, on, etc., by the false representation to the said M. B., that he, the said P. C, who was then carrying on business as a cotton broker, was then buying the property hereinafter mentioned as a broker, acting on behalf of a principal, did obtain from the said M. B. property, to wit, twenty-five bales of cotton, on credit, and has not paid for the same, whereas in truth and in fact the said P. C. was not then buying the said property as broker acting on behalf of a principal, as he, the said P. C, well knew at the time when he made such false representation as aforesaid, against, etc. {Conclude as in hook 1, chapter S.) Third count. And the jurors aforesaid, on their oath aforesaid, do further present, that heretofore, and before the committing of the offence hereinafter mentioned, to wit, on, etc., a bankruptcy petition was j)resented against the said P. C. ; and the said P. C, within four months next before the presentation of the said bankruptcy petition against him, to wit, on, etc., being a trader, to wit, a cotton broker, obtained from the said M. B., under the false pretence of carrying on business dealing in the ordinary way of his said trade, certain property, to wit, twenty-five bales of cotton, on credit, and has not paid for the same, against, etc. {Conclude as in book 1, chapter 3.) Fourth count. And the jurors aforesaid, on their oath aforesaid, do further present, that heretofore, and before the committing of the offence hereinafter mentioned, to wit, on, etc., a bankruptcy petition was presented against the said P. C, and the said P. C. was thereupon, to wit, on, etc., adjudged bankrupt; and 438 EMBEZZLEMENT. (4690 that the said P. C, within four months next before the pre- sentation of the said bankruptcy petition against him, to wit, on, etc., being a trader, to wit, a cotton broker, with in- tent to defraud, obtained from the said M. B., under the false pretence of carrying on business in the ordinary way of his trade, property, to wit, twenty-five bales of cotton, on credit, and has not paid for the same, against, ete.(x) {Conclude as in book 1, chapter 3.) (469^ Ticket scalping^ under Pennsylvania statute. First count. Setting out ticket. That A. W., iate of the said county, yeoman, on the twenty- eighth day of July, in the year of our Lord one thousand eight hundred and eighty, at the county aforesaid, and within the jurisdiction of this court, with force and arms, etc., for and in consideration of the price and sum of nine dollars, lawful money of the United States of America, paid to him the said A. W. by one G. G. B., did then and there unlawfully sell, bar- ter, and transfer to the said G. G. B. the whole of a certain ticket, pass, and evidence of the holder's title to travel on the Pennsylvania Railroad then and there situate, which said ticket and pass is in the words and figures following, that is to say : — PENNSYLVANIA RAILROAD COMPANY. THIS TICKET ENTITLES THE HOLDER TO One First-cLass passage to PITTSBURGH, PENNA. This ticket is void unless officially stamped and dated. In selling this ticket for passage over other roads this company- acts only as agent, and assumes no responsihility beyond its own line. This company assumes no risks on baggage except for wearing apparel, and limits its responsibility to one hun- dred dollars in value. All baggage exceeding that value will be at the risk of the owner unless taken by special contract. The check belonging to this ticket will be void if detached. 30 31 L. P. FARMER, 40 104 Gen'l Passenger Agent. O o < O < P5 > 30 31 be PU i-i a O "3 a' o og in rn o H CO ^M t! 40 104 {x) This indictment was sustained in K. v. Cherry, 12 Cox C. C. 32. 439 (469/) OFFENCES AGAINST PROPERTY. And stamped and endorsed on the back thereof — d O "^ Iroad ON. Pi 3^N ca « a a rt «® (1h Pi . Ti C/J c5 o o 'rt bD P^ > The grand jury of, etc., charge, that C. C, before the finding of this indictment, unhxwfully and maliciously disabled or in- jured a cow, the property of J. H., against the peace, etc.(?) {Conclude as in booh 1, chajyter 3.) (475) Killing a heifer, under Ohio statute.{j) That A. B, and C. D., on the eighteenth day of October, in the year of our Lord one thousand eight hundred and fifty -two, in the county of Cuyahoga aforesaid, wilfully, maliciously, and purposely did kill and destroy a certain heifer, then and there being found, and the property of M. N., of the value of twelve dollars, by then and there {here set out the manner of killing), which said heifer was not then and there trespassing in any inclosure of the said A. B.(^) (476) Cutting down trees, etc.{l) That A. B., etc., on, etc., at, etc., wilfully and maliciously did cut down and destroy ten ash-trees, planted in a certain avenue to the dwelling-house of one M. N., and then growing for orna- ment there (he the said M. N. then and there being then owner of the said trees, which the said A. B., etc., then and there well (/) This was held good in Cakhvell v. State, 49 Ala. 34. (_/) It should be observed that in Ohio tlie statute should be followed closely, as the oilence does not exist at common law. (k) AVarren's C. L. 147. (Z) See Stai'k. C. P. 463. This form may be good at common law. Com. v. Eckert, 2 Browne, 251 ; Loomis t'. Edgarton, 19 AVend. 420; though see Brown's case, 3 Greenl. 177. See AVh. Cr. L. 8th ed. § 1067. In an indictment for cutting timber under the Pennsylvania statute, it was held sufficient to aver that the defendants, the tree in question (describing it) " did cut down and fell, they, the said, etc., well knowing the said tree to be growing on the land of the said J. H., etc., and that the land on which the said tree was growing did not belong to them the said defendants, or either of them, or to any person by whom they or either of them was authorized," etc. Moyer v. Com., 7 Barr, 439. See the remarks of a learned correspondent of the Am. L. J., on this point, 4 Am. L. J. 130. The Ibrm in AVh. Prec. 1st ed. 223, is cer- tainly insufficient, and I am hapjiy to take this opportunity not only of correcting it, but of returning my acknowledgments to the gentleman by whom the error was pointed out. (See, also, Com. v. Betchel, 1 Am. L. J. 414, and remarks.) 448 MALICIOUS MISCHIEF. (477) knew), to the great damage of the said M. N., against, etc. {Conclude as in hook 1, chapter 3.) (476(i) Cutting trees^ under English statute. That J. S., etc., on, etc., at, etc., two elm trees, the property of J. ]Sr., then growing in a certain park of the said J. IST., situate, etc., feloniously, unlawful]}^ and maliciously did cut and dam- age, thereby, then and there doing injury to the said J. N". to an amount exceeding one pound, to wit, to the amount of ten pounds, against, etc.(w) {Conclude as in hook 1, chajjter 3.) (477) Killing a steer^ at common law.{n) That D. S., etc., on, etc., at, etc., one steer, of the value of five dollars, of the goods and chattels of one L. M'C, then and there (???) Arch. C. P. 19th ed. p. 599. (n) State v. Scott, 2 Dev. & Bat. 35. Daniel, J., after stating the substance of the case in detail, proceeded : " We see no ground for a new trial in tliis case. The evidence objected to was ad- mitted — and, as we think, correctly — to repel an allegation made by the de- fendant, of an alibi. And after tlie evidence was admitted by the court, the weight and effect of it was matter for the jury only; and it seems to us, tluit there was nothing left for the court to remark upon, especially, as no particular charge concerning this evidence was prayed by the defendant. We have ex- amined the reasons in arrest, and concur in opinion with the judge who pro- nounced the judgment. 1st. The two detached pieces of paper writing purport- ing to be a transcript of the I'ecord, contained everything necessary to give Bun- combe superior court jurisdiction ; it contained the indictment, plea, and order of removal. In that shape it was entered on the state docket, and the defendant went to trial. From great caution, the judge suspended judgment at the trial term, and sent a certiorari for such a record as could not be cavilled about. At the term judgment was rendered, the record was unexceptionable, and showed that the two pieces of paper which had been received as the record of the case, and on which the defendant had been tried, contained a true and complete transcript of the I'ccord when it was removed from Rutherford. So, when judgment was pronounced, the record showed that the case had been prop- erly removed, and that Buncombe superior court had jurisdiction of the case at the term the trial took place. The record being unexceptionable when judgment was prayed, there was nothing to restrain tlie judge from pronounc- ing it. "2d. This court decided, in the case of the State v. Simpson, 2 Hawks, 4G0, that an indictment for malicious mischief, which concluded at common law, was good. "That decision was made in the year 1823, and since that many convictions on indictments for malicious mischief at common law, have taken place in the circuits of this state. In tlie year 182G, the legislature indirectly approved of the decision ; for in the act limiting the time that indictments for misdemeanors should be brought, it is declared, that in all trespasses and other misdemeanors except the offences of perjury, forgery, malicious mischief, and deceit, tlie prose- cution shall commence within three years after the commission of the offence. VOL. I.— 29 449 (478) OFFENCES AGAINST PROPERTY. being, then and there unlawfully, ■wantonly, maliciously, and mischievously did kill, to the great damage of the said L. M'C, and against, etc. {Conclude as in hook 1, chapter 3.) (478) Altering the mark of a sheep, under the North Cai^oUna statute.{o) That J. D., etc., on, etc., at, etc., feloniously and knowingly did alter the mark of one sheep, the property of W. M'C, know- After what lias taken place, we think the period too late for us now to examine i'urthor into the question. " 3(1. The objection is, that the indictment does not charge malice against the owner of the property. We have looked into the books of forms and precedents, and find that the form of this indictment corresponds with the forms prescribed in the books. What evidence the state must produce to support such an indict- ment as this, Ave are not called on to decide. We think there is no ground for a new trial or arrest of judgment, and this opinion will be certified to the superior court of law for the county of Buncombe, that it may proceed to final judgment in the case." (n) State V. Davis, 2 Iredell, 153. Gaston, J. : " We are of opinion that the appellant has not shown any error in the instructions to the jury, nor suflicient reasons to arrest the judgment. " The indictment is founded on the act of 1822, c. 1155, re-enacted in the revised sts. ch. 34, § 55, whereby it is declared, ' that if any person shall know- ingly alter or deface the mark or brand of any person's neat cattle, sheep, or hog, shall knowingly mismark or brand any unbranded or unmai-ked neat cattle, sheep, or hog, not properly his own, with intent to defraud any other person, he shall, on conviction in a court of record, be liable to corporal punishment in the same manner as on a conviction of petit larceny.' The manifest purpose of the legislature is to punish the act of changing or defiicing these marks or brands, which are the ordinary indications of ownership in property of this description, and also the act of putting false marks or brands thereon, with intent to injure the owner by either depriving him of the property or rendering his title thereto more diificult of proof. Now, when the act of wilfully changing or defacing the mark is fixed upon the person accused, and no explanation is given of the act to render it consistent with an honest purpose, the conclusion follows irresistibly that it was done with intent to eii'ect the injury which is the ordinary and neces- sary consequence of the act. Such intention is directed against the owner, who- ever he may be, and the charge that the act was done with intent to injure any individual named, is made out, when it is shown that he was the owner at the time when the act was committed. " It has been contended by the counsel for the appellant, that the offence cre- ated by the statute and charged in the indictment could not have been com- mitted, because at the time wlien the act was done, the animal had strayed from the possession of the owner, and the statute, by declaring that the offender shall be liable to corporal punishment in the same manner as on a conviction of petit larceny, must be understood as applying to those cases only wherein the offender, by a felonious appropriation of the animal, would have committed the crime of petit larceny. He further urges that this construction of the statute is strength- ened by the circumstance, that a special provision is made by the statute for improper interference with strays, in ch. 112, § 8. We do not concur in this con- struction of the statute. In the description of the offence thereby created, no referenco is made to the crime of larceny. The offence consists in knowingly 450 MALICIOUS MISCHIEF. (480) ingly, with intent to defraud the said W. M'C, contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (479) Second count. Defacing mark. That J. D., etc, on, etc., at, etc., knowincrly did deface the mark of a sheep, the property of one W". M'C, then and there, with an intent to defraud the said W. M'C, contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (480) Entering the premises of another and jndling down afence.{p) That T. C, etc., on, etc., at, etc., into a certain close of a cer- tain A. M., situate in the township and county aforesaid, in and upon the possession thereof of the said A., into which the said T. had not legal right of entry, did enter, and ten panels of fence of the said A., then and there standing and being, then and tliere did pull down, take, and carry away, to the great damage of the said A., and against, etc. {Conclude as in book 1, chapter 3.) altering and defacing the mark of, or in knowingly mismarking an animal, the property of another, with intent to defraud. Tlie mere straying of the animal from the owner's premises makes no change of property. The animal still re- mains his, and the wrongful act is not less calculated, but in fact more likely to do him an injury, than it would be if done to an animal in his immediate pos- session. The reference in the statute to the punishment in cases of petit larceny docs not affect the description of the offence, more tlian it would have afiected that description, if the reference had been to tlie punishment in cases of perjurv or forgery, or of any other crime. It only denounces against tlie offence j)revi"- ously described, the same penalty by wliich the existing law is inflicted upon a conviction of petit larceny. The construction contended for is not unwarranted by the language of the statute, but would render tlie statute itself inoperative in the case, Avhich mainly rendered it necessary. Nor does the section referred to in ch. 112 provide for an offence of this description in cases of strays. The object of the legislature in that chapter is to point out a mode of proceeding in those cases, whereby the owner maybe enabled to regain the possession of liis propertv or to get the value thereof, and a proper compensation may be made to those who shall render him the assistance for this purpose ; and, in furtherance of this object, the eighth section imposes a pecuniary midct on those wlio may take up or use the stray otherwise than in the mode therein directed. " The motion in arrest of judgment rests on two grounds. The first is, for that the offence is not described in the language of the statute. Tiiis objection applies only to the first count of the indictment, and as to that is well taken. The first count charges that the accused did alter the iimke of the sheep. No doubt the word 'make' was intended to be written 'mark,' but it is a different wonl, hav- ing a different signification, and cannot be brought within the exception of idem sonans. But this mistake is not in the second count, which charges that he de- faced the mark of the sheep; and a general verdict of guilty having been ren- dered, judgment will not be arrested, if cither count be sufficient to warrant it." (p) This indictment was drawn in 1779, by Mr. J. 1). Sergeant, then attorney- general of Pennsylvania. See "Forcible Entry and Detainer," post, 48i), etc. 451 (484) OFFENCES AGAINST PROPERTY. (481) Destroying two lobster cars^ under the Massachusetts statute.{q) That A. B., etc., on, etc., at, etc., did wilfully, maliciously, and secretly, in the night-time, destroy and injure two lobster cars, two brass locks attached to said cars, and two cables, by which said cars Avere moored and fastened, and three hundred lobsters contained in the cars aforesaid, all being the property of one F. W., etc. (482) Removing a landmark^ under the Pennsylvania statute.{r) That L. S., etc., on, elc, at, etc., one bounded growing oak- tree, being one of the landtnards of a tract of plantable land, whereof J. B, was then and there seized in his demesne as of fee, at township aforesaid, and within, etc., secretly, unjustly, and without the consent or knowledge of the said J. B., did cut down and remove, contrary, etc., and against, etc. [Conclude as 171 book 1, chapter 3.) (483) Felling timber in the channel of a particular creek, in a particular county, under North Carolina statute.{s) That H. C, etc., on, etc., at, etc., unlawfully and maliciously did fell timber in the channel of Hogan's creek, in the county of Caswell aforesaid, and did then and there, by such felling of timber aforesaid, on the twentieth day of February aforesaid, obstruct the channel of the creek aforesaid, in the county of Caswell aforesaid, to the great damage of the owners of the land on the said creek, contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) {For cutting and stealing trees, see supra, 445c?.) (484) Throwing down fence under Ohio statute. That A. B., on the day of in the year of our Lord one thousand eight hundred and in the county of Mus- [q) On this count, framed upon the Rev. Sts. ch. 126, § 39, alleging that the defendant wilfully destroyed and injured a cable by which a fish car was moored and fastened, proof that he wilfully, etc., cut ofl"such a cable a few feet from one end thereof, was held sullicient to warrant his conviction. Com. v. Soule, 2 Met. 21. (r) This indictment is taken from Reed's Digest, and is drawn on the provin- cial act of 1700 ; 1 Smith's Laws, 4. (s) State V. Cobb, 1 Dev. & Bat. 115. 452 MALICIOUS MISCHIEF. (^8^) kinguni aforesaid, did wantonly and maliciously throw, put, and lay down and prostrate twenty panels of a certain fence there situate, said fence then and there inclosing a certain field there situate, in which said field a certain grain, called wheat, was then and there cultivated, said fence, field, and grain being then and there the property of another person than the said A. B., to wit, the property of one M. N"., and being then and there lawfully occupied by the said M. IST., and he the said A. B. did then and there wantonly and maliciously leave said twenty panels of said fence down, prostrate, and open.(^) (485) Breaking into house, and frightening a pregnant woman.{u) That A. B., etc., on, etc., at, etc., about the hour of ten of the (0 Warren's C. L. 172. (t<) Com. V. Taylor, 5 Binn. 277. "But supposing," said Tilghman, C. J., "the indictment not to be good for a forcible entry, may it not be supported on other grounds ? In the case of The Com. v. Teischer, 1 Dall. 31^5, judgment was given against the defendant for ^ vialiciinisly, icilfully, and iLnckedlij killing a horse.' These are the words of the indictment, and it seems to have been con- ceded by Mr. Sergeant, the counsel for the defendant, that if it had been laid to be done secretly, the indictment would have been good. Plere the entering of the house is laid to be done ^secretly, maliciously, andunth an attempt to disturb the peace of the commonwealth.' I do not find any precise line by which indict- ments for malicious mischief are separated from actions of trespass. But whether the malice, the mischief, or the evil example is considered, the case before us seems full as strong as Teischer' s case. There is another principle, however, upon which it appears to me that the indictment maybe supported. It is not necessary that there should be actual force or violence to constitute an indictable offence. Acts injurious to private persons, which tend to excite violent resent- ment, and thus produce figliting and disturbance of the peace of society, are theni- selves indictable. To send a challenge to fight a duel is indictable, because it tends directly towards a breach of the peace. Libels fall within the same reason. A libel even of a deceased person is an offence against the public, because it may stir up the passions of the living and produ(;e acts of revenge. Now what could be more likely to produce violent passion and a disturbance of the peace of society, than the conduct of the defendant? He enters secretly after niyht into a private dwelling-house, with an intent to disturb the family, and after entering makes such a noise as to terrify the mistress of the house to such a degree as to cause a miscarriage. Was not this enough to promentioned piece of the current gold coin." Prisoner was shown to have made the pretence laid, viz., that he was Mr. H., and thereby induced G. P. to buy, at the cost of five shillings, a bottle of stuff he said would cure G. P.'s child. G. P. gave him a sovereign, and received fifteen shillings in change. Prisoner was shown not to be H. ; held to be a false pretence, and with intent well laid. R. v. Bloomfield, C. & M. 537. See infra, 533. Wh. Cr. L. 8th ed. §§ 1183, 1184, 1200. A false statement to a parish ofliicer as an ex- cuse for not working, that the party has not clothes, is not a false pretence within the act, though it induce the officer to give him clothes, as it was rather an excuse for not working than a false pretence to obtain goods. R. v. Wakeling, R. & R. 504; Wh. Cr. L. 8th ed. §§ 1173, 1193. Obtaining money by a pretence, known by the offender to be false at the time, is equally criminal, though the party who parted with the money laid a plan to entrap him into committing the offence. R. v. Ady, 7 C. & P. 140. See Wh. Cr. L. 8th ed. § 149. In the cases which have occurred in this country, the same rules are applied. Thus, where one under a fictitious name delivered to a person to sell on com- mission spurious lottery tickets, purporting to be signed by himself, and received from the agent the proceeds of the sale (Com. v. Wilgus, 4 Pick. 177) ; where a keeper of an intelligence office, by falsely pretending he had a situation in view, induced the prosecutor to pay him two dollars as a premium (Com. v. Parker, Thacher's C. C. 24) ; where the defendant falsely pretended to the prosecutor that a horse he was about to sell him was the horse " Charley," whereas he was not that horse, but another of equal worth (State v. Mills, 17 Maine R. 211); ■where a person obtained goods under the false pretence that he lived with and was employed by A. B., who sent him for them (People v. Johnson, 12 Johns. 292 ; Lambert v. People, 9 Cow. 578) ; where the defendant represented him- self to be in a successful business as a merchant in Boston, with from $9000 to f 10,000 over and above all his debts, and to give weight to this assertion, repre- sented that he had never had a note protested in his life, and had then no indors- ers ; where in one count the pretence was, " that he, the said J. A. B., possessed a capital of |8000, that the said $8000 had come to him through his wife, it being her estate, and that a part of it had already come into his possession, a part would come into his possession in the month then next ensuing, and that for the remaining part thereof he would be obliged to wait for a short time;" and in the second count, that he, the said J. A. B., possessed a caj)ital of ), which said $8000 had come to him through his wife, it being her estate;" 501 OFFENCES AGAINST PROPERTY. (534) Against a member of a benefit club or society, for obtaining monej belonging to the rest of the members, under false pretences. (535) Another form for same, coupled with a production to the society of a false certificate of burial. (536) First count. Pretence that a broken bank note was good. (537) Pretence that a Hash note was good. (538) Pretence that a worthless check or order was good. (530) Another form for same. (539a) Pretence that a certificate of stock was genuine. (540) Obtaining goods by a check on a bank where the defendant had no funds. (540a) Another form of same. (541) Pretence that defendant was the agent of A. B., and as such had been sent by A. B. to C. D., to receive certain money due from the latter to the fonner. (541a) Pretence that defendant had been sent for certain goods. (541ft) Pretence that defendant was broker for undisclosed principal. (542) Pretending to be clerk of a steamboat, and authorized to collect money for boat. (543) Pretence made to a tradesman that defendant was a servant to a customer, and was sent for the particular gootls obtained. (544) Another form for same. (544a) Pretence that defendant was asked by " a person living in a large house down the street" to buy carpet of prosecutor. (545) Pretence that the defendant was entitled to grant a lease of certain freehold property. (546) Pretence that the defendant was authorized agent of the executive committee of the exhibition of the Works of Industry of all Nations, and that he had power to allot space to private indi- viduals for the exhibition of their merchandise. (547) Pretence that prisoner was an unmarried man, and that, having been engaged to the prosecutrix, and the engagement broken and in a third, " that he was possessed of §8000" (Com. i\ Burdick, 2 Barr, 163) ; where the defendant pretended to the prosecutor that tli.e goods to be purcliased were ordered for a hotel-keeper in Washington, who was a man of credit, and to whom they were to be immediately forwarded (Com. v. Spring, cited 3 Pa. L. J. 89) ; where the pretence was that the defendant owned real estate in Passyunk Road worth §7000, and that he had personal property and other means to meet his liabilities, and that he was in good credit at the Philadelphia Bank (Com. v. M'Crossin, 3 Pa. L. J. 219) ; where the indictment charged that X. represented to O. that he possessed four valuable negroes, and that he would let him have them for four bills of exchange on Philadelphia, and that in consequence of this representation, the bills were drawn by O., and that this representation was made knowingly and designedly, and with intent to cheat O. of his drafts, and that, in fact, N. ppssessed no such slaves as he pretended to have (State v. Newell, 1 Mo. R. 177) ; — in all these cases, there was held to be the false repre- sentation of an existing fact, and that tlie exigencies of the statute therefore were satisfied. For a full enumeration see Wh. Cr. L. 8th ed.^ 1130 et seq. 502 FALSE PRETENCES. off, he was entitled to support an action of breach of promise against her, by which means he obtained money from her. (547a) Pretence that a certain coat was a particular uniform. (548) Pretence that defendants were the agents of P. N., who was the owner of certain stock and land, etc., the latter of which was in fact mortgaged. (549) That defendant possessed a capital of eight thousand dollars, which had come to him through his wife, it being her estate, and that a part of it had already come into his possession, and a part would come into his possession in the month then next ensu- ing, etc. (550) Second count. That defendant had a capital of $8000, which came through his wife. (551) Third count. That defendant had a capital of ^8000. (552) Pretence that defendant was well off and free from debt, etc. (553) Second count. Setting forth the pretence more fully. (554) Pretence that certain property of the defendant was unincumbered, and that he himself was free from debts and liabilities. (554a) Pretence that certain goods were unincumbered. (555) Pretence that defendant had then purchased certain property, which it was necessary he should immediately pay for. (556) Pretence that a certain draft for ^7700, drawn by a house in Charleston on a house in Boston, which the defendant exhibited to the prosecutor, had been protested for non-payment ; that the defendant had had his pocket cut, and his pocket-book contain- ing $195 stolen from it; that a draft drawn by a person in Philadelphia, which the defendant showed the prosecutor, had been received by the defendant in exchange for the protested draft, and that the defendant expected to receive the money on the last-mentioned draft. (556a) Pretence that defendant had half of certain bank notes. (557) Pretence that a certain watch sold by defendant to prosecutor was gold. (557a) Pretence that a chain was gold. (558) Obtaining money by means of a false warranty of the weight of goods. (559) Obtaining money by a false warranty of goods. (559a) Pretence that a certain brickyard was good and profitable. (560) Pretence that goods were of a particular quality. (561) Pretence that a certain horse to be sold, etc., was sound, and was the horse called " Charley." (562) Pretence that a horse and phaeton were the property of a lady then shortly before deceased, and that the horse was kind, etc. (563) Second count. Like the first, except that the offering for sale was alleged to have been by T. K. the elder, only. (564) Other pretence as to the value and history of a horse, which the pris- oners sold to the prosecutor. 503 (528) OFFENCES AGAINST PROPERTY. (565) Pretence that one J. P., of the city of Washington, wanted to buy some brandy, etc. ; that said J. P. kept a large hotel at Washington, etc. ; that defendant was sent by said J. P. to purchase brandy as aforesaid, and that defendant would pay cash therefor, if prosecu- tor would sell him the same. First count. (566) Second count. That defendant was requested by one J. P., who kept a large hotel in Washington city, to purchase some brandy for said J. P., and that if prosecutor would sell de- fendant two half pipes of brandy, defendant would pay prosecutor cash for the same shortly after delivery. (567) Third count. That defendant had been requested by one J. P. to purchase for him some brandy, that he (the said J. P.) kept a hirge hotel in Washington, etc. (567a) Pretence that defendant was a large dealer in potatoes, etc. (568) Pretence that one of the defendants, having advanced money to the other on a deposit of certain title deeds, had himself deposited the deeds with a friend, and that he received a sum of money to re- deem them ; with counts for conspiracy. (569) For pretending to an attesting justice and a recruiting sergeant that defendant was not an apprentice, and thereby obtaining money to enlist. (570) For obtaining more than the sum due for carriage of a parcel by pro- ducing a false ticket. (571) Pretence that defendant had no note protested for non-payment, that he was solvent, and worth from nine to ten thousand dollars. (572) Obtaining acceptances on drafts, by pretence that certain goods had been purchased by defendant and were about to be shipped to prose- cutor. (573) Obtaining acceptances by the pretence that defendants had certain goods in storage subject to prosecutor's order. (574) Receiving goods obtained by false pretences, under the English statute. (574a) Another form. (528) General frame of indictment.{t) That A. B.,((z)etc., on, etc., at, etc., unlawfully and knowingly devising and intending to cheat and defraud,(i;) etc. {stating party intended to be defrauded), of his goods, moneys, chattels, and pro- (0 See VTh. Cr. L. 8th ed. § 1210. («) All the parties concerned in the offence may be joined as co-defendants. And evidence under a joint indictment that one of them, with the concurrence and approval of the other, made the false pretences charged, warrants the con- viction of both. Wh. Cr. L. 8th ed. § 1171 ; Com. (-•. Harley, 7 Met. 462. Par- ties who have concurred and assisted in the fraud may be convicted as principals, though not present at the time of making the pretence and obtaining the money or goods. R. I'. Moland, 6 C. & P. 657. (>•) This averment is not necessary when it may be Implied from subsequent averments. 504 FALSE PRETENCES. (528) perty, did then and there unlawfully, knowingly, and de- 8ignedly(?/;) falsely pretend(a:) to C. D.,(?/) t\\Sii{z) {setting out the iwetence)^ whereas, in truth and fact {negativing the pretence) ^{a) as he, the said A. B., then and there well knew [or^ which said pretence the said A. B. then and there well knew to be false),(^) by color(c) and means((/) of which said false pretence and pretences, he, the said A. B., did then and there unlawfully, knowingly, and designedly obtain(e) from the said C. D. [stating the property ohtained)^{f) being then and there the property of the said C. r>.,(^) with intent to cheat and defraud the said C. D., to the great damage of the said C. D.,(A) contrary, etc. {Conclude as in book 1, chapter 3.) (w) An indictment averring that the defendant did "falsely and feloniously pretend," etc., is at common law bad. R. v. Walker, 6 C. & P. 657. In those states, however, as in New York, where the offence is a felony, the averment is of course essential. "Designedly" is usually necessary under statute. State v. Bagtjerly, 21 Tex. 757. " Knowingly" is essential in Texas. Maranda v. State, 44 Tex. 442. See generally Wh. Cr. L. 8th ed. ? 1224. (x) The word "pretend" is indispensable, though the word "falsely," ac- cording to the English practice (R. v. Airey, 2 East, 30), is not essential, the truth of the pretences being subsequently negatived. It is much safer, how- ever, to insert it, and its omission has been held in this country fatal. Hamilton V. State, 16 Fla. 288. (?/) The party injured must be described with the same accuracy as has been shown to be requisite in larceny. Wh. Cr. L. 8th ed. § 97 7. Any variance in his name is at common law fatal. AVhat are variances are elsewhere considered. Wh. Cr. Ev. § 91 ; snpra, notes to form 2, p. 20. Pretences alleged to have been made to a firm are proved by showing that they were made to one of the firm (Stoughton )). State, 2 Oh. St. 562) ; and a pretence made use of to an agent, who communicates it to his principal, and who is influenced bv it to act, is a pretence made to the principal. Wh. Cr. L. 8th ed. § 1171 ; Wh. Cr. Ev. §§ 91, 102 ; R. v. Lara, 1 Leach C. C. 647 ; 6 T. R. 565; Com. v. Call, 21 Pick. 515; Com. v. Harley, 7 Met. 462. See also R. v. Keeley, 2 Den. C. C. 68; R. v. Tully, 9 C. & P. 227; R. v. Dewey, 11 Cox C. C. 115; Com. v. Bagley, 7 Pick. '279; Com. v. Mooar, Thach. C. C. 410; Stoughton I'. State, 2 Oh. St. 562; Britt v. State, 9 Humph. 31. A pretence made to A. in B.'s hearing, by which money is obtained from B., may be laid as a pretence made to B. R. v. Dent, 1 C. & K. 249. The money of a benefit society, whose rules were not enrolled, was kept in a box, of which E., one of the stewards, and two others, had keys ; the defendant, on the false pretence that his wife was dead, which pretence he made to the clerk of the society in the hearing of E., obtained from the hands of E., out of the box, five pounds; it was held that in an indictment the pretence migl t be laid as made to E., and the monev as the property of " E. and others," obtained from E. R. v. Dent, 1 C. & k. 249. Money paid by or to an agent is rightfully laid as money paid by or to a principal. Wh. Cr. Ev. §§ 94-102. And so where money is paid to the wife for the husband. R. v. Moseley, Leigh & C. 92. See R. v. Carter, 7 C, & P. 134; Sandy v. State, 60 Ala. 58; Wh. Cr. L. 8th ed. § 1227. (z) The pretences must be speciallv averred ; R. v. Mason, 2 T. R. 581 ; R. V. Henshaw, L. & C. 444 ; R. v. Goldsmith, 12 Cox C. C. 4 79 ; L. R. 2 C. C. 74 ; State v. Jackson, 39 Conn. 229 ; though their omission is now in England 505 (528) OFFENCES AGAINST PROPERTY. cured b_y verdict. But at common law they must be accurately and adequately set forth, so that it may clearly appear that there was a false pretence of an ex- isting fact. Ibid. ; R. v. Henshaw, L. & C, 444 ; 9 Cox C. C. 472 ; Bonnell v. State, 64 Ind. 498. The pretences were held inadeciuately stated in an indictment in which the first count charged that C. unlawfully did falsely pretend to P. that he, C, was sent by W. for an order to go to T. for a pair of shoes, by means of which false pretence he did obtain from T. a pair of shoes, of the goods and chattels of T., with intent to defraud P. of the price of the said shoes, to wit, nine shillings, of the moneys of P. The second count charged that he falsely pretended to P. that W. had said that P. was to give him, the defendant, an order to go to T. for a pair of shoes, by means of wliich false pretence he did obtain from T., in the name of P., a pair of shoes of the goods of T., with intent to defraud T. of the same. R. v. Tully, 9 C. & P. 227 — Gurney ; though compare R. v. Brown, 2 Cox C. C. 348— per Patteson. An indictment was also held defective in a case where it was charged that C. falsely pretended to P., whose mare and gelding had strayed, that he, C, would tell him where they were, if he would give him a sovereign down. P. gave the sovereign, but the prisoner refused to tell. It was said that the indictment should have stated that he pretended he knew where they were. R. v. Douglas, 1 M. C. C. 462. In a case already cited on the merits, the indictment charged that C, contriv- ing and intending to cheat P., on a day named, did falsely pretend to him that he, C, then was a captain in her majesty's fifth regiment of dragoons ; by means of which false pretence he did obtain of P. a valuable security, to wit, an order for the payment of £500, of the value of £500, the property of P., with intent to cheat P. of the same ; whereas in truth he (C, the defendant) was not, at the time of making such false pretence, a captain in her majesty's regiment ; and the defendant, at the time of making such false pretence, well knew that he was not a captain, etc. This was held sufficient after conviction and judgment. It was held not necessary to allege more precisely that the defendant made the par- ticular pretence with the intent of obtaining the security ; nor how the particular pretence was calculated to efiect, or had effected, the obtaining ; and it was fur- ther held that the truth of the pretence was well negatived, it appearing suffi- ciently that the pretence was that the defendant was a captain at the time of his making such pretence, which was the fact denied ; and it was unnecessary to aver expressly that the security was unsatisfied, at any rate since 7 Geo. IV., c. 64, s. 21, the objection being taken after verdict, and the indictment following the words of the statute creating the offence. Hamilton v. R. (in error) 9 A. & E. (jST. S.) 271 ; 10 Jur. 1028; 16 L. J. M. C. 9 ; 2 Cox C. C. 11. D. was one of many persons employed whose wages were paid weekly at a pay-table. On one occasion, when D.'s wages were due, C. said to a little boy, "I will give you a penny if you will go and get D.'s money." The boy inno- cently went to the pay-table, and said to the treasurer, "I am come for D.'s money;" and D.'s wages were given to him. He took the money to C, who was waiting outside, and who gave the boy the promised penny ; it was ruled that 0. could not be convicted on the charge of obtaining the money from the treasurer by falsely pretending to the treasurer that he, C, had authority from D. to receive his mon.ey, or of obtaining it from the treasurer and the boy, by falsely pretending to the boy that he had such authority, or of obtaining it from the boy by the like false pretences to the boy ; though he might be convicted on a count charging him with fraudulently obtaining it from the treasurer by falsely pretending to the treasurer that the boy had this authority. R. v. Butcher, Bell C. C. 6 ; ^8 Cox C. C. 77. If the pretences explain themselves, and require no innuendoes (as to innuen- does, see notes to 577, 939, and Wh. Cr. L. 8th ed. §§ 1220, 1303), it is enough to state them in the terms in which they were expressed to the prosecutor at the time of the fraud. 2 East P. C. c. 18, s. 13, pp. 837, 838. See Com. v. Hul- 506 FALSE PRETENCES. (528) bert, 12 Met. 446; Glackan v. Com., 3 Mete. (Ky.), 232; State v. Webb, 26 Iowa, 262. But verbal exactness is not required; as it is enough if the effect be substantially given; R. v. Scott, cited in R. v. Parker, 2 Mood. C. C. 1 ; 8 C. & P. 825 ; State v. Call, 48 N. H. 126 ; nor need all that was said be stated if the operative pretence is averred. R. v. Hewgill, Dears. C. C. 351 ; Cowen v. People, 14 111. 348. But a variance between the indictment and the evidence, as to the effect of the pretences, will be fatal ; R. v. Plestow, 1 Camp. 494 ; R. V. Bulmer, L. & C. 476 ; 9 Cox C. C. 492; State v. Locke, 35 Ind. 419 ; though it is not necessary to set out, as in forgery, the tenor of a bad note by which property is obtained. Wh. Cr. L. 8th ed. § 1217. But if set out, a variance may beVatal. Wh. Cr. L. 8th ed. § 1233. The relation of the fraud to the bargain, in cases of sale, must appear. R. v. Reed, 7 C. & P. 848 ; R. v. Martin, L. R. 1 C. C. 56 ; State v. Phillbrick, 31 Me. 401 ; Com. v. Jeffries, 7 Allen, 549 ; Enders v. People, 20 Mich. 233 ; State V. Orvis, 13 Ind. 569 ; State i*. Anderson, 47 Iowa, 142. Thus it was held insufficient, in an indictment for the sale of a spurious watch as genuine, to aver merely that S., the defendant, falsely pretended to the prosecutor " that a certain watch which he, the said S., then and there had, was a gold watch, by means whereof said S. then and there unlawfully, etc., did obtain from said B. (the prosecutor) sundry bank bills, etc., of the value, etc., with intent the said B. then and there to cheat and defraud of the same ; whereas in truth and fact said watch was not then and there a gold watch, and said S. then and there well knew that the same was not a gold watch, to the damage," etc. Com. V. Strain, 10 Met. 521; S. P., Com. urLannan, 1 Allen, 590. "The indictment," said Dewey, J., "does not allege any bargain nor any colloquies as to a bargain for a watch ; nor any propositions of B. to buy, or of the defend- ant to sell, a watch ; nor any delivery of the watch, as to which the false pre- tences were made, in the possession of B., as a consideration for the money paid the defendant. It seems to us that when money or property is obtained by a sale or exchange of property, effected by means of false pretences, such sale or exchange ought to be set forth in the indictment, and that the false pretence should be alleged to have been with a view to effect such sale or exchange, and that by reason thereof the party was induced to buy or exchange, as the case may be." Com. v. Strain, supra. See Com. v. Nason, 9 Gray, 125 ; Com. v. Jeffries, 7 Allen, 549. As to bad pleading of false agency, see R. v. Henshaw, L. & C. 444. In fine, when the case is one of sale or exchange, the indictment should set forth the sale or exchange, and aver that the false pretences were made with a view to effect such sale or exchange, and that by reason thereof the ])arty was indu(;ed to part with his property. R. v. Reed, 7 C. & P. 848 ; State ?'. Phil- brick, 31 Me. 401 ; Enders v. People, 20 Mich. 233. In New York the law is less stringent; Skiff t'. People, 2 Parker C. R. 139; and where an indictment for obtaining property under false pretences charged that the prisoner, with an intent to defraud one A. G., Jr., did "falsely pretend and represent to the said A. G., Jr., for the purpose of inducing the said A. G., Jr., to part with a yoke of oxen, of the goods and chattels of the said A. G., Jr., that," etc., "by which said false pretences he," the prisoner, " then did unlawfully obtain from the said A. G., Jr.," the oxen mentioned ; it was held that there was a substantial aver- ment that the prisoner had obtained the property from the prosecutor by means of the false pretences made, and the latter's belief therein, and that the indict- ment was not defective in that particular. Clark v. People, 2 l^ansing, 330. See to same effect. State v. Vanderbilt, 3 Dutch. 328. Wh. Cr. L. 8th ed. § 1227. An indictment alleged that G. designedly and unlawfully did pretend to N. that A. wanted to buy cheese of N., and had sent G. to buy it for him, and that a certain paper described, purporting to be a ten dollar bill on the Globe Bank, in the city of New York, was a good bill, and of the value of ten dollars ; by means of which false pretences said G. unlawfully obtained from said N. forty pounds of cheese, of the value of four dollars, and sundry bank bills and silver 507 (528) OFFENCES AGAINST PROPERTY. coins amounting to and of the value of six dollars, with intent to cheat and de- fraud ; whereas the said A. did not want to buy cheese of said N., and had not sent G. to him for that purpose, and the paper was not a good bill of the Globe Bank, in the city of Xew York, and was not of the value of ten dollars, but spurious and worthless. It was held, on motion in arrest of judgment, that the false pretences set forth were such as might have been effectual in accomplish- ing a fraud on N., in the manner alleged ; that neither the omission to allege that G. knowingly made the false pretences, nor the omission to mention any person whom he intended to defraud, rendered the indictment bad ; and that there was no objection to the indictment on the ground of duplicity. Com. v. Hulbert, 12 Met. 446. In Com. V. Coe, 115 Mass. 481, elsewhere noticed, we have the following from Wells, J. : "The indictment alleges that the defendant falsely pretended that a certain certificate of shares of corporate stock was good and genuine and of value as security for a loan of money which Ferris was induced to make to him there- on. The pretended certificate is set forth, and purports to be a certificate that the said John Ferris is the owner of the shares of stock which it represents. "1. One objection raised by the motion to quash is that the indictment does not show how Coe could pledge such stock, or use it to secure a loan from Ferris, or in any way defraud Ferris by means of it ; Ferris being already the apparent owner. The transaction represented by the indictment, if genuine, would be simply that the borrower prepares his security by causing the shares of stock, whether owned by himself or procured from others for the purpose is immaterial, to be transferred to the name of the proposed lender, and a certificate issued ac- cordingly. Upon procuring the loan, the delivery of the certificate completes the security. The certificate, although previously made in the name of the lender, does not become his in fiict until the loan has been perfected and the cer- tificate delivered to him in pursuance of its purpose. If the certificate is forged, or false and fraudulent in its preparation, it is manifest that he is defrauded when induced to take it as genuine and advance money in reliance upon it. The offer of the certificate for such a purpose is a representation that it is what it purports to be upon its face. Cabot Bank v. Morton, 4 Gray, 156 ; Com. r. Stone, 4 Met. 43. The indictment sufficiently sets forth in what manner Ferris was de- frauded by means of the certificate. "2. The certificate is an instrument complete in itself, and requires no further allegations to fully set forth the right or contract of which it is a symbol, as was necessary in Com. v. Ray, 3 Gray, 441, and Com. v. Hinds, 101 Mass. 209. And besides, this offence consists in the use of false tokens, and not the forgery of a written instrument. "3. It is unnecessary that the indictment should set forth in its terms, or by description, the check received for the loan. It is presumed to have been given and received as payment of the sum of money agreed to be lent. Its designation as a ' check and order for the payment of money' sufficiently indicates its charac- ter ; and as a description of the property obtained by the false pretences would be good. Com. v. 13rettun, 100 ]\Iass. 206. But there is also in the indictment an allegation that the defendant did obtain the sum of seven thousand dollars, of the property of said Ferris. " 4. It is indeed alleged that the defendant procured, and Ferris was induced to part with, the money as a loan only. But it is also alleged that he thereby did obtain it with intent to cheat and tlefraud. If so obtained, it is none the less a fraud because obtained in the form of a loan. Com. v. Lincoln, 11 Allen, 233. " 5. Such representations relate only to the validity and value of the security, and not to the means or ability of the party to pay ; and are therefore not with- in the exception requiring a writing. Gen. Sts. c. 161, § 54. " 6. The allegation that the certificate ' was of the tenor following,' must be referred to the time when the false representation was made, of which it consti- tutes the main part. The copy correctly sets forth its tenor. 508 FALSE PRETENCES. (528) "As to the objections taken at the trial : — "1. The indorsements upon the certificate form no part of it. They are not required to be set out, either as a part of the means of deceit, or as a description of the false token used. Their appearance upon the certificate when produced does not therefore occasion a variance. " 2. It is only necessary that tlie indictment set out the false representations upon which the property was obtained. That a genuine note was given is a matter of evidence, bearing upon the question whether the money was in fact obtained by means of the false certificate. The note forms no part of the offence charged, either by way of description or otherwise ; and no allegation in regard to it is necessary. The offence is the same, with or without the presence of that fact. No variance comes from its appearance in the evidence. "3. The allegation of the indictment that the certificate was not a good, valid, and genuine writing and certificate of ownership of stock, but was false, forged, and counterfeit, and of no value, is sustained by the evidence. Even if it might have been of some value as a means of securing to the holder the one share for which it was originally issued as a genuine and valid certificate, proof of such value does not constitute a variance. It is not a descriptive allegation. " 4. Evidence of the possession and use of other altered and false certificates by the defendant, about the same time, whether before or afterwards, was com- petent to show that his possession of those, for the use of which he was indicted, was not casual and accidental. They were all between the dates of the transac- tions charged in the two counts. They were admitted and allowed to be used only to show guilty knowledge. For this purpose the evidence was admissible ; and the instructions sufliiciently guarded its use. Com. v. Stone, 4 Met. 43, 47 ; Com. V. Price, 10 Gray, 472 ; Com. v. Edgerly, 10 Allen, 184. " 5. Tlie fact that the certificate was offered and received as security for the loan furnishes some evidence upon which it was competent for the jury to find that Ferris was thereby induced to part with his money. It is not necessary that there should have been any explicit declaration or express words to that effect, at the time of the nogotiation. It was for the jury to determine how far the testimony of Ferris, that he ' had every confidence in' the defendant, in reply to the question if he did not rather trust Coe than any security, was a denial of re- liance upon the security. " 6. The instruction upon this last point would be objectionable if it bore the significance which the defendant ascribes to it. The presiding judge suggested the query, whether, if Ferris had known it to be a forged and worthless piece of paper, he would have made the loan as he did ; and then proceeded to say, ' If he would not, and was in fact induced to make the loan by the delivery of the certificate, and his belief in its genuineness and value,' and the jury find the other facts constituting the off"ence, it would be sufficient ; adding also, ' And the fact, if it was a fact, that the defendant then entertained the purpose of repaying the loan at some future time, would not divest the act of its criminality.' " An indictment alleging that the prisoners falsely pretended to A. that some soot which they then delivered to A. weiglied one ton and seventeen cwt., where- as it did not weigh one ton seventeen cwt., but only weighed one ton and thirteen cwt., they well knowing the pretence to be false, by means of Avliich false pre- tence they obtained from A. 8s., with intent to defraud, is good, and sufficiently describes an indictable false pretence. R. v. Lee, L. & C. 418 ; 9 Cox C. C. 4G0. See Wh. Cr. L. 8th ed. § 1159. The amount of property stated by the defendant to belong to him must be proved as laid. Thus where the averment was that the defendant n-jjresented a firm, of which he was a member, to be then owing not more tlian tlu'ce hun- dred dollars, and evidence was given of a representation by him that the firm did not then owe more than four hundred dollars ; this was held to be a fatal variance. Com. i'. Davidson, 1 Cush. 33. Sec Todd v. State, 31 Ind. ')14. A pretence that the prisoner " had in Macon seven thousand dollars" is not 509 (528) OFFENCES AGAINST PROPERTY. sustained by proof of a pretence "that lie had seven dollars less than seven thousand in a bank in Macon." Langtry v. State, 30 Ala. 537. In an indictment setting forth that a bad and spurious note or coin had been passed by the prisoners on the prosecutor, It is not necessary to set forth the note at large or specifically to describe the coin. Wh. Cr. L. 8th ed. §§ 1129, 1162, 1222; R. V. Coulson, 1 Den. C. C.592 ; 4 Cox C. C. 227 ; T. & M. 332; State V. Boon, 4 Jones (N. C.) 463 ; State v. Dyer, 41 Tex, 520. "When the set- ting out the instrument in the indictment," said "Wilde, C. J., "cannot afford the court information, it is unnecessary that it should be set out. Here it is al- leged that a certain piece of paper was unlawfully and falsely represented by the prisoner to be a good and valid promissory note, whereas it was not so. It ap- pears to me that all the cases show that where the instrument has been required to be set out in the indictment, something has turned on the construction of the paper." R. v. Coulson, ut supra. Where it is charged in the indictment that the prisoner obtained the property upon the security of his promissory note, through false and fraudulent representations as to his ability to pay the same, an averment of his neglect to make payment of the note is not essential. Clark v. People, 2 Lansing, 330. But the purport or generic designation must be accu- rately stated. Com. v. Stone, 4 Met. 43 ; Com. v. Coe, ut supi-a. An indict- ment stated that, by the rules of a benefit society, every free member was entitled to five pounds on the death of his wife, and that the defendant falsely pretended that a paper which he produced was genuine, and contained a true ac- count of his wife's death and burial, and that he further falsely pretended that he was entitled to five pounds from the society by virtue of their rule, in conse- quence of the death of his wife ; by means of which ' last false pretence' he ob- tained money ; this was held good. R. v. Dent, 1 C. & K. 249; infra, 535. Thus if an Indictment for attempting to obtain money under false pretences charges the attempt to have been by means of a paper writing purporting to be an order for money, and the instrument cannot be considered as stated In the Indictment to be such an order. It is bad. R. v. Cartwright, R. & R. 106. See fully Wh. Cr. PI. & Pr. §§ 184 e< seq. When tlie false pretences consist In words used by the respondent, It has been said to be sufficient to set them out In the Indictment as they were uttered, with- out undertaking to explain their meaning. State v. Call, 48 N. H. 126. See Skiff V. People, 2 Parker C. R. 139. But this must be taken with some quali- fication, since, as In perjury and libel, it Is proper that language otherwise unin- telligible should be explained. See notes to 577, 939. It is not necessary to prove the whole of the pretences charged ; proof of part, and that the property was obtained by force of such part. Is enough. R. v. Hill, R. & R. 190 ; R. v. Adv, 7 C. & P. 140 ; R. v. Hewgill, Dears. 315 ; 24 Eng. L. & Eq. 556 ; R. v. English, 12 Cox C. C. 171; State v. Mills, 17 Me. 2lf; State v. Dunlap, 24 Me. 77; Com. v. Morrill, 8 Cush. 571 ; People v. Stone, 9 Wend. 182; People v. Haynes, 11 Wend. 565; Skiff?;. People, 2 Parker C. R. 139; Com. v. Daniel, 2 Pars. 333 ; Britt i'. State, 9 Humph. 31 ; Cowen V. People, 14 111. 348 ; State v. Vorbeck, 66 JMo. 168 ; Wh. Cr. Ev. § 131. And the principle derives support from the practice In the analogous cases of perjurv and blasphemy. Lord Raym. 886 ; 2 Camp. 138-9 ; Cro. C. C. 7th ed. 662; State v. Hascall, 6 N. H. 352 ; Com. v. Kneeland, 20 Pick. 206 ; Wh. Cr. L. 8th ed. § 1316. If the effect of the pretences be rightfully laid, a variance as to expression is Immaterial. State v. Vanderbilt, 3 Dutch. 328, and cases cited supra. (a) It is necessary for the pleader to negative specifically the false pretences relied on to sustain the Indictment. R. v. Perrott, 2 M. & S. 379 ; Tyler v. State, 2 Humph. 3 7 ; Amos. r. State, 10 Humph. 117 ; State v. AVebb, 26 Iowa, 262. The negation must be specific. Keller f. State, 51 Ind. Ill ; State v. Bradley, 68 Mo. 140. But if the proof be adequate as to the offence, though only coming up to a portion of the pretence averred In the indictment, a convic- tion is good. Wh. Cr. L. 8th ed. §§1218, 1224 ; R. v. Hill, R. & R. 190 ; Com. v. 510 FALSE PRETENCES. (528) Morrill, 8 Cush. 571; People r. Stone, 9 Wend. 182; People v. Haynes, 11 Wend. 5G5 ; State v. Smith, 8 Blackf. 489. In fact, as is well said by Lord EUenborough, "to state merely the whole of the false pretence is to state a matter generally combined of some truth as well as falsehood." R. v. Perrott, ut supra. Where, however, there are several distinct pretences, it is better to negative each pretence specifically in the indictment ; since, if only one of the pretences thus negatived is well laid, and is jiroved on trial to have been the moving cause of the transfer of property from the prosecutor to the defendant, the rest may be disregarded. See Wh. Cr. Ev. §§ 131-3 ; Wh. Cr. L. 8th ed. § 1218. (Jj) The defendant's knowledge of the falsity of the pretences is material. Wh. Cr. L. 8th ed. §§ 1185, 1210^ State v. Blauvelt, 38 N. J. L. 306. Thus an indictment for obtaining money under false pretences must allege that the defendant knew the falsehood: "falsely and fraudulently" is not enough. R. V. Henderson, 2 M. C. C. 192; Car. & M. 328. But where the indictment alleged that the defendant "did unlawfully falsely pretend," etc., it was held that the omission of the word "knowingly" was no ground for arresting the judgment. R. v. Bowen, 4 New Sess. X'as. G2; 13 Q. B, 790; 3 Cox C. C. 483. It is more prudent to aver scienter, unless the pretences stated are of such a nature as to exclude the possible hypothesis of the defendant's ignorance of their falsity. R. v. Philpotts, 1 C. & K. 112 ; R. v. Keighley, Dears. & B. 145 ; 7 Cox C. C. 217 ; Com. v. Speer, 2 Virg. Cases, 65; State v. Bradley, 68 Mo. 140 ; though see Com. v. Hulbert, 12 Met. 446. See, as to general pleading of scienter, Wh. Cr. PL & Pr. § 164. An intent to defraud must be averred and proved. Wh. Cr. L. 8th ed. § 1184; People v. Getchell, 6 Mich. 496 : Scott v. People, 62 Barb. 62. The intent to defraud is not sufficiently set forth in a statement that A. did uidawfully attempt and endeavor fraudulently, falsely, and unlawfully to obtain from the Agi'icultural Cattle Insurance Company a lai-ge sum of money, to wit, £22 IO5., "with intent to cheat and defraud the company. R. v. Marsh, 1 Den. C. C. 505 ; T. & M. 192; 3 New Sess. Cas. 699. That the omission of the allegation of intent is not fatal after verdict, under statute, see State v. Bacon, 7 Vt. 219 ; Jim. V. State, 8 Humph. 603. That it is no variance that the proof goes only to a part of the monev, to which the intent to defraud relates, see R. r. Leon- ard, 3 Cox C. C. 284;" 1 Den. C. C. 304. By 14 & 15 Vict. c. 100, s. 8, it shall be sufficient, in an indictment for obtaining property by false pretences, to allege that the defendant did the act with intent to defraud, without alleging the intent of the defendant to defraud any particular person. By sec. 25, every objection to an indictment for any formal defect apparent on the face thereof shall be taken before the jury shall be sworn. It was ruled that sec. 8 did not render it unnecessary, in an indictment for obtaining money by false pretences, to state whose property the money was, and that the omission was not a formal defect within sec. 25. Sill i\ R., Dears. C. C. 132 ; 1 El. & Bl. 553. 24_& 25 Vict. c. 96, s. 88, renders an allegation of ownership unnecessary. It is not necessary, however, in England, to state, to use the language of Lord Denman, C. J. (li. V. Hamilton, 2 Cox. C. C. 11 ; 9 Ad. & El. N. S. 276), "that the false pretence was made with the intention of obtaining the thing, if it be proved that in fact the party charged did intend to obtain the thing, made the false pre- tence, and did thereby obtain it. I am by no means sure that it is necessary even to prove that the representation was made with the particular intent." An intent to defraud a firm necessarily includes an intent to defraud each of its members, and hence it is enough, when a lirm is defrauded, to aver an intent to defraud a member of the firm. Stoughton v. State, 2 Ohio St. 562. See Wh. Cr. L. 8th ed. §§ 743, 1212. An averment that A. "did receive and obtain the said goods of said B. from said B. by means of the false pretences aforesaid, and witli intent to cheat and defraud the said B. of the same goods," is a sufficient averment that the goods •were designedly obtained. Cora. v. Hooper, 104 Mass. 549. But there must be 511 (528) OFFENCES AGAINST PROPERTY. a specific averment of intent to defraud the prosecutor. Com. v. Dean, 110 Mass. 64. In this case it was said by Morton, J. : " The indictment does not charge any offence with the precision requisite in criminal pleadings. There is no sufficient allegation that the defendant obtained the signature of Sears to the note with an intent to defraud. The intent to defraud is an essential element of the crime intended to be charged, and must be distinctly averred by a proper affirmative alle- gation, and not by way of inference or argument merely. Com. v. Lannan, 1 Allen, 590. "The concluding clause, that 'so the jurors aforesaid, upon their oaths afore- said, do say and present, that said Dean,' 'in the manner aforesaid, designedly, by a false pretence and with intent to defraud, obtained the signature of said Sears,' is a statement of a legal conclusion from the facts previously charged. The conclusion does not follow from the premises. The only allegation of an intent to defraud is made argumentatively, and as a legal inference from facts stated, and that inference is unsound. Com. v. Whitney, 5 Gray, 85 ; R. v. Rushworth, R. & R. 317." (c) "Color" alone is inadequate. State i'. Chunn, 19 Mo. 233. {(]) The property must be distinctly averred to have been obtained by means of the pretence. But the process of reasoning by which the conclusion was reached is usually matter of argument, not of pleading. R. v. Hamilton, 9 Ad. & El. (N. S.) 271 ; Com. v. Hulbert, 12 Met. 446 ; Com. v. Coe, 115 Mass. 481 ; State V. Hurst, 13 W. Va. 54. See Wh. Cr. L. 8th ed. § 1 215. At the same time, there must always be something sufficient to show that the party defrauded was induced to part with his property by relying upon the truth of the alleged false statements. State v. Philbrick, 31 Me. 401 ; Com. v. Strain, 10 Met. 521 ; Norris v. State, 25 Oh. St. 219; State v. Saunders, 63 Mo. 482. See Com. v. Parmenter, 121 Mass. 354; Epperson v. State, 42 Tex. 79; State v. Green, 7 Wis. 676 ; State v. Orvis, 13 Ind. 569. And it is not, as a general rule (Wh. Cr. L. 8th ed. §§ 1215, 1216), enough to aver false statements as to the value of property sold, and then to aver the obtaining of money. A sale of the prop- erty should be averred, as the chain connecting the other averments. Wh. Cr. L. 8th ed. § 1215 ; see supra, note z, p. 507. In an indictment against A., for obtaining goods from B. by false pretences, an averment that B. "was induced, by reason of the false pretences so made as aforesaid, to purchase and receive, and did then and there purchase and receive of the said A." certain property, "and to pay and deliver, and did pay and deliver therefor, and as the price thereof," certain goods, sufficiently charges that B. was induced by the false pretences to pay and deliver, and that induced by false pretences he did pay and deliver, and is not defective for not repeating the words "then and there" before the words "to pay and deliver," or before the words "did pay and deliver." Com. v. Hooper, 104 Mass. 549. The allegation of "a sale on credit," is supported by proof of a sale for a note payable in four months. Com. v. Davidson, 1 Cush. 33 ; Wh. Cr. L. 8th ed. § 1 180. The indictment need not charge that any false token or counterfeit letter was used, even Avhere false token or writing is alternatively used in the statute. Skiff V. People, 2 Parker C. R. 139. A delivery of the property must be averred, as the result of the false pretences, in all cases in which the prosecution rests upon such delivery. State v. Philbrick, 31 Me. 401 ; Com. v. Strain, 10 Met. 521 ; Com. v. Lannan, 1 Allen, 590 ; Com. V. Goddard, 4 Allen, 312. See also Com. v. Jeffries, 7 Allen, 549; Com. v. Lincoln, 11 Allen, 233. It is not a fatal error that the obtaining of the signature to a promissory note, and the obtaining the money on the same, are stated to be on two distinct days. Com. V. Frey, 50 Penn. St' 245. (e) The "obtaining" must be alleged in name. State v. Bacon, 7 Vt. 219. Obtaining from an agent is obtaining from a principal. Wh. Cr. L. 8th ed. § 1128. " Knowingly" and ' ' designedly, ' ' if averred previously, are here surplusage. 512 FALSE PRETENCES. (529) (529) Form used in Massachusetts. That A. B., etc., on, etc., at, etc., being a person of an evil disposition, and devising and intending by unlawful ways and means to obtain and get into his hands and possession the goods, merchandise, chattels, and eftects of the honest and good citizens of this commonwealth, and with intent to cheat and defraud C. D., etc., did then and there unlawfully, knowingly, and design- edly, falsely pretend and represent to said C. D. {stating -pre- tences) ; and the said C. D. then and there, believing the said false pretences and representations, so made as aforesaid by the said A. B., and being deceived thereby, was induced, by reason of the false pretences and representations so made as aforesaid, to deliver, and did then and there deliver, to the said A. B. {stating goods)^ of the proper goods, merchandise, chattels, and effects of said C. D., and the said A. B. did then and there re- ceive and obtain the said goods, merchandise, chattels, and effects of the said C. D., by means of the false pretences and representations aforesaid, and with intent to cheat and defraud the said C. D. of the same goods and merchandise, chattels, and effects ; whereas, in truth and in fact {negativing the pretences) ; {/) It is generally necessary that the property obtained should be described with the same accuracy as in larceny. Com. i'. Morrell, 8 Cush. 571 ; Dord v. People, 9 Barb. 671 ; State v. Kube, 20 Wis. 217 ; Wh. Cr. L. 8th ed. § 1221. AVhere a signature to a note has been obtained by false pretences, and the party defrauded has been obliged to pay the note, it is enough to charge the sum paid to have been obtained, etc., without setting forth the obtaining of the signature. People V. Herrick, 13 AV'end. 87. A signature to negotiable paper must be described as such. State v. Blauvelt, 38 N. J. L. 396. And it is enough to say " — dollars of the money and property of A. B.," without stating whether this money was in bank notes, specie, etc. Com. v. Lincoln, 11 Allen, 233. All the property obtained need not be set forth. AVh. Cr. L. 8th ed. § 1221. At common law the description of the property must be as in larceny. (See notes to 415.) Value, however, need not be alleged. People v. Stetson, 4 Barb. 151 ; State v. Gillespie, 80 N. C. 396 ; see Com. v. Lincoln, 1 1 Allen, 233 ; Wh. Cr. PI. & Pr. § 215. It is otherwise when punishment depends upon value. Ibid.; State r. Ladd, 32 N. H. 110. {(]) The indictment must state the goods to be the property of some person named, and where no owner is laid, the indictment will be (juashed. R. v. Parker, 3 A. & E. 292 ; Pv. v. Norton, 8 C. & P. 196; II. v. Martin, 8 A. & E. 481 ; 3 N. & P. 472; Sill v. R., Dears. C. C. 132, 16 Eng. L. & Eq. 375; State v. Lathrop, 15 Vt. 279 ; Wh. Cr. L. 8th ed. § 1223. Distinct counts may lay distinct ownerships. Oliver r. State, 37 Ala. 134. [h) It is not necessary, as it has been laid down in New York and JMassachu- setts, to aver damage to the prosecutor. People v. Genung, 11 Wend. 18 ; Com. V. Wilgus, 4 Pick. 177. Counts varying the pretences maybe joined. Wh. Cr. PI. & Pr. § 285 ; supra, note to form 2, p. 31. VOL. I.— 33 513 (530) OFFENCES AGAINST PROPERTY. and so the jurors aforesaid, upon their oaths aforesaid, do say, that the said A. B., by means of the false pretences aforesaid, on, etc., at, etc., unlawfully, knowingly, and designedly did re- ceive and obtain from said C. D. the said goods, merciiandise, chattels, and effects, of the proper goods, merchandise, chattels, and effects of the said C. D., with intent to defraud C. D. of the same, against, etc. {Conclude as in book 1, chapter 3.) (580) Same in Neio York. That A. B., etc., on, etc., at, etc., being a person of an evil disposition, ill-name and fame, and of dishonest conversation, and devising and intending, by unlawful ways and means, to obtain and get into his hands and possession the moneys, valu- able things, goods, chattels, personal property, and effects of the honest and good people of the state of New York, to maintain his idle and profligate course of life, on, etc., at, etc., with intent feloniously to cheat and defraud one C. D., did then and there feloniously, unlawfully, knowingly, and designedly, falsely pre- tend and represent to the said C. D., that {stating the jiretences) ; and the said C. D. then and there, believing the said false pre- tences and representations, so made as aforesaid by the said A. B., and being deceived thereby, was induced, by reason of the false pretences and representations so made as aforesaid, to de- liver, and did then and there deliver, to the said A. B. {stating goods), of the proper moneys, valuable things, goods, chattels, personal property, and effects of the said C. D., and the said A. B. did then and there designedly receive and obtain the said, etc., of the said C. D., of the proper moneys, valuable things, goods, chattels, personal property, and effects of the said C. D., by means of the false pretences and representations aforesaid, and with intent feloniously to cheat and defraud the said C. D. of the said, etc. ; whereas, in truth and in fact, the said {nega- tiving pretences) ; and whereas, in fact and in truth, the pretences and representations, etc, so made as aforesaid, by the said A. B. to the said C. D., was and were in all respects utterly false and untrue, to wit, on the day and year last aforesaid, at the ward, city, and county aforesaid ; and whereas, in fact and in truth, the said A. B. well knew the said pretences and representations, so by him made as aforesaid to the said C. D., to be utterly false and untrue at the time of making the same. 514 FALSE PRETENCES. (531) And so the jurors aforesaid, upon their oath aforesaid, do say, that the said A. B., by means of tlie false pretences aforesaid, on the day and year Last aforesaid, at the ward, city, and county aforesaid, feloniously, unlawfully, falsely, knowingly, and de- sio;nedly did receive and obtain from the said C. D., of the pro- per moneys, valuable things, goods, chattels, personal property, and eflects of the said C. D., with intent feloniously to cheat and defraud C. D. of the same, against, etc. {Conclude as in book 1, chapter 3.) (531) Pretence that defendant loas agent of a lottery^ etc.{i) That A. W. TV., etc., on, etc., at, etc., being a wicked and evil disposed person, and a common cheat, and contriving and in- tending fraudulently and deceitfully to cheat and defraud one E. H. of his moneys and property, on, etc., falsely and fraudu- lently did knowingly and designedly pretend to the said E. H. that his name was H. C, that he was an agent for the managers of a certain lottery, called The Maryland Grand State Lottery, and that he had a number of quarters of tickets in said lottery, and then and there exhibited a great number of quarters of tickets in said lottery, signed H. C, with the numbers of the original tickets in said lottery written therein, and then and there falsely and fraudulently did knowingly and designedly pretend that the said quarters of tickets were true and genuine, and that he had the original tickets corresponding with the numbers of the said quarters of tickets then deposited in a bank in Boston, whereas, in truth and in fact, his true name was A. W. W., and not H. C, as he falsely pretended, and in truth and in fact he was not, and never was an agent for the managers of the lottery called The Maryland Grand State Lottery, and the said quarters of tickets so exhibited by the said A. W. W. were not genuine parts of original tickets in said lottery, but were spurious and fabricated for the sole purpose to deceive, defraud, and injure, and he had not and never had in his possession, nor deposited in any bank, the original and genuine tickets corre- sponding to the numbers of said quarters of tickets so exhibited to the said E. II. And the jurors aforesaid, upon their oath (i) See Com. v. Wilgus, 4 Pick. 177, where this count was held good. Wli. Cr. L. 8th ed. §§ 1162, 118C. 515 (533) OFFENCES AGAINST PROPERTY. aforesaid, do further present, that the said A. W. W., on the day and year last aforesaid, at said Cambridge, in the county aforesaid, by the false tokens and pretences aforesaid, falsely and fraudulently did knowingly and designedly obtain and get into his possession from the said E. H. fifteen dollars, of the moneys and property of the said E. H., with the intent him the said E. H. then and there to cheat and defraud of the same, to the great damage of the said E. H., in evil example to others in like case to offend, against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (532) Obtaining vfioncy by personating another. The jurors, etc., upon their oath present, that A. B., late of B,, in the county of S., laborer, on the first day of June, in the year of our Lord. at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to E., the wife of C. D., that the said A. B. was F. G., and that he was the same person that had cured H. I.; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and designedly obtain from the said E. the sum of five dollars, of the money of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same ; whereas, in truth and in fact, the said A. B. was not F. G. ; and whereas, in truth and in fact, the said A. B. was not the same person that had cured H. I., as the said A. B. then and there well knew, contrary to the form of the statute in such case made and pro- vided, etc. (533) Pretence that defendant was M. M., who had cured Mrs. C. at the Oxford Infirmary^ whereby he induced the prosecutor to buy a bottle of ointment, etc., for lohich he received a sov- ereign, giving 15s. in change.{j ) That A. B., etc., on, etc., at, etc., did unlawfully and falsely, knowingly and designedly pretend to one C, the wife of G. P., that he, the said A. B., was M. H., and that he was the same person that had cured Mrs. C. at the Oxford Infirmary ; by means (;") R. V. Bloomfield, 1 C. & M. 537. The defendant was convicted before Crcsswell, J., at the sessions, and sentence passed. See Wh. Cr. L. 8th ed. §§ 1143, 1184, 1200. 516 FALSE PRETENCES. • (^34) of which said false pretence, he the said A, B. did then and there obtain from the said G. P., the husband of the said C, P., one piece of the current gold coin of this realm, called a sovereign, of the moneys, goods, and chattels of the said Gr. P., with intent then and there to cheat and defraud him, the said GT. P., of the sum of five shillings, parcel of the value of the said last men- tioned piece of the current gold coin, whereas, in truth and in fact, etc. {negativing the false pretences^ and proceeding as in general frame). (534) AgaiyiM a member of a benefit club or society^ for obtaining money belonging to the rest of the members, under false pre- tences, {h) That on, etc., at, etc., certain persons united together and formed themselves into a certain lawful and beneficial club or society, called, etc. {as the name may be), under certain printed articles, rules, orders, or regulations, made for the good order and government of the said club or society (which said articles, rules, etc., were afterwards, to wit, at the general quarter sessions of the peace, holden at in the county of aforesaid, duly exhibited, confirmed, and filed, according to the statute in such case made and provided), and then and there, and on divers other days and times, between that day and the third of May, in the twenty-ninth year, etc., contributed and paid divers large sums of money, amounting in the whole to a large sum of money, to wit, the sum of one hundred pounds and upwards, of lawful money, into the said club or society, and deposited the same in a certain box, left in the dwelling-house of one T. E-., at K. afore- said, commonly called or known by the name or sign of, etc. {as it may be), and there kept for the use, benefit, and advantage of the members of the said club or society at the time being. And the jurors, etc., do further present, that in and by a certain article of the said rules and orders of the said club or society, it is de- clared, ordered, and agreed that, etc. {here recite the article relat- ing to the payment of money toinards the funerals of the members^ toives). And the jurors, etc., that on the same day and year last aforesaid, at, etc., aforesaid, one L. P., late of, etc., one A. B., and (k) Dickinson's Q. S. 6tli ed. 33G. 517 (534) OFFENCES AGAINST PROPERTY. one C. D., etc. {here insert the rest of the members' names which appear by the club book to be existing at this tiine)^ were members of the said club or society, contributing and paying money into and for the use of the said club or society, that is to say, for the general benefit and advantage of all members thereof, at the said house of the said T. R., for the purpose, amongst other things, mentioned, declared, and contained in the said article above men- tioned and set forth. And the jurors, etc., do further present, that on, etc., last aforesaid, at, etc., aforesaid, a large sum of money, to wit, the sum of one hundred pounds {this need not be the exact sum, let it be sometlnng under the sum contained in the box at this time), of like lawful money, was and remained in the said box, kept for the purpose in that behalf aforesaid, in the said house of the said T, R,., there before then deposited therein, by and for and on behalf of all the members of the said club or society. And the jurors, etc., do further present, that by the assent and concurrence of all the members of the said club or society, it had been usual and customary during all the time aforesaid (except the nights on which the said club or society had been there holden) for the members of the society, having a right or occasion to withdraw, or receive any money to which they had been entitled by the articles, rules, and orders of the said club or society, from and out of the said box, to apply to the said T. R. for the payment of the same, upon condition that he the said T. R. should be repaid the same from and out of such money contained in the said box, for the juirpose in that behalf aforesaid, on some subsequent night on which the said club or society should be holden at the said house of him the said T. R., at K. aforesaid. And the jurors, etc., that the said L. P., to being such member as aforesaid, and well knowing all and singular the premises aforesaid, on, etc., at, etc., aforesaid, un- lawfully, knowingly, and designedly did falsely pretend to the said T. R. that the wife of him the said L. P. was then dead, and that he the said L. P. then wanted thirty shillings to bury his said wife, by means of which said false pretences he the said L. P. then and there unlawfully, knowingly, and designedly did obtain of and from the said T. R. the said sum of thirty shillings, with intent then and there to cheat and defraud the said A. B., C. D., etc. {the other members of the club), of the same, 518 FALSE PRETENCES. (535) whereas, in truth and in fact, the wife of him the said L. P. was not dead at the said time he so made the false pretences to the said T. E,. as aforesaid ; and whereas, in truth and in fact, he the said L. P., at the time of the false pretences, did not want the said sum of thirty shillings, or any sum of money whatsoever, for the purpose of burying his wife, or of any per- son whatsoever having been the wife of him the said L. P., against, etc., and against, etc. [Conclude as in book 1, chapter 3.) (535) Another form f 07' same^ coupled imth the i^roduction to the society of a false certificate of burial. First count. {In substance.)(l) That E.. D., etc., on, etc., at, etc., unlawfully did falsely pre- tend to F. E. that the wife of him the said R. D. was then dead. By means of which he obtained from the said F. E. silver coin to the amount of three pounds fifteen shillings, of the moneys of the said F. E., with intent to defraud F. E., whereas, in truth and in fact, the said wife of the said R. D. was not then dead, as he the said R. D. then well knew, etc. {The second count was similar^ only adding all through it the words " and others" after the name of F. E.) Third count. {In fall.) That before and at the time of the committing of the offence in this count mentioned, to wit, etc., there was a certain friendly society, commonly called " The George and Dragon Friendly Society," and that the said R. D. was then and there a free member of the said society, and that by the rules of the said society it was amongst other things provided, that when any free member's wife dies, such member shall be allowed five pounds out of the society's stock, to wit, at, etc. (0 R. V. Dent, 1 C. & K. 249. After a conviction on this indictment, a mo- tion for arrest of judgment Avas refused. It appeared that tiie money of a benefit society, whose rules were not enrolled, was kept in a box, of which E., one of the stewards, and two others had keys. Tiie defendant, on the false pretence that his wife was dead, which pretence he made to the clerk of the society in the hearing of E., obtained from the hands of E., out of the box, £5. It was held, that in an indictment the pretence might be laid as made to E., and the money, the ])roperty of " E. and others," obtained from E. The first count describes the wife of the defendant, and the third count mentions "the said wife" of the defendant. It was ruled, that the third count sufficiently referred to tha person mentioned as his wife in the first count. See Wh. Cr. L. 8th ed. §§ 1212, 1220. 519 (535) OFFENCES AGAINST PROPERTY. That before and at the time of the committing the offence in this count mentioned, to wit, etc., the said F. E. was one of the stewards of the said society. That the said R. D., being such member of the said society as aforesaid, etc., on, etc., at, etc., did produce to the said F. E., so being such steward as aforesaid, a certain paper writing directed to one G. H. S. G., near Bristol, paid ; and which said paper writing then was in the words and figures following, that is to say :— " London, November the 8th, 1843. "Sir: I received your letter this morning, and was sorry to state that we did not send the particulars to you in the last let- ter we sent. She (meaning the said wife of the said R. D.) died October 18th, and was buried on Monday, 23d, at the Baptis (meaning Baptist) Chappell, in New Pye Street, Westminster, London. I hope this will find you in perfect health, as it leaves us all at present. So I conclude, with kind love to you and all her inquiring friends. Please to deliver this to Mr. R. D. " This is to certify that I, T. H. JST., atended (meaning attended) the funeral of M. D., on the 23d day of October, being the minis- ter of the Baptist Chappell, in New Pie Street, Westminster, London." That the said R. D., so being such free member of the society as aforesaid, then and there unlawfully, knowingly, and design- edly did falsely pretend to the said F. E., so being such steward of the said society as aforesaid, that the said paper writing was a true, correct, and genuine paper writing, and that the same contained a true, correct, and genuine account of the death of the said wife of the said R. D., and of her burial at the Baptist Chapel, in New Pye Street, Westminster, London; and that the said R. D.,so being such free member as aforesaid, did then and there further unlawfully, knowingly, and designedly falsely pre- tend to the said F. E., so being such steward of the said society as aforesaid, that the said wife of the said R. D. was then dead, and that he the said R. D., as such free member as aforesaid, was then and there entitled to receive from the stewards of the said society the sum of five pounds, under and by virtue of the rules of said society, in consequence of the death of his said wife. By means of which said last mentioned false pretence the said 520 FALSE PRETENCES. (536) R. D. did then and there unlawfully obtain from the said F. E. two pieces of the current silver coin of this realm, called crowns {describing silver and copper coins to the amount of three pounds fifteen shillings), of the moneys of the said F. E. and others, with intent then and there to cheat and defraud the said F. E. and others of the same ; whereas, in truth and in fact, the said paper writing was not a true, correct, or genuine paper waiting; and whereas, in truth and in fact, the said paper did not contain a true, correct, or genuine account of the death of the said wife of the said R. D., or of her burial at the Baptist Chapel, New Pye Street, "Westminster, London; and whereas, in trnth and in fact, the said wife of the said R. D. was not then dead ; and whereas, in truth and in fact, the said R. D. as such free mem- ber as aforesaid, was not then entitled to receive from the stew- ards of the said society the sum of five pounds, or any other sum whatever, under and by virtue of the said rules of the said society, in consequence of the death of his said wife. That the said R. D. well knew, at the time when he did so falsely pretend as last aforesaid, that each and every of the said pretences were false, to wit, at the parish aforesaid, in the county aforesaid, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (536) Pretence that a broken bank note was good.{m) That J. S., etc., on, etc., at, etc., being a person of evil dispo- sition, and contriving and intending unlawfully, fraudnlently, and decitfuliy to cheat and defraud one II. S. G., an honest and worthy citizen of the commonwealth, on, etc., did falsely, know- ingly, unlawfully, and designedly pretend to the said II. S. G. that a certain note, partly written and partly printed, which he the said J. S. then and there produced and delivered to the said H. S. G., and which said note was and is as follows, that is to say {here set out note), was a good and valuable promissory' note for the payment of money, called a bank note, issued hy the Commercial Bank of Millington, and that the said Commercial Bank of Millington was a good and solvent bank ; by means of (m) This form is given by Judge Lewis, Criminal Law, p. C47. See R. v. Philpotts, 1 C. & K. 112; R. v. Barnard, 7 C. & P. 784; R. v. Spencer, 3 C. & P. 420 ; and see also particularly, note to 526. 521 (537) OFFENCES AGAINST PROPERTY. which said false pretences the said J. S. did then and there un- lawfully obtain from the said H. S. G. one riile, of the value of nine dollars, lawful money, of the property of him the said H. S. G., and one dollar, lawful money, of the moneys of him the said H. S, G., with intent to cheat and defraud him, the said H. S. G., of the same. Whereas, in truth and in fact, the said promissory' note for the payment of money, called a bank note, issued by the Commercial Bank of Millington, was not a good and valuable promissory note for the payment of money, and was of no value Avhatever. And whereas, in truth and in fact, the said Commercial Bank of Millington was not a good and solvent bank, which he the said J. S. then and there at the time of the false pretences aforesaid well knew, to the great damage and deception of the said H. S. G., to the evil example of all others in like case offending, contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (537) Pretence that a flash note loas good.{n) That A. B., etc., on, etc., at B. aforesaid, in the county afore- said, unlawfully, knowingly, and designedly did falsely pretend to C. D. that a certain printed paper then produced by the said A. B. and offered and given by him to the said C. D. in payment for certain pigs, before then agreed to be sold by the said C. D. to the said A. B., was a good and valid promissory note for the payment of fifty dollars, by means of which said false pretence the said A. B. did then and there unlawfull}^, knowingly, and designedly obtain from the said C. D. five pigs, of the value of five dollars each, and certain money, to wit, the sum of twenty- five dollars, of the goods, chattels, and mone3's of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said printed paper was not a good and valid promissory note for the pay- ment of the sum of fifty dollars, or for the payment of any sum whatever, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and pro- vided, etc. {Conclude as in book 1, chapter 3.) {n) R. V. Coulson, 1 Den. C. C. 592 ; 1 Temp. & Mew, C. C. 592 ; 4 Cox, C. C. 227. See Wh. Cr. L. 8th ed, §§ 1162, 1164, 1217, 1233. 522 FALSE PRETENCES. (539) (538) Pretence that a worthless check or order ivas good.{o) That A. B., etc., on, etc., at, etc., being a person of a deceitful and subtle mind and disposition, and intending to cheat and de- fraud one W. M., did unlawfully, falsely, and wickedly pretend to the said W. M. that a certain paper writing, which he the said defendant then and there produced to the said W. M., and which was as follows : — " £25. 6th January, 1837. To Messrs. S. & Co., bankers, Bristol. Pay the bearer twenty- five pounds. R. C. C. S. P." was a good and genuine order for tlie payment of the said twenty-five pounds, and of the value of twenty-five pounds; whereas, in truth and fact {negativing the pretence)^ which he the said defendant then and there well knew, by means of which said false pretence, etc. {stating the thing obtained). (539) Another form for same. That A. B., etc., on, etc., at, etc., did go to a certain shop of one B. M. there situate, and then and there unlawfully, know- ingly, and designedly did fiilsely pretend to the said B. M., that, if he, the said B. M., would send a pair of candlesticks of hira the said B. M. (which the said B. M. then showed to the said A. B.), the next day to him, the said A. B., to liis lodgings at, etc., with a bill and receipt, he the said A. B. would pay for them upon the delivery, by giving said B. M. an order for the payment of money, which he the said A. B. then and there falsely pretended was in his possession, by means of which said false pretence he the said A. B., afterwards, to wit, on, etc., aforesaid, at, etc., aforesaid, unlawfully, knowingly, and designedly did obtain from the said B. M. one pair of candlesticks, of the value of, etc., of the goods, wares, and merchandises of him the said B. M., with intent then and there to cheat and defraud him of the same ; whereas, in truth and in fact, when he the said B. M., on the da}' and year aforesaid, sent the said goods, etc., to the said lodgings of him the said A. B.,at, etc., aforesaid, with a bill (o) R. V. Parker, 7 C. & P. 825. Tliis is tlie substance of the fourtli count in this ease, on which a majority of the judges held the conviction right. 523 (539) OFFENCES AGAINST PROPERTY. and receipt, he the said A. B. did not pay for them upon the delivery by a valid order for the payment of money or otherwise, but did then and there unlawfully, knowins^ly, designedly, fraud- ulently, and deceitfully deliver to W. J., a servant of him the said B. M,, sent by the said B. M. to the said A. B. with the said goods, etc., and who delivered the same to him with a bill and receipt, a certain paper w^riting, purporting to be an order for the payment of money, siihscribed A. -B., purporting to bear date the, etc., and to be directed to P. and Q., bankers and part- ners, by the name and description of, etc., for the payment of, etc., to Messrs. R. and M.,or bearer, he the said A. B. then and there well knowing{p) the same to be of no value, and that the same would not be paid. And whereas, in truth and in fact, the said A. B. had not, at the time of the false pretence aforesaid, in his possession or power, any valid order for the payment of money whatsoever, against, etc., and against, etc. (Conclude as in book 1, chapter 3.) Second count. And the jurors, etc., that the said A. B., on, etc., did fraudu- lently inform and promise the said B. M., that if he the said B. M. would send a pair of candlesticks of the said B. M., which he the said B. M. then showed to the said A. B., the next day to him the said A. B. to his lodgings at, etc., with a bill and receipt, he the said A. B. would pay for them upon the delivery. And the jurors, etc., that the said A. B. did then and there, to wit, on, etc., at, etc., deliver to W. J., then being the servant of the said B. M., and then having the said candlesticks in his posses- sion, a certain paper writing, purporting to be an order for pay- ment of money, subscribed, etc. {as in last count), and then and there unlawfully, knowingly, and designedly did falsely pretend to the said W. J. that he, the said A. B., then kept cash with the said P. and Q., and that they were then his bankers, and that the sum of, etc., mentioned in the said paper writing, purporting to be an order for payment of money, would be duly paid by tjiem ; by means of which said last mentioned false pretences, [p) It must be shown to be A. B.'s handwriting, and that he knew it to be •worthless. Wickham v. R. (in error), 10 A. & E. 34 ; 2 Per. & Da. 333, S. C. ; R. V. Philjjotts, C. & K. 112. See R. v. Jackson, Dickinson's Q. S. 332, n. 524 FALSE PRETENCES. (539a) the said A. B. did then and there, to wit, at, etc., unlawfully, knowingly, and designedly obtain from the said W. J. one pair of candlesticks, of the value, etc., the goods, etc., of the said B. M., with intent then and there to defraud him of the same; whereas, in truth and in fact, the said A. B. did not then keep cash with P. and Q., nor were they then his bankers, nor was the sum of, etc., mentioned in the said paper writing, purporting to be an order for payment of money, duly paid by them, nor hath the same, or any part thereof been paid by them, or him the said A. B., or any person or persons whomsoever ; and whereas, in truth and in fact, the said A. B. then and there well knew that the said paper writing, purporting to be an order for payment of money, was of no value, and was fabricated by him on pur- pose to cheat and defraud the said A. B., and that the sum of money therein mentioned would not be paid, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (539a) Pretence that a certificate of stock was genuine. That the defendant at, etc., on, etc., being a person of an evil disposition, and devising and intending by unlawful ways and means to obtain and get into his hands and possession the goods, merchandise, chattels, and eftects of the honest and good citi- zens of this commonwealth, and with intent to cheat and defraud one J. F., and with the view and intent to effect the loan here- inafter mentioned, did then and there unlawfully, knowingly, and designedly falsely pretend and represent to said J. F. that a certain paper writing and certificate which he, the said C.,then and there had and produced to said F., and which was of tenor following, to wit : — " No, 59. Eastern Eailroad Company. 100 shares. " Be it known, that J. F., of Boston, is a proprietor of one hun- dred shares in the capital stock of the Eastern Railroad Company, subject to all assessments thereon, and to the provisions of the charter and the by-laws of the corporation, the same being trans- ferable by an assignment thereof in the books of the corporation, or by a conveyance in writing recorded in said books ; and when a transfer shall be made or recorded in the books of the corpora- 525 (539«) OFFENCES AGAINST PROPERTY. tion, and this certificate surrendered, a new certificate or certifi- cates will be issued. "Dated at Boston, this third day of January, A.D. 1873. [seal] Thornton K. Lothrop, President. John B. Parker, Treasurer^''^ was then and there a good, valid, and :^enuine certificate of own- ership of stock in said company, lawfully and duly issued and signed by said L. and P., and was then and there of the value of ten thousand dollars. And the said F. then and there, believ- ing the said false pretences and representations, so made as afore- said by the said C, and being deceived thereby, was induced, by reason of the false pretences and representations so made as aforesaid, to loan and deliver, and did then and there loan and deliver to the said C, upon the security and pledge of the said certificate, then and there by said C. delivered to said F. as such security for said loan, the sum of seven thousand dollars, one check and order for the payment of money of the value of seven thousand dollars, one piece of paper of the value of seven thou- sand dollars, of the proper moneys, goods, merchandise, chattels, and effects of said F. And the said C. did then and there receive and obtain the said moneys, goods, merchandise, chattels, and efi'ects of the said F. as such loan, by means of the false pretences and representations aforesaid, and with intent to cheat and de- fraud the said F. of the same moneys, goods, and merchandise, chattels, and efl:ects. "Whereas, in truth and in fact, said writing and certificate was not tlien and there a good, valid, and genuine writing and certificate of ownership of stock in said company, duly and lawfully issued and signed by said L. and P., but was then and there a false, forged and counterfeit writing and cer- tificate, and was not then and there of the value of ten thousand dollars, but was then and there of no value, all of which he the said C. then and there well knew. And so the jurors aforesaid, upon their oaths aforesaid, do saj^that the said C, by means of the false pretences aforesaid, on, etc., at, etc., unlawfully, know- ingly, and designedly did receive and obtain from tlie said F. the said moneys, goods, merchandise, chattels, and effects, of the proper moneys, goods, merchandise, chattels, and efleets of the 526 FALSE PRETENCES. (5"^0) said F., with intent to defraud him of the same, against, etc.(5') {Conclude as in book 1, chapter 3.) (540) Obtaining goods by check on a bank where the defendant had no effects. {r) That A. B., late of B., in the county of S., laborer, on the first day of June, in the year of our Lord at B. aforesaid, in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to C. D. that a certain paper writing produced by the said A. B. to the said C. D., and purporting to be a check drawn by the said A. B. upon E. F. and Company, bankers, for the payment to the bearer of the sum of one hundred dollars, was then and there a good, genuine, and available order for pay- ment of the sum of one hundred dollars, and was then and there of the value of one hundred dollars, which said check is of the tenor following, that is to say, etc. ; and that the said A. B. kept an account with the said E. F. and Company, and that the said A. B. had money in the hands of the said E. F. and Company for the payment of the said check, and that the said A. B. had full power, right, and authority to draw checks upon the said E. F. and Company, by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and design- edly obtain from the said C. D. a gold watch, of the value of seventy-five dollars, and a gold chain of the value of twenty- five dollars, of the goods and chattels of the said C. B., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said paper writing was not then and there a good, genuine, and available order for payment of the sum of one hundred dollars, nor was the same then and there of the value of one hundred dollars ; and whereas, in truth and in fact, the said A. B. did not keep any account with the said E. F. and Company ; and whereas, in truth and in fact, tlie said A. B. had not any money in the hands of the said E. F. and Company for the payment of tiie said check ; and [q) Sustained in Com. v. Coe, 115 Mass. 481. See Wh. Cr. L. 8tli ed. ^§ 887, 1176, 1184, 1186, 1196, 1221. (r) See R. v. Jackson, 3 Campbell, 370; 6 Cox, C. C. Appendix, page 1. " This indictment is frained with reference to Rex v. Parker, 2 JNIoody, C. C. 1 ; 7 Carrington & Payne, 825 ; and Mr. Greaves's note in his edition of Russell on Crimes, vol. ii. p. 300, note (/)." lb. 527 (540«) OFFENCES AGAINST PROPERTY. whereas, in truth and in fact, the said A. B. had not any power, right, or authority to draw checks upon the said E. F. and Com- pany, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. (540«) Pretence of authority to draw a certain cheque, etc. The jurors for, etc., upon their oath present, that B. F. P. did, on, etc., unlawfully, knowingly, and designedly falsely pre- tend to H. H. and C. 11., carrying on business in partnership as tailors, under the name and style of Messrs. 11. Brothers, that he, the said B. F. P., had authority to draw a certain cheque, to wit, a cheque for the sum of £10 sterling, upon the W. and D. Banking Company in, etc., and that a sum of £10 sterling, belong- ing to him, the said B. F. P., was then in the possession of the said banking company, and that a sum of £10 sterling was then payable and could be paid by the said banking company on the credit and on the account of the said B. F. P., as soon" as an order in writing, signed by the said B. F. P., authorizing the said banking company to make such payment, should be pre- sented at the place of business of the said banking company at, etc. ; and that a certain paper writing, in the proper hand- writing of the said B. F. P., was a*good and valid order for the payment of £10 sterling, and of the value of £10 sterling, and that a certain banker's cheque, bearing a stamp of Id., and tilled up for a sum of £10 sterling, was a good and valid security for the sum of £10 sterling, and of the value of <£10 sterling ; and that a certain cheque, which was then written and made by the said B. F. P. upon one of the printed and stamped forms of the W. and D. Banking Company, and which said cheque was addressed to the said banking compan}^, at their place of busi- ness in, etc., and which said cheque purported to be an order upon the said banking company to pay to him, the said B. F. P., and any indorsee of him, the said B. F. P., the sum of £10 sterling, and which said cheque was indorsed by the proper sig- nature of him, the said B. F. P., was a valuable security, to wit, an order for the payment of £10 sterling, and of the value of £10 sterling; by means of which said false pretences the said B. F. P. did then and there unlawfully obtain from the said firm of Messrs. H. Brothers the sum of £10 in money, of the 528 FALSE PRETENCES. (541) moneys of the said Messrs. H. Brothers, with intent thereby- then to defraud ; whereas, in truth and in fact, the said B. F. P. "had not any authority to draw the said cheque upon the said banking company for the sum of £10, or any other cheque for any sum of money wliatsoever ; and whereas, in truth and in fact, the said banking companjT^ had not then in their pos- session a sum of £10 sterling belonging to the said B. F, P., or any other sum of money whatsoever ; and whereas, in truth and in fact, a sum of £10 sterling was not then payable by said banking company upon the order of the said B. F. P., or any other sum of money whatsoever; nor could £10 sterling, or any other sum of money, be paid by the said banking company upon the credit and account of the said B. F. P. when any writ- ten order of the said B. F. P. was presented to the said banking company ; and whereas, in truth and in fact, the said paper writing was not a good and valid order for the payment of £10 sterling, and was not of the value of £10, but, on the contrary, was invalid, and not of any value whatsoever; and whereas, in truth and in fact, the said banker's cheque was not a good and valid security for the sum of £10 sterling, or any other sum whatsoever, and was not of the value of £10 sterling, or of any other sum whatsoever ; and whereas, in truth and in fact, the said cheque so written, made, and indorsed by the said B. F. P., was not a valuable security, and was not of the value of £10 sterling, but, on the contrary, was not of any value whatsoever; as he, the said B. F. P., then and there well knew; to the great damage and disgrace of the said Messrs. H. Brothers, against, etc. (Conclude as in book 1, cJuqAer 3.) (Here follow three additional counts, varying the state- ment.) (s) (541) Pretence that defendant was the agent of A. B., and as such had been sent by A. B. to G. D., to receive certain money due from the latter to the former. {t) That F. C, etc., on, etc., at, etc., being a person of an evil dis- position, and devising and intending by unlawful ways and (s) 11 Cox, C. C. App. xi. (<) This form was sustained in Com. v. Call, 21 Pick. 515. Morton, J., said: " But without stopping to inquli'c whether such an indictment would be good at VOL. I.— 34 529 (541) OFFENCES AGAINST PROPERTY. means to obtain and get into his hands and possession the goods, merchandise, chattels, and eftects of the honest and good citizens of this commonwealth, and with intent to cheat and defraud one A. W. and one Gr. S. of their money, did then and there unlawfully, knowingly, and designedly falsely pretend and represent to one C. A. P., a person who owed a sura to said W. and S., to wit, the sum of eleven dollars and sixty-three cents, that the said C. then and there was an authorized collector and a servant of said W. and S., that said W. and S. had employed and sent him to collect and receive for them said sum of money so due as aforesaid, and owed by the said C. A. P. to them. And the said C. A. P., then and there believing the said false pretences and representations so made as aforesaid by the said C, and being deceived thereby, was induced, by reason of the false pretences and representations so made as aforesaid, to de- liver, and did then and there deliver, to the said F. C, the sum of eleven dollars sixty-three cents, due and owing from him said P., to said W. and S., of the proper money and effects of said P. due and owing as aforesaid to said W. and S., and the said C. did then and there receive and obtain the said money and effects of the said P., due and owing as aforesaid to said "W". and S., by means of the false pretences and representations afore- said, and with the intent to cheat and defraud the said P. and said W. and S. of the same money and effects ; whereas, in truth and in fact, said F. C. then and there was not an authorized collector and a servant of said W. and S., and the said W. and S. had not then and there employed and sent, and did not then and there employ and send, said C. to collect and receive for them said sum of money so due and owing as aforesaid from said C. A. P. to them, but had forbidden said C. to collect any money and receive any for them, and had long before turned him common law or not, we are all satisfied that this is a good indictment under the statute. "The grammatical and critical objections, however ingenious and acute they may be, cannot prevail. The age has gone by when bad Latin or even bad Eng- lish, so it be sufficiently intelligible, can avail against an indictment, declaration, or plea. The passage objected to may be somewhat obscure, but, by a reference to the context, is capable of a pretty certain interpretation. The pronoun them must be referred to that antecedent to which the tenor of the instrument and the principles of law require that it should relate, whether exactly according to the rules of syntax or not." 530 FALSE PRETENCES. (5416) out of their employment ; and so the jurors aforesaid, upon their oath aforesaid, do say, that the said F. C, by means of the false pretences aforesaid, on, etc., at, etc., unlawfully, knowingly, and designedly did receive and obtain from said C. A. P. said sum of eleven dollars and sixty-three cents, being the said money due and owing as aforesaid, and eftects of the proper money and eiiects of the said P., due, owing, and payable to said W. and S., with intent to defraud them of the same, against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (541a) Pretence that defendant had been sent to obtain certain goods. That J. M., etc., "falsely pretended to E. S., with intent to defraud, that he, the said J. M., had been sent by E. M. to him, the said E. IS., to get a violin, tenor horn, and a B-flat horn for the said E. M. ; and by means of such false pretence obtained from the said E. S. one violin, one tenor horn, and one B-flat horn of the value of ten dollars; whereas, etc., against," etc.(w) {Conclude as in book 1, chapter 3.) (5416) Falsely pretending that defendant acted as broker for an un disclosed principal. {v) That A. B., etc., at, etc., on, etc., with intent to cheat and defraud G. M. B. and H. H. of and out of certain sound lin- seed, which they, the said G. M. B. and PI. H., then and there had, possessed, and owned, did then and there unlawfully, know- ingly, and designedly falsely pretend and represent to said B. and H. that he, the said A. B., was then and there a merchandise broker, and that he had received, and then and there had in his capacity as merchandise broker as aforesaid, an order from cer- tain persons in New York, meaning thereby the city of E"ew York, in the state of New York, whose names the said A. B. did not then and there disclose to the said B. and H., and whose names are to the said jurors unknown, then and there to pur- chase in behalf of said persons a large quantity of sound linseed, to wit, two thousand bags of sound linseed, at the price of three (t() Under this indictment it was held not necessary to aver the name of the person intended to be injured or defrauded. Mack ik State, 63 Ala. 138. (f) Sustained in Com. v. Jeffries, 7 Allen, 548. See Wh. Cr. L. 8th ed. §§ 1180, 1215, 1227. 531 (5416) OFFENCES AGAINST PROPERTY. dollars for each bushel of said sound linseed, and the said A. B. then and there falsely offered, in his said capacity as merchan- dise broker, in behalf of said persons, and in pursuance of the order which he, the said A. B., then and there falsely pretended and represented that he, in his capacity as merchandise broker, had received and had as aforesaid, to the said B. and II., to pur- chase of them two thousand bags of sound linseed, which they, the said B. and H., then and there had, owned, and possessed, at the price of three dollars for each bushel of said sound linseed, and they, the said B. and H,, then and there having and desiring to sell two thousand bags of sound linseed, at the price of three dollars for each bushel of said sound linseed, and then and there believing the said false pretences, representations, declarations, and offer so falsely made as aforesaid by the said A. B. to be true, and being deceived thereby, were induced, by reason of the said false pretences, representations, declarations, and offer so falsely made as aforesaid, then and there to accept the offer so falsely made as aforesaid by the said A. B, to them, the said B. and H., as aforesaid, and then and there agree to sell to the said persons from whom the said A. B. falsely pretended and represented that he the said A. B., in his said capacity as merchandise broker, had received an order to purchase a large quantity of sound linseed, to wit, two thousand bags of sound linseed, at the price of three dollars for each bushel of said sound linseed as aforesaid, and then and there induced, by reason of the false pretences, represen- tations, declarations, and offer so falsely made as aforesaid by the said A. B., did sell to the said persons from whom the said A. B. falsely pretended and represented that he, the said A. B., in his said capacity as merchandise broker, had received said order to purchase two thousand bags of sound linseed, at the price of three dollars for each bushel of said sound linseed ; and they, the said B. and H., were also then and there in- duced, by reason of the false representations, declarations, and offer so falsely made as aforesaid, to deliver, and then and there being so induced, did deliver, in pursuance of their accept- ance of the offer aforesaid, falsely made as aforesaid, and of their agreement aforesaid, induced by the said false pretences, declarations, representations, and offer so falsely made as afore- said, and of their sale aforesaid, induced and made as aforesaid 532 FALSE PRETENCES. (5416) to the said A. B., in his said capacity as merchandise broker, two thousand bags of sound linseed, at the price of three dollara for each bushel of said sound linseed, each of the said bags of sound linseed then and there containing three and a half bushels of sound linseed, and each bag of said sound linseed being then and there of the value of eleven dollars and fifty cents, and being then and there of the property of the said B. and H. ; and the said A. B. did then and there, in his said capacity as merchandise broker, receive the said two thousand bags of sound linseed, and each bag thereof, at the price of three dollars for each bushel of said sound linseed, in pursuance of the said sale and delivery as aforesaid ; and the said A. B. did then and there, in his said capacity as merchandise broker, make the said false pretences, representations, declarations, and offer as aforesaid to the said B. and H., to induce the said B. and H. to sell to the persons here- inbefore described, and to deliver to him, the said A. B., in his said capacity as merchandise broker, the said two thousand bags of sound linseed, and each bag thereof, in manner and form aforesaid, and the said A. B., in his said capacity as merchandise broker, did then and there receive and obtain from the said B. and H. the said two thousand bags of sound linseed, and each bag thereof, of the value aforesaid, of the property of them, the said B. arid H., by means of the said false pretences, representa- tions, declarations, and offer so falsely made as aforesaid, and with intent to cheat and defraud. Whereas, in truth and fact, the said A. B. had not then and there, in his said capacity as merchandise broker, or otherwise, received, and did not then and there, in his said capacity as merchandise broker, or otherwise, have an order from said persons in iN'ew York, or from any other person or persons anywhere, for the purchase, in his capacifty as merchandise broker, or otherwise, in behalf of said persons, or in behalf of any one, of a large quantity of sound linseed, to wit, of two thousand bags of sound linseed, or of any sound linseed ; and did not then and there, in his said capacity of merchandise broker, or otherwise, have from said persons, or from any person or persons, an order for the purchase in behalf of said persons, or in behalf of any one, of any linseed of sound quality or otherwise at the price of three dollars for each bushel of said sound linseed, as the said A. B. then and there well knew. 533 (542) OFFENCES AGAINST PROPERTY. And so the jurors aforesaid, upon their oaths aforesaid, do sa}', that the said A. B., by means of the false pretences afore- said, on, etc., at, etc., in his said capacity of merchandise broker as aforesaid, un-lawfully, knowingly, designedly, and fraudu- lently did obtain and receive from the said B. and II. the said sound linseed, of the value aforesaid, of the property of the said B. and H., with intent to cheat and defraud as aforesaid, etc. {Conclude as in book 1, chapter 8.) (542) Pretending to he clerk of a steamboat, and authorized to collect money for the boat. That A. B., on the first day of November, in the year of our Lord one thousand eight hundred and forty-six, in the county of Hamilton aforesaid, unlawfully did falsely pretend to one M. N., that he the said A. B. then was clerk of the steamboat " Harlem," and as such, that the said A. B. was then and there entitled to receive from the said M. N. and 0. P., Q. R. and S. T. (the said M. K, 0. P., Q. R., and S. T. then and there being partners under the name and firm of IsT,, S. & Co.), a large sum of money, to wit, the sum of twenty-four dollars and ninety- four cents, on account of and for freight and charges due the said steamboat " Harlem," by means of which said false pre- tences, he the said A. B. then and there unlawfully did obtain from the said M. N., 0. P., Q. R., and S. T., a large sum of money, to wit, the said sum of twenty-four dollars and ninety- four cents, of the moneys and effects of the said M. IST., O. P., Q. R., and S. T., with intent then and there to cheat and defraud the said M. IST., 0. P., Q. R., and S. T. of the said sum of money ; whereas, in truth and in fact, the said A. B. was not then such clerk as aforesaid, nor was the said A. B. then entitled to receive said sum of money, or any part thereof, from the said M. iN"., O. P., Q. R., and S. T., or either of them, and the said A. B., at the time he so falsely pretended as aforesaid, well knew the said false pretences to be false, QtQ.{w) («•) WaiTcn's C. L. 233. 634 FALSE PRETENCES. (^44) (543) Pretence made to a tradesman that defendant was a servant to a customer, and loas sent for the ixirticular goods ob- tained.{x) That A. B., etc., on, etc., at, etc., contriving and intending unlawfully, fraudulently, and deceitfully to cheat and defraud one C. J), of his goods, wares, and m'erchandises, on, etc., at, etc., aforesaid, unla-wfully, knowingly, and designedly did falsely pre- tend to the said C. D., that he the said A. B. then was the ser- vant of one C. Q., of, etc., tailor (the said C. Q. then and long before being well known to the said C. D., and a customer of the said C. D. in his said business and way of trade), and that he the said A. B. was sent by the said C. Q., to the said C. D., for ten yards of certain supertine woollen cloth, by which said false pretence the said A. B. did then and there, to wit, on, etc., at, etc., aforesaid, unlawfully, knowingly, and designedly obtain from the said C. D. ten j^ards of superfine woollen cloth of the value of fifteen pounds, of the goods, wares, and merchandises of the said C. !).,(?/) with intent then and there to cheat and defraud him the said C. D. of the same, whereas, in truth and in fact, the said A. B. was not then the servant of the said C. Q., and whereas, he the said A. B. was not then, or ever hath been, sent by the said C. Q. to the said C. B. for the said cloth, or for any cloth whatsoever, against, etc., and against, etc. {Conclude as 171 book 1, chapter 8.) (544) Another form for same.{z} That J. S., etc., on, etc., at, etc., intending, etc., unlawfully, knowingly, and designedly did falsely pretend to one J. IST., that the said J. S. then was the servant of one R. 0., of St. Paul's Churchyard, in the city of London, tailor (the said R. 0. then and long before being well known to the said J. N., and a cus- tomer of the said J. K. in his business and way of trade as a woollen draper), and that the said J. S. was then sent by the (x) Dickinson's Q. S. 335. (y) This is essential. R. v. Parker, 3 Q. B. 292 ; R. v. Norton, 8 C. & P. 19G. The want of the averment will occasion indictment to be quashed (by four judges), S. C, for it is not cured by verdict under 7 Geo. JV. c. G4, s. 21. See Martin v. R. (in error), 3 N. & P. '472; 8 A. & E. 481 ; R. v. Douglass, Dick- inson's Q. S. 337. (z) Archbold's C. P. ijth Am. ed. 345. 535 (544a) OFFENCES AGAINST PROPERTY. said R. 0. to the said J. N. for five yards of superfine woollen cloth, by means of which said false pretences the said J. S. did then and there unlawfully obtain from the said J. N. five yards of superfine woollen cloth, of the value of five pounds, of the goods (" any chattel, money, or valuable security ,")(«) of the said J. N"., with intent then and there to cheat and defraud him the said J. IST. of the same ; whereas, in truth and in fact, the said J. S. was not then the servant of the said R. 0. ; and whereas, in truth and in fact, the said J. S. was not then, or at any other time, sent by the said R. 0. to the said J. K. for the said cloth, or for any cloth whatsoever, to the great damage and deception of the said J. N., to the evil example of all others in the like case oftending, against, etc., and against, etc. [Conclude as in book 1, chapter 3.) (544a) Pretence that defendant was asked by " a jjerson living in a large house down the street" etc., to buy carpet of prose- cutor.ip) That A. B., on, etc., at, etc., unlawfully, knowingly, and de- sigcnedly did falsely pretend to one G. S. that a certain person wdio lived in a large house down the street, and had had a daughter married some time back, had been at him the said A. B. about some carpet, and had asked him, the said A. B., to pro- cure a piece of woollen carpet, to wit, about twelve yards; by means of which said false pretences the said A. B. did then and there unlawfully obtain from the said G. S. twenty yards of woollen carpet, of the goods and chattels of the said G. S., with intent thereby then to defraud, etc. ; whereas, in truth and fact, no such person as aforesaid had then, or at any other time, been at the said A. B. about any carpet, nor had any such person as aforesaid asked the said A. B. to procure any piece of woollen carpet whatsoever, to the great damage and deception of the said G. S., to the evil example, etc. {Conclude as in book 1, chapter 3.) (a) See 7 & 8 Geo. IV. c. 29, s. 5. (b) Sustained in R. v. Burnsides, 8 Cox, C. C. 370; Bell, 282; Wh. Cr. L. 8th ed. §§ 1139, 1165. 536 FALSE PRETENCES. (545) (545) Pretence that the defendant was entitled to grant a lease of certain freehold property. {c) That P. F., late of B., in the county of Middlesex, laborer, on the first day of June, in the year of our Lord at B. aforesaid, in the county aforesaid, and within the jurisdiction of the central criminal court, unlawfully and knowingly did falsely pretend to one B. E,, that the said P. F. then was the freeholder of a certain messuage and premises situate and being in Church street, in B. aforesaid, in -the county aforesaid, and that the said P. F. then had a good and sufiicient right, title, estate, and interest in the said messuage and premises to entitle and enable the said P. F. to grant to the said B. E. a lease of the said messuage and premises for a term of twenty years, and that the said P. F. then had power to grant the said lease to the said B. E., and to give to the said B. E. a good and valid title to the said messuage and premises for the said term of twenty years; by means of which said false pretences the said P. F. did then and there unlawfully and fraudulently obtain from the said B. E. thirty pieces of the current gold coin of this realm called sovereigns, ten pieces of the current silver coin of this realm called shillings, and one promissory note of the governor and company of the Bank of England, for the pay- ment of ten pounds, of the moneys of the said B. E., with intent then and there to cheat and defraud him of the same ; whereas, in truth and in fact, the said P. F. was not at the time he so falsely pretended as aforesaid the freeholder of the said messuage and premises, or of any part thereof, nor had he then any freehold estate whatever in the said messuage and premises, or in any part thereof, as the said P. F. then well knew ; and whereas, in truth and in fact, the said P. F. had not, at the time he so falsely pretended as aforesaid, a sufficient right, title, estate, or interest to entitle or enable him to grant any lease of the said messuage and premises for a term of twenty years, or any lease whatever of the said messuage and premises, or any part thereof, as the said P. F. then well knew ; and whereas, in truth and in fact, the said P. F. had not, at the time he so falsely (c) 5 Cox, C. C. Appendix, p. li. 537 (545) OFFENCES AGAINST PROPERTY. pretended as aforesaid, any right, title, estate, or interest what- ever in or to the said messuage and premises, nor had he then power to grant the said lease to the said B. E., or to give to the said B. E. any title to the said messuage and premises for the said term of twenty years, or for any term of years whatever, or any title whatever to the said messuage and premises, or any part thereof; to the great damage of the said B. E., and con- trary to the form of the statute in such case made and provided, and against the peace, etc. Second count. And the jurors aforesaid, upon their oath aforesaid, do further present, that, before and at the time of the committing of the offence hereinafter next mentioned, one J. L. was the owner and proprietor of the said messuage and premises in the said first count of this indictment mentioned. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said P. F., on the day aforesaid, in the year aforesaid, at B. aforesaid, in the county aforesaid, and within the jurisdiction aforesaid, unlaw- fully and knowingly did again falsel}^ pretend to the said B. E. that the said P. F, then was the freeholder of the said messuage and premises, and that the old gentleman to whom the premises formerly belonged, meaning the said J. L., had died, and had left the said P. F. everything, and that the said P. F. then had a sufficient estate and interest in the said messuage and premises to entitle and enable him to grant, and then had power to grant to the said B. E. a lease of the said messuage and premises for a term of twenty years; by means of which said false pretences in this count mentioned, the said P. F. did then and there unlawfully and fraudulently obtain from the said B. E. thirty pieces of the current gold coin of this realm called sovereigns, ten pieces of the current silver coin of this realm called shillings, and one prom- issory note of the governor and company of the Bank of Eng- land, for the paj'ment of ten pounds, of the moneys of the said B. E., with the intent then and there to cheat and defraud him of the same ; whereas, in truth and in fact, the said P. F. was not at the time he so falsely pretended, as in this count mentioned, the freeholder of the said messuage and premises, or any part thereof, nor had he then any freehold in the said messuage and 538 FALSE PRETENCES. (546) premises, or iu any part thereof, as the said P. F. then well knew ; and whereas, in truth and in fact, at the time the said P. F. so falsely pretended as last aforesaid, the said J. L. had not died, as the said P. F. then well knew ; and whereas, in truth and in fact, the said P. F. had not at the time he so falsely pretended as last aforesaid a sufficient estate or interest in the said messuage and premises to entitle or enable him to grant, nor had he then any power to grant any lease for a term of twenty years, or any lease whatever, of the said messuage and premises, or of any part thereof, as the said P. F. then and there well knew ; to the great damage of the said B. E., contrary to the form of the statute in such case made and provided, and against the peace, etc. (546) Pretence that the defendant was the authorized agent of the Executive Committee of the Exhibition of the Works of Indus- try of all Nations, and that he had power to allot space to jirivate individuals for the exhibition of their Yaerchandise.{d) That heretofore, and before the committing of the offence hereinafter next mentioned, to wit, on the twenty-tifth day of October, in the year of our Lord one thousand eight hundred and fifty, an application was made by Harriet Richardson, then being the wife of Thomas Richardson, to one Adam Young the younger, for a certain space, to wit, a space of four feet square, in a certain building then in the course of erection in Hyde Park, in the county of Middlesex, for the purpose of an exhibition in- tended to take place in the year of our Lord one thousand eight hundred and fifty-one, and called and known as the Great Exhi- bition of the Works of Lidustry of all Nations, for the purpose of enabling the said Harriet Richardson to exhibit certain arti- cles, to wit, stays, at the said exhibition. And the jurors afore- said, upon their oath aforesaid, do further present, that the said Adam Young the younger, late of the parish of Saint Dunstan in the East, in the city of London, laborer, afterwards, to wit, on the day aforesaid, in the year aforesaid, at the parish afore- said, in the city aforesaid, and within the jurisdiction of the central criminal court, unlawfully, knowingly, and designedly did falsely pretend to the said Harriet Richardson that the said ((/) 4 Cox, C. C. Appendix, p. xlv. 589 (546) OFFENCES AGAINST PROPERTY. Adam Young the younger then was an authorized agent for the purpose of granting space for the exhibition of articles at the said exhibition ; and that the said Adam Young the younger then was the only person who had the power to grant space to the said Harriet Richardson for the exhibition of articles at the said exhibition ; and that the said Adam Young the younger then had power to grant to the said Harriet Richardson the space so applied for by the said Harriet Richardson as aforesaid ; by means of which said false pretences the said Adam Young the younger did then and there unlawfully obtain from the said Harriet Richardson three pieces of the current silver coin of this realm called half-crowns, two pieces of the current silver coin of this realm called shillings, and one piece of the current silver coin of this realm called a sixpence, of the moneys of the said Thomas Richardson, with intent then and there to cheat and defraud the said Thomas Richardson of the same ; whereas, in truth and in fact, the said Adam Young the younger was not then an author- ized agent for the purpose of granting, and had not any authority whatever to grant, space for the exhibition of articles at the said exhibition, or any space whatever in the said building, as the said Adam Young the younger then and there well knew ; and whereas, in truth and in fact, the said Adam Young the younger was not then the only person who had power to grant space for the exhibition of articles at the said exhibition, as the said Adam Young the younger then and there well knew ; and whereas, in truth and in fact, the said Adam Young the younger had not then any power, authority, or right whatever to grant space for the exhibition of articles at the said exhibition to the said Har- riet Richardson, or to any other person whatever, or any space whatever in the said building to the said Harriet Richardson, or any other person, as the said Adam Young the younger then and there well knew ; to the great damage of the said Thomas Rich- ardson, contrarj'- to the form of the statute in such case made and provided, and against the peace, etc. Second count. And the jurors aforesaid, upon their oath aforesaid, do further present, that heretofore, and before the committing of the offence hereinafter next mentioned, to wit, on the day aforesaid, in the 540 FALSE PRETENCES. (546) year of our Lord one thousand eight hundred and fifty, an ap- plication was made by the said Harriet, the wife of the said Thomas Richardson, to the said Adam Young the younger, for a certain space, to wit, a space of four feet square, at the Great Exhibition, meaning thereby a space of four feet square in a certain building intended to be used as the building in which a certain exhibition, called and known as the Great Exhibition of the Works of Industry of all iN'ations, should take place, in the year of our Lord one thousand eight hundred and fifty-one, for the exhibition of certain articles, to wit, stays, at the said exhi- bition. And the jurors aforesaid do further present, that the said Adam Young the younger afterwards, to wit, on the day aforesaid, in the year of our Lord one thousand eight hundred and fifty, at the parish aforesaid, in the city aforesaid, and within the jurisdiction of the central criminal court, unlawfully, knowingly, and designedly did again falsely pretend to the said Harriet Richardson, that the said Adam Young the younger then had power to grant to the said Harriet Richardson space for the exhibition of articles at the said exhibition. And that the said Adam Young the younger then had power to grant to the said Harriet Richardson the said space, so applied for by the said Harriet Richardson as aforesaid, by means of which said last mentioned false pretences the said Adam Young the younger did then and there unlawfully obtain from the said Harriet Richardson three other pieces of the current silver coin of this realm called half-crow^is, two other pieces of the current silver coin of this realm called shillings, and one other piece of the current silver coin of this realm called a sixpence, of the moneys of the said Thomas Richardson, with intent then and there to cheat and defraud the said Thomas Richardson of the same; whereas, in truth and in fact, the said Adam Young the j'ounger had not then any power or right whatsoever to grant space for the exhibition of articles at the said exhibition to the said Harriet Richardson, or to any other person whatever, or any space whatever in the said building to the said Harriet Rich- ardson, or any other person, as the said Adam Young the younger then and there as last aforesaid well knew ; to the great damage of the said Thomas Richardson, against the form 541 (546) OFFENCES AGAINST PROPERTY. of the statute in such case made and provided, and against the peace, etc. Thi7xl count. And the jurors aforesaid, upon their oath aforesaid, do further present, that, before the committing of the oflence hereinafter next mentioned, to wit, on the day aforesaid, in the year of our Lord one thousand eight hundred and fifty, an application was made by the said Thomas Richardson to the said Adam Young the younger for a certain space, to wit, a space of four feet square, in the building intended for the proposed Great Exhi- bition of one thousand eight hundred and fifty-one, meaning hereby the Great Exhibition of the Works of Industry of all IsTations, intended to be holden in the year of our Lord one thou- sand eight hundred and fifty-one. And the jurors aforesaid, upon their oath aforesaid, do further present, that heretofore, and before the making of the said last mentioned application, an executive committee for carrying out the said exhibition had been and was duly appointed for the purpose of carrying out the said exhibition, and that, amongst other things, the power of allotting space in the said last mentioned building to persons desirous of becoming exhibitors in the said exhibition had been, and was, vested and intrusted to the said committee. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Adam Young the younger afterwards, to wit, on the day aforesaid, in the year of our Lord one thousand eight hundred and fifty, at the parish aforesaid, in the city aforesaid, and within the jurisdiction aforesaid, unlawfully, knowingly, and fraudulently did again falsely pretend to the said Thomas Richardson, that the said Adam Young the younger was the only authorized agent of the commissioners, meaning thereby that he was the only authorized agent of the said executive committee for granting space, meaning thereby space in the said last mentioned building, and that the said Adam Young the younger then had power to allot to the said Thomas Richardson the space in the said building, so applied for by the said Thomas Richardson as last aforesaid, by means of which said last men- tioned false pretences, the said Adam Young the younger did then and there, as last aforesaid, unlawfully attempt and en- 542 FALSE PRETENCES. (546) deavor unlawfully to obtain from the said Thomas Richardson a large sum of money, to wit, the sum of ten shillings, of the moneys of the said Thomas Richardson, with intent then and there to cheat and defraud him thereof; whereas, in truth and .in fact, the said Adam Young the younger was not, at the time he so falsely pretended as last aforesaid, an authorized agent of the said executive committee for granting space in the last men- tioned building, as he the said Adam Young the younger then and there as last aforesaid well knew ; and whereas, in truth and in fact, the said Adam Young the younger had not, at the time he falsely pretended as aforesaid, any power, authority, or right whatsoever, to allot any space whatever in the said last mentioned building to the said Thomas Richardson, or to any other person, as he the said Adam Young the younger, at the time he so falsely pretended as last aforesaid, well knew ; to the great damage of the said Thomas Richardson, and against the peace, etc. Fourth count. And the jurors aforesaid, upon their oath aforesaid, do further present, that before the committing of the offence next herein- after mentioned, to wit, on the day aforesaid, in the year of our Lord one thousand eight hundred and fifty, an application was made by the said Thomas Richardson to the said Adam Young for a certain space, to wit, the space of four feet square, in the building intended for the proposed Great Exhibition, to be holden in the year of our Lord one thousand eight hundred and fifty-one, to wit, the proposed Great Exhibition of Works of In- dustry of all ITations. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Adam Young the younger afterwards, to wit, on the day aforesaid, in the year of our Lord one thousand eight hundred and fifty, at the parish aforesaid, in the city and within the jurisdiction aforesaid, un- lawfully, knowingly, and fraudulently did again falsely pretend to the said Thomas Richardson, that the said Adam Young the younger then, as last aforesaid, had power to allot to the said Thomas Richardson the space in the said last mentioned build- ing, so applied for by the said Thomas Richardson as last afore- said, by means of which said last mentioned false pretences the 543 (547) OFFENCES AGAINST PROPERTY. said Adam Young the younger did then and there, as last afore- said, unlawfully attempt and endeavor unlawfully to obtain from the said Thomas Richardson a large sum of money, to wit, the sum of ten shillings, of the moneys of the said Thomas Richardson, with intent then and there to cheat and defraud- the said Thomas Richardson thereof; whereas, in truth and in fact, the said Adam Young the younger had not, at the time he so falsely pretended as last aforesaid, any power, authority, or right whatever, to allot any space whatever in the last men- tioned building to the said Thomas Richardson, or to any other person, as the said Adam Young the younger, at the time he so falsely pretended as last aforesaid, well knew ; to the great dam- age of the said Thomas Richardson, and against the peace, etc. (547) Pretence that prisoner was an unmarried man, and thai, hav- ing been engaged to her, the prosecidrix, and the engagement broken off, he loas entitled to support an action of breach of promise against her, by xohieh means he obtained money from her.{e) That S. M. C, otherwise called S. M., etc., on, etc., unlawfully did falsely pretend to the said A. C, then and there being a single woman, that he was a single and unmarried man, and thereby then and there obtained a promise of marriage from the said C, to wit, a promise that in consideration that he would marry her she would marry him. And the jurors, etc., do fur- ther present, that the said A. C, afterwards, to wit, on the day and year, etc., wholly refused to marry the said S. M. C, other- wise called, etc. And the jurors, etc., do further present, that the said S. M. C, otherwise called, etc., afterwards, to wit, on the day and year, etc., unlawfully did falsely, knowingly, and designedly pretend to the said A. C. that he was, at the time of the said promise and refusal in this count mentioned, a single and unmarried man, and entitled to bring and maintain an (e) R. I'. Copeland, 1 C, & M. 516. In this case It was held by Lord Den ham, C. J., and Maule, J., that the fact of the prisoner paying his addresses •was sufficient evidence for the jury, on which tliey might find the first pretence that the prisoner was a single man and in a condition to marry ; and by Maule, J., that this was sufficient evidence on which to find the falseness of the other pretence, that he was entitled to maintain his action for breach of promise of marriage, and that such latter false pretence was a sufficient false pretence within the statute. "Wh. Cr. L. 8th ed. § 1148. 644 FALSE PRETENCES. (547a) action for breach of the said promise of marriage against her the .said A. C, by means of which said last mentioned false pretence in this count mentioned, the said S. M. C, otherwise called, etc., did then and there unlawfully obtain from the said A. C. one promissory note of the governor and company of the Bank of England, for the payment of one hundred pounds, etc. {describ- ing various kinds of money and securities), of the property and moneys of the said A. C, with intent then and there to cheat and defraud her the said A. C. of the same ; whereas, in truth and in fact, the said S. M. C, otherwise called, etc., was not, at the time of the said promise of marriage in this count men- tioned, or at the time of the said refusal in this count mentioned, a single man or an unmarried man, nor was he, at either of those times or at any other time, entitled to bring or maintain an action for breach of the said promise of marriage against the said A. C, etc., against, etc. {Conclude as in hook 1, chapter 3.) (547a) Pretence that a certain coat was a particular uniform^ etc. The jurors for, etc., upon their oath present, that J. F. B., on, etc., unlawfully and knowingly did false'ly pretend unto S. C, a station-master in the employment of the L., B., and S. C. E.. Co., that the great-coat which he, the said J. F. B., then handed to the said S. C. was the same great-coat, and part of the uniform clothing which had been supplied to him the said J. F. B. by the said company. By means of which said false pretences the said J. F. B. did then unlawfully obtain from the said S. C. one pound in money, with intent to defraud. Whereas, in truth and in fact, the said great-coat was not the same great-coat, nor did it form part of the uniform clothing which had been supplied to him the said J. F. B. by the said company, against, etc.(/) {Conclude as in book 1, chapter 3.) (/) It appeared in evidence on tlie trial of this indictment that the prisoner, J. F. B., on entering the service of the said company, signed a book of rules, a copy of which vyas given to him. One of the rules was: "No servant of the company shall be entitled to claim payment of any wages due to him on leaving the company's service until he shall have delivered up his uniform clotliing." On leaving the service the prisoner knowingly and fraudulently delivered up to an officer of the company, as part of his own uniform, a great-coat belonging to a fellow servant, and so obtained the wages due to him. It was held, that the defendant was properly convicted of obtaining the money by false pretences. R. V. Bull, 13 Cox, C. C. 608. VOL. I.— 35 545 (548) OFFENCES AGAINST PROPERTY. (548) Pretence that defendants 7oe?r the agents of P. H., who was the owner of certain stock and land^ etc., the latter of which was in fact mortgaged.{g) That R. H. and J. C, etc., on, etc., at, etc., being persons of an evil disposition, and devising and intending by unlawful ways (^) This form was sustained in Com. v. Harley, 7 IVIet. 464. Dewey, J. : " As to the first exception taken to the instructions given to the jury, at the trial, we think the principle stated in Young and others v. the King, 3 T. R. 98, referred to by the counsel for the defendant, sustains the ruling, rather than the objection to it. The argument for the plaintifls in error there was, that the words could not have been spoken by all, and that one of them could not be affected by words spoken by another, each being answerable for himself only. But it was held, that ' if they all acted together, and shared in the same transaction,' they committed the offence jointly. Grose, J., said: ' Every crime, which may be in its nature joint, may be so laid. Here it is stated that all the defendants committed this offence, by all joining in the same plan ; they were all jointly concerned in defrauding the prosecutor of his money.' Now it seems to us, that if two may be indicted for the words spoken by one in the presence of the other, it appearing that they came to act in concert, it establishes the position that all which is necessary to cause the liability to attach to an individual of having participated in making false pretences, is his co-opera- tion and acting in concert in the general purpose ; and the concert and co-opera- tion may be shown, although one said nothing by way of assenting to or express- ing his concurrence in the false pretences. If this be so, it seems necessarily to follow that if A. procures B. to go to C, and with a false pretence, of which A. is conversant, to obtain the goods of C, A. is guilty in the matter of obtaining these goods by false pretences ; and whether A. be outside or within the door of the sliop of C. is immaterial ; all that is necessary to be proved is, that he is at the time acting in concert with B., and aiding in putting forth the false pretences, and that tlie precise false pretences and representations charged in the indict- ment be made with his knowledge, concurrence, and direction. The instruction on this point was therefore correct. "The next instruction to the jury, which is objected to, was in these words: ' It is not necessary for the government to prove that the defendants, or either of them, obtained the goods on their own account, or that they, or either of them, derived, or expected to derive, personally, any pecuniary benefit therefrom ; but that if the jury were satisfied that the defendants obtained said goods by means of said false pretences, for the sole use and benefit of said P. Harley, this was sufficient to sustain the allegation in the indictment, that the defendants obtained said goods by said false pretences.' " It is not contended by the defendant's counsel that it was necessary, in order to support the indictment, for the government to prove that the defendant in- tended any pecuniary gain or personal benefit. That the contrary is the rule is very clear, and was fully conceded in the argument. But the ground assumed is that of a variance between the matter set forth in the indictment, and the proof showing that the goods were obtained for the sole use of P. Harley. I should doubt, from the report of the case, whether the (question of variance was distinctly raised at the trial. The point seems rather to have been, whether a party charged with obtaining goods by false pretences must not be shown to have obtained them thus for his own use or pecuniary benefit. If, however, we look at the ([uestion as one of variance, we think the exception cannot pi-evail. The only allegation which is supposed to conflict with the evidence that the goods were obtained for the use of P. Harley is this, that the defendants, ' devising 546 FALSE PRETENCES. (5^8) and means to obtain and get into their hands and possession the goods, merchandise, chattels, and effects of the honest and good citizens of this commonwealth, and with intent to cheat and defraud one G. B. B., one D. IST., and one E. H. R. L., all of said Boston, Massachusetts, and copartners in trade, transacting busi- ness under the name, firm, and style of G. B. B. and Company, did then and there unlawfully, knowingly, and designedly falsely pretend and represent to said G. B. B. and Company, that they were in the employment of one P. H., of said Boston, trader ; that said P. II. was possessed of, and was the rightful owner of the stock of goods which then were in a certain shop, situated at the corner of Hanover street and Union street in said Bos- ton, and was solvent and in good credit, and they were author- ized to buy goods in the name of said P. H. by said P. H,, and that said R. H. was authorized to give promissory notes for such goods, in the name of and in behalf of said P. H., that said P. H. was a man, and wanted to buy goods on credit of said G. B. B. and Company, in the fair and usual honest course of trade, with intent to pay honestly for them at the expiration of the term of credit upon wdiich they should be sold. And the said B., JST., and L., then and there believing the said false pretences and representations, so made as aforesaid by the said R. H. and J. C , and being deceived thereby, were induced, by reason of the false pretences and representations so made as aforesaid, to deliver, and did then and there deliver, to the said R. 11. and J. C. for said P. H., sundry goods and merchandise of great value, to wit, of the value of one hundred and forty-seven dollars and sixty-six cents, to wit, one piece of wool black cloth, and intending by unlawful means to get into their hands and possession,' etc. But the evidence fully sustained the allegation. By means of these ialse pre- tences, the defendants did actually obtain and get into their hands and possession these goods ; and although they might have had a further purpose of eventually delivering them to P. Harley for her sole use, that fact, if shown by the defend- ants, would not avail them to escape from this indictment. "The remaining exception was, that the false pretences were not, as shown by the evidence, made personally to either of the members of the firm of George B. Blake & Co., but to a clerk acting for them in their shop, and by him com- municated to one of the firm. This objection was not much relied on, ;ind it cannot be sustained. It was directly overruled in the case of Com. v. Call (21 Pick. 515), where it was held that a false representation to an agent who com- municates it to his principal, who is influenced by it, is a false pretence to the principal." 547 (548) OFFENCES AGAINST PROPERTY. one piece of ribbed cassimere cloth, one piece of mixed doeskin cloth, six pounds' weight of thread, and one pound of beaux- sewings, of the proper goods, merchandise, chattels, and eftects of said B., N., and L. And the said C. and R. H. did then and there receive and ob- tain the said goods, merchandise, chattels, and effects of the said B., N"., and L., by means of the false pretences and representa- tions aforesaid, and with the intent to cheat and defraud the said B., N., and L., of the same goods and merchandise, chat- tels, and effects. "Whereas, in truth and in fact, said P. H. was not possessed of, and was not the rightful owner of, said stock of goods in said store, at said corner of Hanover Street and Union Street, but, before that time, had made, executed, and delivered divers, to wit, five, mortgages on said stock and her property, conditioned for the payment of large sums of money, to wit, sums of money collectively amounting to more than the value of said stock of goods and her mortgaged property aforesaid ; all of which mort- gages are recorded in the city clerk's office of said city of Bos- ton, according to law, one of which is dated on the fourteenth day of July, in the year eighteen hundred and forty-one, to R. H., administrator on the estate of one C. H. ; another is dated on the tenth day of May, in the year eighteen hundred and forty-two, to the same administrator; and another is dated on the second day of June, in the same year, to the same adminis- trator; and another of said mortgages is dated on the twenty- ninth day of September, in the same year, to the same adminis- trator ; and another of said mortgages is dated on the thirty-first day of October, in the same year, to the same administrator ; and said P. H. was not a solvent person in good credit, but was poor, embarrassed, and unable to pay the debts P. H. owed, and the said P. H. was not a man but a woman, named P. H., who was insolvent and unable to pay her debts, and she did not want to buy goods honestly on credit in a fair way of business, and said G. and R. H. did not want for her to buy goods honestly in a fair course of trade on credit of said B., jN"., and L., with in- tent to pay for them as aforesaid, but to cheat them. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said R. H. and J. C, by means of the false pre- 548 FALSE PRETENCES. (5-19) tences aforesaid, on the said fourth day of iN^ovember, in the year of our Lord eighteen hundred and forty-two, at Boston aforesaid, unlawfully, knowingly, and designedly did receive and obtain from said B., N., and L. the said goods, merchan- dise, chattels, and effects of the proper goods, merchandise, chat- tels, and effects of the said B., N., and L., with intent to defraud them of the same, against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (549) That defendant possessed a capital of eight thousand dollars, ivhich had come to him. through his wife, it being her estate, and that a part of it had already come into his possession, and a jpart would come into his possession in the month then next ensuing, etc.{h) First count. That J. A. B., late of the said county, trader, maliciously and •wickedly devising and intending to cheat W. H. A. and E. R. {h) This was the Indictment in Com. v. Burdick (2 Barr, 163), with the ex- ception of the introduction in the text of the "scienter" after the allegation of the falsity of the pretences. The statute in this case received an extremely- liberal construction from Gibson, C. J. : "The rule of the common law," he said, " that cheating in private ti'ansactions without affecting the public, must, to be indictable, have been effected by artful devices or false tokens, was found to be too narrow for the business of the world, and the English statute, 20 Geo. II. c. 29, which has given place to the 7 Geo. IV. c. 92, s. 53, was enacted to extend the limits of the offence. From these, our act of 1842, § 21, seems to have been taken, and decisions on the clause in the first, whicli declares it an indictable offence to get money, chattels, or securities from anotlier, ' by false pretence or pretences,' or in the second, ' by any false pretence,' may be advantageously ap- plied to cases here. Tlie distinctions taken under these statutes, between cases sometimes differing in almost imperceptible degrees, are nice and well founded; and though not authoritative here, may help us in attaining a sound construction of our own statute, which differs from either of its models very little in sub- stance or in form. It would be a waste of time to pass those decisions in review, as they are collected and arranged in all the text books of criminal law ; but it may be collected from them, that a professed intent to do an act whicli the party did not mean to do, as in Rex v. Goodall (R. & R. 461), and Rex v. Douglass (1 Mood. C. C. 462), is the only species of false pretence to gain property wliieh is not indictable. These two cases, having been decided by the twelve judges, are eminently entitled to respect ; but I think it at least doubtful whether a naked lie, by which credit has been gained, would not, in every case, be deemed Avithin our statute, which declares it a cheat to obtain money or goods by any false pre- tence whatsoever. Its terms are certainly more emphatic than those of either of the English statutes ; but whether a false pretence of mere intent be within them or not, it is certain that a fraudulent misrepresentation of the party's means and resources is within the English statutes, and, d fortiori., within our own. In Rex V. Jackson (3 Campb. 370), it was held to be an offence to obtain goods by giving a check on a banker with whom the drawer kept no cash. Of the same stamp is the King?;. Parker (2 C. & P. 825) ; but Regina v. Henderson and another (1 C. & M. 183) is still more to the purpose. The prisoners falsely pretended that one 549 (549) OFFENCES AGAINST PROPERTY. of their goods and merchandise, on, etc., at, etc , did falsely, un- lawfully, knowingly, designedly, and fraudulently pretend to the said W. H. A. and the said E. R., that he the said J. A. B. possessed a capital of eight thousand dollars, that the said eight thousand dollars had come to him through his wife, it being her estate, and that a part of it had already come into his posses- sion, a part would come into his possession in the month then next ensuing, and that for the remaining part thereof he would be obliged to wait for a short time ; whereas, in truth and fact, he, the said J. A. B., did not then possess a capital of eight thousand dollars, nor had eight thousand dollars come to him through his wife, it being her estate, a part of which had already come into his possession, a part would come into his possession in the month then next ensuing, while for the remaining part thereof he would be obliged to wait for a short time, as he, the said J. A. B., did then and there falsely pretend to the said W. II. A. and the said E. R. ; of the falsity of which said pretences he, the said J. A. B., then and there well knew. And the in- quest, etc., do further present, that the said J. A. B., afterwards, to wit, on the day and year aforesaid, at the county and within the jurisdiction aforesaid, by the said false pretences aforesaid, did then and there unlawfully, fraudulently, and designedly obtain from the said W. H. A. and E. R. divers goods and mer- chandise, to wit, six pieces rich satin stripe silk, being together of the value of one hundred and four dollars, and one piece of striped cloaking, of the value of fifty dollars, being then and there the property of the said W. H. A. and E. R., with intent to defraud the said W. H. A, and E. R. of the same, to the great damage of the said W. H. A. and the said E. R., contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) of them -was possessed of twelve pounds, which he agreed to give for his con- federate's horse, for which it was proposed that the prosecutor shoidd exchange his mare ; and this was held to be clearly a false pretence within the statute. Now the defendant is charged in the indictment before us, with having wilfully- misrepresented that he had a capital of eight thousand dollars, in right of his wife; that a part of it was already received; that another part of it would be received in the course of a month ; and that the residue would be received shortly afterwards; and if, as was said in Mitchell's case (2 East, P. C. 80), a false pretence is within the English statute, wherever it has been the efficient cause of obtaining credit, the false pretence before us is within our own." See in general Wh. Cr. L. 8th ed. §§ 1135, 1173. 550 FALSE PRETENCES. (^51) (550) Second count. Tliat defendant has a capital of $S00O, which came through his wife. And the inquest, etc., do further present, that the said J. A. B., wickedly and fraudulently devising and intending as aforesaid to cheat and defraud the said W. H. A. and E. R. of their goods and merchandise, on the day and year aforesaid, at the county and within the jurisdiction aforesaid, did falsely, designedly, and fraudulently pretend to the said W. H. A. and E. R., that he the said J. A. B. possessed a capital of eight thousand dollars, which said eight thousand dollars had come to him through his wife, it being her estate ; whereas, in truth and fact, he the said J, A. B. did not then and there possess a capital of eight thousand dol- lars, nor had eight thousand dollars come to him through his wife, nor had she, his wife, as aforesaid, an estate of eight thousand dol- lars, as he the said J. A. B. did then and there falsely pretend to the said W. H. A. and the said E. R., of the falsity of which said pretences, he the said J. A. B. then and there well knew. And the inquest, etc., do further present, that the said J. A. B., afterwards, to wit, on the day and year aforesaid, at the county and within the jurisdiction aforesaid, did, unlawfully, know- ingly, and fraudulently obtain from the said W. H. A. and the said E. R. divers goods and merchandise, to wit, six pieces of rich satin stripe silk, together of the value of one hundred and four dollars, and one piece of striped cloaking, of the value of fifty dollars, being then and there the property of the said W. H. A. and E. R., with intent to defraud the said W. H. A. and E. R. of the same, to the great damage of the said W. H. A. and the said E. R., contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (551) Ihird count. That defendant had a capital of $8000. That the said J. A. B., wickedly and fraudulently devising and intending as aforesaid to cheat and defraud the said W. II. A. and E. R. of their goods and merchandise, on the day and year aforesaid, at the county aforesaid, and within the jurisdiction aforesaid, did falsely, designedly, and fraudulently pretend to the said W. H. A. and the said E. R., that he the said J. A. B. then and there possessed a capital of eight thousand dollars ; whereas, 551 (552) OFFENCES AGAINST PROPERTY. in truth and in fact, the said J. A. B. did not then and there possess a capital of eight thousand dollars, as he the said J. A. B. then and there did falsely pretend to the said W. H. A. and the said E. R. And the inquest, etc., do further present, that the said J. A. B. did then and there unlawfully, knowingly, and fraudulently obtain from the said W. H. A. and the said E. R. divers goods and merchandise, to wit, six pieces of striped silk"-, being together of the value of one hundred and four dollars, and one piece of striped cloaking of the value of fifty dollars, being then and there the property of the said W. H. A. and the said E. E,., with intent to defraud the said^W. H. A. and the said E. R. of the same, to the great damage of the said W. H. A. and the said E. R., contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (552) Pretence that defendant was well off and free from debt, etc.[i) That A. Gr. D.,etc., on, etc., at, etc., unlawfully and wickedly devising and intending to cheat and defraud one W. F. of his goods, moneys, chattels, and property, unlawfully, fraudulently, and designedly did falsely pretend to the said W. F., that he the said A. G. D. had paid every dollar of the old score that he owed in Philadelphia, that he was well oft', and that he was very rich, and had a great deal of property in Kentucky. Whereas, in truth and in fact, he the said A. G. D. had not paid every dollar of the old score that he owed in Philadelphia, and was not well off", and w^as not very rich, but on the contrary was very poor, and did not own a great deal of property in Kentucky ; and he the said A. G. D. then and there well knew the said pretence and pretences to be false ; by color and means of which said false pretence and pretences, he the said A. G. D. did then and there unlawfully obtain from the said W. F. one black mantilla of the value of twenty-five dollars, one garnet mantilla of the value of twenty dollars, one black silk mantilla of the value of fourteen dollars, one black embroidered mantilla of the value of fourteen dollars, two plain silk mantillas of the (^■) Com. V. Daniels, 2 Parsons, 352. Under this indictment the defendant was convicted in Philadelphia, and sentenced. A writ of error was afterwards taken in the supreme court (the assijinment of error being confined to the sentence), and the judgment of the court below was affirmed. Wh. Cr. L. 8th ed. §§ 1147, 1170. 552 FALSE PRETENCES. (553) value of twenty-four dollars, two figured silk mantillas of the value of eighteen dollars, twenty-six yards and a half of striped silk of the value of forty-three dollars and six cents, two silk shawls of the value of twenty-four dollars, two cashmere shawls of the value of twenty dollars, two net bags of the value of eight dollars, two velvet bags of the value of eight dollars, twelve yards of figured silk of the value of nineteen dollars and fifty cents, one trunk of the value of one dollar and fifty cents, being together of the value of two hundred and thirty- nine dollars and six cents, being then and there the property of the said W. F., with intent to cheat and defraud the said W. F., to the great damage of the said W. F., contrary, etc., and against, etc. {Conclude as in book 1, chapter 3.) (553) Second count. Negativing the pretence more fuUi/. That the said A. G. D., etc., on, etc., at, etc., unlawfully and wickedly designing and intending to cheat and further defraud the said W. F. of his goods, moneys, chattels, and property, unlawfully and designedly did further falsely pretend to the said W. F., that he the said A. G. D. had paid every dollar of the old score that he owed in Philadelphia (meaning thereby that he paid and discharged all the old debts which he owed in Philadelphia, and all debts which he had previously con- tracted in Philadelphia), that he was well off (meaning thereby that he had ample means), that he was rich, and had a great deal of property in the state of Kentucky (meaning thereby that he was a person of great wealth). Whereas, in truth and in fact, he the said A. G. D. had not then and there paid ofl^ every dollar of the old debts which he owed in Philadelphia, and had not paid off all debts which he had previously con- tracted in Philadelphia, but on the contrary then and there owed and still does owe large sums of money to various per- sons, as follows: Seven hundred and fifty-eight dollars and seventy-eight cents to J. M. 0., J. T., and S. B, D., trading as 0. and T. ; ten hundred and forty dollars and eighteen cents to S. W. A., G. W. J., and W. F., trading as A., J. and Co. ; eight hundred and twenty-two dollars and twenty-two cents to R. L. and H. J., trading as L. and J. ; three hundred and ninety dol- lars and twenty-four cents to I. H. and W. J. W., trading as H. 553 (554) OFFENCES AGAINST PROPERTY. and TV". ; four hundred and forty-one dollars and thirty-four cents to R. D. W., J. A., J. B., and II. W., trading as W. and A.; three hundred and ninety-seven dollars and fifty-one cents to R. W. D. T., W. S. P., and C. B. T., trading as T., P., and T. ; eighty-five dollars and twenty-six cents to R. J. T. and 0. E., trading as T. and E. : and he the said A. G. D. was not well ofi", but on the contrary was very poor, and he the said A. G. D. was not rich, but on the contrary was then insolvent and unable to pay his debts, and he the said A. Gr. D. had not then a great deal of property in Kentucky ; by color and means of which said false pretence and pretences, he the said A. G. D. did then and there unlawfully obtain from the said W. F. the goods and chattels, property, and merchandise in the aforesaid first count mentioned, with intent to cheat and defraud the said W. F., to the great damage of the said W. F., contrary, etc., and against, etc. {Conclude as in book 1, chapter 8.) (554) That certain property of the defendant was miincumbered^ and that he himself ivas free from debts and liabilities.{j) That before the commission of the ofi:ence hereinafter men- tioned, one R. H. C. was possessed of and entitled to a certain reversionary interest, to wnt, a certain reversionary interest of and in and to one third of a certain sum of ten thousand pounds, three per cent, annuities, expectant on the death of one R. C, and that the said R. H. C. before the commission of the offence hereinafter mentioned, to wit, on the first day of November, in the year of our Lord duly executed a certain mortgage of the said reversionary interest to one R. S. H. H., as and for and by the way of security to the said R. S. H. H., for the repayment to him of a certain sum of money, to wit, the sum of one thou- sand pounds and interest, and that the said R. H. C. afterwards, and before the commission of the said offence, to wit, on the twenty-fifth day of October, in the year of our Lord charged the said reversionary interest, to which he was so entitled as aforesaid, with the payment of a certain other sum of money, to wit, the sum of five hundred pounds and interest. And the jurors aforesaid, upon their oath aforesaid, do further present, [j) 5 Cox, C. C. Appendix, p. xc. 554 FALSE PRETENCES. (554) that the said R. H. C, late of the parish of Saint Pancras, in the county of Middlesex, gentleman, well knowing the premises, and contriving and intending to cheat and defraud, on the thir- teenth day of March, in the year of our Lord at the parish aforesaid, and within the jurisdiction of the said court, did apply- to and request one J. P. to advance and lend to him, the said R. H. C, a certain sum of money, to wit, the sum of two hundred pounds, and did then and there unlawfully and knowingly falsely pretend to the said J. P. that the said R. H. C. had not then in- cumbered his said reversionary interest, and that the said R. H. C. had not borrowed any money from any other person on the security of the said reversionary interest of the said R. H. C. ; by means of which said false pretences the said R. II. C. did then and there unlawfully, knowingly, and designedly fraudu- lently obtain of and from the said J. P. one order for the pay- ment of money, to wit, for the payment and of the value of two hundred pounds, and one piece of paper, of the value of one penny, and the sum of two hundred pounds in money, of the property, goods, chattels, and moneys of the said J. P., with intent then and there to cheat and defraud him of the same ; whereas, in truth and in fact, the said R. II. C, at the time he so falsely pre- tended as aforesaid, had incumbered, and well knew that he had incumbered, his said reversionary interest ; and whereas, in truth and in fact, the said R. H. C, at the time he so falsely pretended as aforesaid, had borrowed, and well knew that he had borrowed, certain money from certain persons, other than the said J. P., upon the security of the said reversionary interest, to wit, the said sum of one thousand pounds, of and from the said R. S. H. H., and the said other sum of five hundred pounds, of and from one J. J. ; contrary to the form of the statute in such case made and provided, and against the peace, etc. Second count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said R. H. C, being possessed of and entitled to a reversionary interest in a certain sum of ten thousand pounds, three per cent, annuities, expectant upon the decease of one R. C, did apply to and request the said J. P. to advance and lend money to him the said R. II. C, to wit, on the thirty-first 555 (554) OFFENCES AGAINST PROPERTY. day of May, in the year of our Lord at the parish afore- said, and within the jurisdiction of the said court, and did then and there unlawfully, knowingly, and designedly falsely pretend to the said J. P. that the said R. H. C. had never in any manner theretofore mortgaged, assigned, or incumhered his reversionary interest in the said ten thousand pounds, three per cent, annuities, or any part thereof; that the said R. H. C. had never been a party to any deed or instrument whereby his interest in the said stock had or could have been in any manner afi'ected ; that the said R. H. C. was not then liable on any deed or instrument as surety for any person whomsoever; that the said R. H. C. had not then borrowed any money whatsoever, except from the said J. P., and that the said R. H. C. did not then owe, and was not then liable, for a greater amount of debts, exclusive of a sum of four hundred pounds, which he then owed to the said J. P., than the sum of three hundred pounds ; by means of which said false pretences, in this count mentioned, the said R. H. C. did then and there unlawfully, knowingly, and designedly fraudulently obtain of and from the said J. P. one order for the payment of money, to wit, for the payment and of the value of the sum of fifty pounds, and one piece of paper of the value of one penny, and the sum of fifty pounds in money, of the property, goods, chattels, and moneys of the said J. P., with intent to cheat and defraud him of the same; whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as last aforesaid, he had mort- gaged, assigned, and incumbered his said reversionary interest in the said sum of ten thousand pounds, three per cent, annuities, to wit, to the said R. S. H. H. and J. J., for the purpose of secur- ing to them respectively the repayment of the said sums of one thousand pounds and five hundred pounds hereinbefore men- tioned ; and whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as last aforesaid, the said R. H. C. had been, and then was, a party to certain deeds, by which his said reversionary interest in the said sum of ten thousand pounds had been and was then affected, to wit, the said deeds by which the repayment of the said sums of one thousand pounds and five hundred pounds was charged upon his said reversionary interest; and whereas, in truth and in fact, at the time the said R. H. C. 80 falsely pretended as in this count aforesaid, the said R. H. C. FALSE PRETENCES. (554a) was liable on certain bonds as surety for certain persons, to wit, one M. S. and one E. J., to wit, in two several suras of fifteen thousand pounds; and whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as in this count mentioned, the said R. H. C. had borrowed certain sums of money from cer- tain persons other than the said J. P., to wit, the sum of five thousand pounds from the said R,. S. H. H., and the sum of three thousand pounds from the said J. J. ; and whereas, in truth and in fact, at the time the said R. H. C. so falsely pretended as aforesaid, the said R. H. C. did owe, and was then liable for a greater amount of debts than the sum of three hundred pounds, exclusive of any money which he then owed to said J. P., that is to say, the said R. H. C. then owed to the said R. S. H. H. a greater sum of money than the sum of three hundred pounds, to wit, the sum of six hundred pounds, and the said R. H. C. then owed to the said J. J. a greater sum of money than the said sum of three hundred pounds, to wit, the sum of six hundred pounds, all which said several premises the said R. H. C, at the time he so falsely pretended as aforesaid, well knew ; contrary to the form of the statute in such case made and provided, and against the peace, etc. (554a) False 'pretence that goods were unincumhered.{k) That "W. M., on, etc., at, etc., unlawfully, designedly, and knowingly did falsely pretend unto T. M. W. that the goods of him, the said W. M. were unincumbered, and that a certain pretended bill of sale of the said goods, which pretended bill of sale the said "W. M. then delivered to the said T. M. "W., was a good and valid bill of sale of the said goods to the said T. M. W. ; by means of which said false pretences the said "W. M. did then and there unlawfully, designedly, and knowingly obtain from the said T. M. W. £8 175. 60?. in money, with intent to de- fraud ; whereas, in truth and fact, the said goods of him, the said W. M., were not unincumbered, nor was the said pretended bill of sale a good and valid bill of sale of the said goods to the said T. M. "W., etc. {Conclude as in hook 1, chapter 3.) (^-) Sustained in R. v. Meakin, 11 Cox, C. C. 270. 557 (555) OFFENCES AGAINST PROPERTY. (555) Pretence that defendant had then purchased certam property^ which it was necessary he should immediately pay for. {I) That W. J., late of the parish of Christchurch, Newgate Street, in the city of London, laborer, on the first day of March, in the year of our Lord at the parish aforesaid, in the city aforesaid, and within the jurisdiction of the said court, did unlawfully, fraudulently, knowingly, and designedly falsely pre- tend to one S. N. that the said W. J. then had at a certain place, then called and known by the name of Dixon's Liars, to wit, at Dixon's Liars, at Islington, in the county of Middlesex, and within the jurisdiction of the said court, one hundred and eight sheep, which the said W. J. had then purchased, and for which said one hundred and eight sheep the said W. J. had then and there to pay on the said first day of March, to wit, on the day and year aforesaid, and within the jurisdiction aforesaid, by means of which said false pretences the said W. J. did then and there, and within the jurisdiction aforesaid, unlawfully, knowingly, and designedly fraudulently obtain of and from the said S. N., of the goods, chattels, moneys, and valuable securities of the said S. N., ten pieces of the current gold coin of this realm, called sovereigns ; one valuable security, to wit, an order for the payment of, and of the value of one hundred pounds; one other valuable security, to wit, one order for the payment of, and of the value of five hundred pounds ; one other valuable security, to wit, one other order for the payment of money, to wit, one other order for the payment of, and of the value of four hundred pounds ; one other valuable security, to wit, one other order for the paj^ment of money, to wit, one other order for the payment of, and of the value of three hundred pounds ; and one other valuable security, to wit, one other order for the payment of money, to wit, one other order for the payment of, and of the value of six hundred pounds ; with intent then and there, and within the jurisdiction aforesaid, to cheat and defraud the said S. N. of the same goods, chattels, moneys, valuable securities, and orders for the payment of money respectively, the said sums of money payable and secured by and upon the (I) 4 Cox, C. C. Appendix, p. xxxiii. 558 FALSE PRETENCES. (555) said valuable securities and orders for the payment of money, t)eing then and there due and unsatisfied to the said S. 'N.^ the proprieter and owner of the said several valuable securities and orders for the payment of monej' respectively ; whereas, in truth and in fact, the said W. J. had not, at the time when the said W. J. so obtained the said moneys, and the said several valuable securities and orders for the payment of money from the said S. ]S^. as aforesaid, and when the said W. J. made the said false pretences as aforesaid, one hundred and eight sheep at Dixon's Liars, at Islington ; and whereas, in truth and in fact, the said W. J. had not then purchased the said one hundred and eight sheep ; and whereas, in truth and in fact, the said W. J. had not then to pay for the said one hundred and eight sheep, to wit, on the said first day of March ; all of which said false pretences the said W. J., at the time of the making thereof, well knew to be false; to the great damage, injury, and deception of the said S. N". and in fraud of the said S. N., to the evil example of all others in the like case ott'ending, contrary to the form of the statute in such case made and provided, and against the peace, etc. Second count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said S. N., heretofore, to wit, on the day and year aforesaid, and within the jurisdiction aforesaid, was accus- tomed to, and from time to time and at various times did, at the request of the said W. J., advance and intrust divers sums of moneys to the said W. J. for the purpose of, and to enable the said W". J. to pay for sheep, after the said W. J. had, in the way of his trade, purchased the same. And the jurors afore- said, on their oath aforesaid, do further present, that the said "W. J. heretofore, to wit, on the said first day of March, in the year aforesaid, in the city aforesaid, and within the jurisdiction of the said court, well knowing the premises, did unlawfully, fraudulently, knowingly, and designedly falsely pretend to the said S. IST. that the said W. J. had theretofore, and before the making the false pretences by the said W. J. hereinafter in this count mentioned, purchased for himself a certain number of sheep, of a certain value, to wit, of the value of five hundred 559 (555) OFFENCES AGAINST PROPERTY. pounds, for which the said W. J. had to pay at the bank of Messieurs Pockington and Company, on the day and year last aforesaid, a certain sum of money, to wit, the sum of five hundred pounds, by means of which last mentioned false pre- tences in this count mentioned, the said W. J. did then and there, and within the jurisdiction aforesaid, unlawfully, know- ingly, and designedly fraudulently obtain, of and from the said S. N.,of the goods and chattels, moneys, and valuable securities of the said S. !N"., one valuable security, to wit, one order for the payment of money, to wit, one order for the payment of, and of the value of iive hundred pounds, with intent then and there, at the time of the making of the said false pretences by the said "W". J. in this count mentioned, and within the juris- diction of the said court, to cheat and defraud the said S. N. of the said valuable security and order for payment of money in this count mentioned, the said sums of money in this count payable, and secured by and upon the said valuable security and order for the payment of money in this count mentioned, being then and there, to wit, at the time of the making of the said last mentioned false pretences, due and unsatisfied to the said S. !N"., the proprietor and owner of the same ; whereas, in truth and in fact, the said W. J. had not theretofore, and before the making of the said false pretences by the said W. J. in this count mentioned, purchased for himself a certain number of sheep, of the value of five hundred pounds, for which the said W. J. had to pay at the bank of Messieurs Pockington and Company, on the day and year last aforesaid, and in this count mentioned, the said sum of five hundred pounds, which said last mentioned false pretences the said W. J., at the time of the making thereof, well knew to be false ; to the great damage, injury, and deception of the said S. il., and in fraud of the said S. ^N"., to the evil example of all others in the like case oflend- ing ; contrary to the statute in that case made and provided, and against the peace, etc. 560 FALSE PRETENCES. (556) (556) Pretence that a certain draft for $7700, drawn by a house in Charleston on a house in Boston, which the defendant exhib- ited to the prosecutor, had been protested for non-payment ; that the defendaiit had had his pocket cut, and his pocket-book, containing $195, stolen from it ; that a draft drawn by a per- son in Philadelphia, ivhich the defendant showed the prosecu- tor, had been received by the defendant in exchange for the protested draft, and that the defendant expected to receive the money on the last mentioned draft. {m) That E. IL, late, etc., being a person of an evil disposition, ill- name and fame, and of dishonest conversation, and devising and intending b}'' unlawful ways and means to obtain and get into his hands and possession the moneys, goods, chattels, and eftects of the honest and good people of the state of New York, to maintain his idle and profligate course of life, on, etc., at, etc., with intent to cheat and defraud one A. B., did then and there unlawfully, knowingly, and designedly falsely pretend and rep- resent to the said A. B., that a certain draft for seven thousand seven hundred dollars, purporting to have been drawn by a Mr. E. of Charleston on a house in Boston (and which the said E. H. then and there exhibited to the said A. B.), had been pro- tested for non-payment; that he, the said E. H., had his pocket cut, and his pocket-book, containing one hundred and ninety- five dollars, stolen therefrom, and that he had got the pocket- book subsequently at the police office in the city of New York, but no money ; that a certain other draft for six thousand five hundred dollars, drawn on a Mr. T. of Philadelphia (which said E. H. then and there exhibited to the said A. B.), had been received in exchange by him the said E. 11. for the protested draft as aforesaid ; and that the said E. H. expected to receive the money on the said last mentioned draft ; and the said A. B,, (m) People v. Hale, 1 Wheel. C. C. 174. This count pui-ports to have been " settled" by Mr. Maxwell, the then district attorney of New York. Tlie oU'ence is set forth with sufficient particularity, witli the exception of tlie last assignment of pretence, "that defendant expected to receive the money," etc., which iiad it stood alone would have been insufficient to have sustained a verdict. It does not appear from the report whether any exception was taken to tlu; indictment, the chief point in the case, so far as the syllabus is concerned, being the declaration of Recorder Riker, that " the court was always willing to hear what could be alleged in favor of a prisoner, in arrest of judgment." VOL. I.— 36 561 (556) OFFENCES AGAINST PROPERTY. then and there believing the said false pretence and representa- tion so made as aforesaid by the said E. H., and being deceived thereby, was induced by reason of the false pretence and repre- sentation, so made as aforesaid, to deliver, and did then and there deliver to the said E. H. thirty pieces of silver coin, called dollars, of the value of one dollar each ; ten promissory notes for the payment of five dollars each, and of the value of five dollnrs each, then and there being due and unsatisfied; five other promissory notes for the payment of three dollars each, and of the value of three dollars each, then and there being due and unsatisfied, of the proper moneys, goods, chattels, and efiects of the said A. B. ; and the said E. H. did then and there receive and obtain the said promissory notes and money of the said A. B., of the proper moneys, goods, chattels, and effects of the said A. B., by means of the false pretence and representation afore- said, and with intent to cheat and defraud the said A. B. of the said promissory notes and money; whereas, in truth and in fact, the said E. H. had not any draft for six thousand seven hun- dred dollars, drawn by Mr. E. of Charleston on a house in Bos- ton, and no such draft had been protested; and whereas, in truth and in fact, the said E. H. had not been robbed of any money, and never did receive any pocket-book from the police ofiice which had been stolen from him ; and whereas, in truth and in fact, no other draft for six thousand five hundred dollars, drawn on a Mr. T. of Philadelphia, had ever been received by him, the said E. H., in exchange for the said first mentioned draft; and whereas, in truth and in fact, both drafts exhibited by the said E. H. as aforesaid to the said A. B, were forged and false, and the said E. H. never expected to receive any money by virtue thereof from the persons on whom they purported to be drawn, and which the said E. H. then and there well knew ; and whereas, in fact and in truth, the pretence and representa- tion so made as aforesaid by the said E. H. to the said A. B. was in all respects utterly false and untrue, to wit, on, etc.; and whereas, in fact and in truth, the said E. H. well knew the said pretence and representation, so made by him as aforesaid to the said A., B., to be utterly false and untrue at the time of making the same. And the jury aforesaid, etc., do further pre- sent, that the said E. H., by means of the false pretence aforesaid, 562 FALSE PRETENCES. (556rt) on, etc., at, etc., unlawfully, falsely, knowingly, and designedly did receive from the said A. B., of the proper moneys, goods, chattels, and effects of the said A. B., with intention to defraud him of the same, against, etc., and against, etc. {Conclude as in hook 1, chapter 3.) (556a) False pretence of possessing halves of certain hank notes. That M. M., etc., at, etc., did heretofore, to wit, on, etc., send through the post to one J. O., residing, etc., a written order and request note for the delivery to her, the said M. M., of certain quantities of tea and sugars of the goods and chattels of the said J. 0., and together wdth said written order and re- quest note the said M. M. then sent certain, to wit, two halves of hank notes hy way of payment for a sum of £2 for the goods aforesaid. And the jurors aforesaid, upon their oath, do far- ther say and present, that the said M. M., on the day in the year aforesaid, unlawfully and knowingly did falsely pretend to the said J. 0. that she then had in her custody and procure- ment for the satisfaction of the said J. 0. certain halves of bank notes, being the proper and corresponding halves of the bank notes so as aforesaid sent by the said M. M. to J. 0., and that the same would in due course be sent by M. M. to J. 0., by which said false pretences the said M. M. then unlawfully did obtain from the said J. 0. certain, to wit, ten pounds weight of tea and iifty-six pounds weight of sugar of the goods and chat- tels of the said J. 0., with intent to defraud ; whereas, in truth and in fact, the said M. M. had not then in her custody or pro- curement, for the satisfaction of the said J. 0., the said halves of bank notes, being the proper and corresponding halves of the halves of bank notes so as aforesaid sent by M. M. to J. 0., as she did then so falsely pretend to J. 0., and M. M. then well knew the said pretences to be false, against, etc.(?i) {Conclude as in hook 1, chapter 3.) (?i) In two other counts the traverser was similarly indicted for sending halt" notes to J. B. and H. M. respectively. In each count, by direction of the court, the words " or procurement" were struck out. Evidence was given by J. B., H. M., and several other persons to the etfect that the prisoner had writ- ten letters to the witnesses, inclosing half notes, and re(iuesting that goods might be forwarded to her. The goods were sent, but the traverser would not send the second half notes. Several of the witnesses held the corresjtonding halves of the notes sent to the others. The police constables who an-ested tlie prisouer found 563 (557) OFFENCES AGAINST PROPERTY. (557) Pretence that a certain watch sold hy defendant to jJrosecutor was gold.{o) That A. B., etc., contriving and intending one C. D., by false pretence to cheat and defraud of his money and property [and hy means of divers false pretences to be hereinafter more partic- ularly described, to sell and dispose of as a genuine gold watch, to tlie said C. D., a certain watch of base and spurious metal], unlawfully, knowingly, and designedly did falsely pretend to said C. D., that the said watch which he the said A. B, then and there had was a gold watch [and that he the said A. B. did thereupon etiect a sale of the said watch to the said C. D. for several half notes with her. At the conclusion of the case for the crown counsel for the prisoner submitted that the indictment could not be maintained, as the pretence must be of an existing fact, and here the goods had been obtained upon a promise to send the other halves. Counsel for the crown said that there was evidence to sustain the count laid that she had the coi-responding lialves in her custody. The case was left to the jury, who found tlie traverser guilty. The learned judge (Lawson, J.) then stated a case for the court, the (juestiou being, '• if the court should be of opinion that the evidence sustained that count of the indictment which alleged a pretence that she luul the half notes in lier custody, the conviction to be affirmed ; if not, the conviction to be (juashed." The con- viction was affirmed by the Irish court for crown cases reserved. R. v. Murphy, 13 Cox, C. C. 298 (187G). (o) This indictment is based generally on that in Com. v. Strain, 10 Met. 521, the allegations in brackets being introduced. " The case at bar," said the court, " if confined in its proof, on the trial by tlie jury, to the mere allegations in the indictment, would be certainly quite bald. The indictment does not allege any bargain, nor any eoUoipium as to a bargain for a watch ; nor any proposition of Blake to buy, or of the defendant to sell a watch ; nor any delivery of the watch, as to which the false pretences were made, into the possession of Blake, as a consideration for the money he paid the dei'endant. " Jt seems to us, that where money or other property is obtained by a sale or exchange of i)ro})erty, effected by means of false pretences, such sale or ex- change ought to be set forth in the indictment ; and that the false pretences should be alleged to have been made with a view to effect such sale or exchange, and that by reason thereof tlie party was induced to buy or. exchange, as the case may be. " Although the language of the Rev. Sts. ch. 12C, § 32, is very broad, yet all will agree that, in its practical application, the false declaration must be made to a party who has an interest in the matter, and is aifected injuriously by the falsehood. We go further, however, and hold that in a case like the present, where the alleged false pretences were injurious only by inducing another person to buy the article as to wjiich such false representations were made, such sale or offer for sale must be set out as part of the facts relied upon, and as a material allegation in the description of the offence. '' Upon the whole matter, the court arc of opinion that this indictment does not plainly and distinctly set forth the offence intended to be charged ; that it does not contain an averment of those material facts which the government would be bound to prove, before they could ask for a conviction ; and that, for tliis cause, the judgment should be arrested." 564 FALSE PRETENCES. (557a) the sum of, etc., of the money and property of the said C. D., he the said C. D. being induced to purchase said watch by the false pretence above mentioned], by means whereof, said A. B. then and there unlawfully, knowingly, and designedly did ob- tain from said C. D. the said {setting forth the money obtained)^ of the money and property of him the said C. D. as aforesaid, with intent him the said C. D. then and there to cheat and de- fraud of the same; Avhereas, in truth and in fact, said watch was not then and there a gold watch, but was a watch of base and spurious metal ; and said A. B. then and there well knew that the same was not a gold watch, but was a watch of base and spurious metal as aforesaid ; to the great damage and de- ception of him the said C. D., against, etc., and contrary, etc. {Conclude as in book 1, chapter 3.) (557a) Pretence that a chain was of gold.{p) The jurors for, etc., upon their oath present, that J. A., on, etc., unlawfully, knowingly, and designedly did falsely pretend to one T. W., that a certain Albert chain which he the said J. A. then asked the said T. W. to buy from him the said J. A., was of fifteen-carat gold, and that he the said J. A. was tben a draper, and that the said chain had been made expressly for him the said J. A. ; by means of which false pretences the said J. A. did then unlawfully obtain from the said T. W. a certain 8um of money, to wit, £5, and a certain other Albert chain of the value of 7s. ChL, with intent to defraud; whereas, in truth and in fact, the said Albert chain which he the said J. A. then asked the said T. W. to buy from him the said J. A., as afore- said, was not of fifteen-carat gold ; and whereas, in truth and in fact, he the said J. A. was not then a draper ; and whereas, in truth and in fact, the said chain had not been made expressly for him the said J. A., as he the said J. A. well knew at the time when he did so falsely pretend as aforesaid; against, etc. {Conclude as in book 1, chapter 3.) {p) Sustained, R. v. Ardley, 12 Cox, C. C. 23 ; L. R. 1 C. C. 301 ; WIi. Cr. L. 8th ed. § 1157. 565 (559) OFFENCES AGAINST PROPERTY. (558) Obtaining money by means of a false warranty of the iveight of goods, [q) That A. B., late of B., in the county of S., trader, on the first day of June in the j-ear of our Lord at B. aforesaid, in the county aforesaid, unhiwfully, knowingly, and designedly did falsely pretend to C. D. that a certain quantity of coals, which the said A. B. then and there delivered to the said C. D., weighed one ton and ten hundred weight, and that the said coals were then and there worth the sum of fifteen dollars; b3' means of which said false pretences the said A. B. did then and there un- lawfully, knowingly, and designedly obtain from the said C. D. the sum of fifteen dollars, of the money of the said C. D., with intent then and there to cheat and defraud the said C. D. of the same. Whereas, in truth and in fact, the said coals did not weigh one ton and ten hundred weight ; and whereas, in truth and in fact, the said coals were not worth the sum of fifteen dollars ; and whereas, in truth and in fixct, the said coals weighed only one ton and five hundred weight, and were not worth more than twelve dollars, as the said A. B. then and there well knew ; con- trary to the form of the statute in sucli case made and provided. (559) Obtaining money by a false warranty of goods.{r) That A. B., late of B. in the county of S., trader, on the first day of June, in the year of our Lord at B. aforesaid in the county aforesaid, unlawfully, knowingly, and designedly did falsely pretend to C. D., that a watch then and there produced by the said A. B., and offered for sale to the said C. D., was a silver watch, and was then and there of the value of fifty dollars ; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and designedly obtain from the said C. D. the sum of fifty dollars, of the money of the said 0. D., with intent tiien and there to cheat and defraud the said [(]) " AUhough it was formerly supposed that such a case as this was not a false pretence within the statute, it is quite clear that it is ; and there never was, in fact, any express decision to the contrary ; the supposed case of R. o. Read (7 C. & P. 848), on which such a notion was founded, never having been con- sidered by the judges." Lord Denman, C. J., in R. v. Ilaniilton, 9 Ad. & El. N. S. 271 ; 2 Cox, C. C. 11. See Wh. Cr. L. 8th ed. §§ 11«1, etc. (?■) R. v. Ball, C. & M. 249. But see note to 557, supra. 566 FALSE PRETENCES. (559a) C. D. of the same. Whereas, in truth and in fact, the said watch was not a silver watch, nor was the same then and there of the value of fifty dollars, as the said A. B then and there well knew ; contrary to the form of the statute in such case made and provided, etc. (559a) Pretence that a certain brick-field was good and profitable. That E., etc., on, etc., at, etc., entered into negotiation with B. for the letting by the said E. and the hiring by the said B. of a certain field belonging to E., and referred to as "the ten acre field ;" and that E., etc., intending to cheat and defraud, etc., on, etc., did unlawfully, knowingly, and designedly, falsely pretend to the said B., that the said field then was a good and profitable brick-field, that the said E. had made a profit of £400 upon a certain clump of bricks then standing in the said field, and which had all been made from the earth of the said field mixed with marsh mud; that one B., who was then upon the said field, was then willing and desirous to hire the said field from him the said E.; that the earth of the said field, when mixed with marsh mud, was then capable of yielding bricks as good as those in the said clump, and that he, the said E., had then recently been carrying on a profitable business by the manufac- ture of bricks from the earth of the said field mixed with marsh mud. By means of which said false pretences the said E. did then and there, with intent to defraud, unlawfully, knowingly, and fraudulently obtain of and from the said B., a certain valu- able security, to wit, an agreement signed by the said B., in the words and figures following, that is to say {setting oat an agree- ment by E. to give a lease of the brick-field^ and by -S., to accept the same with all usual covenants for brick-Jleld, macldnery^ and plant), the machinery and plant at the yearly rent of £100, and £5 per acre surface rent, and Is. M. per thousand for all bricks moulded, four millions to be made each year or paid for, and as many more at l.s. Sd. per thousand as B. chooses; the rent to be paid quarterly, commencing on, etc., B. taking posses- sion at once; the term to be seven years. Whereas, in truth and in fact, the said field was not then a good or profitable brick-field ; and whereas, in truth and fact, the said E. had not made a profit of £400, as he so falsely pretended as aforesaid, 567 (560) OFFENCES AGAINST PROPERTY. upon the said clump of bricks then standing and being in the said field ; and whereas, the said bricks in the said clump of bricks standing in the said field had not been all made from the earth of the said field mixed with marsh mud ; and whereas, the said B., who was upon the said field when the said E. so falsely pretended as aforesaid, was not then willing or desirous to hire the said field from him the said E. ; and whereas the earth of the said field, when mixed with marsh mud, was not then, as the said E. knew, capable of yielding bricks as good as those in said clump; and whereas, the said E. had not then recently been carrying on a profitable business by the manufacture of bricks from the earth of the said field, mixed with marsh mud, as he so falsely pretended as aforesaid.(s) {Conclude as in hook 1, chapter 3.) (560) Falsely pretending that goods were of a 'particular quality. {i) The jurors, etc., upon their oath present, that A. B., late of B., in the county of S., trader, at the time of the making of the false pretences by him hereinafter mentioned, had in his posses- sion and ottered for sale divers pounds weight of cheese of little value and of inferior quality ; and also had in his possession divers pieces of cheese called " tasters," of good flavor, taste, and quality. And the jurors aforesaid, upon their oath aforesaid, do furtiier present, that the said A. B., being so thereof possessed, on the first day of June, in the year of our Lord at B. aforesaid, in the county aforesaid, unlawfully, knowinglj^ and designedly did falsely pretend to one C. D., that the said pieces of cheese called " tasters," which the said A. B. then and there delivered to the said C. D., were part of the cheese which the said A. B. then and there oiiered for sale, and that the said last mentioned cheese was of good and excellent quality, flavor, and taste, and that every pound weight of the said cheese so ofiered for sale by the said A. B. was of the value of twelve cents; by means of which said false pretences the said A. B. did then and there unlawfully, knowingly, and designedly obtain from the said C. D. certain money, to wit, the sum of twenty dollars, of the moneys of the said C. D., with intent then and there to cheat (.s) R. V. English, 12 Cox, C. C. 171. (<) See R. V. Abbott, 1 Den. C. C. 273 ; 2 Cox, C. C. 430; 2 C. & K. 630. 568 FALSE PRETENCES. (^61) and defraud the said C. D. of the same. Whereas, in truth and in fact, the said pieces of cheese called " tasters," which the said A. B. delivered to the said C. D., were not part of the cheese which the said A. B. offered for sale ; and whereas, in truth and in fact, the said cheese offered for sale was not of good and excellent quality, flavor, and taste; and whereas, in truth and in fact, every pound weight of the said cheese offered for sale by the said A. B. was not of the value of twelve cents, as the said A. B. then and there well knew ; contrary to the form of the statute in such case made and provided. [For an indictmejit for falsely averring ownership of jycrsoyial property, and thereby obtaining money on mortgage for same, see Com. v. Lincoln, 11 Allen, 233.] (561) Pretence that a cei-tain horse to be sold, etc., loas sound, and was the horse called '•'• Charley. '\u) That the said M., on, etc., contriving and intending knowingly and designedly by false pretences to cheat and defraud one J. L. of his moneys, goods, wares, and merchandise, and other things, did, knowingly and designedly, pretend to said L.,that a certain horse which he the said M. then wished and offered to exchange with said L. for a certain colt and Ave dollars in money, was then and there a sound horse, and was the horse called the C, the said horse called the C. being well known to said L. by true and correct representations which he had received, although he had not seen said horse called the C, etc., by which false pre- tences said M. then and there induced the said L. to exchange with and deliver to said M. his said colt and live dollars in (?/) This is the substance of an indictment sustained in ]\Iaino, in State v. Mills, 17 Me. 24. "The horse, called the Charley," said the court, " ini^jht liave had the reputation of possessing qualities, which rendereil it desirable for the party injured to become the owner of him. The defendant proiluced a horse, which he affirmed was the Cluirlei/. It was a false pretence, fraudulently made, for the purpose of procuring a colt and money from another. The attempt suc- ceeded. These facts the jury have found. It is a case literally within the stat- ute ; and we do not perceive why it is not within the mischief it was intended to punish. To sustain it would not be going further than precedents warrant. If the construction should be narrowed to cases, which might be guarded against by common prudence, the weak and imbecile, the usual victims of these pre- tences, would be left unprotected. It may not be easy to lay down any general rule, with proper qualifications and limitations ; but in the case before us, we are of opinion that the oll'ence charged has been committed." See Wh. Cr. L. 8th ed. Sii 928, 1130, 1155, 117G, 1218. ^^ 569 (562) OFFENCES AGAINST PROPERTY. money, for said horse falsely represented as aforesaid to be the C, etc., and whereas, in truth and in fact, the said horse which said M. offered to and exchanged with said L., and which he represented as a sound horse, and as the horse called the C, was not a sound horse, and was not the horse called the C, but was a diiierent horse, and unsound, and wholly worthless, etc. (562) Pretence thai a horse and phaeton wei-e the property of a lady then shortly before deceased^ and that the horse was kind, etc.{v) That T. K. the elder, etc., and S. K., etc., intending, etc., on, etc., at, etc., unlawfully, knowingly, and designedly did falsely pretend to the said Gr. W. F., that a certain carriage, to wit, a carriage called a phaeton, and a certain mare and a certain geld- ing, which they the said defendants then and there offered for sale to the said G. W. F., had then been the property of a lady then deceased, and were then the property of her sister, and were not then the property of any horse-dealer, and were then the property of a private person, and that the said mare and the said gelding were then respectively quiet to ride and drive, and quiet and tractable in every respect, ^y means of which said false pretences the said defendants did then and there unlawfully, knowingly, and designedly obtain from the said G. W. F. a cer- tain valuable security, to wit, an order for the payment of one hundred and sixty-eight pounds (being then and there the prop- erty of the said G. W. F.), with intent then and there to cheat and defraud him, the said G.W. F., of the same. "Whereas, in truth and in fact, the said carriage, the said mare, and the said gelding had not then been the property of a lady then deceased, and were not then the property of her sister; and whereas, in truth and in fact, the said carriage, the said mare, and the said gelding were the property of a horse-dealer; and whereas, in truth and in fact, the said carriage, the said mare, and the said gelding were not then the property of a private person ; and whereas, in truth and in fact, the said mare and the said gelding were not then quiet to ride and drive, and were not then quiet and tractable in every respect ; and whereas the said defendants then and there well knew that the said carriage, the said mare, {n) 11. ?'. Kenrick, 5 Q B. 49, where this count appears to be sustained. See AVh. Cr. L. Sth ed. §§ 1161, 1180, 1198. 570 FALSE PRETENCES. (564) and the said geldiiio; had not then been the property of a lady then deceased, and were not then the property of lier sister ; and also then and there well knew that the same were then the prop- erty of a horse-dealer, and that the same were not then the property of a private person, and that tiie said mare and the said gelding were not then quiet to ride and drive, and were not then quiet and tractable in every respect ; to the great dam- age and deception of the said G. W. F., to the evil example, etc., against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (533) Second count. Like the first, except that the offering for sale was alleged to have been by T. K. the elder, only. (564) Other pj'ctence as to the value and history of a horse, which the jprisoners sold to the -prosecutor. {w) The jurors, etc., upon their oath [)resent, that heretofore, to wit, at the time of the commission of the oftence hereinafter in this count mentioned, one R. J. T. was desirous of [)urchasing and providing himself with a horse which should be sound and quiet in harness ; and that J. P. B., late of the parish of St. James, Westminster, in the county of Middlesex, and within the jurisdiction of the said court, laborer, and J. P., late of the same place, laborer, well knowing the premises, and that the said R. J. T. would be ready to purchase of and from any re- spectable and responsible person such horse as aforesaid ; and that the said J. P. B. and J. P., having in their possession a certain horse, much under the value of three hundred pounds, to wit, of the value of one hundred pounds, and no more, and then being unsound; and the said J. P. B. and J. P., wickedly and fraudu- lently intending to persuade the said R. J. T. to deposit with them, the said J. P. B. and J. P., a large sum of money upon the delivery of the said horse to the said R. J. T. for. trial and approval thereof, and under color of their readiness and willing- ness to return the said money, subject to tlie deduction of fifty ])ounds, in case the said horse should not be approved of by the said R. J. T., to cheat and defraud the said R. J. T. of the same money so to be deposited as aforesaid, on the seventh day of (ic) 3 Cox, C. C. Appendix, p. xlix. 571 (564) OFFENCES AGAINST PROPERTY. September, in the year of our Lord at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said court, did produce the said horse to the said R. J. T., and did then and there unlawfully, knowinglj^ and desisrnedly falsely pretend to the said R. J. T., that the said J. P. B. then was in the wool business in the city of London ; that the said horse then belonged to a brother of the said J. P. B. then abroad ; that the said J. P. B. then had to sell the said horse for his said brother; that the said horse was then perfectly sound and quiet in harness, and had then been used to run with another horse in harness, which had been sold to a colonel. By means of which said false pretences the said J. P. B. and J. P. did then and there unlawfully, knowingly, and designedly fraudulently ob- tain of and from the said R. J. T. one piece of paper of the value of one penny, of the goods and chattels of the said R. J. T., and one order for the payment of money, to wit, for the pay- ment of the sum of three hundred pounds, and of the value of three hundred pounds, then being the property of the said R. J. T., with intent then and there to cheat and defraud him of the said goods, chattels, and order respectively, the said sum of money payable and secured by and upon the said order being then due and unsatisfied to the said R. J. T. , the proprietor of the said order; whereas, in truth and in fact, the said J. P. B. was not then in the wool trade in the city of London ; and whereas, in truth and in fact, the said horse did not belong to a brother of the said J. P. B., who was abroad ; and whereas, in truth and in fact, the said J. P. B. had not then to sell the said horse for his said supposed brother; and whereas, in truth and in fact, the said horse was not then sound or quiet in harness, and luid not then been used to run witli another horse which had been sold to a colonel ; all of which said false pretences the said J. P. B. and J. P., at the time of making thereof as afore- said, well knew to be false; to the great damage and deception of the said R, J. T., contrary to the form of the statute iu such case made and provided, and against the peace, etc. 572 FALSE PRETENCES. (565) (565) Pretence that one J. P., of the city of Washington^ wanted to buy some brandy^ etc.; thai said J. P. kept a large hotel at Washington, etc., that defendant was sent by said J. P. to purchase brandy as aforesaid, and that defendant would 'jmy cash therefor, if prosecutor would sell him the sanie.{x) First count. That A. S., late, etc., being an evil disposed person, with intent to and contriving and intending unlawfully, fraudulently, and deceitfully to cheat and defraud J. L. and P. J., copartners in trade, under the firm of J. L. and Company, of the said city and county, of their goods, wares, and merchandises, on, etc., at, etc., unlawfully, knowingly, and designedly did falsely pretend to the said J. L. and P. J., as aforesaid, that one J. P., of the city of Washington, wanted to buy some brandy, to \\\t, two half pipes of brandy, that the said J. kept a large hotel at Washing- ton City aforesaid, that he the said A. S. was sent by the said J. P. to purchase brandy as aforesaid for him (said J. P. meaning), and he the said A. S. would pay therefor in cash, if they the said J. L. and P. J. would sell him the same; by which said false pre- tences the said A. S. did then and there, to wit, on, etc., at, etc., unlawfully, knowingly, and designedly obtain from the said J. L. and P. J., as aforesaid, two half pipes of brandy, of the value of three hundred dollars, of the goods, wares, and merchandises of the said J. L. and P. J., with intent then and there to cheat and defraud them the said J. L. and P. J. of the same ; wdiereas, in truth and in fact, the said A. S. was not then sent by J. P. to purchase such brandy as aforesaid for him or any other person, and the said J. P. did not want to buy any brandy as aforesaid, and did not keep a hotel at Washington City as aforesaid, and the said A. S. did not, at the time of procuring the said brandy so as aforesaid, intend to pay for the same [insert scienter), to the great damage and deception of the said J. L. and P. J., to the (x) Com. V. Spring, Oy. & Term. City and County of Philadelphia. Sec 3 i'enn. L. J. 89. The defendant was convicted and sentence passed. The aver- ment that he intended to pay, in the ttrst two counts, would not have been alone sutlicient, but as it was connected with otiier operative pretences, and as it could be disengaged from the context as surjjlusage, it did not viti;ite the counts in which it was introduced. The omission of an averment, that the defendant knew the pretences to be at the time false, is more questionable. 573 (567) OFFENCES AGAINST PROPERTY. evil example of all others in like cases offending, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (566) Second count. That defendant icas yrquested bi/ one J. P., ivho kept a large hotel in Washington City, to -purchase some brandy for said J. P., and, that if prosecutor icoidd sell de- fendant two half pipes of brandy^ defendant ivoidd pay prose- cidor cash for the same shortly after delivery. That the said A. S., being such person as aforesaid, with in- tent to and contriving and intending unlawfull}', fraudulently, and deceitfully to ciieat and defraud the said J. L. and P. J., copartners as aforesaid, of their goods, wares, and merchandises, on, etc., at, etc., unlawfully, knowingly, and designedly did falsely pretend to the said J. L. and P. J., as aforesaid, that lie, the said A. S., was requested by one J. P., who kept a large hotel in Washington City, to purchase some brandy for him, said P. ; and tliat if they, the said J. L. and P. J., would sell him, said A. S., two half pipes of brandy, he the said A. S. would pay for the same in cash shortly after delivery thereof; by which said false pretences the said A. S. did then and there, to wit, on the day and year last aforementioned, within the jurisdiction of the said court, unlawfully, knowingly, and designedly obtain from the said J. L. and P. J., as aforesaid, two half pipes of brandy, of value of three hundred dollars, of the goods, wares, and merchan- dises of the said J, L. and P. J., with intent then and there to cheat and defraud them, the said J. L. and P. J., of the same; whereas, in truth and in fact, the said A. S. was not requested by J, P. to purchase brandy for him, said P., and said P. did not keep a hotel in Washington City, and the said A. S. did not, at the time of procuring the said brandy as aforesaid, intend to pay for the same as aforesaid {insert scienter) ; to the great damage and deception of the said J. L. and P. J., to the evil example of all others in like case offending, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (667) Third count. That defendant had been requested by one J. P. to purchase for hini some brandy^ that he {the said J. P.) kepi a large hotel in Washington, etc. That the said A. S., being such person as aforesaid, with in- 574 FALSE PRETENCES. (567a) tent to and contriving and intending unlawfully, fradulently, and deceitfully to cheat and defraud the said J. L. and P. J., copart- ners as aforesaid, of their goods, wares, and merchandises, on the thirteenth day of July, in the year of our Lord one thousand eight hundred and forty-two, with force and arms, at the city and county aforesaid, and within the jurisdiction of the said court, unlawfully, knowingly, and designedly did falsely pretend to the said J. L. and P. J., as aforesaid, that he (the said A. S.) was requested by one J. P. to purchase for him some brandy, and that he (the said P.) kept a large hotel at Washington ; by which said false pretences the said A. S. did then and there, to wit, oij the day and year last aforementioned, at the city and county aforesaid, and within the jurisdiction of the said court, unlaw- fully, knowingly, and designedly obtain from the said J. L. and P. J., as aforesaid, two half pipes of brandy, of the value of three hundred dollars, of the goods, wares, and merchandises of the said J. L. and P. J., with intent then and there to cheat and defraud them, the said J. L. and P. J., of the same ; whereas, in truth and in fact, the said A. S. was not requested by the said J. P. to purchase any brandy for him, and the said P. did not keep a hotel at Washington {insert scienter)^ to the great damage and deception of the said J. L. and P. J., to the evil example of all others in like cases offending, against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (567a) Pretence that defendant was a large dealer in 'potatoes. The jurors for, etc., upon their oath present, that W. C, on, etc., at, etc., unlawfully, knowingly, and designedly did falsely pretend to one J. G. that he, the said W. C, then was a dealer in potatoes, and as such dealer in potatoes then was in a large way of business, and that he, the said W. C, then was in posi- tion to do a good trade in potatoes, and that he, the said W. C, then was able to pay for large quantities of potatoes, as and when the same might be delivered to him, by means of which said false pretences the said W. C. did then unlawfully obtain from the said J. G. eight tons, fifteen hundredweights, and two quarters of potatoes, of the goods and chattels of the said J. G., with intent thereby then to defraud ; whereas, in truth and in fact, the said W. C. was not then a dealer in potatoes, and was 575 (567«) OFFENCES AGAINST PROPERTY. not then as such dealer in potatoes in a hirge way of husiness, and whereas, in truth and in fact, the said W. C. was not then in a position to do a good trade in potatoes, and whereas, in truth and in fact, the said W. C. was not then able to pay for large quantities of potatoes as and when the same should be dcdivered to him, as he, the said W. C, well knew at the time when he did so falsely pretend as aforesaid ; to the great dam- age and deception of the said J. G., to the evil example of all others in the like case offending, against, etc. {Conclude as in book 1, chapter 3.) • Second count. And the jurors aforesaid, upon their oath aforesaid, further present, that the said W. C. afterwards, to wit, on, etc., at, etc., did incur a certain debt and liability to one J. G., to wit, a debt and liability to the amount of £82 16s. 8d., as and for the price of certain potatoes supplied to him, the said W. C, by the said J. G. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said W. C, in incurring the said debt and liability, unlawfullj', knowingly, and designedly did obtain credit from the said J. G. under false pretences, to wit, by falsely pretending to the said J. G. that he, the said W. C, then was a dealer in potatoes, and as such dealer in potatoes then was in a large way of business, and that he, the said W. C, then was in a position to do a good trade in potatoes, and that he, the said W. C, then was able to pay for large quanti- ties of potatoes as and when the same might be delivered to him, whereas, in truth and in fact, the said W. C. was not then a dealer in potatoes, and was not then as such dealer in potatoes in a large way of business, and whereas, in truth and in fact, the said W. C. was not then in a position to do a good trade in potatoes, and whereas, in truth and in fact, the said W. C. was not then able to pay for large quantities of potatoes as and when the same should be delivered to him, as he, the said W. C, well knew at the time when he did so falsely pretend as aforesaid ; to the great damage and deception of the said J. G., to the evil exam[)le of, etc.(y) {Conclude as in book 1, chapter 3.) (ij) R. V. Cooper, 13 Cox, C, C. 617. 576 FALSE PRETENCES. (568) (568) Pretence that one of the defendants ^having advanced money to the other on a deposit of certain title deeds, had, himself de- posited the deeds with a friend, and that he required a sum of money to redeem them ; with counts for conspiracy. {z) That heretofore, and before and at the time of the committing of the offence hereinafter mentioned, one C. R., acting in fraud- ulent collusion with one J. A., had retained and employed one W. J., then and still practising as an attorney at law and solici- tor in chancery, as the attorney and solicitor of the said C. R. to make application to the said J. A. for a certain debt of five hun- dred pounds, then alleged by the said C. R. to be due to him from the said J. A. And the jurors aforesaid, upon their oath afore- said, do further j^resent, that the said J. A. afterwards, and be- fore the committing of the oftence hereinafter mentioned, acting in fraudulent collusion with the said C. R.,oflered to and arranged with the said W. J., as such attorney and solicitor of the said C. R., as aforesaid, to discharge such alleged debt of five hundred pounds, and also the further sum of fifty pounds, for a certain other alleged debt upon the deeds hereinafter mentioned being delivered to the said J. A., which said deeds the said C. R., act- ing in fraudulent collusion with the said J. A., afterwards, and before the committing of the offence hereinafter mentioned, pro- posed to place in the hands of the said W. J., as the attorney and solicitor of the said C. R., for the purpose of being so delivered to the said J. A. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said C R., late of the par- ish of Saint George, Bloomsbury, in the county of Middlesex, and within the jurisdiction of the said central criminal court, laborer, and the said J. A., late of the same place, laborer, devising and contriving, and wickedly combining and intending to deceive the said W. J. in the premises, and to obtain from the said W. J. the said sum of five hundred pounds, and to cheat and defraud hira of the same, afterwards, to wit, on the first day of July, in the year of our Lord at the parish of Saint George, Blooms- bury, aforesaid, in the county aforesaid, and within the jurisdic- tion of the said central criminal court, unlawfully, knowingly, (2) 4 Cox, C. C. Appendix, p. xli. VOL. I.— 37 577 (568) OFFENCES AGAINST PROPERTY. and designedly did falsely pretend to the said W. J., that the said J. A. was then really and truly indebted to the said C. R. in the said sum of five hundred pounds, for money lent by the said C. R. to the said J. A. ; that the said J. A. had then de- posited with the said C. R. certain deeds relating to the property of the wife of the said J. A., for the purpose of securing payment of the said sum of five hundred pounds to the said C. R., but that the said C. R. afterwards had deposited such deeds with a friend of the said C. R., who had then advanced money upon the secu- rity of the same deeds to the said C. R., and then held the said deeds as such security as last aforesaid ; that the said C. R. then wanted the said sum of five hundred pounds from the said W. J., for the purpose of recovering possession of the said deeds, and to enable the said C. R. to place the same in the hands of the said W. J., in order that the same might be redelivered to the said J. A. upon the payment by him to the said W. J. of the said sum of five hundred pounds, pursuant to such oflfer and arrangement in that behalf as aforesaid ; by means of which said several false pretences, they the said C. R. and J. A. then and there, to wit, on the day and year aforesaid, and within the juris- diction of the said central criminal court, unlawfully, know- ingly, and designedly did fraudulently obtain of and from the said "W". J. one order for the payment of money, to wit, for the payment, and of the value of five hundred pounds, then and there being the property of the said W. J., and one piece of paper of the value of one penny, of the goods and chattels of the said W. J., with intent then and there to cheat and defraud him of the same property, goods, and chattels ; and whereas, in truth and in fact, the said J. A. was not then really and truly indebted to the said C.R. in the said sum of five hundred pounds, as the said C. R. and J. A. so falsely pretended as aforesaid, either for money lent or any cause whatsoever. And whereas, in truth and in fact, the said J. A. had not then deposited with the said C. R. certain deeds relating to the property of the wife of the said J. A., for the purpose of securing payment of the said sum of five hundred pounds to the said C. R., as the said C. R. and J. A. so falsely pretended as aforesaid, or of any sum of money whatever. And whereas, in truth and in fact, the said C. R. had not then depos- ited any such deeds as the said C. R. and J. A. so falsely pre- 578 FALSE PRETENCES. (568) tended as aforesaid, with any friend of the said C. R., who had then advanced money upon the security of such deeds to the said C. R., or with any person whatsoever ; nor did any such friend of the said C. R., as the said C. R. and J. A. so falsely pretended as aforesaid, then hold such deed as a security for any money advanced to the said C. R., as the said C. R. and J. A. so falsely pretended as aforesaid. And whereas, in truth and in fact, the said C. R. did not then want the said sum of five hundred pounds from the said W. J. for the purpose of recovering possession of any such deeds as the said C. R. and J. A. so falsely pretended as aforesaid, or to enable the said C. R. to place such deeds in the hands of the said W. J. in order that the same might be re- delivered to the said J. A. upon the payment by him to tbe said W. J. of the said sum of five hundred pounds, pursuant to such otfer and arrangement in that behalf as aforesaid. And whereas, in truth and in fact, the said alleged debt, and the said supposed deeds had no existence whatsoever, but were pretended to have existence by the said C. R. and J. A. as aforesaid, for the pur- pose of deceiving, cheating, and defrauding the said W. J. in manner aforesaid, and for no other purpose whatever; to the great injury and deception of the said W. J., to the evil and per- nicious example of all other persons in the like case oflending, against the peace, etc., and contrary to the form of the statute in such case made and provided. Second count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said C. R. and J. A., devising and contriving, and wickedly combining and intending to deceive the said W. J., and to obtain from the said W. J. the said sura of five hundred pounds, and to cheat and defraud him of the same, afterwards, to wit, on the said first day of July, in the year of our Lord at the parish of St. George, Bloomsbury, aforesaid, in the county of Middlesex aforesaid, and within the jurisdiction of the said central criminal court, unlawfully, knowingly, and designedly did falsely pretend to the said W. J., that the said J. A. had before then deposited with the said C. R. certain deeds relating to the property of the wife of the said J. A., as a se- curity for the payment to the said C. R. of the sum of five 579 (568) OFFENCES AGAINST PROPERTY. hundred pounds ; that the said C. R. had afterwards deposited such deeds with a friend of the said C. R., who had then ad- vanced money to the said C. R. upon the security of the said deeds, and then held such deeds as such security as last afore- said ; and that the said C. R. then required the sum of five hundred pounds for the purpose of recovering possession of the said deeds; by means of which said several false pretences in this count mentioned, the said C. R. and J. A. did then and there unlawfully, knowingly, and designedly fraudulently obtain of and from the said W. J. one order for the payment of money, to wit, for the payment of the sum of five hundred pounds, then and there being of the value of five hundred pounds, and the property of the said W. J., and one piece of paper of the value of one penny, of the goods and chattels of the said W. J., with intent then and there to cheat and defraud the said W. J. of the said goods and chattels and property ; whereas, in truth and in fact, the said J. A. had not deposited with the said C. R. such deeds relating to the property of the wife of the said J. A., as the said C. R. and J. A. so falsely pretended, as in this count mentioned. And whereas, in truth and in fact, the said C. R. had not deposited such deeds with any friend of the said C. R., as the said C. R. and J. A. so falsely pretended, as in this count mentioned. And whereas, in truth and in fact, no friend of the said C. R., nor any person whatsoever, had then advanced money to the said C. R. upon the security of the said deeds. And whereas, in truth and in fact, no friend of the said C. R., nor any person whatsoever, then held such deeds as any security whatsoever. And whereas, in truth and in fact, the said C. R. did not then require the said sum of five hundred pounds, or any sum of money whatsoever, for the purpose of recovering possession of such deeds, as the said C. R. and J. A. so falsely pretended as in this count mentioned. And whereas, in truth and in fact, such deeds had no existence whatsoever, but were 80 pretended by the said C. R. and J. A. to have existence as aforesaid, for the purpose of cheating and defrauding the said W. J. as aforesaid, and for no other purpose whatsoever ; to the great injury and deception of the said W. J., contrary to the form of the statute in such case made and provided, and against the peace, etc. 580 FALSE PRETENCES. (568) Third count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. A. and C. R. afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said central crimi- nal court, unlawfully and wickedly did conspire, combine, con- federate, and agree together, and with divers other evil disposed persons, whose names to the jurors aforesaid are as yet unknown, falsely and fraudulently to pretend and cause to appear to the said W. J., that the said J. A. was then indebted to the said C. R. in the sum of five hundred pounds; that the said J. A. had deposited with the said C. E,. certain deeds relating to the property of the wife of the said J. A., as a security for the pay- ment to the said C. R. of the said sum of five hundred pounds ; that the said C. R. had afterwards deposited such deeds with a friend of the said C. R., who had advanced money upon the security of the same, and by whom such deeds were then held ; that the said J. A. was desirous of discharo-ino; the said debt due from him to the said C- R., upon the redelivery to the said J. A. of the said deeds, but that the said C. R. was then unable to procure the redelivery to him of the said deeds, for want of money to pay such money so advanced to him upon the security of the same, and to induce and persuade the said W. J., by means of the several false representations aforesaid, and upon the faith and confidence that such deeds really existed, and upon the promise and assurance of the said C. R. that he would deposit the said deeds with the said W. J., for the purpose of delivering the same to the said J. A., and receiving from the said J. A. such debt of five hundred pounds, so to be pretended to be due from the said J. A. to the said C. R., to obtain from the said W. J. divers of the moneys of the said W. J., amount- ing to the sum of five hundred pounds, for the pretended pur- pose of obtaining such deeds from such friend of the said C. R., and to cheat and defraud the said W. J. of the same, and mutu- ally to aid and assist one another in carrying out and putting into execution the said unlawful and wicked combination, con- spiracy, confederation, and agreement; whereas, in truth and in fact, no such deeds as in this count mentioned then or ever had 581 (569) OFFENCES AGAINST PROPERTY. any existence whatsoever ; to the great injury and deception of the said W. J., and against the peace, etc. Fourth count. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. A. and C. R. afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, and within the jurisdiction of the said central crimi- nal court, unlawfully and wickedly did conspire, combine, con- federate, and agree together, and with divers other evil disposed persons, whose names to the jurors aforesaid are as yet unknown, by divers false pretences, and by divers false, artful, indirect, deceitful, and fraudulent means, devices, arts, stratagems, and contrivances, to obtain and acquire into their hands and posses- sion of and from the said W. J., divers of his moneys, amount- ing to a large sum, to wit, the sum of five hundred pounds, and to cheat and defraud him of the same, to the great injury and deception of the said W. J., against the peace, etc., and contrary to the form of the statute, etc. (569) For jpretending to an attesting justice and a recruiting sergeant that defendant was not an apprentice, and thereby obtaining money to enlist.{a) That on, etc., one D. K., then being a sergeant in the invalid battalion of the royal regiment of artillery of our said lady the queen, then and long before was a person in due manner ap- pointed and authorized to enlist persons to serve our said lady the queen as soldiers in the corps of royal military artificers and laborers, and that one S. D. had then lately before enlisted with the said D. K., to serve our said lady the queen as a soldier in the said corps of, etc., and the said S.D., on, etc., at, etc., in order to be attested, pursuant to the statute in that case made and provided, did in his proper person appear before H. L., esquire, then being one of the justices of our said lady the queen, as- signed, etc. And the jurors, etc., do further present, that the said (a) Dickinson's Q. S. 6th ed. 335 (c) ; 1 Stark. C. P. 474. See 8 Vict. cc. 8, 9, and annual mutiny acts; also R. v. Jones, 1 Leach, C. C. 174. The indentures must be proved by a subscribing witness, if produced (lb.) ; for the guilt of the offence is constituted by the actual and legal binding. 582 FALSE PRETENCES. (^"0) S. D., late of, etc., being an evil disposed person, and contriving and intending to cheat and defraud the said D. K. of his moneys, and to make it be believed that he the said S. D. was at liberty and eligible to be enlisted, to serve our said lady the queen as a soldier in the corps of, etc., on, etc., with force and arms, at, etc., aforesaid, unlawfully, knowingly, and designedly, did falsely pre- tend to the said H. L. (he the said H. L. then and there being such justice as aforesaid, and then and there having sufficient and competent power and authority to attest persons to serve our said lady the queen as soldiers in the said corps of, etc.), that the said S. D. was not then an apprentice (meaning that the said S.D. then and there, to wit, on, etc., at, etc., when he so appeared before the said H. L., the justice aforesaid, in order to be attested as aforesaid, was not an apprentice, and that he the said S. D. was then and there at liberty and eligible to be enlisted to serve our said lady the queen as a soldier in the said corps), by means of which said false pretence, he the said S.D. unlawfully, know- ingly, and designedly did obtain from the said D. K. the sum of pounds, of the proper moneys of the said D. K., with in- tent to cheat and defraud the said D. K of the same ; whereas, in truth and in fact, the said S. D., on, etc., at, etc., aforesaid, at the time when he so appeared before the said H. L., the justice aforesaid, in 'order to be attested as aforesaid, was an apprentice, and was not at liberty and eligible to be enlisted to serve our said lady the queen as a soldier in the said corps ; and whereas, in truth and in fact, the said S. D. was then, to wit, on, etc., an apprentice to G. 0. ; and whereas, in truth and in fact, the said S. D. was not then, to wit, on, etc., at, etc., at liberty and eligible to be enlisted to serve our said lady the queen as a soldier in the said corps {insert scienter), against, etc., and against, etc. {Con- clude as in book 1, chapter 3.) (570) For obtaining more than the sum due for carriage of a parcel by producing a false ticket.{b) That A. B., late of, etc., on, etc., at, etc., had in his custody and possession a certain parcel, to be by him delivered to Maria (ft) This was the indiotment in R. v. Douglass (1 Campb. 212). nnd it was held, upon the terms of 30 Geo. II. c. 42, that a basket is suiheiently described as a, parcel. It was also held, that if money (as in this case) be obtained from 583 (571) OFFENCES AGAINST PROPERTY. Countess Dowager of Ilchester, upon the delivery of which he was authorized and directed to receive and take the sum of six shillings and sixpence, and no more, for the carriage and porter- age of the same ; yet, that the said A. B. produced and delivered to T. H.jthen being a servant to the said Countess of I., the said parcel, together with a certain false and counterfeit ticket, made to denote that the sum of nine shillings and tenpence was charged for the carriage and porterage of the said parcel, and unlawfully, knowingly, and designedly did falsely pretend to the said T. H., that the said false and counterfeit ticket was a just and true ticket, and that the said sum of nine shillings and tenpence had been charged and was due and payable for the carriage and por- terage of the said parcel, and that he the said A. B. was author- ized and directed to receive and take the said sum of nine shil- lings and tenpence for the carriage and porterage of the said parcel, by means of which said false pretences defendant did unlawfully, knowingly, and designedly obtain, of and from the said T. H., the sum of three shillings and fourpence, of the moneys of the said countess, with intent to cheat and defraud her of the same, whereas, in truth and in fact, etc. {Negative the pretences^ and conclude as before.') (571) Pretences that defendant had no note protested for non-pay- ment, that he was solvent, and worth from nine to ten thousand dollars.{c) That C. H., late, etc., being a person of an evil disposition, ill-name and fame, and of dishonest conversation, and devising the servant, who had money of his master in hand at the time, it might be well laid to be the property of the latter ; but if he had not money enough of his em- ployer in his hands at the time, such master cannot be stated to be the person defrauded. (c) People V. Haynes, 14 Wend. 546. In this case ultimately there was a new trial given by the court of errors, on the ground that where a purchase of merchandise is made, the goods selected, put in a box, and the name of the pur- chaser and his place of residence marked thereon, and the box containing the goods sent by the vendor and put on board a steamboat designated by the pur- chaser, to be forwarded to his residence, the sale is coinplete, and the goods be- come the jn-operty of the purchaser. It was further ruled that, where after such deliveri/, the vendor, on receiving information inducing him to suspect the solvency of the purchaser, expressed an intention to reclaim the goods, and the purchaser thereupon made representations in respect to his ability to pay, by means of which the vendor abandoned his in- tention, and the purchaser was then indicted, charged with the ofi'ence of having obtained the goods by false pretences, the representations made by him being 584 FALSE PRETENCES. (571) and intending, by unlawful ways and means, to obtain and get into his hands and possession the moneys, valuable things, goods, alleged as false pretences, the sale being complete before the representations were made, the defendant could not be considered guilty of the crime charged against him. The above were the only points adjudged in the decision of the case ; the court declining to pass upon the other questions presented by the bill of excep- tion. Those questions are : 1. Whether, admitting the representations made by the defendant to have been made previous to the completion of the sale, and that thereby the vendors were induced to give him credit, such representations can properly be considered false pretences within the meaning of the statute; and 2. Whether when, as in this case, several pretences are alleged to have been made, and are averred to be false, the public prosecutor is bound to prove all the pre- tences to be false, or whether it is sufficient for less than all to be false, provided that enough be proved to authorize the jury to say that those proved had so ma- terial an effect in procuring the credit, or in inducing the delivery of the pro- perty, that without the influence of such pretences upon the mind of the party defrauded, he would not have given the credit or parted with the property. Conclusions arrived at by the chancellor, in the opinion delivered by him in the court of errors : — "A bill of exception cannot be presented in a criminal case, to review the charge of the court, or the finding of the jury upon mere matters of fact, where there has been no erroneous decision upon matters of laiv. " Whether it is competent for a court to grant a new trial in a case of felony, at the instance of the defendant, where there has been a palpable misdiscretion of the court upon the mere matters of fact, or a verdict clearly against the weight of evidence without such misdiscretion, where no erroneous decision in point of law is made, qucere. " It is not necessary to constitute the offence of obtaining goods by false pre- tences that the owner should have been induced to part with his property solely and entirely by pretences which were false. If the jury are satisfied that the pretences proved to have been false and fraudulent were a part of the moving causes, inducing the owner to part with his property, and that the defendant would not have obtained the goods, had not the false pretences been superadded to statements which may have been true, or to other circumstances having a partial influence upon the mind of the owner, they will be justified in finding the defendant guilty of the offence charged witliin the letter as well as within the spirit of the act. "In the present case, although all the pretences stated in the indictment, as those upon the strength of which the goods were obtained, are charged to be false ; still, if either of them was in fact false, was intended to deceive the own- ers of the goods, and induce them to part with their property, and produced that effect, the indictment was sustained ; one false pretence is sufficient to constitute the crime, although other false pretences are charged. "To constitute the offence of obtaining goods by false pretences, it is not necessary that any false token should be used, or that the false pretences should be such as that ordinary care and common prudence were not sufficient to guard against the deception. "The offence consists in intentionally and fraudulently inducing the owner to part with his goods or other things of value, either by a wilful falsehood, or by the offender assuming a character he does not sustain, or by representing him- self to be in a station which he knows he does not occupy. " As to the ownership of tlie goods at the time of the making of the repre- sentations, the chancellor was of opinion, that the delivery of the property on board of the steamboat, for the purpose for wliich it was delivered, divested the vendors not only of the possession, but of the title to the goods ; — that they, 585 (571) OFFENCES AGAINST PROPERTY. chattels, personal property, and effects of the honest and g;ood people of the state of !N'ew York, to maintain his idle and profli- gate course of life, on, etc., at, etc., with intent feloniously to cheat and defraud F. S. C, C. A., and J. H. S., then and there copartners in business, under the firm of C, A., and Co., did then and there feloniously, unlawfully, knowingly, and design- edly falsely pretend and represent to C. A., being such copartner, that he, the said C. H., had then no note protested for non-pay- ment, that he was then solvent and worth from nine to ten thousand dollars after the payment of all his debts, that he was perfectly easy in his money concerns, that he had no indorser, and that he had never indorsed more than one note. And the however, had the right of stoppage in transitu in case of the insolvency of the purchaser ; but that to reinvest themselves with the right of property and pos- session of the goods, they were bound to take corporal possession of them, or to give notice to the carrier not to deliver them to the purchaser, or to do some other equivalent act. Not having done so, the property in the goods was in the defendant, and consequently he did not obtain the possession or deliver^/ of them by means of the false pretences stated in the indictment; and although he pro- bably by his false representations prevented the vendors from exercising the right of stoppage in transitu, still he could not be convicted of the charge of obtaining the goods by false pretences ; for which reason, and that alone, he was of opinion that the judgment of the supreme court ought to be revised.'" Conclusions arrived at by Senator Tracy, in the opinion delivered by him : — "The delivery on board the steamboat under the circumstances of the case, was an absolute delivery, and vested in the purchaser not only the possession but the title to the goods ; and even if the vendors had the right of stoppage in transitu, in case of insolvency of the purchaser, the existence of that right did not render the delivery conditional, nor could the exercise of it divest the pur- chaser of the ownership of the goods. The representations relied on as false pretences being subsequent to such delivery, if they could be considered us false pretences, would not therefore subject the defendant to the charge of obtaining the goods by false pretences. " Where there are several pretences alleged in the indictment to be false, all must be proved to be false. The offence consists of two distinct elements, to wit, false pretences, and obtaining goods of another. All the pretences together con- stitute but one portion of the oifence ; and every pretence, therefore, set forth and alleged to be false, is a substantive or constituent element of the offence, and cannot be deemed immaterial ; the petit jury can convict only upon the pretences found by the grand jury, as it cannot be known that they would have found the bill true, unless it had been proved before them that all the pretences found to have been made, had in fact been made and falsely made. "The words other false pretence, in the statute, considered in connection with the other terms used, and the circumstances under which the statute 30 Geo. II. was passed, upon which ours is founded, meant not a bare naked lie, unaccom- panied with any artful contrivance fitted to deceive, although intentionally and fraudulently told, with the purpose of obtaining the property of another ; but they mean an artfully contrived story, which would naturally have the effect upon the mind of the person addressed, equivalent to n false token or false icrit- ing — an ingenious contrivance, an unusual artifice, against which common sagacity and the exercise of ordinary caution is not a sufficient guard." 586 FALSE PRETENCES. (571) said C. A. then and there believing the said false pretences and representations, so made as aforesaid by the said C. H., and being deceived thereby, was induced, by reason of the false pre- tences and representations so made as aforesaid, to deliver, and did then and there deliver, to the said C. H. five pieces of gros de nap, of the value of thirty dollars for each piece; two pieces of gros de swiss, of the value of eighty dollars each piece ; one piece of bombazine, of the value of sixty-four dollars ; nine dozen of belt ribbons, of the value of three dollars and fifty cents each dozen ; two pieces of black silk velvet, of the value of thirty dollars each piece; one piece of silk, of the value of one hundred dollars ; eight pieces of satin levantine, of the value of fifteen dollars each piece ; four pieces of figured vestings, of the value of fifteen dollars each piece; of the proper valuable things, goods, chattels, and eftects of the said F. S. C, C. A., and J. H. S., and the said C. H. did then and there designedly re- ceive and obtain the said goods, chattels, and effects, of the said F. S. C, C. A., and J. H. S.,of the proper valuable things, goods? chattels, and effects of the said F. S. C, C. A., and J. H. S., by means of the false pretences and representations aforesaid, and with intent feloniously to cheat and defraud the said F. S. C, C. A., and J. H. S. of the said goods, chattels, and eflfects ; whereas, in truth and in fact, the said C. H. at that time had a note protested for non-payment ; and whereas, in truth and in fact, the said C. H. was then insolvent and unable to pay his debts; and whereas, in truth and in fact, the said C. H. was not then easy in his money concerns, but on the contrary thereof, greatly embarrassed in his affairs ; and whereas, in truth and in fact, the said C. H. had indorsers ; and whereas, in truth and in fact, the said C. H. was at that time an indorser for persons to the jurors unknown; and whereas, in fact and truth, the pre- tences and representations so madesas aforesaid, by the said C. H. to the said C. A., was and were in all respects utterly false and untrue, to wit, on the day and year last aforesaid, at the ward, city, and county aforesaid ; and whereas, in fact and in truth, the said C. II. well knew the said pretences and represen- tations, so by him made as aforesaid to the said C. A., to be utterly false and untrue at the time of making the same. 587 (572) OFFENCES AGAINST PROPERTY. And 80 the jurors aforesaid, on their oath aforesaid, do say, that the said C. H., by means of the false pretences aforesaid, on, etc., at, etc., feloniously, unlawfully, falsely, knowingly, and designedly did receive and obtain from the said F. S. C, C. A., and J. H. S. the said goods, chattels, and effects, of the proper valuable things, goods, chattels, and effects of the said F. S. C, C. A., and J. H. S., with intent feloniously to cheat and defraud them of the same, against, etc., and against, etc. {Conclude as in hook 1, chapter 3.) (572) Obtaining acceptances on drafts, hy pretence that certain goods had been purchased by defendant and were about to be shipped to prosecutor. That S. M., late, etc., wickedly devising and intending to cheat and defraud W. C. Jr., and P. P. G., copartners, trading under the firm of C. and G., of their goods, chattels, moneys, and properties, on, etc., at, etc , did request and solicit them the said W. and P., trading as aforesaid, to accept certain drafts or bills of exchange drawn by him the said S. M. on them the said C. and G., for the sura of three thousand dollars each, both dated Philadelphia, May twenty-sixth, one thousand eight hundred and forty-seven, one payable forty days after date, the other payable sixty days after date, and both being drawn to the order of him the said S. ; and as the inducement for them the said W. and P., trading as aforesaid, to accept the said drafts or bills of exchange, he the said S. did then and there unlawfully, and fraudulently, and designedly pretend to the said W. C. Jr., then and there being copartner as aforesaid, that he the said S. M. had purchased and had in Pittsburg, ready for shipment, nineteen thousand barrels of flour, and about fifty thousand bushels of wheat, rye, corn, and oats ; and that if he the said AY. 0. Jr., partner as aforesaid, would accept the said two drafts above de- scribed, he the said S. would go out to Pittsburg and ship them, the said C. and G., two thousand barrels of flour to cover the said two drafts, and that he the said S. had already ordered to be shipped them the said C. and G. one thousand barrels of flour, to cover a certain other draft or bill of exchange then before drawn by the said S. on the said C. and G., for the sum of six thousand three hundred and seventy-nine dollars and seventy- 588 FALSE PRETENCES. (S'^2) six cents, and duly accepted by the said C. and G., and then remaining unpaid ; whereas, in truth and fact, he the said S. had not purchased, and had not in Pittsburg ready for shipment, nine- teen thousand barrels of flour, and about fifty thousand bushels of wheat, rye, corn, and oats, and he the said S. did not intend to go out to Pittsburg and ship to them the said C. and G. two thousand barrels of flour, to cover the said two drafts of three thousand dollars each, then asked to be accepted, and he the said S. had not ordered to be shipped to said C. and G. one thousand barrels of flour, to cover and secure the payment of the said other draft of six thousand three hundred and seventy-nine dollars and seventy-six cents, drawn by the said S. as aforesaid, and he the said S. then and there well knew the said pretence and pretences to be false and fraudulent ; by color and means of which said false pretence and pretences, he the said S. did then and there unlawfully and with intent to cheat and defraud them, the said C. and G., procure and obtain the acceptance of the said firm of C. and G. from the said W. C. Jr., then and there being partner as aforesaid, to and upon the said two drafts of three thousand dollars each, by the writing of the name of the said C. and G, on the face of the said drafts, which said drafts respectively are of the tenor and effect following, to wit : — " Dollars 3000. Philadelphia, May 26, 1847. " Forty days after date please pay to my own order three thou- sand dollars, and charge the same to account of, Yours, etc., S. M." "To Messrs. C. and G., Philadelphia." [Accepted — C. and G.] " Dollars 3000. Philadelphia, May 26, 1847. " Sixty days after date please pay to my own order three thou- sand dollars, and charge the same to account of, Yours, etc., S. M." "To Messrs. C. and G., Philadelphia." [Accepted — C. and G.] being then and there the said two drafts, of the value of six thousand dollars. And the inquest aforesaid do further present, that afterwards, to wit, on, etc., the said S. M., the said drafts being so accepted by the said C. and G., indorsed the same in blank, and that afterwards, to wit, at the respective dates and 589 (573) OFFENCES AGAINST PKOPERTY. times when the said drafts so accepted became due and payable according to the tenor thereof respectively, they, the said C. and G., by reason of the said acceptances, were obliged to pay the amounts thereof, and did pay the sum of six thousand dollars in cash, being then and there the moneys of the said W. C. Jr., and P. P. G., trading as C. and G., to the great damage of them the said C. and G., contrary, etc., and against, etc. {Conclude as in book 1, chai)ter 3.) (573) Obtaining acceptances by the 'pretence that defendants had certain goods in storage subject to prosecutor^ s order.{d) That J. J. M., late, etc., with intent to and contriving and in- tending unlawfully, fraudulently, designedly, and deceitfully to cheat and defraud 0. P. P. and W. T. E., who at the time here- inafter mentioned, to wit, on the ninth day of June, in the year of our Lord one thousand eight hundred and forty-five, were co- partners in trade, under the firm of P. and E., of the said city and county, on, etc., at, etc., did falsely, unlawfully, knowingly, and designedly pretend and state to the said 0. P. P. and W. T. E., then copartners as aforesaid, that he the said J. J. M. and a certain D. E. T., then copartners in trade, under the firm of T. and M., of the city of New York, then had received from cer- tain persons trading together, under the firm of S. and S., on storage, in certain warehouses of the said firm of said T. and M., in the said city of Kew York, numbered 24, 26, 28, and 30 Leonard street, twenty-two hundred barrels of cistern sugars, and they the said J. J. M. and D. E. T., copartners as aforesaid, had agreed to hold the same subject to the order of the said firm of S. and S., and that the said T. and M. then had and held the same twenty-two hundred barrels of cistern sugars in the ware- houses aforesaid, and the said J. J. M. did then and there execute a certain paper writing, in the words and figures following, to wit : " Philadelphia, June 9th, 1845, received from Messrs. S. and S., on storage in our warehouses, at Nos. 24, 26, 28, and 30 Leonard street, New York, twenty-two hundred barrels of cistern sugars, which we agree to hold subject to their order. T. and [d) This count was drawn by eminent counsel in Philadelphia, in 1847. The defendant was acquitted. 590 FALSE PRETENCES. (574) M." And the said firm of S. and S. did then and there indorse the said paper writing with the following indorsement : " Deliver the within to the order of Messrs. P. and E. S. and S." And the said J. J. M. did then and there deliver to the said 0. P. P. and W. T. E., copartners as aforesaid, the said paper writing ; whereas, in truth and in fact, the said J. J. M. and D. E. T., co- partners as aforesaid, had not received the said twenty-two hun- dred barrels of cistern sugars in the said warehouses, nor had they the said twenty-two hundred barrels of cistern sugars in said warehouses, nor had they any such warehouses as the said J. J. M. did then and there, to wit, on the day and year aforesaid, at the city and county aforesaid, falsely pretend and state to the said 0. P. P. and W. T. E., then copartners as aforesaid. And the inquest aforesaid, on their oaths and affirmations aforesaid, do further present and say, that the said J. J. M. did designedly, by the false pretences aforesaid, with intent to cheat and defraud the said 0. P. P. and W. T. E., under the name and firm of P. and E., then and there, to wit, on, etc., at, etc., obtain from the said 0. P. P. and W. T. E., then copartners as aforesaid, their acceptance of the following drafts or bills of exchange, drawn by the said J. J. M. and D. E. T., copartners as aforesaid, upon the said P. and E., in favor of themselves, the said T. and M., etc. {setting forth drafts as in last form), to the great damage of them the said 0. P. P. and W. T. E., copartners as aforesaid, to the evil example of all others in like cases offending, against etc., and contrary, etc. {Conclude as in hook 1, chapter 3.) {Add other counts, setting forth specially the bills obtained, etc.) (574) For receiving goods obtained by false pretences, under the English statute. {e) That A. B., late of, etc., on, etc., at, etc., unlawfully, know- ingly, and fraudulently did receive ten gold watches, of the value of one hundred pounds, of the goods and chattels of E. F., by one C. D. then lately before unlawfully, knowingly, and design- edly obtained from the said E. F. by false pretences, {f) that is to U) Dickinson's Q. S, 6th cd. 444. [/) Essential to be stated ; as also that the receiver knew them to be so un- lawfully obtained, R. v. Wilson, 2 Mood. C, C. 52. "Unlawfully taken and carried away" will not suffice, S. C. Dickinson's Q. S. 6th ed. 444. 591 (574a) OFFENCES AGAINST PROPERTt. say, by falsely pretending that he, the said C. D., was the ser- vant of one G. H., and had been sent by the said G. H. for the said watches, to be inspected by him, whereas, in truth and in fact, he, the said C. D., was not the servant of the said G. H., nor sent by him for the said watches to be inspected by him, or for any other purpose whatever; he, the said A. B., at the time he so received the said gold watches, on, etc., at, etc., then and there well knowing the same to have been so unlawfullt/ obtained by the said C. D. from the said E. F. by false pretences afore- said ; against, etc., and against, etc. {Conclude as in book 1, chapter 3.) (574«) Another form.{ g) One silver tankard (specifying thing received), of the goods and chattels of J. N., then lately before unlawfully, knowingly, and designedly obtained from the said J. N. by false pretences, unlawfully did receive and have, he, the said J. S,, at the time when he so received the said silver tankard as aforesaid, then well knowing the same to have been unlawfully, knowingly, and designedly obtained from the said J. N. by false pretences, against the form, etc. [g) Arch. C. P. 19th ed. p. 477. This is preferable to form 574, and meets more fully the requirements of R. v. Wilson, 2 Mood. C. C. 52 ; R. v. Gold- smith, L. R. 2 C. C. 74. 592 * DES-rtlOYING A VESSEL AT SEA, ETC. {^"i^) CHAPTER XI. DESTROYING A VESSEL AT SEA, ETC. (a) (575) Sinking and destroying a vessel, the parties not being owners in ■whole or in part, under the U.. S. statute. (576) Casting away a vessel with intent to prejudice the owners under the English statute. (575) Sinking and destroying a vessel^ the parties not being owners in whole or in part, under the U. S. statiite.{b) That A. B., etc., late, etc., and C. D., late, etc., at, etc., on, etc., on the high seas, out of the jurisdiction of anj particular state of the United States of America, within the admiralty and maritime jurisdiction of the United States, and within the jurisdiction of this court, they the said A. B. and C. D. then and there belonging to a certain vessel, being a called the which said was not owned in whole or in part, either jointly or severally, by them the said A. B. and C. D. or either of them, and which said was then and there the property of some person or persons to the jurors aforesaid as ^-et unknown, they the said A. B. and C. D. then and there on tlie day of aforesaid, being in and on board the said on the high seas as aforesaid, did then and there feloni- ously, wilfull}^, and corruptly cast away and destroy the said called the against, etc., and against, etc. {Conclude as in book 1, chapter 3.) Second count. {Same as first count, substituting) : " was then and there the property of then and still being citizens of the United States of America," for " was then and there the property of some person or persons to tlie jurors aforesaid as yet unknown." [a) See for prosecution for burning a vessel, etc., U. ^. v. Lockman, 1 Best. L. Rep. N. S. 151, Aug. 1848. See also Wh. Cr. L. 8th cd. §§ l^dAetseq. For consjiiracy, see infra, 639. {h) This form was used in U. S. v. Snow, in New York, in 1847, without exception being taken to it. VOL. I.— 38 593 (575) OFFENCES AGAINST PROPERTY. Third count. That A. B. and C, D., late, etc., heretofore, on, etc., the said A. B. then and there belonging, in the capacity of master [or otherwise)^ to a certain vessel, being a called the the l^roperty of a certain citizen or citizens of the United States of America, to wit, of and the said C. D. then and there belonging to the said called the in the capacity of mate (or otherwise)^ of which said they the said A. B. and C. D. were not owners, nor was either of them an owner, did then and there feloniously, wilfully, and corruptly cast away and destroy the said called the against, etc., and against, etc. {Conclude as in hook 1, chajyter 3.) Fourth count. That A. B., late, etc., and C. D,, late, etc., heretofore, etc., did then and there, in and on board of a certain vessel, being a called the the property of then and still being citizens of the United States of America, to which said they the said A. B. and C. D. then and there belonged, the said A. B. as and the said C. D. as and of which said the said A.B. and C. D. were not owners, nor was either of them an owner, feloniously, wilfully, and corruptly procure the said called the to be cast away and destroyed, against, etc., and against, etc. {Conclude as in book 1, chajyter 3.) Fifth count. That the said A. B. and the said C. D., heretofore, to wit, on, etc., did then and there, in and on board of a certain vessel, being a called the the property of a certain person or persons, being a citizen or citizens of the United States of America, to the said jurors unknown, to which said they the said A.B. and C. D. then and there belonged, and of which said the said A. B. and C. D. were not owners, nor was either of them an owner, feloniously, wilfully, and corruptly cast away and destroy the said called the against, etc., and against, etc. {Conclude as in book 1, chapter 3.) 594 DESTKOYING A VESSEL AT SEA, ETC. i^"^^) Sixth count. That the said A. B. and the said C. D., on, etc., at, etc., belonged to a certain vessel, being a called the and were then and there, in and on board the said the said A. B. in the capacity of and the said C. D. in the capacity of the said A. B. and C. D. not being owners, either in whole or in part, nor either of them being an owner, either in whole or in part, of the said but the said being then and there the property of then and still being citizens of the United States of America, and that the said A. B. and C. D. so being then and there on the high seas as aforesaid, in and on board of the said as aforesaid, did then and there with force and arms, feloniously, wilfully, and corruptly make a certain hole, of the width of inches, and of the depth of in and through the said by means of and through which said hole, so made as aforesaid, the sea entered, filled, and sunk the said and the said A. B. and C. D. did then and there, by the means aforesaid, feloniously, wilfully, and corruptly destroy said against, etc., and against, etc. {Con- clude as in book 1, cliapter 3.) Seventh count. {Same as sixth county substituting): '■• the said being then and there the property of a certain person or persons, being a citizen or citizens of the said United States, to the said jurors unkuown,"/or " the said being then and there the property of then and still being citizens of the United States of America." Eighth count. {Same as sixth count, substituting) : " feloniously, wilfully, and corruptly procure a certain hole, of the width of inches, and of the depth of to be made in and through the star- board side (or otherwise) of the said by means of and through which said hole, so made as aforesaid, the sea entered, filled, and sunk the said and so the said A. B. and C. D. did then and there, by the means last aforesaid, feloniously, wilfnllj^ and corruptly procure the said to be cast away and destroyed," for " feloniously, wilfully, and corruptly make a certain hole, of 595 (576a) OFFENCES AGAINST PROPERTY. the width of inches, and of the depth of in and through the said by means of and through which said hole, so made as aforesaid, the sea entered, filled, and sunk the said and the said A. B. and CD. did then and there, by the means afore- said, feloniously, wilfully, and corruptly destroy said ." {For final count, see ante, 17, 18, 181 n., 239 n.) (576) Casting away a vessel vnth intent to prejudice the oicners, under the English statute.{c) That E. L., late, etc., a certain vessel called the D., the prop- erty of A. H. and others, on a certain voyage upon the high seas then being, then and there, upon the high seas, within the jurisdiction of the admiralty of England, and within the juris- diction of the central criminal court, feloniously, unlawfully, and maliciously did cast away and destroy, with intent to prejudice the said A. H. and another, being part owners of the said vessel, against the form of the statute, etc. And further, etc., that P. M., etc., before the said felony was committed in form aforesaid, at London, aforesaid, and within the jurisdiction of the said central criminal court, did feloniously and maliciously incite, move, aid, counsel, hire, and command the said E. L. the said felony, in manner and form aforesaid, to do and commit, against, etc. {Conclude as in hook 1, chapter 3.) (576rt) Another form. That J. S., on, etc., at, etc., on board a certain ship, called the the property of J. N"., on a certain voyage upon the high seas, then being upon the high seas, feloniously, unlaw- fully, and maliciously did set fire to the said ship, with intent (f) R. V. Wallace, 1 C. & M. 113. The statute 1 Vict. c. 89, s. G, enacts, that "whosoever shall unlawfully and maliciously set fire to, or in any wise destroy any ship or vessel, whether the same be complete or in an unfinished state, or shall unlawfully and maliciously set fire to, cast away, or in any wise destroy any ship or vessel, with intent thereby to prejudice any owner or part owner of such ship or vessel, or of any goods on board the same, or of any person that hath underwritten or shall under- write any policy of insurance upon such ship or vessel, or the freight thereof, or upon anv goods on board the same, shall be guilty of felony," etc. The 11th section of the same statute enacts, that "in the case of every felony punishable under this act, every principal in the second degree, and every accessary before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by this act punishable," etc. 596 DESTROYING A VESSEL AT SEA, ETC. (olQb) thereby to prejudice the said J. N., the owner {o?^ part owner), of the said ship ; {or one E. H., the owner of certain goods, being laden and being on board the said ship ; 07^ one E. F., who had before then underwritten a certain policy of assurance on the said ship, which said policy was then in full force and operation), against, etc.(<'0 (5766) Setting jire to ship^ under English statute. That J. S., on, etc., at, etc., feloniously, unlawfully, and mali- ciously did set fire to a certain ship called, etc., the property of J. !N"., against, etc.(<') {(i) Arch. C. p. 19th ed. 565; referring to R. v. Smith, 4 C. & P. 569; R. V. Bowver, [d. 559. ' (e) Arch. C. P. 19th ed. p. 564. 597 EI^D OF VOL. 1. CO en LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES v^^ ^.§ -5 ^«)jnV3iO'^ ^.I/OJIIVDJO'^ 'f lOFCAUFOJ?/ '^ lLiS^§ s^-Zo\g - ^ fi! 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